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ALERT – FTC Issues Updated Guidance for Compliance with COPPA

On June 21, 2017, the Federal Trade Commission (FTC) updated its guidance for compliance with the Children’s Online Privacy Protection Act (COPPA).  COPPA regulates websites and other online services in connection with collection of information from children under 13.  The full version of the FTC’s updated guidance is available at The FTC guidance instructs … Continue Reading

Two New Developments in Website Accessibility Cases: Nation’s First Website Accessibility Trial Verdict Is Far From a Winn for Retailers, and Hobby Lobby Is Dealt a Blow in California Decision

As numerous retailers know firsthand, website accessibility has become a hotbed for litigation in recent years. Despite plaintiffs filing scores of website accessibility claims against retailers each year, very few of these cases make it past pleadings, and there has been little to no guidance from the courts. This changed on June 13, 2017, in … Continue Reading

Sovereign Immunity Shields Native America Tribes from Fair Credit Reporting Act Liability

In 2014, Jeremy Meyers used his credit card to make purchases at the Green Bay Oneida Travel Center and Oneida One Stop retail locations, owned and operated by the federally‐recognized Oneida Indian tribe. He received electronically printed receipts that included more than the last five digits of his credit card and the card’s expiration date. … Continue Reading

Congressional Inquiries Into Facebook’s “Trending” Topics – In Context

There have been anonymous allegations, published by Gizmodo, that former Facebook “curators” had allegedly ignored Facebook’s algorithms and guidelines for its Trending topics section and suppressed links to conservative news stories. This prompted a letter to Mark Zuckerberg from Senator John Thune (R.-S.D.) seeking information about the algorithm, guidelines, enforcement of the guidelines, auditing of … Continue Reading

ALERT — President Obama Signs Defend Trade Secrets Act of 2016

Marking a sea change in the protection of US trade secrets, on May 11, President Obama signed into law S. 1890, titled the “Defend Trade Secrets Act of 2016” (DTSA), which establishes the first federal private right of action for trade secret misappropriation and opens the doors of federal courts to trade secrets litigants. In … Continue Reading

Federal Legislation Seeks to Pre-Empt State Bills Mandating Smartphone Encryption Backdoors

On February 10, 2016, Representative Ted Lieu (D-California) and Representative Blake Farenthold (R-Texas) introduced a bill into Congress that would seek to pre-empt state efforts to require smartphone manufacturers to incorporate encryption “backdoors” for law enforcement and otherwise dictate smartphone design and encryption standards. Rep. Lieu, one of only four computer science majors serving in … Continue Reading

New FCC Rules on CPNI Will Impact ISP’s and Businesses Who Rely on Internet Tracking Data

By now, most people know that in its recent Open Internet Order adopted on February 26, 2015, the FCC reclassified internet access services as common carrier “telecommunications services” subject to FCC jurisdiction under the Telecommunications Act of 1996.  The Order imposes a new regulatory framework on internet providers and, among many other things, augurs a … Continue Reading

SMS to Customers Seeking “Opt-In” for Advertisements May Violate TCPA

Customers who walked into a Bebe clothing store, purchased clothing, provided their phone numbers during the sale, and later received a text inviting them to “opt-in” to a list for additional discounts have a claim against Bebe under the Telephone Consumer Protection Act, 47 U.S.C. § 227 ( “TCPA”).  The offending message at issue read: … Continue Reading

Obama Sets Forth Privacy Initiatives to Federal Trade Commission

Yesterday, President Barack Obama addressed the Federal Trade Commission (FTC) and outlined his proposal for protecting and strengthening consumer and student personal data. President Obama called on Congress to support his initiative by passing legislation stating “this mission, protecting our information and privacy in the information age, this should not be a partisan issue.” Specifically, … Continue Reading

FTC Jurisdiction Now Includes Whether Your Data Security Protocols Are Reasonable

When it rains, it pours.  This morning I posted a piece on the Fourth Circuit’s recent decision in FTC v. Ross, WL 703739, No. 12-2340 (4th Cir. Feb. 25, 2014) as a precursor to a case before a district court in New Jersey (FTC v. Wyndham Worldwide Corporation, et. al.) on the scope of the … Continue Reading

FTC v. Ross – Nudging Closer to FTC Jurisdiction Over Internet Data Storage

Data privacy practitioners continue to wait in suspense on the decision of the District Court of New Jersey in FTC v. Wyndham regarding whether the FTC has jurisdiction to regulate the storage and security of consumer information in the Internet space, with defendants there arguing that the FTC lacks explicit jurisdiction over cyberspace matters.  Oral … Continue Reading

State Attorneys General Emerge as Enforcers for Consumer Data Privacy

A recent lawsuit brought by the California state attorneys general accusing Kaiser Permanente of unreasonable delay in revealing a 2011 data breach to affected individuals, continues a rising trend of enforcement of consumer data privacy protections laws by state attorneys general. Traditionally, consumer online and data privacy protection enforcement has been dominated by the Federal … Continue Reading

Federal Judge Certifies Massive TCPA Unsolicited Text Class Action

There has been a tremendous amount of media attention in recent days on the class certification decision in Agne v. Papa John’s International, Inc., Case No. 2:10-cv-01139.  The facts are relatively straightforward and sadly not uncommon (the decision is available here: PapaJohn’sClassCert[1]).  Plaintiff Agne (2 other plaintiffs were subsequently added but the Court did not consider … Continue Reading

Even More Doing in the World of Robocalls

I wanted to draw folks attention to a recent decision from a federal district court in West Virginia.  The case, Mey v. Pinnacle Security, LLC, 2012 WL 4009718, is significant because it grants summary judgment in favor of a defendant in a TCPA robocall class action.  The reasoning is very interesting; basically, the Court says that … Continue Reading

Consent Under the TCPA: Does Consent Attach to the Mobile Subscriber or the Number?

Consent – in various iterations – continues to be a crucial issue with most TCPA claims.  The FCC recently issued pronouncements that express consent – in writing – had to be obtained before marketing to mobile phones.  Now comes as an interesting federal appellate decision from the 7th Circuit regarding whether consent is transferable.  In … Continue Reading

IL Appellate Court Equates TCPA Statutory Damages with Punitive Damages

In a significant coverage decision, the 4th District Appellate Court recently ruled that the $500 to $1,500 statutory damages recoverable per TCPA violation are tantamount to punitive damages and thus uninsurable under IL law.  The decision is available here:  AppellateOpinion.  In Standard Mutual v. Lay, the court reasoned that the TCPA statutory damages were not … Continue Reading

Lots of Unsolicited Texting, Twitter Spam in the News Lately

Couple of interesting articles and news stories of late about the proliferation of unsolicited text messaging and Twitter’s efforts to curb spam.  Regarding the former, expect the recent media attention to result in an uptick in the number of Telephone Consumer Protection Act (TCPA) class actions filed.  An interesting aspect of the NY Times story … Continue Reading

White House’s Privacy Framework Provides Initial Guidance for Digital Stakeholders

The Obama Administration recently released its white paper proposing a new framework for online privacy protections.  This is an extremely important development as it is the first pronouncement from the White House on its views of an overarching federal privacy mandate.  For more information, please review our recent client alert discussing the New Privacy Framework. Things … Continue Reading Reversed; But Communications Decency Act Analysis Stands

The Ninth Circuit has reversed itself on the result in one of the few cases holding for liability under the Communications Decency Act – the case. The CDA provides immunity to an “interactive computer service” that does not provide content to the site. The Ninth Circuit, en banc, had previously reversed a trial court … Continue Reading

FCC to Issue New Rules for Direct Marketing Via Autodialers

While the “official” rules have not been released, the Federal Communications Commission (FCC) recently approved new rules to clarify the requirements for automatically dialed or prerecorded calls (so-called “robocalls”) and automated text messages. As I noted in this Law360 article about the new regulations, the requirements of direct marketing are a heavily regulated and often confusing … Continue Reading

Bill to Modernize TCPA Introduced in HoR

The Telephone Consumer Protection Act, 47 U.S.C. 227 (TCPA-Rules[1]), has long been the source of confusion and frustration for both consumers, marketers and brands (not to mention the source of many, many lawsuits).  Originally passed in 1991 to curb the proliferation of unwanted telemarketing calls, it was amended in 2005 to ban transmission of unsolicited fax … Continue Reading

N.D. of Ill. Judge Allows VPPA Privacy Lawsuit to Go Forward

I wanted to pick up where a previous article of mine on recent class action lawsuits filed under the Video Privacy Protection Act left off.  In recent months several class action lawsuits have been filed against prominent retailers based on allegations that their retention of customers’ personal information (including credit or debit card numbers, billing … Continue Reading