Category: Consumer Issues, Privacy & Data Security

1
Connecticut Mandates Identity Theft Services for SSN Data Breaches
2
Webinar Update: European Commission Strategy on the Digital Single Market
3
Proposed Arbitration Fairness Act Would Ban Pre-Dispute Arbitration Clauses in Consumer Contracts
4
Client of Blast Fax Solutions Provider Hit with $22 Million TCPA Judgment
5
Unmanned Aircraft–A Winged Threat to Privacy?
6
Cybersecurity: The Obama Administration Proposes Legislation; Proposals Would Standardize Breach Notification Requirements, Enhance Cybersecurity-Related Information Sharing, and Toughen Cybercrime Prosecution
7
E-LABEL Act Exempts Wireless Devices from Physical Label Requirements
8
Ruling Confirms FAA Enforcement Authority Over Reckless Unmanned Aircraft Operations
9
Arbitration Provision Unenforceable in TCPA Class Action, Ninth Circuit Holds
10
Eleventh Circuit Endorses Different TCPA Liability Standards for Faxes and Calls

Connecticut Mandates Identity Theft Services for SSN Data Breaches

By: Holly K. Towle

On June 30, 2015, Connecticut’s governor signed into law an amendment to the state’s data-security-breach-notice statute to mandate “appropriate” identity theft prevention services for breaches involving social security numbers. Identity theft mitigation services are also required “if applicable” (e.g., if identify theft actually occurs). The services must be provided at no cost and for at least 12 months. The statute does not explain which identity theft “prevention” or “mitigation” services are mandated or which are “appropriate.”

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Webinar Update: European Commission Strategy on the Digital Single Market

We recently held a webinar on the highly anticipated EU’s Digital Single Market Strategy, which was released on May 6th by the European Commission.

To listen to the webinar recording and view the presentation slides, please click here.

The objective of the strategy is to tear down the regulatory obstacles to doing business online, and it will pose potential major challenges as well as opportunities for almost every company doing business in the EU. According to the European Commission the reforms could add €415bn per year to the European economy. The strategy is built on three pillars:

  1. better access for consumers and businesses to digital goods and services across Europe;
  2. creating the right conditions and a level playing field for digital networks and innovative services to flourish;
  3. maximising the growth potential of the digital economy.

In this webinar, Ignasi Guardans, Brussels Partner and former member of the European Parliament, presented the strategy as a whole, with a focus on some of its most challenging aspects in areas such as media law and copyright reform in the European Union.

Etienne Drouard, Paris Partner and former public officer at the CNIL (French Data Protection Authority), presented the announced changes in the legal framework of e-commerce, data management and privacy.

Annette Mutschler-Siebert, Berlin Partner, presented the measures related to e-government, e-procurement and how they will impact businesses.

Proposed Arbitration Fairness Act Would Ban Pre-Dispute Arbitration Clauses in Consumer Contracts

By Andrew C. Glass, Robert W. Sparkes, III, Roger L. Smerage, Eric W. Lee

Two members of Congress are seeking to expand the reach of a federal ban on pre-dispute arbitration agreements to cover nearly all consumer contracts.  The proposed legislation would have a widespread effect, barring the use of pre-dispute arbitration provisions in credit card agreements, auto loan agreements, wireless telephone service contracts, and many other types of consumer-facing agreements that often contain such provisions.

On April 29, 2015, Senator Al Franken (D-Minnesota) and Representative Hank Johnson (D-Georgia) introduced the Arbitration Fairness Act of 2015 (“AFA”) (S. 1133; H.R. 2087).  The proposed legislation would amend the Federal Arbitration Act, 9 U.S.C. §§ 1, et seq. (“FAA”), to prohibit parties from entering into agreements to arbitrate consumer disputes in advance of a dispute arising.  The bar on pre-dispute arbitration agreements would also apply in the context of employer, antitrust, and civil rights disputes.

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Client of Blast Fax Solutions Provider Hit with $22 Million TCPA Judgment

By Joseph C. Wylie II, Molly K. McGinley, and Nicole C. Mueller

A new decision once again highlights the dangers that companies face if their independent contractors engage in conduct that violates the Telephone Consumer Protection Act, and highlights the need to monitor contractor compliance with the TCPA.  In City Select Auto Sales, Inc. v. David/Randall Assocs., Inc., a federal court in New Jersey recently found a roofing company, David/Randall Associates, liable for $22.4 million under the TCPA for the actions of its blast fax solutions provider, Business to Business Solutions (B2B).  The plaintiff had alleged that the roofer and its president were liable for the transmission of fax advertisements 44,832 times to 29,113 different fax numbers by its independent contractor, B2B, without obtaining the prior express invitation or permission of the recipients and without including an FCC-required opt-out notice.

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Unmanned Aircraft–A Winged Threat to Privacy?

By Tom DeCesar, Ed Fishman, Jim Insco, and Marty Stern

It is has been a busy time in the field of unmanned aircraft systems (a.k.a., drones).  The Federal Aviation Administration recently released a Notice of Proposed Rulemaking that would allow the widespread use of small unmanned aircraft for a variety of low-altitude, line-of-site commercial operations–something currently prohibited by the agency.  However, the FAA does not typically deal with privacy issues.  So, while the FAA will regulate the use of these devices, President Obama issued a Presidential Memorandum calling for the National Telecommunications and Information Administration to begin a multi-stakeholder process to outline industry guidelines related to privacy, transparency, and accountability in the use of unmanned aircraft.  (See our recent client alert on the FAA small UAS NPRM and the Presidential Memorandum by clicking here.)  Although the NTIA’s typical focus is on telecommunications issues, it has convened a multi-stakeholder processes to address privacy issues involving such things as mobile app disclosures and facial recognition technologies. Read More

Cybersecurity: The Obama Administration Proposes Legislation; Proposals Would Standardize Breach Notification Requirements, Enhance Cybersecurity-Related Information Sharing, and Toughen Cybercrime Prosecution

By R. Paul Stimers, András P. Teleki, Bruce J. Heiman, Michael J. O’Neil

On January 13, 2015, in response to the continuing onslaught of cyber attacks, including the recent cybersecurity attack and data loss at Sony Pictures Entertainment, the Obama Administration sent to Congress three legislative proposals to improve cybersecurity. The proposals would:

  • Establish a single federal breach notification standard preempting a patchwork of state notification laws;
  • Encourage cyber threat information sharing within the private sector and between the private sector and the federal government; and
  • Enhance law enforcement’s ability to investigate and prosecute cyber crimes.

The President has been highlighting the cybersecurity proposals in a series of speeches leading up to the State of the Union Address today.

To read the full alert, click here.

 

Ruling Confirms FAA Enforcement Authority Over Reckless Unmanned Aircraft Operations

By Tom DeCesar, Ed Fishman, Jim Insco, and Marty Stern

The National Transportation Safety Board (NTSB) ruled earlier this week that small, unmanned aircraft flights are subject to Federal Aviation Administration (FAA) rules prohibiting careless and reckless aircraft operation, potentially subjecting small, unmanned aircraft operators to civil enforcement penalties for such operations.  The FAA appealed the closely watched case to the full NTSB after an administrative law judge (ALJ) reached the opposite conclusion in an earlier proceeding.

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Arbitration Provision Unenforceable in TCPA Class Action, Ninth Circuit Holds

By Andrew Glass and Roger Smerage

The Ninth Circuit recently held that a consumer’s TCPA class action against Sirius XM Radio Inc. (“Sirius XM”) was not subject to Sirius XM’s arbitration agreement.  The consumer brought suit alleging that the satellite radio provider violated the TCPA by placing automated calls to his cellular phone without his consent.  Sirius XM sought to compel arbitration on an individual basis.  The consumer countered that although he purchased a car that was preloaded with a trial subscription to Sirius XM radio, the purchase agreement made no mention of a contract governing the satellite radio service.  Rather, the consumer asserted that he did not receive Sirius XM’s terms and conditions until more than a month after he purchased the car, but that those terms required cancellation of service within three days of activation of the trial subscription.  Because of the manner in which Sirius XM delivered its terms and conditions to purchasers of cars with trial subscriptions, the Ninth Circuit found that the consumer could not have provided assent to be bound by the arbitration provision.  Thus, the Ninth Circuit ruled that neither the arbitration provision nor the class action waiver it contained was enforceable.  The decision was issued in a case styled Knutson v. Sirius XM Radio Inc., — F.3d —-, 2014 WL 5802284 (9th Cir. Nov. 10, 2014).

Eleventh Circuit Endorses Different TCPA Liability Standards for Faxes and Calls

By Molly K. McGinley and Joseph Wylie

The United States Court of Appeals for the 11th Circuit recently ruled in Palm Beach Golf Center-Boca, Inc. v. Sarris that a company that contracted with a third party advertising firm to send fax advertisements could be directly liable under the Telephone Consumer Protection Act for faxes sent by the third-party firm on the company’s behalf.  In so holding, the 11th Circuit adopted a framework advanced by the Federal Communications Commission that imposes broader liability for third-party faxing than for third-party calling made on a company’s behalf. Read More

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