Court filing
Exhibit 4 — Brooks v. Thomson Reuters Corporation (Dkt. 159.6)
Filed February 6, 2023 in Brooks v. Thomson Reuters Corporation; one of 127 filings from this case.
Record facts
| Court | U.S. District Court for the Northern District of California |
|---|---|
| Filed | 2023-02-06 |
U.S. District Court for the Northern District of California · No. 3:21-cv-01418-EMC · Doc. 159-6 · 2023-02-06 · Docket on CourtListener
Full text
EXHIBIT 4
Case 3:21-cv-01418-EMC Document 159-6 Filed 02/06/23 Page 1 of 19
CONFIDENTIAL-Professor Jane Roberta Bambauer
Golkow Litigation Services
Page 35
1
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
2
SAN FRANCISCO DIVISION
3
- - -
4
5
CAT BROOKS and RASHEED : CASE NO. 3:21-cv-
SHABAZZ, individually and on : 1418-EMC
6
behalf of all others :
similarly situated, :
7
Plaintiffs, :
:
8
vs. :
:
9
THOMSON REUTERS CORPORATION, :
Defendant. :
10
11
- - -
CONFIDENTIAL
12
VOLUME II
Thursday, October 6, 2022
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- - -
14
15
Remote videotaped stenographic deposition of
16
PROFESSOR JANE ROBERTA BAMBAUER, conducted at the
17
location of the witness in Tucson, Arizona, commencing
18
at approximately 9:38 a.m., on the above date, before
19
Rosemary Locklear, a Registered Professional Reporter,
20
Certified Realtime Reporter and California CSR (#13969).
21
22
- - -
23
24
GOLKOW LITIGATION SERVICES
877.370.3377 ph | 971.591.5672 Fax
25
deps@golkow.com
Case 3:21-cv-01418-EMC Document 159-6 Filed 02/06/23 Page 2 of 19
CONFIDENTIAL-Professor Jane Roberta Bambauer
Golkow Litigation Services
Page 36
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APPEARANCES: (All appearances via remote technology)
2
3
GIBBS LAW GROUP, L.L.P.
BY: AMY ZEMAN, ESQUIRE
4
amz@classlawgroup.com
BY: ANDRE M. MURA, ESQUIRE
5
amm@classlawgroup.com
BY: EZEKIEL S. WALD, ESQUIRE
6
zsw@classlawgroup.com
BY: HANNE LAINE JENSEN, ESQUIRE
7
hlj@classlawgroup.com
1111 Broadway, Suite 2100
8
Oakland, California 94607
(510) 350-9721
9
Appearing on behalf of the Plaintiffs
10
11
PERKINS COIE, L.L.P.
BY: NICOLA MENALDO, ESQUIRE
12
NMenaldo@perkinscoie.com
1201 Third Avenue, Suite 4900
13
Seattle, Washington 98101
(206) 359-8000
14
and
PERKINS COIE, L.L.P.
15
BY: HAYDEN SCHOTTLAENDER, ESQUIRE
HSchottlaender@perkinscoie.com
16
500 North Akard Street, Suite 3300
Dallas, Texas 75201
17
(214) 965-7700
Appearing on behalf of the Defendant
18
19
- - -
20
21
ALSO PRESENT:
22
23
DANIEL BERMUDEZ, Video Operator
24
25
- - -
Case 3:21-cv-01418-EMC Document 159-6 Filed 02/06/23 Page 3 of 19
CONFIDENTIAL-Professor Jane Roberta Bambauer
Golkow Litigation Services
Page 70
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literature and many examples that come from literature
2
and cases that I'm aware of as well and organizing it
3
according to -- according to how typical analyses
4
traditionally come out.
5
So, you know, that there's sort of universal
6
agreement at the two endpoints and then there's a messy
7
middle. So that was my way of sort of helping around
8
the discussion.
9
Q. Are these three categories commonly used within
10
sort of the privacy scholarship field?
11
A. Not in these terms.
12
I -- usually the -- I'd say the per se
13
non-violations are often what people -- when people talk
14
about exceptions, not only in the law but just kind of
15
in a more philosophical sense, they might use something
16
like "exceptions," exceptions that would allow, you
17
know, processing without any concern for privacy. But,
18
you know -- so, again, this is -- this is my way of
19
helping to organize concepts that aren't always given
20
precise terminology.
21
Q. Are you familiar with the California Consumer
22
Privacy Act?
23
A. Yes.
24
Q. Can we refer to that as the CCPA?
25
A. Sure.
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CONFIDENTIAL-Professor Jane Roberta Bambauer
Golkow Litigation Services
Page 72
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question about the CCPA. Yeah.
2
Q. What is the gist of that specific law in
3
California?
4
A. My understanding is the gist is to provide
5
somewhat of a break or speed bump on certain types of
6
consumer tracking and behavioral advertising by giving
7
Californians some rights that they didn't have before to
8
delete or stop the disclosure of data that is often used
9
for behavioral tracking.
10
Q. Would you consider the CCPA to be an element of
11
California's privacy law?
12
A. An element of California's privacy law?
13
Q. Correct.
14
A. What do you mean by California's privacy law?
15
Q. Does California have existing law regarding
16
privacy?
17
A. Yes.
18
Q. Is the CCPA part of that?
19
A. Yes.
20
Q. Is California's privacy law more restrictive
21
than other jurisdictions?
22
A. Okay. So -- and, again, you're using it the
23
same way that the sort of sum total of law in
24
California -- that's recognized in California?
25
Q. Correct.
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CONFIDENTIAL-Professor Jane Roberta Bambauer
Golkow Litigation Services
Page 73
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A. I think that's a fair characterization, that it
2
is somewhat more restrictive than most other
3
jurisdictions.
4
Q. Going back to your three categories, what is the
5
specific example of a per se violation?
6
A. Well, so we -- so I would say accessing and
7
using data in order to create sucker lists that can be
8
used to identify people who are at heightened risk of
9
falling for a scheme or a scam. That would be the sort
10
of use of personal data that does not -- neither -- you
11
know, certainly harms the data subject and doesn't add
12
any value to any other legitimate social or societal
13
interests. I give the example in the report also of
14
up-skirt photography, sort of same, same deal.
15
And then I strongly believe that there are --
16
that everyone needs to be able to count on certain
17
realms of, you know, non- -- what's the right way to put
18
it? -- you know, non- -- realms of privacy in the sense
19
of being off the clock in terms of how society is going
20
to judge them.
21
So the home, private conversations on the phone,
22
these are contexts where it makes a lot of sense for
23
there to be per se prohibitions on unconsented, you
24
know, say wiretapping because the societal benefits that
25
might be present for any one, say, wiretap are
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CONFIDENTIAL-Professor Jane Roberta Bambauer
Golkow Litigation Services
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the -- you know, I think we -- I can agree that, in
2
general, the commissioners were thinking about this sort
3
of tripartite structure in somewhat analogous ways,
4
yeah.
5
Q. Is there a shorthand name for the Act?
6
A. I don't think so.
7
Q. It's a mouthful otherwise.
8
A. Yeah. Yeah, I know.
9
You can -- you can just -- I mean, you can say
10
the Uniform -- you know, the ULC privacy law is
11
sometimes what people say.
12
Q. Okay. Maybe in the course of this deposition,
13
if I say "Uniform Act," can we understand that I'm
14
referring to the Uniform Personal Data Protection Act?
15
A. Sounds good to me.
16
Q. Okay. It's at least a little bit shorter.
17
A. Yeah.
18
Q. Does the concept of control play any role in the
19
Uniform Act?
20
A. Well, I'm -- I -- throughout this conversation,
21
I've been thinking of control as quite similar to a
22
consent process so, in that sense, yes.
23
Q. Has the Uniform Act been enacted in any states?
24
A. It has not been enacted in any states.
25
Q. Has it been introduced in any?
Case 3:21-cv-01418-EMC Document 159-6 Filed 02/06/23 Page 7 of 19
CONFIDENTIAL-Professor Jane Roberta Bambauer
Golkow Litigation Services
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Q. And if we do a search for your name, on Page 216
2
it refers to, "So moving from my left, Jane Bambauer,
3
who teaches at the University of Arizona," et cetera,
4
and then introduces some other individuals.
5
Do you believe that's referring to you?
6
A. Yes. Let me get to the page, though.
7
216, you said?
8
Q. Correct.
9
A. Yep. Yes.
10
Q. Do you have any reason to believe this is
11
anything other than the official transcript of the FTC
12
hearing that you spoke at in 2018?
13
A. I have no reason to think that it's erroneous
14
or -- yeah, that it's anything other than that.
15
Q. Okay. And give me just a second. I may be done
16
with that. Let me check. That's all I have for that
17
exhibit.
18
Professor Bambauer, did you participate in a
19
podcast with Bill Tolson this past September?
20
A. I participated in a podcast with Bill Tolson,
21
and it could be in September. I'm just not sure when.
22
Q. Do you know whether that was an Archive 360's
23
Information Management 360 Podcast on September 7th?
24
A. That's the name of the podcast. It may have
25
been recorded earlier but --
Case 3:21-cv-01418-EMC Document 159-6 Filed 02/06/23 Page 8 of 19
CONFIDENTIAL-Professor Jane Roberta Bambauer
Golkow Litigation Services
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Q. Okay.
2
A. -- yeah.
3
Q. That makes sense. Okay.
4
And it's entered Exhibit I-5.
5
(Exhibit I-5 was marked for identification.)
6
MS. ZEMAN: If you could refresh and take a look
7
at that one. And I will pull it up on the screen as
8
well.
9
BY MS. ZEMAN:
10
Q. Professor Bambauer, do you recognize this
11
document?
12
A. I have not seen this document.
13
Q. Okay. And are you able to scroll through it a
14
little bit?
15
A. Yes.
16
Q. Are you able to identify what it appears to be?
17
A. Yes. So just going to scroll to make sure that
18
it's -- this looks like a transcript of the podcast that
19
I recorded with Bill Tolson.
20
Q. Do you have anything -- any reason to believe
21
that it's anything other than an accurate transcript of
22
that podcast?
23
A. I have no reason to think so, having never seen
24
it before, but assuming that they don't -- they wouldn't
25
have a reason to change it so...
Case 3:21-cv-01418-EMC Document 159-6 Filed 02/06/23 Page 9 of 19
CONFIDENTIAL-Professor Jane Roberta Bambauer
Golkow Litigation Services
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Q. Uh-huh. Okay. I don't have any other questions
2
about that one.
3
Did you testify before the Congressional
4
Judiciary Committee at an event entitled "GDPR and CCPA:
5
Opt-ins, Consumer Control, and the Impact on Competition
6
and Innovation"?
7
A. Yes, I did.
8
Q. Was that hearing held on March 12th of 2019?
9
A. That sounds correct.
10
Q. Did you provide written responses to the
11
committee after the hearing?
12
A. Yes, I did.
13
(Exhibit I-6 was marked for identification.)
14
BY MS. ZEMAN:
15
Q. Okay. I've just marked Exhibit I-6. If you
16
could refresh and take a look at that one.
17
A. Yes, I see it.
18
Q. Okay. And let me put it up on the share screen
19
as well.
20
Do you recognize this document?
21
A. Yes, I do.
22
Q. Are these the written responses you provided to
23
the Judiciary Committee following your testimony?
24
A. Yes, it is.
25
Q. Does this document accurately reflect your
Case 3:21-cv-01418-EMC Document 159-6 Filed 02/06/23 Page 10 of 19
CONFIDENTIAL-Professor Jane Roberta Bambauer
Golkow Litigation Services
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Q. Does it --
2
A. But I don't have a specific -- go ahead.
3
Q. No. No. Please continue.
4
A. I don't -- you know, without reviewing it, I
5
don't have a specific reason to think that I would --
6
that I have changed my mind.
7
Q. That's all the questions I have for that
8
exhibit.
9
Was your testimony during the hearing
10
videotaped?
11
A. I believe so, but I am not positive.
12
Q. Have you viewed the video of your testimony?
13
A. No.
14
MS. ZEMAN: I'd like to take a look at a video
15
posted on the Senate Judiciary Committee's website.
16
Let me see if I can make the share screen
17
technology work.
18
BY MS. ZEMAN:
19
Q. Do you see the website with the video titled
20
"Committee Hearing, Watch Video, Committee on the
21
Judiciary"?
22
A. Yes.
23
Q. Do you recognize this video?
24
A. I haven't seen the video before, I don't think.
25
MS. MENALDO: Amy, can we go off the record
Case 3:21-cv-01418-EMC Document 159-6 Filed 02/06/23 Page 11 of 19
CONFIDENTIAL-Professor Jane Roberta Bambauer
Golkow Litigation Services
Page 133
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briefly?
2
MS. ZEMAN: Sure.
3
VIDEO OPERATOR: We are off the record at 2:00
4
p.m.
5
(Discussion off the record.)
6
VIDEO OPERATOR: We are on the record at 2:03
7
p.m.
8
MS. ZEMAN: Okay.
9
BY MS. ZEMAN:
10
Q. So we are looking at the video from the
11
Judiciary Committee's website.
12
And do you see the title on the screen?
13
A. Your screen share is now not --
14
Q. Oh, sorry. You're right. My apologies. I
15
forgot to re-share.
16
A. Okay. I see the title on the screen.
17
Q. Does this appear to be video of the Judiciary
18
Committee hearing that you testified at in March of
19
2019?
20
A. So far, it does, yes.
21
MS. ZEMAN: Okay. So I am going to press play
22
on here for a second, but it's really just so that I can
23
drag the time stamp forward.
24
I would suggest that you wait to do any
25
transcribing until I stop again, although -- here we go.
Case 3:21-cv-01418-EMC Document 159-6 Filed 02/06/23 Page 12 of 19
CONFIDENTIAL-Professor Jane Roberta Bambauer
Golkow Litigation Services
Page 134
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(Video played as follows:
2
SENATOR BLACKBURN: Animus consent to include
3
Senator Grassley's statement for the record in the
4
record of these proceedings.
5
Without objection, so ordered.
6
If each of you will stand to be sworn in.
7
Do you affirm that the testimony that you're
8
about to give before this committee is the truth, the
9
whole truth, and nothing but the truth, so help you
10
God?)
11
BY MS. ZEMAN:
12
Q. Were you able to hear the audio on that?
13
A. Yes.
14
Q. Probably should have started it with that
15
question.
16
Do you recognize yourself on the screen?
17
A. Yes, I do.
18
Q. And what just happened on that clip of the
19
video?
20
A. I was getting sworn in alongside my co-panelists
21
before giving testimony.
22
Q. As best you can tell, is this the beginning --
23
sorry. I take that back.
24
MS. ZEMAN: Let me advance the video here again.
25
(Video played as follows:
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CONFIDENTIAL-Professor Jane Roberta Bambauer
Golkow Litigation Services
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SENATOR BLACKBURN: -- testimony. Professor
2
Bambauer, you're recognized.
3
PROFESSOR BAMBAUER: Chair Blackburn, Senator
4
Koons, and members of the committee, it's an honor to be
5
here, and I'm delighted that you're doing the hard work
6
of crafting a strong and sensible national privacy
7
law.")
8
BY MS. ZEMAN:
9
Q. Does that appear to be the beginning of your
10
opening remarks at the hearing?
11
A. Yes, it does.
12
Q. And you were under oath for the entirety of your
13
remarks and testimony before the hearing; correct?
14
A. I was under oath before the hearing, during the
15
hearing.
16
Q. Were you under oath from the time you -- we saw
17
you take the oath during this video to the end of the
18
hearing?
19
A. Yes.
20
Q. Okay. Do you have any reason to believe this is
21
anything other than an accurate videotape of your
22
testimony at the hearing?
23
A. I don't have any reason to believe that. Of
24
course, I haven't watched it, but that's -- you know,
25
again, I don't know why they would put up a fraudulent
Case 3:21-cv-01418-EMC Document 159-6 Filed 02/06/23 Page 14 of 19
CONFIDENTIAL-Professor Jane Roberta Bambauer
Golkow Litigation Services
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video so...
2
Q. Understood.
3
So I would like to enter Exhibit -- let me see.
4
Well, first, let me stop the share. Exhibit I-8.
5
(Exhibit I-8 was marked for identification.)
6
THE WITNESS: Whoops. Something seemed to
7
happen to my link.
8
Can you share the link again?
9
MS. ZEMAN: I can. Let me just refresh here
10
myself.
11
Okay. It should be there for you.
12
THE WITNESS: Okay. Got it.
13
I-8. Okay.
14
MS. ZEMAN: And I will just pull that up on the
15
screen. Whoops.
16
I've now put that up on the screen as a -- this
17
is a slip sheet for Exhibit I-8, which is actually the
18
native video, which is available at the URL presented on
19
this slip sheet.
20
Nicola, does that work for you for the exhibit
21
submission?
22
MS. MENALDO: It does for now. I can -- I can
23
let you know later if we need anything else on this.
24
MS. ZEMAN: Okay. I appreciate that.
25
And that's all I have for that exhibit.
Case 3:21-cv-01418-EMC Document 159-6 Filed 02/06/23 Page 15 of 19
CONFIDENTIAL-Professor Jane Roberta Bambauer
Golkow Litigation Services
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1
BY MS. ZEMAN:
2
Q. Professor Bambauer, do you recall participating
3
on a Federalist Society Practice Group podcast in 2018?
4
A. Vaguely. You'll have to give me like the topic,
5
I think, to help refresh my memory.
6
Q. Sure. The topic I have is right to be forgotten
7
on the internet.
8
Does that ring a bell?
9
A. Yes.
10
Q. And bear with me one second. A little longer
11
than a second. Sorry.
12
Okay. I just entered Exhibit I-9.
13
(Exhibit I-9 was marked for identification.)
14
MS. ZEMAN: If you could refresh and take a look
15
at that.
16
THE WITNESS: Okay.
17
MS. ZEMAN: Let me pull it up on the share
18
screen as well.
19
BY MS. ZEMAN:
20
Q. Do you see the document on the screen now titled
21
"The Right to Be Forgotten. Criminal Law & Procedure
22
Practice Group Teleforum"?
23
A. Yes.
24
Q. Do you recognize this document?
25
A. I haven't seen this document.
Case 3:21-cv-01418-EMC Document 159-6 Filed 02/06/23 Page 16 of 19
CONFIDENTIAL-Professor Jane Roberta Bambauer
Golkow Litigation Services
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1
Q. Looking through it, do you have a sense of what
2
it is?
3
A. See here. Let me just finish scrolling.
4
Yes, it -- yes.
5
Q. Does this appear to be a transcript of The
6
Federalist Society's Practice Group podcast recorded on
7
Friday, October 5th, 2018?
8
A. That looks correct. The funny thing is it says
9
"In-Person Event" but it was clearly, obviously, a
10
teleforum so I'm not sure what that means. But anyway,
11
otherwise, yes.
12
Q. Okay. And do you see testimony from yourself
13
within this document?
14
A. Yes. I mean --
15
MS. MENALDO: Objection.
16
THE WITNESS: -- I wouldn't call it testimony,
17
but I see I see -- I see it.
18
MS. ZEMAN: That's definitely a fair point.
19
THE WITNESS: Okay.
20
BY MS. ZEMAN:
21
Q. But you see dialogue or input from yourself in
22
this transcript?
23
A. Right. Yeah. I see myself in the script.
24
Q. Okay. Do you have any reason to believe this is
25
anything other than a transcript of the Federalist
Case 3:21-cv-01418-EMC Document 159-6 Filed 02/06/23 Page 17 of 19
CONFIDENTIAL-Professor Jane Roberta Bambauer
Golkow Litigation Services
Page 140
1
Society podcast that you participated in?
2
A. I have no reason to think that.
3
MS. ZEMAN: I don't have any further questions
4
about that document.
5
And I don't have any further questions today.
6
MS. MENALDO: Great.
7
If we could take a short break, and I'll let you
8
know if I have any redirect.
9
MS. ZEMAN: Sure.
10
VIDEO OPERATOR: We are off the record at 2:20
11
p.m.
12
(Recess, 2:20-2:32 p.m.)
13
VIDEO OPERATOR: We are on the record at 2:32
14
p.m.
15
EXAMINATION
16
BY MS. MENALDO:
17
Q. Professor Bambauer, you're familiar with the
18
academic and historical literature around privacy?
19
A. Yes.
20
MS. ZEMAN: Objection to form.
21
BY MS. MENALDO:
22
Q. Do you understand my question?
23
A. I think so.
24
Yes, I'm familiar with the literature.
25
Q. And you're familiar with the academic and
Case 3:21-cv-01418-EMC Document 159-6 Filed 02/06/23 Page 18 of 19
CONFIDENTIAL-Professor Jane Roberta Bambauer
Golkow Litigation Services
Page 145
1
STATE OF CALIFORNIA
)
2
COUNTY OF LOS ANGELES
)
3
I, ROSEMARY LOCKLEAR, a Certified Shorthand
4
Reporter of the State of California, duly authorized to
5
administer oaths pursuant to Section 2025 of the
6
California Code of Civil Procedure, do hereby certify
7
that
8
PROFESSOR JANE ROBERTA BAMBAUER, the witness
9
in the foregoing deposition, was by me duly remotely
10
sworn to testify the truth, the whole truth and nothing
11
but the truth in the within-entitled cause; that said
12
testimony of said witness was stenographically reported
13
by me, a disinterested person, and was thereafter
14
transcribed under my direction into typewriting and is a
15
true and correct transcription of said proceedings, to
16
the best of my ability.
17
I DO FURTHER CERTIFY that I am neither a
18
relative nor employee nor attorney nor counsel of any of
19
the parties to this action, and that I am neither a
20
relative nor employee of such attorney or counsel, and
21
that I am not financially interested in the action.
22
23
24
ROSEMARY LOCKLEAR, RPR, CRR, CSR 13969
25
Dated:
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