Data & Privacy Law

FTC Calls for Public Comment on Negative Option Marketing

September 30, 2019 by David Klein

September 30, 2019

negative-option-marketing — Negative Option Marketing and the FTC

On September 25, 2019, the Federal Trade Commission (“FTC” or “Commission”) published an Advance Notice of Proposed Rulemaking calling for public comment on the need to amend the current “Rule Concerning the Use of Prenotification Negative Option Plans” (the “Negative Option Rule” or “Rule”). Negative option marketing, where a consumer’s silence constitutes consent to an offer, can come in several different forms. According to the FTC, the current Rule fails to address: 1) all forms of negative option marketing; 2) across all types of media.

How Would the FTC Amend the Current Rule?[Read More]

CCPA Amendments Provide Some Clarity

September 26, 2019 by David Klein

September 26, 2019

Readers of this blog have been following our updates on prospective amendments to the California Consumer Privacy Act (“CCPA”). Among other amendments, Assembly Bill No. 1355 (the “Bill”) was passed by the California State Legislature on September 13, 2019. This CCPA amendment, if signed into law by Governor Newsom, will, among other things, rectify some of the drafting errors related to language included in the definition of “personal information,” disclosures required in website privacy policies and how the Attorney General can establish rules and procedures that companies should follow in order to comply with consumer request requirements.

How does the Bill amend the CCPA?

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CCPA Exception Approved by California Legislature

September 25, 2019 by David Klein

September 25, 2019

CCPA-exception — CCPA Exception Approved

As we have previously blogged, the California Consumer Protection Act (“CCPA“) will impose significant new obligations on how businesses handle California State residents’ personal information. Although the CCPA is scheduled to go into effect on January 1, 2020, California lawmakers are still working on amendments, implementing regulations, and clarifying CCPA exceptions. Shortly before the close of the California legislative session on September 13, 2019, several amendments were passed and sent to the Governor for signature. One of the amendments being considered by the Governor, AB 874, would modify the definition of personal information by expanding the CCPA exception for publicly available information.

How Does AB 874 Amend the CCPA?

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Does use of Soundboard Technology Violate the TCPA?

September 24, 2019 by David Klein

September 24, 2019

On September 13, 2019, Florida-based company Yodel Technologies LLC (“Yodel”) petitioned the Federal Communications Commission (“FCC”) for a declaratory ruling concerning the use of soundboard technology. Specifically, the petition addresses the question of whether soundboard technology should be considered a pre-recorded voice message, or “robocall,” within the meaning of the Telephone Consumer Protection Act (“TCPA”). This petition comes on the heels of a similar petition submitted in February 2019, by NorthStar Alarm Services, LLC in which they sought a declaratory ruling regarding whether soundboard technology violates the TCPA. As of this date, that petition still remains pending.

Is use of soundboard technology prohibited by the TCPA? [Read More]

CCPA Amended to Require California Data Broker Registration

September 23, 2019 by David Klein

September 23, 2019

On September 13, 2019, the California State Legislature passed Assembly Bill No. 1202 (the “Bill”), amending the California Consumer Privacy Act (“CCPA”) to require certain businesses to register as data brokers with the State Attorney General’s Office. The Legislature believes that a California data broker registry will provide greater transparency on the issue of third parties that may have access to their personal information (companies that they do not have a first party relationship with the consumer) and allow consumers to prospectively opt out of the “sale” of this personal information. The CCPA defines “sale” in a very broad fashion, such that it includes the “selling, renting, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a consumer’s personal information by the business to another business or third party for monetary or other valuable consideration.” In practice, this means that a disclosure of almost any kind (other than to pure service providers) falls within the definition. We can, therefore, assume that in the context of the CCPA, selling really means sharing and should be treated as such. The Bill has moved to Governor Gavin Newsom’s desk, who now has until October 13, 2019 to act on the legislation.

What is required of California Data Brokers?

California Data Broker Definition

The Bill defines a California data broker as “a business that knowingly collects and sells to third parties the personal information of a consumer with whom the business does not have a direct relationship.” Exempt from the definition are: 1) consumer reporting agencies that are covered by the federal Fair Credit Reporting Act; 2) financial institutions covered by the Gramm-Leach-Bliley Act; and 3) entities covered by the Insurance Information and Privacy Protection Act. A “direct relationship” is not defined in the Bill, but the Legislature has stated that direct relationships can form for various reasons, “such as by visiting a business’ premises or [I]nternet website, or by affirmatively and intentionally interacting with a business’ online advertisements.”

Registering as a California Data Broker

Businesses that meet the definition of California data broker must register annually with the Attorney General on or before January 31. Registration will require California data brokers to: 1) pay a fee that will be determined by the Attorney General; 2) provide their primary physical, email, and Internet website addresses; and 3) include any additional information that they choose to include with respect to their data collection practices. Failing to register as a California data broker may result in a civil penalty of $100 for each day that the California data broker fails to register its business, payment of the registration fee, and any expenses incurred by the Attorney General’s Office to investigate and prosecute any associated regulatory action.

As early as 2012, the Federal Trade Commission (“FTC”) had suggested that legislation should be initiated at the federal and state level to regulate the data broker industry. Currently, Vermont is the only other state of the Union that requires data broker registration. As more states look to follow the lead of California and Vermont in requiring consumer data broker registration, businesses should seek the advice of qualified legal counsel to help navigate the existing and emerging issues presented by applicable state laws.

If you are interested in learning more about this topic or ensuring that your business is compliant with state and federal data collection, storage and usage laws, please e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.

The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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CCPA Compliance Preparation – Must all Businesses Comply?

September 13, 2019 by David Klein

September 13, 2019

As readers of this blog well know, on January 1, 2020, the California Consumer Privacy Act (“CCPA”) will go into effect. Businesses must be prepared to comply with the CCPA in order to avoid civil penalties of up to seven thousand five hundred dollars ($7,500) per violation. The first step in that CCPA compliance preparation is determining whether the CCPA even applies to your business.

What businesses must comply with the CCPA?

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Reminder: Nevada Opt-Out Requirements Take Effect October 1

August 22, 2019 by David Klein

August 22, 2019

We have previously blogged about Nevada Senate Bill 220 and how it amended Nevada’s data privacy law to provide consumers with the ability to opt-out of the sale of their personally identifiable information to certain businesses. Given that the Nevada opt-out requirements go into effect on October 1, 2019, we wanted to remind our readers of the measures that need to be addressed in order to be ready as of the effective date.

What are the Nevada opt-out requirements?

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FTC Settles Email Lawsuit with Unrollme

August 15, 2019 by David Klein

August 15, 2019

The Federal Trade Commission’s (“FTC”) Bureau of Consumer Protection has entered into a consent agreement with Unrollme Inc. (“Unrollme”), preventing Unrollme from continuing to engage in practices which the FTC considers to be unfair or deceptive, in violation of Section 5(a) of the Federal Trade Commission Act, 15 U.S.C. § 45(a). This email lawsuit was initiated because Unrollme was providing its parent company, Slice Technologies, Inc. (“Slice”), with access to Unrollme users’ inboxes for purposes of collecting data from electronic purchase receipts for market research, failing to disclose those practices, all while representing that they would not, in fact, access the private emails of their users.

What are the allegations contained in the email lawsuit complaint?

[Read More]