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The current and future definition of what qualifies as an automatic telephone dialing system (ATDS or autodialer) remains a hotly debated and evaluated issue for every company placing calls and texts, or designing dialer technology, as well as the litigants and jurists already mired in litigation under the Telephone Consumer Protection Act (TCPA).  Last year, the D.C. Circuit struck down the FCC’s ATDS definition in ACA International v. FCC, Case No. 15-1211 (D.C. Cir. 2019).  Courts since have diverged in approaches on interpreting the ATDS term.  See, e.g., prior discussions of Marks and Dominguez.  All eyes thus remain fixed on the FCC for clarification.

In this post, we revisit the relevant details of the Court’s decision in ACA International, and prior statements of FCC Chairman Ajit Pai concerning the ATDS definition to assess how history may be a guide to how the FCC approaches this issue.

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In a decision that will limit the Federal Trade Commission’s (FTC) ability in both consumer protection and antitrust matters to bring certain claims in federal court, the Third Circuit Court of Appeals held in FTC v. Shire Viropharma, Inc. that the FTC may only bring a case under Section 13(b) of the FTC Act when…

This week, President Trump signed an executive order outlining a national plan to promote the development and adoption of artificial intelligence (AI) technologies.  The order serves as the official launch of the “American AI Initiative,” which includes five areas of focus:

  • Invest in AI R&D – Prioritize AI investment in Federal agencies’ R&D missions
  • Unleash

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Most of our posts regarding “Made in USA” claims relate to FTC investigations and enforcement actions. Private plaintiffs, however, also closely watch those claims. For example, in 2018 plaintiffs filed a class action lawsuit against New Balance Athletics Inc. challenging qualified “Made in USA” claims. Although the plaintiffs acknowledged that New Balance qualified the claim…

Last week, five advertising and marketing trade associations jointly filed comments with the California Attorney General seeking clarification on provisions within the California Consumer Privacy Act (CCPA).

While expressing “strong support” for the CCPA’s intent, and noting the online ad industry’s longstanding consumer privacy efforts like the DAA’s YourAdChoices Program, the group proposed the…

In the Data Business? You May Be Obligated to Register in Vermont by Thursday

Data brokers have until this Thursday to register with the Vermont Secretary of State as part of a new data broker oversight law that became effective January 1st.

Approved unanimously by the Vermont Senate last May, the Vermont Data Broker Regulation, Act 171 of 2018, requires data brokers to register annually, pay an annual filing fee of $100, and maintain minimum data security standards, but the law does not prevent data brokers from collecting or selling consumer data.

What Qualifies as a “Data Broker”?

The law only applies to “data broker[s],” defined as a “business, or unit or units of a business, separately or together, that knowingly collects and sells or licenses to third parties the brokered personal information of a consumer with whom the business does not have a direct relationship.”…
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As we noted previously, the California Attorney General is holding a series of public forums on the California Consumer Privacy Act (CCPA) to provide the public with an initial opportunity to comment on CCPA requirements and the corresponding regulations that the Attorney General must adopt on or before July 1, 2020.  On Friday, January 25, 2019, the Attorney General’s Office held its fourth of six hearings before a full auditorium in Los Angeles.  This blog post summarizes the main themes discussed at the hearing.

Timing/Scope:  For businesses hoping for CCPA clarity and guidance soon, that seems unlikely. California Deputy Attorney General Lisa Kim initiated the hearing, emphasizing that the Attorney General’s Office was in the beginning of its rulemaking process and noting that she anticipated the formal review process not to start until Fall 2019.  For now, the Attorney General’s Office encouraged interested parties to submit comments by the end of February, focusing on subjects within the scope of the Attorney General’s rulemaking responsibilities, as set forth in the CCPA, including:

  • Categories of Personal Information
  • Definition of Unique Identifiers
  • CCPA Exemptions
  • Submitting and Complying with Consumer Requests
  • Uniform Opt-Out Logo/Button
  • Notices and Information to Consumers, including Financial Incentive Offerings
  • Certification of Consumers’ Requests

During the hearing, the Attorney General’s Office displayed this PowerPoint deck, summarizing the CCPA regulatory process.

Main Themes

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On Monday, France’s Data Protection Agency announced that it levied a €50 million ($56.8 million) fine against Google for violating the EU’s new General Data Protection Regulation (GDPR).  The precedent-setting fine by the Commission Nationale de l’Informatique et des Libertés (“CNIL”) is the highest yet imposed since the new law took effect in May 2018.

How Does Google Violate GDPR, According to CNIL?

  • Lack of Transparency: GDPR Articles 12-13 require a data controller to provide data subjects with transparent, intelligible, and easily accessible information relating to the scope and purpose of the personal data processing, and the lawful basis for such processing. CNIL asserts that Google fails to meet the required level of transparency based on the following:
    • Information is not intelligible: Google’s description of its personal data processing and associated personal data categories is “too generic and vague.”
    • Information is not easily accessible: Data subjects must access multiple Google documents or pages and take a number of distinct actions (“5 or 6”) to obtain complete information on the personal data that Google collects for personalization purposes and geo-tracking.
    • Lawful basis for processing is unclear: Data subjects may mistakenly view the legal basis for processing by Google as legitimate interests (that does not require consent) rather than individual consent.
    • Data retention period is not specified: Google fails to provide information on the period that it retains certain personal data.
  • Invalid Consent: Per GDPR Articles 5-7, a data controller relying on consent as the lawful basis for processing of personal data must be able to demonstrate that consent by a data subject is informed, specified, and unambiguous. CNIL claims that Google fails to capture valid consent from data subjects as follows:
    • Consent is not “informed”: Google’s data processing description for its advertising personalization services is diluted across several documents and does not clearly describe the scope of processing across multiple Google services, the amount of data processed, and the manner in which the data is combined.
    • Consent is not unambiguous: Consent for advertising personalization appears as pre-checked boxes.
    • Consent is not specific: Consent across all Google services is captured via consent to the Google Terms of Services and Privacy Policy rather than a user providing distinct consent for each Google personal data use case.

What Does This Mean for Other Companies?

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Earlier this week, the Direct Selling Self-Regulatory Council (DS-SRC) opened its doors for business. Its objective is to provide independent, impartial, and comprehensive monitoring of direct selling companies on an industry-wide basis, address income misrepresentations (including unsubstantiated lifestyle claims) and false product claims by companies and salesforce members, and enhance the reputation of direct selling.…

43 State Attorneys General and the District of Columbia announced yesterday a settlement with Neiman Marcus Group LLC resolving the states’ investigation into the company’s 2013 data breach and its security practices. Over a three-month period in 2013, a breach of the Dallas-based retailer exposed customer credit card data at 77 Neiman Marcus stores nationwide. …