Imaging Personal Hard Drives Before Any Claims are Filed

A Defendant brought a motion to forensically image the Plaintiff’s “personal computing devices” before a cross complaint had been filed.  The motion was denied.  Han v. Futurewei Techs., Inc., 2011 U.S. Dist. LEXIS 104538 (S.D. Cal. Sept. 15, 2011.

The case was originally filed in California state court and removed to Federal Court.  The Defendant sought leave to file a cross-claim for the removal and copying of files from her company issued computer.  Han, at *2-3.

The Plaintiff claimed that when she was asked to return her company issued computer, she “cleaned up the hard drive and removed incidental personal files, as well as copied several files under an assumption she would receive a new computer.”  The Plaintiff claimed she did not know she was going to be terminated. Han, at *5.

The Defendant sought expedited discovery to image the Plaintiff’s personal computing devices with the following protocol:

1. The inspection and copying of the Plaintiff’s personal computing devices will be conducted by Defendants’ forensic expert.

2. The Plaintiff will provide any and all personal computers and external storage devices that were used by the Plaintiff or anyone acting on her behalf during her employment with the Defendant (“the devices”) to the Defendant’s expert by no later than the close of business on a date to be determined by the Court.

3. The Defendant’s expert will image and return the devices as expeditiously as possible. Plaintiff will leave the devices in the custody of the Defense expert for the time period necessary to image the devices . . . . A copy of the imaged devices will be provided to Plaintiff’s computer forensic firm, at Plaintiff’s expense.

4. All parties agree that Defendants, their counsel, and other representatives of Defendants, excluding the Defense expert, will not access the devices or ESI [electronically stored information],  except . . . pursuant to Court order.

5. The Defense expert’s imaging will capture all data and ESI contained on the devices, including, but not limited to, active files, deleted files, and the unallocated drive space. 

6. The Defense expert will analyze the devices to determine the presence of the Defendants files or data.

7. On a date to be determined by the Court, Plaintiff’s counsel will provide a list of search terms to the Defense expert containing the names of any and all individuals with whom Plaintiff may have had attorney-client privileged communications. Any documents containing these search terms will not be disclosed to Defendants. Instead, the identified documents will be placed on a privilege log, and the log will be provided to counsel for the Defendant.

8. Following the complete analysis of the computer, findings will be reported to Defendants.

9. The Defense expert and its representatives agree that they will not divulge any of the contents of Plaintiff’s Confidential Material to defense counsel, Defendants, or their representatives.

10. If  the Defense expert has questions regarding whether any particular information is Confidential Material, Huron will communicate with both Plaintiff and defense counsel jointly via conference call in regard to any such questions.

11. The Defense expert shall destroy all data and images regarding this matter in its possession within five business days after being notified in writing or electronic mail by counsel for each party that the case has been resolved or finally adjudicated.

Han, at *3-5.

The Plaintiff objected on the grounds the protocol entrusted the “Defendants alone to determine what is privileged or relevant, and denies Plaintiff’s counsel reciprocity to the data sought or the laptop that sparked the [counterclaim].” Han, at *5.

Moreover, the Plaintiff argued that her personal computer contained long list of privileged information, including attorney-client communications, online banking information, and correspondence with family.  Han, at *5-6.

The Plaintiff proposed the following protocol:

1. Plaintiff will provide counsel for Defendant a list of all relevant documents on the Plaintiff’s personal computer as determined by Plaintiff’s Certified Forensic Computer Examiner. Relevant documents will be defined as those copied or otherwise transferred as alleged in Defendant’s Motion for Leave to Amend Pleadings, Docket item [15].

2. Plaintiff will provide counsel for Defendant a copy on cd of all such documents retrieved by Plaintiff’s Certified Forensic Computer Examiner.

3. Plaintiff will have her Certified Forensic Computer Examiner work with Defendant’s forensic computer examiner on any further protocols needed, and Defendant will have its Certified Forensic Examiner work with Plaintiff’s forensic computer examiner on any further protocols needed.

4. Plaintiff, her counsel, and her Certified Forensic Computer Examiner are not to otherwise copy, forward, disclose, disseminate, sell, license, lease, transfer, make any use of, attempt to disclose or use, access or dispose of any of Huawei’s confidential, proprietary or trade secret information, specifically including any information that Plaintiff downloaded or copied that is not publicly available, without first filing with the magistrate [judge] under seal a request to do so. This prohibition shall not apply to Han making her personal computer(s) or external storage devices available for forensic review by Defendants as agreed by the parties or otherwise ordered by the court. This prohibition shall also not prevent Plaintiff from defending any allegations by Defendant against her as related to the proposed Counterclaim filed as Docket item [15].

Han, at *6-7.

Compelled Imaging of Hard Drives

The Court recounted established precedent that inspecting certain ESI raises “issues of confidentiality or privacy.”  Han, at *8.

Federal Rule of Civil Procedure Rule 34(a) was not intended “to create a routine right of direct access to a party’s electronic information system, although such access might be justified in some circumstances.” Han, at *8, citing Fed. R. Civ. P. 34 Advisory Comm. Notes, 2006 Amendment.

The Court recognized the “undue intrusiveness” from forensically examining a party’s hard drive. Moreover, Courts have a duty to guard against such examinations.  Han, at *8-9.  As the Court cited:

“[C]ompelled forensic imaging is not appropriate in all cases, and courts must consider the significant interests implicated by forensic imaging before ordering such procedures.”

Han, at *9, citing John B. v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008).

The Court first held the Defendant’s discovery request was premature, having no relevance on the claims in the case, thus not within the scope of Federal Rule of Civil Procedure Rule 26(b)(1). Han, at *9.

The fact the parties were in litigation did not give the Defendant the “unfettered right to seek whatever it wishes” from the Plaintiff.  Han, at *9. As such, the information the Defendant sought would not be relevant unless the Court first allowed the Defendant to assert a counterclaim.  Id.

The Court further expounded on the premature nature of the examination request, because the Defendant had not demonstrated that mirror imaging was either necessary, justified or cited any authority for their protocol.  Han, at *10-11.

The Court noted the Defendant failed to offer anything to establish the Plaintiff was wrongfully in possession of confidential information.  Han, at *11.  Moreover, the Defendant had not established the Plaintiff’s “wiping” of files from her work computer was either improper or malicious.  Id.

As the Court stated:

Although Huawei attempts to place Han’s alleged actions under a cloud of suspicion, it has not provided an expert declaration or any other evidence supporting a conclusion that Han was doing anything other than what any conscientious employee would do when asked to return a company-issued computer. Huawei has provided no evidence or argument demonstrating the alleged copying, removal, and deletion of files was at all unusual or unexpected. It is perfectly conceivable that Han was “cleaning up” her laptop by, for example, deleting personal emails or files, deleting files no longer needed, or copying important files for placement on the new work laptop she expected to receive. Additionally, Huawei has not provided any employment agreements or work policies prohibiting the transfer or deletion of company files from one computer to another. Huawei simply assumes that because files were copied, transferred, and deleted, Han was necessarily engaged in nefarious conduct. Such an unsupported assumption does not entitle Huawei or its expert to unlimited access to Han’s personal computing devices.

Han, at *11-12.

The Court further explained that the Defendant’s collection protocol would encompass “non-responsive, irrelevant, and privileged information.”  Han, at *12. The Court recognized the Defendant was seeking any possible company confidential information that the Plaintiff might have had, but there were less burdensome ways to find the information, such as requests for production or interrogatories.  Id.

The Court stated that the Defendant’s proposed protocol would subject the Plaintiff’s confidential information to be needlessly examined.  Han, at *13.  Moreover, case law allowing mirror images of hard drives involve inconsistent or incomplete discovery responses, something that was not present in this case.  Han, at *13-14.

The Court found that the Plaintiff’s proposed collection protocol was reasonable, following the convention that the responding party determines what is “relevant, responsive, and protected by privilege or privacy interests.”  Han, at *15.

Bow Tie Thoughts

The compelled mirror image of a personal computer, to be done under the control of the requesting party, is as invasive as a strip search.  The examination literally exposes everything about a person, from banking history to tax information to emails sent on a dating site.  Such invasion flies in the face of discovery requirements preventing “oppressive” or “burdensome” questioning, let alone state constitutional privacy rights.

Courts are the guardians against such discovery practices.  While there are times when appropriate to mirror image a hard drive, the requesting party does not then march over the producing party like a conquered army from ancient times.  The producing party has the right to review for relevance, responsiveness and assert any privileges.  The requesting party claiming, “don’t worry, trust us” is simply not acceptable to protect an individual’s privacy interests.

Dueling Definitions of “Interception” in Wiretap Violations

A Plaintiff sued her former employer alleging violations of the Federal Wiretap Act, the Indiana Wiretap Act and the Stored Communication Act. The facts at issue involved the Plaintiff’s email and banking passwords being recorded by keylogger software on a company computer, allowing the Defendants to access the Plaintiffs email and banking information. Rene v. G.F. Fishers, Inc., 2011 U.S. Dist. LEXIS 105202 (S.D. Ind. Sept. 16, 2011).

The Defendants brought a motion to dismiss, which was granted on the Federal Wiretap cause of action, but denied on the state and Stored Communication Act causes of action. Rene, at *18.

Federal Wiretap Act

The Federal Wiretap Act makes it a crime to intercept electronic communication and also allows for civil damages for an interception. Rene, at *5.

The Federal Wiretap Act defines “intercept” as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” Rene, at *5, citing 18 U.S.C. § 2510(4). The interception must be “contemporaneously with the communication.” Id.

The Court held that the capturing of keystrokes was not enough for a violation of the Federal Wiretap Act. Rene, at *5. Specifically, keystrokes are not an “electronic communication” under the statute, because the transmission is internally within a computer and not affecting interstate commerce. Rene, at *6-7. As such, the cause of action failed.

The state wiretap act was a different story.

Indiana Wiretap Act

The Indiana Wiretap Act creates a cause of action when anyone’s “communications are intercepted, disclosed, or used in violation of this article.” Rene, at *10.

Furthermore, the state wiretap act defined “interception” as “the intentional recording or acquisition of the contents of an electronic communication by a person other than a sender or receiver of that communication, without the consent of the sender or receiver, by means of any instrument, device, or equipment under this article.” Rene, at *10, Ind. Code 35-33.5-1-5.

As the Court noted, “[T]hese definitions are hardly identical.” Rene, at *11.

Moreover, the Indiana statute did not require the communication be transmitted on a system affecting interstate commerce. Rene, at *11.

As the Court explained:

Yet a critical phrase is absent from the IWA — while the FWA requires that a communication be transmitted by a system “affecting interstate or foreign commerce,” the IWA does not include this restriction. This Court’s holding that Rene’s FWA claim fails turns on this important phrase. Absent this phrase, the transmitting system at issue — the cord between keyboard and computer — may satisfy the system requirements for an “electronic communication” under the FWA. Likewise, the system at issue may satisfy the requirements for “electronic communication” under the IWA. Thus, even if the federal requirement of “contemporaneous interception” is grafted on to the statute, the clear absence of this phrase would change the applicable standard for an “interception” under the IWA. While the FWA requires that the interception occur contemporaneously with transmission by a system affecting interstate commerce, the IWA appears to merely require that the interception occur contemporaneously with transmission by a system. For this reason, even if, as the Defendants’ claim, interpretation of the IWA follows federal case law as far as the text allows, Rene’s IWA claim survives.

Rene, at *11-12.

Stored Communications Act

The Defendants claimed the Stored Communication Act cause of action for accessing the Plaintiff’s email failed, because the email messages accessed were not in “electronic storage.” Rene, at *13.

The Stored Communications Act (“SCA”) prohibits “intentionally accessing without authorization a facility through which an electronic communication service is provided,” and accessing an “electronic communication while it is in electronic storage.” Rene, at *13, citing 18 U.S.C. § 2701(a).

“Electronic storage” is as “any temporary, intermediate storage of a[n] . . . electronic communication incidental to the electronic transmission thereof,” and “any storage of such communication by an electronic communication service for purposes of backup protection of such communication.” Rene, at *13, citing 18 USC § 2510(17)(A) and 18 USC § 2510(17)(B).

The Defendants argued that regardless of whether email messages were opened or not, the messages were not in “electronic storage.” Rene, at *13-14.

The Court avoided wading too deep into the issue of whether open email messages are in “electronic storage.” The Court stated that “at a minimum email messages that have reached the addressee’s inbox, but which have yet to be opened by the addressee, are in “temporary, intermediate storage.” Rene, at *14-15. The Court specifically found:

Insofar as an email message waiting to be downloaded had yet to travel the channel between server and local computer, it remained in temporary, intermediate storage incident to transmission. Similarly, inasmuch as an email waiting in an inbox has yet to be accessed by the addressee, even though it may be kept after viewing only on the regional server, it too has yet to travel to its ultimate destination.

Rene, at *16.

The Court found the Plaintiff had alleged enough for her SCA claim to survive with her claims the Defendants had made unauthorized access to her email. Rene, at *17-18.

Bow Tie Thoughts

Privacy, and personal communications being disclosed, is an ever-growing battleground in Court. The fact two different definitions of “interception” can result in one cause of action surviving where another fails is telling of the complexity of these cases.

The 25-year-old Stored Communication Act excels at causes lawyers and judges to engage in Cirque du Soleil style mental acrobatics. The issue of whether or note “electronic storage” includes open webmail messages results in courts analyzing 21^st Century email technology to a statute passed in 1986. These issues will continue to be litigated and Congress may ultimately update the Stored Communication Act to reflect the advances in technology.

Social Networking in Wrongful Termination Cases

“Tweets” and “status comments” on social networking sites appear in lawsuits of all shapes and sizes. Wrongful termination cases are certainly no exception to this growing trend.

In Smizer v. Cmty. Mennonite Early Learning Ctr., the Plaintiff claimed he was the subject of gender discrimination, because he was terminated for being tardy and having a messy classroom. Smizer v. Cmty. Mennonite Early Learning Ctr., 2011 U.S. Dist. LEXIS 102212, at *1-2 (N.D. Ill. Sept. 7, 2011).

The Defendant claimed the reason for the Plaintiff’s termination was because of “a troubling Facebook posting” the Plaintiff made about the Defendant’s employees. Id.

The Plaintiff sought certain discovery regarding female employees tardiness and lack of classroom cleanliness to show these were “not reasonable bases for firing him while his female counterparts remained employed.” Smizer, at *2.

The Defendant claimed this discovery was irrelevant, because no female employee was terminated for a Facebook status message, thus there were no similarly situated female employees.  Id.

The Court disagreed, allowing discovery of female employee timecards and classroom cleanliness.  Smizer, at *2-3. The Court stated:

Rule 26 of the Federal Rules of Civil Procedure makes clear that at the discovery stage, information requested must be “reasonably calculated to lead to the discovery of admissible evidence.” While CMELC claims now that Smizer’s Facebook posting was the sole cause of his termination, Smizer has provided the Court with ample documentation from within CMELC indicating that CMELC claimed at various other times that there were other reasons for his termination, including his tardiness and lack of cleanliness. By raising these other justifications, CMELC opened itself up to related discovery if for no other reason than that “a shifting justification for an employment action can itself be circumstantial evidence of an unlawful motive.” Chaney v. Plainfield Healthcare Center, 612 F.3d 908, 916 (7th Cir. 2010). Because CMELC’s various justifications for firing Smizer may therefore be admissible at trial, evidence about the validity of those justifications may also be relevant. At least some of Smizer’s requests are therefore reasonably calculated to lead to the discovery of admissible evidence.

Smizer, at *2-3.

In Dollman v. Mast Industries Inc., the Plaintiff sought to introduce at trial a status comment of her former manager that the manager was not getting sufficient sleep because of an unlawful activity.  Dollman v. Mast Indus., 2011 U.S. Dist. LEXIS 99802, 10-12 (S.D.N.Y. Sept. 6, 2011)

The manager denied making the status comment, claiming that her former boyfriend made the comment on her profile after hacking her account. Dollman, at *11.

The Court quickly fired multiple torpedoes to sink admitting the status comment at trial.  First, the Court found the message to have “no possible relevance.” Dollman, at *12. Secondly, the Court found the message could be classified as “banter.”  Third, even if the message was true, admitting it would unfairly prejudice the Defendant, embarrass the manager and “draw the jury’s attention away from the probative facts.”  Id.

Bow Tie Thoughts

In one of the above cases, a party tried to use social media as a shield against further discovery; in the other, a sword to attack a witness’ credibility.

Courts have always been the guardians of the justice system to ensure the truth is discovered in a lawsuit.  This duty has become more complex with litigants living their lives on social networking sites. Courts will continue to evaluate what is reasonably calculated to lead to the discovery of admissible evidence and what is nothing more than a prejudicial distraction from the merits of a case.

Attorneys & Volunteering: Investing in the Future

Americans are very good at volunteering to help others.  There is no shortage of this virtue among lawyers and legal professionals, as seen in legal aid societies and pro bono programs.

I began coaching a high school mock trial team in Santa Clara County as part of the statewide competition last year.  This involved teaching how to develop a case theme, cross-examination a witness and make a closing argument.  It also involved teaching a few life skills, like how to polish shoes and tie a tie.  Yes, my team wore matching bow ties for the young men and scarves for the young women (Thank you Beau Ties Ltd of Vermont).

The Constitutional Rights Foundation organizes the program where high school students compete in a fictional criminal trial based on relevant legal issues to youth. Local counties organize and host competitions for their high school districts that determine who advance to the next round of competition.  The students learn the basics of how a trial works, rules of evidence, witness examination, opening statements and closing arguments.

The 2011 case focused on First Amendment issues over an anti-cyber-bullying law and assault.  The fact pattern included computer forensics issues of computer log-ins and tracking IP addresses to prove the cyber-bullying.

The members of the Santa Clara County Bar Association turn out in force to support the actual “mock trials,” which are held on each Tuesday and Thursday in February.  One the first night of competition, over 150 attorneys volunteered to score the competing teams.  Moreover, 25 judges volunteered over 3.5 hours of their time after a full day of hearing cases to preside over a fictional case with high school students.

2011 saw e-Discovery service providers sponsor the event for the first time in Santa Clara County.  I contacted friends at Lexis Nexis, Access Data and kCura Corporation who all did not blink at the idea of donating to help cover the competition costs.  The “can do” attitude of everyone at these companies to support positive opportunities for youth is extremely admirable.

Lexis was gracious enough to help my team with several downloads of CaseMap for the students to outline their cases and arguments. They were also kind enough to send all the students “Evolution” t-shirts from Legal Tech.

kCura Corporation was one of the top three sponsors of the competition. kCura was honored for their support with one of the semi-final courtrooms named in their honor.  Their generosity was a wonderful example supporting youth programs.

The support of Access Data, Lexis Nexis and kCura allowed the Santa Clara County mock trial tournament to meet all of its operational costs, a fact not lost on local attorneys.

Across California, high students are preparing for the 2012 mock trial case being released on Thursday, September 15.  Once again, students will work extremely hard to learn the elements of a trial. As always, attorneys will be there to help.

Volunteering is not easy, given monthly billable hour requirements, the demands of the practice of law and simply trying to live a balanced life. However, many of these competing high school seniors will one day be young attorneys within a decade.  Finding time to score one night of competition in your county, help a friend teach students how to make objections or even coach a team, is a long term investment in the practice of law.

Surprise Videos & Initial Disclosures

A Defendant in an SEC case offered video exhibits for trial.  The SEC objected, citing that the videos were not included in the Defendant’s Rule 26(a) initial disclosures and should be excluded under Rule 37(c)(1).  United States SEC v. Big Apple Consulting USA, Inc., 2011 U.S. Dist. LEXIS 99352, 6-8 (M.D. Fla. Sept. 2, 2011).

The Defendant argued the failure to disclose the videos was “harmless or substantially justified” under Federal Rule of Civil Procedure Rule 37(c)(1).  Big Apple Consulting USA, Inc., at *2, 6.

Courts consider five factors to determine whether the failure to make Rule 26 disclosures were substantially justified or harmless:

(1) The surprise to the party against whom the evidence would be offered;

(2) The ability of that party to cure the surprise;

(3) The extent to which allowing the evidence would disrupt the trial;

(4) The importance of the evidence; and

(5) The nondisclosing party’s explanation for its failure to disclose the evidence.

Big Apple Consulting USA, Inc., at *6-7.

The Court quickly held the Defendants’ failure to comply with Rule 26 was not substantially justified, because they provided “no explanation as to why they failed to disclose that they intended to introduce the videos at trial.” Big Apple Consulting USA, Inc., at *7.

Whether or not the error was harmless was one the Court could not determine, unless the videos were relevant, important and thus the SEC should have had an opportunity to conduct discovery upon the prospective exhibits, but did not because of their “surprised” nature.  Big Apple Consulting USA, Inc., at *7.

The Court found there was an opportunity to cure the use of the “surprise” exhibits.  Big Apple Consulting USA, Inc., at *7.  The Court held:

Nevertheless, investing the time and resources to cure is only appropriate if the videos are both relevant and important evidence. Therefore, the Court will give Defendants an opportunity to proffer the videos. If the Court determines that they are both relevant and important evidence, Defendants will be allowed to use the videos during trial; however, the SEC will be allowed to conduct any necessary discovery regarding the videos and will be awarded reasonable fees and costs related to such discovery.

Big Apple Consulting USA, Inc., at *7-8.

Bow Tie Thoughts

Determining ESI that can support a party’s claims or defenses is time consuming, especially if there is a large volume of data to review. Video, photos and audio files are forms of ESI a party should not forget.

A party could argue that the more relevant and important the non-disclosed ESI is to a case, the more harmful the failure to disclose the prospective trial exhibits was to the opposing party. This would logically weigh in favor of excluding the exhibits from trial.  Moreover, it is also plausible that the more harmless and unimportant the non-disclosed information is to the case would mean proposed exhibits are of little relevance to the case, which also weighs against their being admitted at trial on relevancy grounds.

The time to determine the importance and relevance of any ESI is not on the eve of trial, but at the beginning of a case.  Early Case Data Assessment software can be extremely helpful in identifying ESI for initial disclosures utilizing keywords, identifying key players, narrowing date ranges and other methodologies to determine relevant ESI that supports a party’s claims or defenses.  Trying to slug out in motion practice whether or not prospective exhibits are relevant and important is not cost or time effective.  Moreover, even if a party prevails, the opposing side would win on the cost to conduct additional discovery over the non-disclosed prospective trial exhibits.

Moral of the story: Identify early, disclose pursuant to the Rules, avoid motion practice and focus on the merits of your case at trial.

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Location Privacy Protection Act

Guest Article By Sonya Ziaja.

Ms. Ziaja is a regular contributer to Legal Match’s Law Blog and to Shark. Laser. Blawg. 

Senator Al Fraken proposed a consumer privacy geolocation bill (the Location Privacy Protection Act) earlier this term.

Unlike the bipartisan GPS Act, the bill does not attempt to grapple the Fourth Amendment question of whether law enforcement should be required to obtain a warrant before surreptitiously tracking citizens.

Rather, Franken’s bill concentrates on curbing the ability of corporations, non-government entities, and private individuals to collect and use information about where you are—or where you’ve been.

The Location Privacy Protection Act seeks to protect consumer privacy by making it presumptively illegal for non-government entities to collect your geolocation information. There are, of course, exceptions to this proposed rule. The first exception is consent. Individuals could “opt-in” to being tracked. The other main exception is for safety in emergency situations.

In order to enforce the protections in the bills, the Location Privacy Protection Act creates a private right to civil action. Individuals and State Attorney Generals could sue entities that violate the act for equitable relief as well as for statutory damages. In order to bring a suit, potential damages would have to be beyond a $2,500 threshold—in other words, the minimum amount to get out small claims courts. Successful plaintiffs would also be eligible for punitive damages and other equitable damages that the court finds appropriate.

The statute of limitation in the Location Privacy and Protection Act is modest. It is two years from the time the victim actually learned that the violation had taken place. This limitation is fair in that it serves to protect corporations from unanticipated lawsuits, and at the same time gives plaintiffs a fighting chance to pursue a claim. It is also notably different from the statue of limitations in the GPS Act which sets the two-year clock running from the time the victim could have reasonably known that the violation had taken place.

In total, the bill appears to be a fair attempt to protect consumer privacy and bring some certainty to how geolocation information can be used throughout the country.

Currently consumer geolocation information is governed by the privacy policies of companies and a patchwork of various state laws. There are also a few state court cases which are beginning to define the parameters of consumer geolocation privacy with regards to other private individuals and entities (as opposed to law enforcement). This year, for example, the California Supreme Court broadly interpreted the California Credit Card Act to prohibit companies from collecting and compiling zipcode information from costumers. (Pineda v. Williams-Sonoma, S178241 (Cal. Supreme Court; Feb. 10, 2011)). The court decision leaves open the possibility that the California Credit Card Act might also protect other information used to identify individuals, like geolocation data.