November 1, 2019
In an effort several years in the making, Iowa recently issued the State’s first fantasy sports license to DraftKings, Inc. (“DraftKings”). DraftKings wasted no time in getting its operations up and running, having launched its Internet-based Iowa fantasy sports service to the public in recent weeks.
What are some notable provisions of Iowa’s fantasy sports law?
October 9, 2019
On October 7, 2019, the United States Supreme Court denied a petition for a writ of certiorari in the matter of Domino’s Pizza LLC v. Robles. This case involves an Americans with Disabilities Act (“ADA”) claim in which Mr. Guillermo Robles, a blind man, filed a lawsuit against Domino’s Pizza LLC (“Domino’s”) because its website and mobile application (“app”) was inaccessible to him via his screen-reader software. The ADA website accessibility case is now expected to proceed to trial.
What is the Significance of the Supreme Court’s Denial for Other ADA Website Accessibility Cases?
October 4, 2019
On October 1, 2019, the Court of Justice for the European Union (“CJEU”) issued an important opinion regarding the scope of consent in the context of the General Data Protection Regulation (“GDPR”). Specifically, the Court determined that a company cannot validly obtain a user’s consent to install cookies on his/her computer device through means of pre-checked boxes. Instead, the Court ruled that for a user’s consent to be valid under the GDPR, consent must be both active and unambiguous.
Why don’t pre-checked boxes constitute valid GDPR consent? [Read More]
September 30, 2019
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]
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?
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.”
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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Related Blog Posts:
Vermont Data Broker Registration Due January 31, 2019
CCPA Compliance: Service Provider Agreements and the California Consumer Privacy Act (CCPA)
Privacy Policies and the California Consumer Privacy Act (CCPA)
September 13, 2019
On August 16, 2019, fantasy sports operator SportsHub Games Network, Inc. (“SportsHub”) and the New Jersey Attorney General entered into a Consent Order in which SportsHub agreed to pay a $30,000 penalty for operating a fantasy sports website in New Jersey without a permit. Pursuant to the terms of the New Jersey fantasy sports Consent Order, SportsHub took steps to obtain the necessary permits to operate in the State and agreed to amend its business practices so that its Website Privacy Policy and Terms and Conditions complied with the State’s consumer protection laws.
What were the terms of the Consent Order?
September 10, 2019
On July 12, 2019, the Federal Trade Commission (“FTC”) filed a complaint against AH Media Group, LLC, and its owners, Henry Block and Alan Schill (collectively, “Defendants”), for allegedly violating certain free trial laws as codified in Section 5(a) of the FTC Act, Section 4 of the Restore Online Shoppers’ Confidence Act (“ROSCA”), Section 907(a) of the Electronic Funds Transfer Act (“EFTA”), and Section 1005.10(b) of Regulation E, respectively. The Defendants have agreed to a preliminary injunction, barring them from continuing to run negative option plans tied to “free” trial offers.
How did the Defendants’ “free” trial offers allegedly violate free trial law?
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?