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Supreme Court to Hear Case Regarding Deference to Federal Agencies on Statutory Interpretation

Yesterday, the Supreme Court granted certiorari in Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, No. 17-1705.  The case began when Carlton & Harris sued PDR Network for alleged violations of the commercial fax provisions of the Telephone Consumer Protection Act (“TCPA”).  The Fourth Circuit ruled in Carlton & Harris’s favor, relying on an interpretation … Continue Reading

Wyden Releases Draft Privacy Bill Increasing FTC Authority, Providing for Civil Fines and Criminal Penalties

Senator Ron Wyden last week released a discussion draft of a federal privacy bill that would amend Section 5 of the Federal Trade Commission Act to expand the FTC’s authority, create significant civil fines, and enforce certain provisions through criminal penalties. The draft Consumer Data Protection Act is among a growing number of proposals for … Continue Reading

Litigation Options For Post-Cyberattack ‘Active Defense’

[This article also was published in Law360.] In March 2017, Rep. Tom Graves, R-Ga., introduced a draft bill titled the Active Cyber Defense Certainty Act. The bill would amend the Computer Fraud and Abuse Act to enable victims of cyberattacks to employ “limited defensive measures that exceed the boundaries of one’s network in order to … Continue Reading

Senate Discusses a Federal Privacy Law with Privacy Experts: Examining Lessons From the European Union’s General Data Protection Regulation and the California Consumer Privacy Act

On October 10, the Senate Committee on Commerce, Science, and Transportation held second hearing on data privacy that invited advocates and experts to discuss a federal privacy law. The panelists included Andrea Jelinek, director of the European Data Protection Board; Alastair Mactaggart, chair of Californians for Consumer Privacy; Laura Moy, executive director of the Georgetown … Continue Reading

FCC Seeks Comment on Ninth Circuit’s Expansive TCPA Interpretation in Marks

Yesterday, the FCC released a Public Notice seeking comment on a recent decision issued by the U.S. Court of Appeals for the Ninth Circuit in Marks v. Crunch San Diego, LLC, No. 14-56834 (Sept. 20, 2018).  The Public Notice, issued in the context of the FCC’s Telephone Consumer Protection Act (TCPA) reform proceeding, seeks comment … Continue Reading

California Legislature Passes Amendments to Expansive Consumer Privacy Law

Less than three months ago, California enacted the California Consumer Privacy Act of 2018 (“CCPA”). Industry and privacy watch groups alike have scrutinized the law. This summer saw fierce negotiations all in the name of improving the CCPA. Last Friday, on August 31, 2018, the California legislature passed SB 1121 to amend the CCPA. The … Continue Reading

NTIA’s International Internet Policy Priorities for 2018 and Beyond

On July 20, 2018, the U.S. Department of Commerce’s National Telecommunications and Information Administration (“NTIA”) published comments it received from a wide array of tech and telecom companies, trade groups, civil society, academia, and others regarding its “international Internet policy priorities for 2018 and beyond.”  NTIA’s Office of International Affairs (“OIA”) had requested comments and … Continue Reading

District Court Rules “Direct Drop” Voicemails Subject to TCPA

Last month, a Michigan federal district court judge denied defendant’s motion for summary judgment regarding application of the Telephone Consumer Protection Act (“TCPA”) to “direct drop” voicemail messages (also known as “ringless voicemail”).  Emphasizing the “broad net” cast by the TCPA, Judge Gordon J. Quist of the Western District of Michigan held that such messages … Continue Reading

California Adopts Expansive Consumer Privacy Law

On June 28, 2018, California enacted the California Consumer Privacy Act of 2018 (“CCPA”), which is aimed at strengthening consumer privacy rights and data security protections.  The CCPA takes effect on January 1, 2020 and is considered the most stringent privacy law in the country. The CCPA applies to for-profit entities that conduct business in … Continue Reading

FTC Announces Series of Hearings on Competition and Consumer Protection

Earlier today, the Federal Trade Commission (“FTC”) announced that it will host a series of public hearings on whether “broad-based changes in the economy, evolving business practices, new technologies, or international developments might require adjustments to competition and consumer protection enforcement law, enforcement priorities, and policy.” FTC Chairman Joe Simons noted that “important and significant … Continue Reading

Eleventh Circuit LabMD Decision Potentially Limits FTC’s Remedial Powers

The Eleventh Circuit has issued its decision in LabMD v. FTC, a closely watched case in which LabMD challenged the Federal Trade Commission’s authority to regulate the data security practices of private companies. The Court of Appeals declined to decide that issue, instead finding that the FTC’s order requiring LabMD to implement certain data security … Continue Reading

Colorado, Louisiana, and Vermont Add to Recent Trend of Changes to State Data Breach Notification Laws

This spring has seen significant legislative activity with regards to state data breach notification laws, ranging from new laws in Alabama and South Dakota to amendments to existing laws in Oregon, Arizona, and elsewhere.  Continuing this trend, three states recently passed legislation to amend their existing data breach notification laws.  Legislation recently passed in Colorado … Continue Reading

NTIA Requests Comments Regarding International Internet Policy

Earlier this week, the National Telecommunications and Information Administration (NTIA), the executive branch agency responsible for telecommunications and information policy, released a Notice of Inquiry requesting that any interested party—including the private sector, technical experts, academics, and civil society—help the agency determine its international internet policy priorities. In particular, NTIA is seeking comments and recommendations … Continue Reading

Mary Meeker’s Annual Internet Report Includes Insights Into Privacy

This past week, Mary Meeker presented her annual Internet Trends report for 2018 at the Code Conference.  A copy of the slide deck is available here.  The report is widely respected by industry experts, and this year’s presentation included a number of insights that industry stakeholders will find relevant regarding data privacy and technology more … Continue Reading

Lawsuit Alleges That Self-Checkout Videos Violate the Song-Beverly Act

A class-action lawsuit filed last month alleges that Wal-Mart’s video recording technology at its self-service checkout kiosks collects “personal identification information” in violation of the California Song-Beverly Act Credit Card Act of 1971 (“Song-Beverly Act”).  The Song-Beverly Act, like analogous statutes in several other states, generally prohibits businesses from recording customers’ “personal identification information” as … Continue Reading

FCC Seeking Comment on Key TCPA Reform Issues in Wake of DC Circuit Ruling

By Melanie Ramey Yesterday, the Federal Communications Commission (“FCC”) released a Public Notice seeking comment on a range of issues relevant to its interpretation of the Telephone Consumer Protection Act (“TCPA”), including how the FCC should interpret what constitutes an “automatic telephone dialing system” in the wake of a recent decision by the U.S. Court … Continue Reading

Covington IoT Update: U.S. Legislative Roundup on IoT

As policymakers weigh the many policy implications associated with the Internet of Things (“IoT”), U.S. lawmakers have put forward a variety of proposals for studying—and regulating—IoT devices.  Although the likelihood of current proposals becoming law this term remain uncertain at best, existing legislative proposals provide important context and insight into the ways that lawmakers view … Continue Reading

Virginia Supreme Court Holds that Police License Plate Readers Collect Personal Information

The Virginia Supreme Court held that license plate images taken by law enforcement agencies constitute “personal information,” reviving a challenge to the police storage of license plate data. Automatic license plate readers (“ALPRs”) are used by police departments across the country to take thousands of photos of license plates per hour.  Officers check these numbers … Continue Reading

Mobile Phone Manufacturer Settles with FTC Over Allegations that Its Vendor Collected Personal Data without Consent

By Melanie Ramey Mobile phone manufacturer BLU Products, Inc. entered into a settlement agreement with the FTC last week to resolve allegations that one of BLU’s China-based vendors collected personal information about its consumers without proper consent. The settlement agreement, which took the form of a consent order, applies not only to BLU but also … Continue Reading

4th Circuit Affirms Dismissal of TCPA Suit Based on ‘Derivative Sovereign Immunity’

Earlier this week, the Fourth Circuit Court of Appeals affirmed a lower court decision to dismiss a Telephone Consumer Protection Act (“TCPA”) lawsuit against General Dynamics Information Technology, Inc. (“GDIT”), on the basis that GDIT was immune from suit as a government contractor under what is known as the “Yearsley doctrine.”  Craig Cunningham v. GDIT, … Continue Reading

Senators Klobuchar and Kennedy Introduce Privacy Legislation

On April 24, 2018, Senators Amy Klobuchar (D-MN) and John Kennedy (R-LA) introduced the Social Media Privacy and Consumer Rights Act of 2018.  The bill aims to protect consumers’ online data by increasing the transparency of data collection and tracking practices, and requiring companies to notify consumers of a privacy violation within 72 hours. “Our … Continue Reading

Government’s Response to Malware Defendant’s Constitutional Challenge Falls Short

Last summer, Marcus Hutchins, the security researcher who stopped the “WannaCry” malware attack, was arrested and charged for his role in allegedly creating and conspiring to sell a different piece of malware, known as Kronos.  As we have previously discussed on this blog, however, the indictment was notable for its lack of allegations connecting Hutchins … Continue Reading
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