Category

Litigation

01 August 2018

New Case Sheds Further Light on the Definition of Autodialer under the TCPA

Ever since the D.C. Circuit struck down the FCC’s overbroad rule defining “auto-dialers” under the Telephone Consumer Protection Act, district courts have debated the scope of the D.C. Circuit’s ruling: Did it effectively strike down earlier FCC pronouncements on what qualifies as an auto-dialer? In a carefully reasoned opinion, a district court judge in Chicago held last week that it did. (more…)

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16 July 2018

Privacy as a “Fundamental Right” Clouds Smart Regulation

*Originally Published July 12, 2018 by Chambers and Partners Data Protection & Cyber Security 2018

There is a lot going on with privacy around the world. As discussed in the chapters of this book, significant new laws are being adopted or taking effect, important judicial decisions are being decided to interpret existing legal requirements, and citizens are contending with their own expectations about confounding new technologies and business models. It is not clear, however, that the public policy being developed in any country is a thoughtful reaction to the promises and perils of today’s digital economy, rather than a knee-jerk over-reaction to imagined harms and a handful of high-profile incidents. (more…)

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02 July 2018

First Circuit’s Decision Provides Guidance on Creating Enforceable Website Terms and Conditions

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.
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12 June 2018

11th Circuit Vacates LabMD Enforcement Order; Casts Doubt on Decades of FTC Cybersecurity Enforcement Practices

In recent years, the Federal Trade Commission has increasingly exercised its enforcement authority to target deceptive and unfair information security practices.  During this time, enforcement actions have targeted companies for failing to honor their promises to implement “reasonable” or “industry standard” security practices, defend against well-known security threats, put in place basic security measures, or take many other basic data security steps.  And despite challengers arguing that the FTC provided insufficient notice before pursuing these actions or that the actions otherwise exceeded the FTC’s Section 5 enforcement authority, the Commission generally has a track record of successfully defending its prerogatives.     (more…)

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24 May 2018

GDPR Day is Here!

Whether you are marking today with a glass of champagne, a shot of whiskey, or a hot cup of tea, today marks a significant day for privacy professionals world-wide.

Here’s to all of the privacy professionals who have put in so many hours to prepare for the GDPR, fully effective as of Friday May 25, 2018 at midnight in Brussels; that is 6 PM eastern on Thursday, May 24th for toasting purposes.

For business executives, policymakers, and consumers who have become aware of the GDPR in recent weeks and are interested in learning more, visit our GDPR resource page here.

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23 May 2018

FCC Asks for Input After ACA International v. FCC

The Telephone Consumer Protection Act (TCPA) bar has been reeling ever since the U.S. Court of Appeals for the D.C. Circuit overturned a couple of key Federal Communications Commission (FCC) rules in ACA International v. FCC, including the FCC’s overbroad interpretation of the definition of an autodialer. However, the ruling still left several key provisions in place that facilitate the potential for significant liability and sow uncertainty for everyday business and compliance operations. Now the commission has issued a public notice seeking input about how it should interpret the TCPA. Comments are due June 13, 2018, with replies due June 28. (more…)

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22 May 2018

Supreme Court Finds Expectation of Privacy for Rental Car Driver

In its preview of hot privacy and cybersecurity topics for 2018, Data Matters noted that this year the Supreme Court was scheduled to decide a number of cases with potentially substantial privacy implications.  This past week, the Court issued its opinion in one such case, Byrd v. United States, a case concerning “whether a driver has a reasonable expectation of privacy in a rental car when he or she is not listed as an authorized driver on the rental agreement.”  Concluding that a driver does have such an expectation, the Court issued a narrow and unanimous opinion that, as laid out below, could have implications for commercial privacy expectations in other contexts. (more…)

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30 March 2018

Alabama Passes Data Breach Notification Law; Breach Laws Now on the Books in All 50 States

And then there were none. Alabama has joined the ranks of the other 49 states with breach notification requirements by enacting the Alabama Data Breach Notification Act of 2018 (the “Act”). The Act, which was signed into law by Alabama Governor, Kay Ivey on March 28, 2018, requires companies to provide Alabama residents with notification of a breach within 45 days of discovery.  Notification is triggered by a determination of a breach that poses a risk of harm to impacted individuals. Alabama exempts from the definition of breach the good faith acquisition of sensitive personally identifying information by an employee or agent of a covered entity, unless the information is used for a purpose unrelated to the business or subject to further unauthorized use. Companies must notify the state AG in the same period if the breach requires notification of more than 1,000 “individuals” (defined as Alabama residents whose “sensitive personally identifiable information” was, or is reasonably believed to have been, accessed as a result of the breach). In addition, if more than 1,000 individuals are notified at a single time, companies must provide notice to consumer reporting agencies “without unreasonable delay.” Third parties who are contracted to process sensitive personally identifiable information must provide notice of a breach to the owner of that information within ten days of discovering the breach. Notice from a third party then triggers the 45-day notification period for the covered entity.

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20 March 2018

D.C. Circuit Strikes Down Some Rules Governing Telephone Consumer Protection Act, Upholds Others

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.

(more…)

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25 January 2018

Protecting Privilege in the Aftermath of a Data Breach

On Jan. 3, the United States Court of Appeals for the Sixth Circuit issued a decision that effectively required a company to turn over materials relating to a privileged forensic data breach investigation because, the court concluded, the company had implicitly waived privilege when it disclosed certain of the forensic firm’s conclusions in response to a discovery request. The Sixth Circuit’s decision emphasizes the need for caution by litigants wishing to raise a defense that relies on privileged investigations and reports, including third-party forensic reports, or otherwise disclosing the conclusions of such investigations and reports. (more…)

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