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On September 29, 2021, the Senate Committee on Commerce, Science, and Transportation held a hearing entitled “Protecting Consumer Privacy.”  The hearing centered on strengthening consumer privacy rights, including by increasing the FTC’s resources and creating a comprehensive federal privacy law.

To explore these issues, the Committee invited David Vladeck, Professor and Faculty Director of the Center on Privacy and Technology at Georgetown Law and former Director of the FTC Bureau of Consumer Protection; Morgan Reed, President of The App Association; Maureen Ohlhausen, Partner and Section Chair (Antitrust & Competition Law) at Baker Botts and former Acting Chairman of the FTC; and Ashkan Soltani, Independent Researcher and Technologist and former Chief Technologist of the FTC.
Continue Reading Consumer Privacy Hearing Focuses on Expanding FTC Resources, Creating Federal Privacy Law

Today, the Supreme Court issued its decision in Facebook v. Duguid, adopting a narrow interpretation of a key definitional term in the Telephone Consumer Protection Act (TCPA) and resolving the circuit split we previously described here and here.

In effect, the Supreme Court’s opinion means that to qualify as an “automatic telephone dialing system” (ATDS) under the TCPA, a device must use a random or sequential number generator; a device that calls a prescribed set of telephone numbers without using such a number generator would stand outside that definition and thus not be regulated by the TCPA.
Continue Reading Supreme Court Narrows Meaning of TCPA Autodialer Definition

Last week, a federal district court in San Francisco dismissed a claim under the California Consumer Privacy Act (“CCPA”).  The plaintiff alleged that Google had collected personal information without complying with the CCPA’s notice and consent requirements.  The court held that the CCPA’s private right of action does not extend to these provisions of the law.  It appears that this is the first time a court expressly reached this conclusion.  The case is McCoy v. Alphabet, No. 20‑cv‑05427 (N.D. Cal. Feb. 2, 2021).

For context, the plaintiff alleged that Google used an internal program called “Android Lockbox” on its Android operating system to monitor and collect data from Android users as they used non-Google apps on their phones.  The alleged data collection included when and how often these third-party apps were used and the amount of time users spent on the third-party apps.  Based on these allegations, the plaintiff asserted eleven different claims.  Among these was a claim that Google violated the CCPA by failing to comply with the law’s requirements related to notice and consent.
Continue Reading Court Dismisses CCPA Claim Against Google

In a new post on the Covington Digital Health blog, our colleagues discuss a recent settlement between the Federal Trade Commission (“FTC”) and Flo Health, Inc. (“Flo”), the developer of a popular menstrual cycle and fertility-tracking application.  The settlement resolves allegations that Flo shared app users’ health information with outside third parties after promising

With a new administration and a new Congress come key leadership changes and new priorities at the Federal Trade Commission (FTC).  The change in administration paves the way for a Democratic-led Commission, though a permanent FTC Chairman and a successor to Commissioner Chopra (who has been nominated to head the Consumer Financial Protection Bureau) might not be confirmed for several months.  In the meantime, President Biden has appointed sitting Commissioner Slaughter to serve as Acting Chair.
Continue Reading What A New Administration Means for the FTC’s Data Privacy & Security Enforcement Agenda

On January 7, the Federal Trade Commission (“FTC”) reached a proposed settlement with Tapjoy, a California-based company that operates an advertising platform within mobile gaming applications.  According to its complaint, the FTC alleges that Tapjoy deceived consumers by failing to provide in-game rewards it promised for completing actions associated with third-party advertisements.
Continue Reading FTC Reaches Settlement with Tapjoy for Allegedly Deceiving Consumers About In-Game Rewards

Washington State Hearing on Latest Privacy Bill Highlights Competing Interests For Best Practices and Data Minimization 

On January 14, 2020, Washington’s State Senate Committee on Environment, Energy & Technology received public testimony about Senate Bill 5062, the “Washington Privacy Act.”  Representatives from trade associations, the Attorney General’s Office, and civil rights groups offered recommendations to eliminate perceived loopholes and clarify bill provisions.

This post highlights recurring issues from the public hearing.
Continue Reading Washington State Hearing on Latest Privacy Bill Highlights Competing Interests For Best Practices and Data Minimization

Last week, an Ohio district court found that violations of the Telephone Consumer Protection Act (“TCPA”) occurring between 2015 and July 2020 cannot be enforced because the law was unconstitutional at the time.  The case is captioned Lindenbaum v. Realgy, LLC, No. 19-CV-02862 (N.D. Ohio), and the opinion builds on an earlier decision from a Louisiana district court that reached a similar conclusion in Creasy v. Charter Communications Inc., No. 20-CV-01199 (E.D. La.).
Continue Reading Courts Find TCPA Unenforceable for Acts Prior to July 2020

In a new post on the Covington Digital Health blog, our colleagues discuss California Attorney General Xavier Becerra’s recent settlement against Glow, Inc., resolving allegations that the fertility app had “expose[d] millions of women’s personal and medical information.” The post explains the allegations and settlement terms, as well as takeaways for providers of digital