On June 25, the United States Court of Appeals for the First Circuit in Cullinane v. Uber Technologies, Inc., __ F.3d __, 2018 WL 3099388 (1st Cir. 2018), evaluated the enforceability of arbitration provisions in online contracts. The First Circuit found Uber’s arbitration provision, which contained a class action waiver, unenforceable because Uber did not make its terms of service sufficiently conspicuous. Cullinane highlights the importance of obtaining customers’ affirmative consent to an online contract and reaffirms that conspicuousness of the arbitration agreement and the form of assent that retailers require from consumers remain paramount.
On June 28, 2018, California Gov. Jerry Brown signed into law the California Consumer Privacy Act of 2018 (AB 375). According to the bill’s author, it was consciously designed to emulate the new European General Data Protection Regulation (GDPR) that went into effect on May 25, and if and when it goes into effect, it would constitute the broadest privacy law in the United States. It is intended to give consumers more transparency regarding and control over their data and establishes highly detailed requirements for what companies that collect personal data about California residents must disclose. (more…)
*UPDATE: The ballot initiative has been replaced by a new California law, AB 375. Please see California Enacts Broad Privacy Protections Modeled on GDPR for more information.
On June 25, 2018, California Secretary of State Alex Padilla announced that a potentially significant privacy initiative is eligible for the Nov. 6 general election ballot. If passed, the ballot initiative — the California Consumer Privacy Act (CCPA) — would immediately make sweeping changes to California’s privacy laws. This initiative would likely create a de facto national standard on transparency around third-party sharing as well as consumer rights to restrict data sharing and could affect many business models that depend on data monetization to offer a free good or service. Many see the law as having echoes of the new European General Data Protection Regulation (GDPR) that went into effect on May 25. If voters pass the initiative, it would go into effect shortly after the election — providing little time to develop an extensive internal regulatory program, yet providing immediate exposure to penalties for failures to have those extensive compliance processes in operation. (more…)
On March 16, 2018, the U.S. Court of Appeals for the D.C. Circuit issued a long-awaited ruling on a challenge to the Federal Communications Commission’s 2015 order that expanded the scope of the Telephone Consumer Protection Act (“TCPA”). In ACA International v. FCC, No. 15-1211, the court invalidated a rule that had broadly defined automatic telephone dialing systems, or “auto-dialers”; it also struck down the FCC’s approach to situations where a caller obtains a party’s consent to be called but then, unbeknownst to the caller, the consenting party’s wireless number is reassigned. In the same ruling, the court upheld the FCC’s decision to allow parties who have consented to be called to revoke their consent in “any reasonable way,” as well as the FCC’s decision to limit the scope of an exemption to the TCPA’s consent requirement for certain healthcare-related calls.
This article originally appeared in the Bloomberg BNA Privacy and Security Law Report on May 23, 2016.
In Spokeo, Inc. v. Robins, decided May 16, the U.S. Supreme Court ruled that plaintiffs who allege violations of statutes that contain a private right of action and statutory damages do not have automatic ‘‘standing’’ to sue. The Court instead found that to meet the constitutional requirement of standing, the plaintiff must establish not only the ‘‘invasion of a legally protected interest’’ defined by Congress, but also that the plaintiff suffered a “concrete and particularized” harm to that interest.
On Monday, May 16, the Supreme Court addressed the question of whether an alleged violation of the Fair Credit Reporting Act (FCRA), without allegation of concrete injury, is ever sufficient for Article III standing. The case, Spokeo Inc. v. Robbins, No. 13-1339 (2016), involved a class action against data broker Spokeo Inc.. The plaintiff, Thomas Robins, alleged that Spokeo violated the FCRA by inaccurately reporting online that he was a wealthy, married man with children and a graduate degree when he was actually unmarried and out of work. He argued that those inaccuracies could have hurt his chances with potential employers. The district court dismissed Mr. Robins’s case for failure to show any actual harm from the false information, but in 2014, the U.S. Court of Appeals for the Ninth Circuit allowed the case to move forward based on its analysis that Mr. Robins’s injury allegation was particularized because he alleged that Spokeo violated his individual rights when it handled his information.