Tyler G. Newby

Newby is co-chair of Fenwick & West’s privacy and cybersecurity practice. After a three-year stint as a federal prosecutor in the Department of Justice’s intellectual property crime section, he returned to the firm in 2010 to expand its response to mounting client concerns in the data security realm.

“When I got back I focused on counseling and litigation involving privacy and cybersecurity disputes,” he said. “We reorganized our privacy practice.”

Newby assembled a cross-disciplinary team of lawyers alongside former industry privacy and cybersecurity officers to extend the standard range of legal, technical, forensic and compliance services.

He added another former prosecutor, Hanley Chew, a veteran of the Northern District’s computer hacking and intellectual property unit. Another key team member is Newby’s co-chair, James Koenig, who works from Fenwick’s New York office.

“We really started building out a unique practice. We have team members who are former chief privacy officers, some with audit backgrounds, who can bring deep industry experience to bear,” Newby said.

Those assets are important, he added, because they add a missing element to Fenwick’s roster.

“I’ve been a lawyer almost 20 years, but I never actually worked at a company. I have never had to implement the advice I’ve given,” Newby said. “We have deep expertise now, so that our advice isn’t just a memo that gets buried in an in-box somewhere.”

At the frontier of privacy litigation, Newby is defending the world’s second-largest mobile advertising network, India-based InMobi, accused along with other tech companies of illegally monitoring the location and activity of children to sell the data to advertisers in violation of the Children’s Online Privacy Protection Act or COPPA.

One case was filed by the New Mexico attorney general. Another is a consumer class action in the Northern District. Newby also is counseling InMobi regarding its compliance with a consent order by the Federal Trade Commission over similar issues. In October Newby and co-counsel moved to dismiss the Northern District matter, arguing to U.S. District Judge James Donato of San Francisco that collecting and using anonymous identifiers does not violate privacy law.

“These private plaintiffs are trying to bring a COPPA-like under a common law theory, but we believe there’s a COPPA preemption,” Newby said. “It’s an attack on the entire mobile app industry.” McDonald v. Kiloo ApS, 3:17-cv-4344 (N.D. Cal., filed July 31, 2017).

“There are increasingly complex state laws and foreign statutes, and even small startups have global footprints now,” Newby said. “We’re trying to anticipate what our clients’ needs will be in the coming years.”

– John Roemer