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On Tuesday, the FTC announced the agenda for PrivacyCon, which is being billed as a “first-of-its-kind event” that will facilitate discussions between researchers and academics about privacy and security.  The FTC also released abstracts for the research that will be presented at the conference, scheduled for January 14.  PrivacyCon follows a call from the FTC last summer to “white hat” researchers and academics for papers on new vulnerabilities and how they might be exploited to harm consumers, as well as research in the area of big data, the Internet of things and consumer attitudes towards privacy.
Continue Reading FTC Releases Agenda for First-Ever PrivacyCon

Last week, the Third Circuit revived a multi-district privacy lawsuit against Google, finding that the trial court erred in dismissing the plaintiffs’ privacy claims under California state law.  The case centers around the plaintiffs’ allegations that Google violated state and federal law by circumventing the Safari browser’s default “cookie blocker” settings to track users’ online activity while publicly professing to respect users’ Safari browser settings.  While the Third Circuit affirmed the trial court’s dismissal of federal claims under the Wiretap Act, the Stored Communications Act (SCA), and the Computer Fraud and Abuse Act (CFAA), the court vacated the district court’s dismissal of the plaintiffs’ claims under California tort law and the California constitution’s right to privacy.

The plaintiffs’ claims originated from a 2012 Wall Street Journal article describing a researcher’s findings that Google, despite the Safari browser’s default settings intended to blocking tracking cookies, had utilized methods to circumvent these settings and track Safari users’ Internet browsing habits via tracking cookies.  At the same time, the plaintiffs alleged, Google made a series of public statements, including statements within its privacy policy, indicating that it respected the Safari browser’s cookie-blocking settings.  Google subsequently entered into settlements with the Department of Justice and a consortium of state attorneys general over its practices.  Twenty-four plaintiffs also filed putative class action suits against Google and third-party advertisers, alleging violations of federal and state privacy law.  The suits were combined into the instant litigation in the District of Delaware, and in October 2013, the district court dismissed the complaint in its entirety, finding that the plaintiffs failed to state a claim.Continue Reading Third Circuit Resurrects State Law Claims Against Google in Safari Cookie Tracking Lawsuit

Last week, the Consumer Electronics Association (“CEA”) announced its Guiding Principles on the Privacy and Security of Personal Wellness Data, a set of baseline, voluntary guidelines for private-sector organizations that handle the type of data often produced by wearable technologies.  The Guiding Principles are categorized into eight areas and…
Continue Reading CEA Releases Guidelines on Privacy and Security of Personal Wellness Data

The UK Information Commissioner’s Officer (“ICO”) has issued its largest fine to date in connection with using an automated calling system to make direct marketing calls.  The ICO found that Home Energy & Lifestyle Management Ltd (“HELM”), a green energy company that made millions of automated marketing calls in relation to “free” solar panels, recklessly contravened UK regulations, and fined the company £200,000.
Continue Reading UK ICO Issues Largest Ever Fine In Connection With Automated Marketing Calls

Last week, the Federal Communications Commission (FCC) released the text of its long-awaited order addressing certain aspects of the Telephone Consumer Protection Act (TCPA) and related FCC rules.  The order addressed a total of 21 petitions seeking “clarification or other actions” regarding the TCPA, principally in connection with automated calls and text messages.

Although the order purports only to “clarify” existing FCC precedent, there is widespread debate over whether the order imposed new requirements on entities that transmit automated calls and text messages.  The order already has been appealed by one party and other appeals are expected.  Nevertheless, because the FCC claims the order only clarifies existing precedent, its provisions became effective when the order was released on July 10, 2015.

The order focuses on ten key areas, which are summarized after the jump.
Continue Reading Ten Key Takeaways From Last Week’s TCPA Order

Last Tuesday, District Judge Lucy Koh of the Northern District of California partially granted the plaintiffs’ motion for class certification in In re Yahoo Mail Litig., allowing the plaintiffs to pursue their claims for injunctive relief on behalf of class members under the Stored Communications Act (“SCA”) and California’s Invasion of Privacy Act (“CIPA”).  The plaintiffs, none of whom has a Yahoo email account, originally filed suit alleging that Yahoo scanned emails they exchanged with other individuals’ Yahoo email addresses and used the results for advertising purposes.  Last August, Judge Koh partially granted Yahoo’s motion to dismiss, eliminating the plaintiff’s claims under the Wiretap Act and the California Constitution but allowing the SCA and CIPA claims to proceed.
Continue Reading Court Certifies Nationwide Class in Yahoo Email Scanning Litigation

A federal judge in the Northern District of California recently certified his denial of AT&T’s Motion to Dismiss the Federal Trade Commission’s (FTC’s) complaint alleging that AT&T misled consumers by limiting its “unlimited” data plan for mobile customers. This means that AT&T will now be able to appeal that decision to the Ninth Circuit.
Continue Reading FTC’s Throttling Case Against AT&T to be Heard by Ninth Circuit

As we previously reported, in January AT&T filed a Motion to Dismiss the Federal Trade Commission’s (FTC’s) complaint alleging that AT&T engaged in unfair and deceptive conduct in violation of Section 5 of the FTC Act when it “throttled” mobile broadband subscribers who were “grandfathered” into the company’s unlimited…
Continue Reading AT&T Court Narrowly Interprets FTC Common Carrier Exception and Permits Throttling Case To Go Forward, Addresses Net Neutrality Issue

Last month a federal court found Dish Network liable for calls that were alleged by the Federal Trade Commission (“FTC”) to violate various provisions of the FTC’s Telemarketing Sales Rule (“TSR”).  Specifically, the FTC’s 2009 complaint asserted that Dish Network initiated, or caused a telemarketer to initiate, calls to numbers on the National Do Not Call (“DNC”) Registry and to consumers who previously declined to receive such calls whose numbers were on Dish Network’s entity-specific do-not-call list or were marked “DNC” by a telemarketing vendor.  The FTC also alleged that, in violation of the “abandoned-call” provision of the TSR, Dish Network abandoned or caused telemarketers to abandon phone calls.  In its complaint, the FTC seeks monetary civil penalties from Dish Network for every violation of the TSR, for which the court is entitled to award up to $16,000 for each violation.  At issue are tens of millions of calls, making the potential level of damages to be awarded at the trial stage staggering.
Continue Reading Court Finds FTC Entitled to Partial Summary Judgment Against Dish Network for Telemarketing Violations

As we previously reported, in October 2014 the Federal Trade Commission (FTC) filed a complaint against AT&T in federal court alleging that AT&T’s “throttling” practices for mobile broadband subscribers who were “grandfathered” into the company’s unlimited mobile data plan were unfair and deceptive in violation of Section 5 of the FTC Act.  On Monday, AT&T filed a Motion to Dismiss this lawsuit on the basis that it is a common carrier subject to the Communications Act and thus exempt from Section 5 of the FTC Act.
Continue Reading AT&T Challenges FTC Jurisdiction Over Non-Common Carrier Activities of Common Carriers