Litigation

2021 was another busy year for data privacy regulatory enforcement and litigation. With some distance to reflect on last year, we have prepared this post identifying and describing important trends from 2021 that can help provide insight into what to expect in the data privacy landscape in 2022.

Data Privacy Regulatory Enforcement Trends

Federal Trade Commission (FTC) and state enforcement action in 2021 centered on several key areas, including protecting children.

An FTC enforcement action last year alleged that the maker of an online coloring book application violated the Children’s Online Privacy Protection Act (COPPA) by collecting personal information about children who used the app without notifying their parents and obtaining their consent.  The allegations note that the app included a “Kids” category that was targeted to children.  The FTC further claimed that the app’s social media features collected personal information from users and that some parents, lacking knowledge of these features, may have inadvertently permitted their young children to use the app.
Continue Reading 2021 Trends in Privacy Regulatory Enforcement and Litigation

On Thursday, the Illinois Supreme Court unanimously ruled in McDonald v. Symphony Bronzeville Park LLC that the exclusivity provisions of the state’s workers’ compensation statute do not preclude liquidated damages claims under the Biometric Information Privacy Act.  The decision narrows the defenses available to employers facing employment-related BIPA claims.

Illinois’s Workers’ Compensation Act generally provides the exclusive means by which an employee can recover against an employer for a work-related injury and requires such claims to be adjudicated before the Illinois Workers’ Compensation Commission, subject to several exceptions.  One of those exceptions is for injuries that are not compensable under the Workers’ Compensation Act.  At issue in McDonald was whether an alleged employment-based BIPA violation—here, the alleged use of a fingerprint-based timekeeping system without the required disclosures or consent—was the type of injury covered by the Workers’ Compensation Act.
Continue Reading Illinois Supreme Court Rules Workers’ Compensation Act Does Not Bar BIPA Liquidated Damages Claims

Last week, in a decision that confirms the viability of cy pres settlements in privacy class action cases, the Ninth Circuit affirmed approval of a class action injunctive relief and cy pres-only settlement in In re Google Inc. Street View Electronic Communications Litigation, No. 20-15616, 2021 WL 6111383.  The case featured Wiretap Act claims based on Google Street View vehicles’ collection of “payload data,” including emails, passwords, and documents that Internet users transmitted over unencrypted Wi-Fi networks.
Continue Reading Ninth Circuit Affirms Approval of Injunctive Relief and Cy Pres Settlement of Google Street View Privacy Claims

Last week, the Ninth Circuit held in United States v. Wilson, No. 18-50440, 2021 WL 4270847, that a law enforcement officer violated a criminal defendant’s Fourth Amendment rights when he opened images attached to the defendant’s emails without a warrant, even though the images had previously been flagged as child sexual abuse materials (“CSAM”) by Google’s automated CSAM-detection software.  The court based its ruling on the private search exception to the Fourth Amendment, which permits law enforcement to conduct a warrantless search only to the extent the search was previously conducted by a private party.  Because no individual at Google actually opened and viewed the images flagged as CSAM, the court held that law enforcement “exceeded the scope of the antecedent private search,” thereby “exceed[ing] the limits of the private search exception.”  Op. at 20-21.
Continue Reading Ninth Circuit’s Interpretation of Private Search Exception to the Fourth Amendment Contributes to “Growing Tension” Among Circuit Courts

In putative privacy class action Hodges v. Comcast Cable Communications, LLC, involving  Comcast’s privacy and data-collection practices, Comcast moved to compel arbitration based on its subscriber agreement.  The district court denied the motion based on California’s McGill rule, which may invalidate arbitration agreements that purport to waive the right to seek public injunctive relief in any forum.
Continue Reading Ninth Circuit Narrowly Defines “Public Injunctive Relief” in Privacy Case, Limiting Plaintiffs’ Ability to Circumvent Arbitration Agreements.

Yesterday the Supreme Court issued a decision in Van Buren v. United States, No. 19-783, ruling that a police officer did not violate the Computer Fraud and Abuse Act (“CFAA”) when he obtained information from a law enforcement database that he was permitted to access, but did so for an improper purpose.  In so ruling, the Court adopted a relatively narrow reading of the CFAA, and partially resolved a years-long debate concerning the scope of liability under the CFAA.

The CFAA prohibits, inter alia, “intentionally access[ing] a computer without authorization or exceed[ing] authorized access, and thereby obtain[ing] information from any protected computer.”  18 U.S.C. § 1030(a)(2).  What it means to “exceed authorized access” has been the subject of disagreement among lower courts:  Some have concluded that this term refers to accessing areas of a computer that the user is not permitted to access under any circumstances—e.g., a student accessing her university’s database of grades that is restricted to only administrator use.  Others have concluded that this term also encompasses individuals who are permitted to access an area of a computer for certain purposes, but they do so for an improper purpose—e.g., an administrator accessing the university’s database of grades that she is generally permitted to use, but she does so for the improper purpose of blackmailing a student.
Continue Reading Supreme Court Adopts Narrow Reading of the CFAA in Van Buren v. United States

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

On Wednesday, January 13, the Supreme Court heard arguments in AMG Capital Management LLC v. Federal Trade Commission.  This case raises the question whether the Federal Trade Commission (FTC) has been properly using Section 13(b) of the FTC Act, the provision authorizing requests for preliminary and permanent injunctions where the FTC believes the defendant…

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

Today, the Supreme Court issued its decision in Barr v. American Association of Political Consultants, which addressed the constitutionality of the Telephone Consumer Protection Act (TCPA).  Although the Court splintered in its reasoning—producing four separate opinions—the justices nevertheless coalesced around two core conclusions: (1) the TCPA’s exception for government debt collection calls is unconstitutional, and (2) the exception can be severed from the rest of the TCPA.  Six justices determined that the TCPA’s government-debt exception violates the First Amendment, and seven justices concluded that the exception is severable from the rest of the statute.  The end result is that the government-debt exception is invalid but the rest of the TCPA—including its general prohibition on automated calls and text messages to mobile numbers—remains intact.  The narrow scope of this ruling suggests that it may have limited practical effect for most parties.

As we previously explained, the TCPA, as originally enacted in 1991, restricts the use of an automatic telephone dialing system (ATDS) to transmit calls or texts to mobile numbers without the recipient’s prior express consent (the ATDS prohibition).  In 2015, Congress amended the TCPA to exempt from the ATDS prohibition calls made to collect a debt owed to the United States.  The question before the Supreme Court was whether the government-debt exception violates the First Amendment and, if so, whether the proper remedy is to sever the exception—leaving intact the rest of the TCPA—or invalidate the entire ATDS prohibition.
Continue Reading Supreme Court Invalidates TCPA Government-Debt Exception