Internet Law

CA Attorney General Releases New CCPA Law Modifications

February 12, 2020 by David Klein

Recently, the California Consumer Privacy Act (“CCPA”) regulations were modified by the California Attorney General. The latest CCPA law modifications were released on February 7, 2020, in an attempt to address issues that were raised during the public hearing and comment period that followed the release of the proposed regulations on October 11, 2019.

The California Attorney General has announced a deadline of February 24, 2020, at 5:00 p.m. (PST) to submit written comments, in yet another attempt to clarify CCPA law.

How have the proposed regulations changed?

[Read More]

FCC Clarifies TCPA Fax Exemption

December 27, 2019 by David Klein

December 27th, 2019

In an important decision concerning the Junk Fax portions of the Telephone Consumer Protection Act (“TCPA”), the Federal Communications Commission (“FCC”) recently issued a declaratory ruling clarifying the scope of the TCPA fax exemption. The ruling came in response to a petition filed by Amerifactors Financial Group, LLC (“Amerifactors”) requesting clarification from the FCC as to whether certain fax services can be fairly classified as fax machines within the meaning of the TCPA.

Like many other companies operating in the fax-based marketing space, Amerifactors utilizes online fax services to transmit its marketing communications. Such online fax services operate through use of “‘a cloud-based service consisting of a fax server or similar device that is used to send or receive documents, images and/or electronic files in digital format over telecommunications facilities’ that allows users to ‘access faxes the same way that they do email by logging into a server over the Internet or by receiving a pdf attachment [as] an email.’”

How did the FCC clarify the TCPA fax exemption?

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FTC Clarifies Influencer Law with New Sponsorship Disclosure Guide

November 12, 2019 by David Klein

On November 5, 2019, the Federal Trade Commission released a new guide, “Disclosures 101 for Social Media Influencers” (the “Guide”), in an attempt to curtail the scourge of deceptive ads published by social media influencers. In the past, we have blogged about how advertisers and influencers have come under investigation for failing to adequately disclose their professional relationships. To avoid future investigation from the FTC and state attorneys general, advertisers and influencers should consult the Guide and otherwise comply with developing principles of “influencer law.”

What tips does the Guide provide for advertisers and influencers?

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Iowa Fantasy Sports Becomes Reality

November 1, 2019 by David Klein

November 1, 2019

Iowa-fantasy-sports — Iowa Fantasy Sports

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?

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Domino Effect: Will SCOTUS Refusal to Hear ADA Website Case Yield Flood of Litigation?

October 9, 2019 by David Klein

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?

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Pre-Checked Boxes Do Not Constitute Valid Consent Under GDPR

October 4, 2019 by David Klein

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]

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 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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