On October 16, 2013, new FCC regulations will go into effect that introduce the requirement of prior express written consent for certain types of commercial phone calls and text messages to consumers. Among other things, the new rules require that marketers have prior express written consent to autodial or send pre-recorded messages to cell phones. The rules, which put the burden of proof for compliance on the marketer/caller, come with stiff penalties ($500.00 – $1,500.00 per call/text) and will open the door for numerous consumer class action lawsuits.[Read More]
On October 16, 2013, new FCC regulations will go into effect that introduce the requirement of prior express written consent for certain types of commercial phone calls and text messages to consumers. Among other things, the new rules require that marketers have prior express written consent to autodial or send pre-recorded messages to cell phones. The rules, which put the burden of proof for compliance on the marketer/caller, come with sti penalties ($500.00 – $1,500.00 per call/text) and will open the door for numerous consumer class action lawsuits.[Read More]
Sky Ute Casino Resort in Colorado is one of the first tribes to offer a mobile app for sports-betting that could face legal challenges.
By Tony Batt
GamblingCompliance (June 15th, 2020) — Although it remains to be seen if the first Native American casino sports-betting app will face legal challenges, the launching of the app by the Sky Ute Casino Resort in Colorado shows that the Indian gaming industry is gravitating toward the mobile sports wagering market.
“The tribes are very rapidly moving ahead with the implementation of technology not just out of necessity because of the coronavirus but also the fact that all of gaming — commercial gaming along with tribal gaming — has to utilize all available technology to thrive in the future,” said Joe Valandra, a former chief of staff at the National Indian Gaming Commission.
The Sky Ute Casino Resort is located in the southwestern Colorado town of Ignacio, which has a population of just 697.
Customers from across Colorado became able to place bets on the Sky Ute Sportsbook app on June 9.
The launch came seven months after Colorado voters narrowly approved a referendum in November to allow sports betting and effectuate a law passed by the state legislature that allows commercial casinos to offer wagers in their venues and through online platforms.
Since May 1, six online sportsbooks, including FanDuel and DraftKings, have been licensed by the Colorado Limited Gaming Control Commission and launched mobile sports wagering.
Although it has not been licensed by state regulators, the compact of the Southern Ute Tribe, which owns the Sky Ute Casino Resort, expressly allows the tribe to offer any form of gaming that is “expressly authorized” in Colorado.
Still, David Klein, managing partner of New York City law firm of Klein Moynihan Turco, said the Southern Utes would be better served by obtaining a sports-betting license.
“If you’re making these wagers while you’re on the tribe’s reservation, that would be OK,” Klein said. “But bets in other parts of Colorado would be considered wagers placed with an unlicensed operator.”
Vic Salerno, president of USBookmaking, the Nevada-based company managing the sports-betting app for the Sky Ute Casino Resort, referred questions to the tribe’s gaming commission.
The commission did not immediately respond to an email from VIXIO GamblingCompliance.
Klein cited a 2018 decision by the 9th U.S. Circuit Court of Appeals in California that blocked a tribe from using servers on their reservation to offer online bingo games to customers all over the state.
Valandra, who is now executive director of the Native American Contractors Association, led efforts by the Ipsay Nation of Santa Ysabel Tribe to launch the Desert Rose online bingo games in California.
“There are technology parallels between Desert Rose and the sports-betting app in Colorado, but the legal parallels are not exactly the same,” Valandra said.
For example, the California courts cited the Unlawful Internet Gambling Enforcement Act (UIGEA) of 2006 in striking down the Desert Rose online bingo games that were considered a form of Class II gaming.
The sports betting offered by the Sky Ute Casino Resort is considered Class III gaming, which can only be offered subject to state approval via a compact.
Kevin Quigley, one of the attorneys who represented the tribe operating the Desert Rose bingo games, said questions remain about how the Indian Gaming Regulatory Act of 1988 (IGRA), UIGEA and the Wire Act of 19611
questions remain about how the Indian Gaming Regulatory Act of 1988 (IGRA), UIGEA and the Wire Act of 1961 apply to tribal gaming.
“Whether a patron can legally access Indian gaming operations from outside the reservation is still to be determined,” Quigley said.
Tom Foley, a tribal gaming attorney and a former vice chairman of the National Indian Gaming Commission (NIGC), said the federal agency may have to decide if the tribal sports-betting app in Colorado complies with federal law.
In a March 2001 guidance letter, the NIGC advised that “the use of the internet even though the computer server may be located on Indian lands would constitute off-reservation gaming to the extent any of the players were located off of Indian lands.”
Since then, UIGEA has been passed by Congress recognizing the authority of states to regulate online gambling within their own borders and excluding any activities otherwise permitted under IGRA from the definition of unlawful internet gambling.
That was more than a decade before the U.S. Supreme Court ruled in May 2018 that all states can legalize and regulate sports betting.
“That [NIGC] opinion was guided by the policy of the U.S. Department of Justice which back then considered internet gambling and sports betting to be illegal,” said Penny Coleman, a former general counsel of the NIGC.
Coleman said she does not expect the NIGC to revise the opinion.
A New York State appellate court has issued a ruling on daily fantasy sports that could change the State’s constitutional ban on gambling.
By Zachary Zagger
Law360 (February 11, 2020, 10:21 PM EST) — A New York state appellate court has thrown daily fantasy sports into hot water by finding that contests like those offered by DraftKings and FanDuel are illegal. But the ruling could actually push lawmakers to change the state’s constitutional prohibition on gambling expansion, potentially clearing the way for mobile and online sports betting at the same time.
The New York Appellate Division, Third Department, found Thursday that daily fantasy sports, or DFS, contests are gambling under the state penal code. The court struck down a 2016 law passed at the eleventh hour to legalize DFS amid enforcement actions by the state attorney general against DraftKings and FanDuel, finding the law violated the state constitution’s prohibition on gambling expansion.
But the new ruling comes after DFS has already gained a foothold in New York and amid a growing push to legalize online and mobile sports betting now that the U.S. Supreme Court has allowed it. Such sports betting has proven to be a strong source of tax revenue for neighboring New Jersey, but could be limited in New York by the same constitutional prohibition at the center of the DFS ruling.
Attorneys say that while the DFS ruling is sure to be appealed, lawmakers would be smart to start the long process of amending the state constitution to allow state lawmakers to keep DFS and permit mobile sports betting so as not to get left behind neighboring states.
“Does it call for a constitutional amendment? Absolutely, and I think it is likely that it will happen,” said gambling industry attorney David O. Klein, the managing partner at Klein Moynihan Turco LLP. “They’ll kill two birds with one stone so to speak and [propose] a constitutional amendment to change the law such that both fantasy sports and sports gambling will be legalized.”
Notably, the appellate court rejected the legislature’s determination that DFS — in which contestants compete for cash prizes by selecting an imaginary roster of athletes with points awarded on the real- life performance of those athletes over a short period of time — contests are games of skill, and therefore not gambling.
Lawmakers had relied in part on evidence presented by fantasy sports operators that showed DFS contests are games of skill since those with better research and statistical analysis skills perform much better in the contests. The evidence showed that a small percentage of DFS contestants win a large percentage of the overall prize money.
But the appellate court said that the legislature just cannot simply call DFS a skill-based game to avoid the constitutional prohibition because that would render the constitutional prohibition meaningless.
To make matters worse for DFS operators and proponents, the court went on to find DFS met the state’s definition of gambling. No matter how much preparation and skill is used in setting a DFS lineup, the actual performance of the real-life players is dependent on factors outside the DFS contestants’ control, the court said.
“I think this hammers home why the state of New York should have addressed this some time ago, not only for fantasy sports but also for mobile and online sports betting,” said C.J. Fisher, a gambling and sports industry attorney at Fox Rothschild LLP. “I would anticipate that even if there is a bill passed to expressly allow internet and mobile sports betting outside the commercial casino facilities, that that bill would also similarly be challenged in the state.”
New York’s constitutional amendment process is long and complicated, requiring legislative approval in two separate sessions and a statewide voter referendum. But attorneys point to some key differences between now and 2016, when the DFS law was passed, that might make a constitutional amendment more possible.
When then-Attorney General Eric Schneiderman was pursuing illegal gambling enforcement actions against DraftKings and FanDuel in 2015, several other state regulators followed suit.
But now many of those states have joined New York in legalizing DFS or their authorities are not actively pursuing DFS operators. In the Empire State, DFS companies have even formed partnerships with professional sports teams. Madison Square Garden, for instance, has opened several areas branded as “DraftKings Daily Fantasy Sports Lounges.”
There is also a strong push for mobile and online sports betting in New York now that the U.S. Supreme Court has opened the door for states to legalize sports betting. While New York has legalized in-person sports betting at upstate casinos that have popped up since a 2013 constitutional amendment, neighboring states New Jersey and Pennsylvania brought in more than $30 million each in taxes from sports betting that mostly occurred online or through mobile phone apps.
“New York is almost an island in and of itself. Is it going to be stuck far behind and are we going to be stuck based on this Third Department [ruling]? Or are we going to make the decision to move forward and get behind daily fantasy sports?” said Buffalo-based sports and entertainment attorney Anthony Kroese of Goldberg Segalla. “If they don’t make a change now, we are going to be way behind.”
Still, attorneys say an appeal is almost certain to occur, meaning New York’s highest court, the Court of Appeals, will have its say. The state has yet to confirm it plans to appeal the ruling, but New York does provide for an appeal to the Court of Appeals for cases involving substantial constitutional issues.
The Appellate Division panel analyzed DFS contests under New York’s definition of gambling, which follows a minority of states in defining gambling as wagering something of value on a game where chance is a “material” factor in the outcome. More states look at whether chance is the dominant factor, lowering the bar for the amount of skill necessary.
“This is an industry that is still subject to varied state laws and this decision highlights how those distinctions in the gambling laws that were drafted years ago could impact decisions in various states,” said BakerHostetler advertising attorney Linda Goldstein, who has represented fantasy sports and other gaming companies.
Goldstein said the New York appellate court ruling’s lone dissent by Justice Stan L. Pritzker, which said the court should not second-guess the legislature when there is a rational basis for its interpretation of the law, could give the Court of Appeals an alternative argument to latch onto to keep the DFS legalization law intact.
Either way, the ruling shows that the constitutional question will continue to be an impediment for state lawmakers to open the door to new forms of sports-related games and wagering.
“I really always thought that was the best way to deal with this issue once and for all, … just go through the constitutional process,” said attorney Irwin Kishner, co-chair of the sports law group at Herrick Feinstein LLP. “It has been done before. It takes time, but that is the way to go.”
–Editing by Emily Kokoll and Michael Watanabe.
By Melkorka Licea.
New York Post (November 11, 2019, 6:53 PM EDT) — Is fitness tech counting steps — or overstepping?
Last week, Twitter users flew into a panic after learning that Google is acquiring Fitbit, the trendy fitness-tracking watch, for $2.1 billion. The freakout centered on user data — specifically, Fitbit users’ concerns that their exercise, food, weight and sleep data would become less secure. Although Fitbit said in a press release that it will “never sell” personal information, and promised that “Fitbit health and wellness data will not be used for Google ads,” users are skeptical.
And they may have reason to be concerned, according to NYC lawyer Gary Schober.
“Once you sign onto an app … you’re often just giving everything away,” the cybersecurity specialist tells The Post.
He would know: Part of his job is writing those long, barely skimmed privacy agreements for apps.
“Companies can collect whatever info they want and can use the info any way they want as long as they tell people,” says the attorney, who says he’s drafted “a bunch of … very favorable policies for my clients, because it’s not very likely anyone will read it, anyways.”
So, what happens once your health data — anything from your step count to your diet — are shared or sold to a company? Most often, it’s nothing too scary, says Schober: Typically, advertisers use health data to better target their ads with “no sinister intent.”
But that doesn’t mean things can’t get sinister.
For instance, if outside parties — such as insurance companies and prospective employers — get a hold of your health data, the ramifications could extend to big insurance premiums and even missed career opportunities.
Plus, there’s precedent for Google getting into hot water over sensitive health info: In 2017, the University of Chicago Medical Center teamed up with the search-engine giant, with the goal of sharing anonymous patient data so techies could analyze it and see if they could improve diagnostics with that information. But in June, both Google and the medical center were sued for not properly anonymizing hundreds of thousands of patient records. (Spokespersons from Google and the University of Chicago told the New York Times that they followed medical privacy guidelines.)
It’s important to note that not all health gadgets and apps are built the same. For example, doctor login portals — which your doc may ask you to download and use to schedule appointments and share test results — are protected by HIPPA (Health Insurance Portability and Accountability Act).
But if your doctor didn’t sign off on your tech, assume that your user data is fair game, says Schober.
Here, he and fellow experts break down the potential pitfalls of uploading your health information to your phone — and share their best advice on how to keep your private info private without going full tinfoil-hat.
Movement and step tracking
Apps that log the distance, pace and time of aerobic exercise are so popular that iPhones started offering a pedometer feature with IOS 8. It tracks your steps — without you ever asking it to.
But from a data perspective, you could stroll right into trouble if you have a sedentary spell, leave your phone at home or go off the grid.
“Let’s say suddenly you’re not using [your phone] as much and your average pace per mile goes down significantly,” says David O. Klein, an NYC data privacy lawyer. “It’s possible that an entity could discern that you have a health condition.”
That information could in turn be used by health insurance companies to determine you have a “risk factor” and offer you a higher rate, he says.
“Even if it’s not true, it could still influence their decision.”
Women want to know when it’s that time of the month, and thanks to numerous apps, the visit doesn’t have to be a surprise. But if your cycle “changes significantly,” says Klein, it could suggests to the health apps — and anyone else who has your info — that you’re pregnant, whether it’s true or not.
Jeffrey Neuburger, an NYC tech lawyer, says that information could have scary practical effects if it gets into the wrong hands — say, a hiring manager’s.
“A prospective employer might not want to hire someone who will be out on maternity leave,” Neuburger says.
There are also mental-health consequences to consider, particularly around fertility issues. For example, if period-tracking data tips companies off to a woman’s fertility struggles, that would allow “IVF companies, for example, to target women,” says Neuburger, possibly stressing out women struggling to conceive.
Or pregnancy-tracking apps can miss the memo during a miscarriage, as Washington Post writer Gillian Brockell called attention to last December. Brockell described “brokenheartedly” receiving early-motherhood ads after learning that her baby would be stillborn. Other women have spoken out about similarly upsetting experiences.
Food and diet
Have a cheat day coming up? It could come back to bite you if you log it into your food tracker — or even if you order a caloric feast via a delivery app.
“If my whole diet consists of nothing but pasta and bread, life insurance companies aren’t going to be happy about that, because it’s likely to reduce life expectancy,” says Schober.
It might sound far-fetched, but insurance companies are clearly paying attention to our diets: One, John Hancock, offers incentives and benefits to policyholders for buying more fruits and vegetables and whole grains as part of a “vitality” program. So what’s to stop companies from doing the reverse?
Then, there’s the direct threat to your health — via temptation, as advertisers pinpoint your junk-food weak spots.
Schober says, “If I show a propensity for eating a lot of pasta, that information can be used to tell me there’s a nice little Italian restaurant on Second Avenue I might want to go try.”
Feeling anxious? Hitting a hard workout? Chugging coffee? You might want to switch off your heart- tracking app.
“Say your heart rate spikes beyond a certain level … it could indicate a heart condition,” says Klein. That doesn’t mean you have one: “It could be completely coincidental, but some of these algorithms are unbelievable now.”
Passing out your heart-health stats can have alarming outcomes. Not only could it raise your insurance premiums if the companies find out, but info on your heart health could also “be factored into real-estate decisions, like whether someone wants to lease you a place, or give you a loan,” says Neuburger.
That said, if you have reasons to be concerned about your ticker, the pros of tracking your heartbeat could still outweigh the cons. But if heart health and privacy are of equal concern, go low-tech: The American Heart Association suggests buying a bicep blood-pressure monitor (starting at about $25 on Amazon) and using a heart chart (online, on sites like Heart.org) to read your stats.
Lock down your health!
NYC lawyer Gary Schober explains how to keep your sensitive health data private.
Agree to disagree: When you download a health app — or any app — don’t just mindlessly swipe through all the agreements. Keep a sharp eye out for options to “disagree” or “opt out” from selling your data to, or sharing it with, external parties.
Stop the ad-ness:
If targeted ads on social media give you the creeps, change your smartphone’s settings. IOS phones have an option to “limit ad tracking” to opt out of receiving targeted ads. Start by going to “settings,” scroll down to “privacy” and click on “advertising.” Once there, switch the “limit ad tracking” dial to the right turning it green. For an Android, go to “settings” and scroll down to “privacy.” Choose “ads,” find where it says “opt out of ad personalization” and toggle the dial to the right so it turns blue.
Go off the grid:
In order to limit location tracking — which can track the distance and locations of your workouts — change your location setting to “while using” or “ask” for iPhone apps, and to “only in use” or “denied” for Android apps.
By Zachary Zagger.
Law360 (October 31, 2018, 5:16 PM EDT) — A New York state court’s recent ruling that daily fantasy sports contests are gambling exposes operators like DraftKings Inc. and FanDuel Inc. to legal risks that were thought to be resolved and may force the companies to lobby for an amendment to the state constitution to save their businesses in the Empire State.[Read More]
Sports Gambling to Proceed on a State LevelAmy DiPierro, The Desert Sun Published 6:22 p.m. PT May 14, 2018 | Updated 10:58 a.m. PT May 15, 2018
SportsPulse: Supreme Court reporter Richard Wolf breaks down the SCOTUS ruling on sports betting in the United States, and what it could mean for the future of gambling in professional and college sports. USA TODAY Sports
September 5, 2017
An Illinois federal court’s decision refusing to dismiss a lawsuit brought against a university over a series of allegedly unsolicited text messages is “unfortunate,” says one of the most recognized attorneys in the technology and telecommunications fields.
David O. Klein, managing partner of New York City-based Klein Moynihan Turco LLP, said the July 28 ruling by the U.S. District Court for the Northern District of Illinois, Eastern Division, likely will result in “potentially protracted” litigation.[Read More]