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Last week, the Ninth Circuit ruled in Lemmon v. Snap, Inc., No. 20-55295 (May 4 2021), that 47 U.S.C. § 230 (“Section 230”) did not bar a claim of negligent product design against Snap, Inc., reversing and remanding a lower court ruling. …
Continue Reading Ninth Circuit Denies Section 230 Defense in Products Liability Case

On February 10, 2020, Germany’s Federal Commissioner for Data Protection and Freedom of Information (BfDI) launched its first public consultation procedure.  The consultation invites comments on a position paper of the BfDI which addresses the anonymization of personal data under the General Data Protection Regulation (GDPR), with a particular focus on the telecommunications sector…

On November 3, Judge Vince Chhabria of the U.S. District Court of the Northern District of California held that federal law does not bar the California Public Utilities Commission (CPUC) from requiring telecommunications companies to hand over, under an adequate protective order, confidential subscriber data to The Utility Reform Network (TURN) as part of an investigation into state market competitiveness.

However, Judge Chhabria also rejected a motion for summary judgment filed by CPUC and TURN because it has not yet been demonstrated that the proposed protective order would, in fact, adequately protect the companies from competitive harm.  Because such protection is a necessary predicate to avoiding a conflict with FCC regulations, Judge Chhabria reasoned, the adequacy of the protective order must be determined before CPUC can force companies to turn over such sensitive data.…
Continue Reading California Judge Upholds CPUC Order to Share Confidential Subscriber Data, But Subject to Adequate Protective Order

Last week, the FCC issued two TCPA rulings that shed further light on whether and under what circumstances an individual can provide “prior express consent”—or convey such consent—for another in the context of automated or prerecorded informational calls or text messages to mobile phones.  One of these rulings came in response to a Petition for Declaratory Ruling filed by the Cargo Airline Association (CAA), and the other came in response to a Petition for Declaratory Ruling filed by GroupMe, Inc./Skype Communications S.A.R.L. (GroupMe).  Coincidentally, the Eleventh Circuit issued its own opinion last week in Osorio v. State Farm Bank that touched on a similar issue.  A summary of each can be found after the jump.

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Continue Reading FCC and 11th Circuit Address “Prior Express Consent” by a Third Party Under the TCPA

Yesterday, the Federal Communications Commission’s (FCC’s) Enforcement Bureau issued a reminder that annual CPNI certifications for calendar year 2013 must be filed with the FCC by March 1, 2014.

The FCC requires telecommunications service providers (including paging providers, commercial mobile radio services providers, and calling card providers) and interconnected VoIP service providers to file an…

By Maria-Martina Yalamova & Mark Young

On 12 December 2013, the Advocate General (“AG”) to the Court of Justice of the European Union (the “CJEU”), Mr Cruz Villalón, gave an opinion that the EU’s Data Retention Directive 2006/24/EC (the “Directive”) violates the fundamental right to privacy in the EU.  His reason, in short, is that the Directive mandates the blanket retention of citizens’ traffic and location data by telecom companies, but fails to establish rules on minimum guarantees regarding access to and use of such data.  

This is not the first time the lawfulness of the Directive has been challenged.  Originally introduced to help fight serious crime and terrorism, the Directive quickly became one of the most controversial pieces of European legislation.  In 2011, the European Commission identified in its evaluation report several flaws, such as a lack of clear guidance on what constitutes “serious crime” and on the purposes for which data can be retained and accessed.  The European Data Protection Supervisor (EDPS) (see 2011 opinion here), the Article 29 Working Party (see 2010 report here and 2006 Opinion here), and civil rights groups have also publically expressed doubts about the lawfulness of the data retention measures.  In addition, the constitutional courts of Germany, the Czech Republic and Romania have ruled that national laws implementing the Directive are unconstitutional as they violate the right to privacy. 

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Continue Reading Advocate General finds the EU’s Data Retention Directive Incompatible with the Fundamental Right to Privacy

In light of growing concerns over cybersecurity and evolving technology and operational practices, Ofcom (the independent regulator and competition authority for the UK communications industries) is seeking views on whether its existing guidance on network security should be revised.  Interested parties have until 21 February 2014 to respond.   Depending on the responses received, Ofcom intends…

Earlier today, the FCC placed on public notice two petitions requesting that the agency clarify or forbear from enforcing certain aspects of its new TCPA regulations that went into effect on October 16, 2013.  Those regulations, which we summarized here, created, among other things, a new “prior express written consent” requirement for the transmission…

Earlier today, two entities — the Direct Marketing Association (“DMA”) and a Coalition of Mobile Engagement Providers (“Coalition”) — filed petitions at the FCC asking the agency to stay and forbear from enforcing, or clarify, certain aspects of the “prior express written consent” requirement that went into effect yesterday for prerecorded calls to residential numbers and autodialed…

Last week, I spoke on a panel at the IAPP Privacy Academy about upcoming changes to FCC regulations governing the “prior express consent” requirement for, among other things, autodialed promotional text message and prerecorded call programs under the Telephone Consumer Protection Act (TCPA).  These changes will take effect next week, on October 16, 2013.  Some…