Uber Privacy Policy Challenged by EPIC Letter to FTC

June 26th, 2015 by Meegan Brooks

On Monday, the Electronic Privacy Information Center (EPIC) filed a complaint urging the Federal Trade Commission (FTC) to investigate Uber Technologies Inc.’s business practices, and in particular, its new privacy policy, which goes into effect July 15. Although Uber described its new policy as an attempt to clarify its existing terms, while also providing for “potential new use cases,” the complaint claims that Uber’s updated privacy policy is an unlawful and deceptive trade practice.

Among other things, the complaint asks the FTC to halt Uber’s collection of user location data when it is unnecessary to provide a service; to halt Uber’s collection of user contact list information; and to require that ride information be deleted once the ride is completed.

Uber announced its new privacy policy in a blog post on May 28, explaining that its privacy counsel from Hogan Lovells LLP had reviewed the company’s privacy practices and recommended simplifying the privacy policy. “In the interest of transparency,” however, the post also described “potential new use cases” that would be permitted under the new policy.

EPIC’s complaint is centered on two of these new uses. First, Uber’s new policy would allow the app to track users’ locations when the app is running in the background, which Uber explained would help “get people on their way more quickly.” Second, the policy would allow Uber to access users’ contact lists and send promotional messages to users’ friends and family.

The new policy states:

• Location Information: When you use the Services for transportation or delivery, we collect precise location data about the trip from the Uber app used by the Driver. If you permit the Uber app to access location services through the permission system used by your mobile operating system (“platform”), we may also collect the precise location of your device when the app is running in the foreground or background. We may also derive your approximate location from your IP address.

• Contacts Information: If you permit the Uber app to access the address book on your device through the permission system used by your mobile platform, we may access and store names and contact information from your address book to facilitate social interactions through our Services and for other purposes described in this Statement or at the time of consent or collection.

For both the tracking and the promotional features, the post promises that “users will be in control: they will be able to choose whether to share the data with Uber.” Citing this language, EPIC has alleged that Uber has deceptively reassured customers that they would be in control of their data when the update policy actually deprives them of that control.

According to EPIC’s complaint, while iOS phones can disable the contact-syncing option by changing the contacts setting on their phones, the Android mobile platform does not offer any comparable setting. Similarly, the Android platform does not allow users to modify data location settings for individual apps—so if a user wants to bar Uber from tracking a user’s location while the app was running in the background, the user would need to turn off location data for all apps. Again, however, Uber will notify customers before it begins tracking their information in the background, so that they have the option of opting out. The complaint also says that by sending unsolicited texts to customers and people on their contact lists, Uber may be violating the Telephone Consumer Protection Act (TCPA).

The policy explains:

IMPORTANT INFORMATION ABOUT PLATFORM PERMISSIONS
Most mobile platforms (iOS, Android, etc.) have defined certain types of device data that apps cannot access without your consent. And these platforms have different permission systems for obtaining your consent. The iOS platform will alert you the first time the Uber app wants permission to access certain types of data and will let you consent (or not consent) to that request. Android devices will notify you of the permissions that the Uber app seeks before you first use the app, and your use of the app constitutes your consent…

Additionally, even when a customer has opted out of tracking, the revised policy would allow Uber to track customers based on their IP addresses. According to the complaint, this is an unfair business practice because users are not given the option of opting out of this kind of tracking.

Once the new policy takes effect, Uber will be able to collect and store various information about its users, including: location data, contact information, transaction information, usage and preference information, device information and information regarding calls and messages between riders and drivers. Notably, Uber is not unique in accessing this kind of data—it is common, for example, for apps to track customers’ locations based on their IP addresses. Because apps in many industries regularly access the kinds of data being used by Uber, and because of the current lack of regulations in this area, any action that the FTC may decide to take will likely have effects extending outside of the rideshare industry.

The FTC has not yet indicated whether it is investigating Uber’s practices. That said, the Commission has shown an increased interest in privacy issues surrounding peer-to-peer businesses. Earlier this month, for example, the Commission hosted a workshop entitled “The Sharing Economy,” which examined competition, consumer protection and economic issues arising in the sharing economy and considered whether and how existing regulatory frameworks can be responsive to sharing economy business models while maintaining appropriate consumer protections.

The Buck Stops Here: CEOs Held Most Accountable by Directors for Major Data Breaches

June 4th, 2015 by Scott Lyon

According to a recent joint survey of nearly 200 directors of public companies by the New York Stock Exchange and Veracode, CEOs are most likely to be held responsible in the event of a major data breach, ahead of the chief information officer (CIO), chief information security officer (CISO), and board members themselves. This trend appears to recognize the critical role of top level management in ensuring that cyber security is made an enterprise-wide priority and that sufficient resources are being allocated to address potential vulnerabilities before a breach occurs.

Over 78 percent of the directors surveyed by the NYSE were outside directors serving on one to three executive boards in a myriad of industries, including financial services, technology, and healthcare. Although more than 80% of the respondents stated that cyber security matters are discussed at nearly every meeting, 66% responded that they were less than confident in their company’s ability to secure against cyberattacks. One particularly alarming response was that 20% indicated that cyber security was only discussed after either an internal incident or incident within the same industry.

This reactive response is also reflected in the priorities associated with new technology-based products and services. Security risks were ranked 4th in the list of top concerns for new products and services, behind revenue potential, competitive differentiation, and development costs. Part of the problem is that directors perceive enhanced security as detrimental to customer perception of their products. As one director commented, “The more you increase security, the less user friendly” the product or service becomes. However, in the event of a breach of security, directors identified “brand damage due to customer loss” as their primary fear, behind the cost of responding to a breach and the loss of competitive advantage due to disclosure of strategic plans or proprietary designs. This is indicative of the critical balancing act companies face when pushing the boundaries of innovation – they need a product secure enough that customers feel safe using it, while at the same time keeping security features unobtrusive enough not to interfere with the customer’s perception.

Although directors are becoming increasingly aware of the threats and consequences of cyberattacks, the survey also illustrates a knowledge gap between directors and the product design process. More than 2/3 of the directors believed that most or all of their web and mobile applications had been evaluated for potential cyber security vulnerabilities before being made available to customers; however, separate studies by SANS and IDG Research have indicated that a majority of enterprise software applications are never assessed for vulnerabilities (possibly as high as 62% according to IDG Research).

As reports surface of major breaches traced to third-party vendors, 72% of responding directors indicated that they were concerned or very concerned about the risk of third-party software. However, the potential risks extend beyond software vulnerabilities and also encompass the internal security processes of vendors who are given access to a company’s networks, as in the case of the HVAC provider whose stolen network credentials allegedly resulted in the initial intrusion at Target. One director in the survey expressed concern with a company’s “inability to know whether customers and suppliers who use our systems have adequately secured their own access points.”

While the report drew attention to the threat faced by CEOs who do not adequately address cyber security threats, it also emphasized the importance of qualified CISOs capable of managing and communicating cyber security information to directors and management. In addition to technical skills and experience, directors also stated that business acumen and strong communication skills were key qualities they look for in a CISO. In order to communicate effectively with board members, respondents stated that CISOs should discuss cyber security in terms of high-level security strategy descriptions and risk metrics, rather than overly detailed technical descriptions.

Ultimately, boards of directors and management are recognizing that executive-level commitment and sufficient allocation of resources are critical for a mature cyber security program. As enterprises re-assess their own information security capabilities and communicate their expectations to third-party vendors, CISOs are being called upon to assume greater business responsibility and engage in aspects of the business outside of the traditional IT functions. This will involve a change in traditional business methodologies, emphasizing security and privacy-by-design principles, increasing supply chain oversight, and facilitating effective communication among management so that all key players are capable of making informed decisions over the cyber security matters for which they will ultimately be held responsible.

Supreme Court to Resolve Circuit Split on Whether Rule 68 Offer Moots

May 27th, 2015 by Scott Lyon

SCOTUS has accepted certiorari in a matter that may meaningfully impact the volume of consumer class actions, particularly where the damages are set by statute.  Currently there is a split among federal circuit courts whether a Rule 68 offer of judgment can moot a class plaintiff’s individual claims and thereby extinguish a class action.  The forthcoming SCOTUS decision in Campbell—Ewald Company v. Gomez may resolve this split and determine whether a Rule 68 offer of judgment can moot a class action.

However, even in the Seventh Circuit where a Rule 68 offers can moot a class, a plaintiff can sidestep the offer merely by filing a boilerplate motion for class certification with or soon after the complaint.  Therefore, if SCOTUS wishes to meaningfully reform current consumer class action practice, it will also need to rule that a plaintiff cannot sidestep a proper Rule 68 offer of judgment merely by filing a boilerplate motion for class certification.

Sedgwick’s Class Action Task Force takes a closer look at the events leading to SCOTUS accepting certiorari in Campbell—Ewald Company v. Gomez in the PDF attached here.

Post by Moises Melendez – Partner, Sedgwick LLP

Nevada Broadens Definition of Personal Information for Purpose of Encryption and Breach Notices

May 20th, 2015 by Scott Lyon and Nora Wetzel

On May 13, Nevada passed a new law (A.B. 179) expanding the definition of “personal information” to include a natural person’s first name or initial and last name in combination with: 1) medical and health insurance identification numbers; 2) user names, unique identifiers or email addresses in combination with passwords, access codes or security questions and answers that would permit access to an online account; and 3) driver’s authorization card numbers. The broader “personal information” definition applies to Nevada’s breach notice and security measure laws, which regulate both the collection of personal information of Nevada residents as well as data collectors doing business in the State of Nevada. (N.R.S. 603A.210, 603A.220).  However, the definition of “personal information” only applies to the specified data elements “when the name and data elements are not encrypted.”

Previously, the definition of “personal information” only included a natural person’s name when combined with a Social Security number, driver’s license or other identification card number, or an account or credit card number together with the security code or password necessary to permit access to a financial account.  Importantly, Nevada’s expanded definition includes both information often defined as “personal health information” (i.e. medical and health insurance identifiers) as well as computer access credentials (i.e. user names and passwords).  Given how many businesses assign their users unique identifiers and/or maintain email addresses with passwords for their users, this new law may impose significant obligations on companies maintaining Nevada residents’ personal information or doing business in the state.

Consequently, businesses maintaining Nevada residents’ personal information or doing business in Nevada should confirm they are compliant with the new Nevada law which goes into effect July 1, 2015.  Nevada requires a data collector to implement reasonable security measures, left undefined, to protect any Nevada resident’s personal information.  Under Nevada law, a data collector is broadly defined to include any entity or association (including universities, banks, and government agencies) that “handles, collects, disseminates or otherwise deals with nonpublic personal information.” Companies doing business in Nevada that accept payment cards in connection with the sales of goods or services must comply with the Payment Card Industry Data Security Standards.

A key element of Nevada’s data security requirements is its treatment of encrypted data.  Under both the original and newly expanded definition, encrypted data is not included within the definition of “personal information.”  In addition, any data collector doing business in the State of Nevada is required to encrypt personal information when transferring the data electronically (excluding fax transmissions) or when moving data storage devices containing personal information beyond the “logical or physical controls of the data collector.”  N.R.S. 603A.215(5)(b) defines the types of encryption deemed sufficient to satisfy Nevada law.

Any business maintaining records containing Nevada residents’ “personal information,” as newly expanded, or otherwise doing business in Nevada should ensure they have reasonable security measures in place.  Businesses which have not yet implemented reasonable security measures should do so such that they are in place by July 1, 2015.  In addition, the common threat of data breaches should encourage businesses maintaining Nevada resident’s personal information to prepare for data breaches by mapping their current data and maintaining up-to-date records of the types of data they maintain.  If a data breach occurs, businesses must assess whether any personal information of a Nevada resident, as newly defined by Nevada state law, was subject to the breach and notify the Nevada residents in accordance with Nevada state law.

In-Store Monitoring: How to Enjoy the Benefits of Tracking While Minimizing Potential Privacy Issues

May 18th, 2015 by Meegan Brooks

In the latest example of the conflict between technological innovation and privacy concerns, the Federal Trade Commission (FTC) reached a settlement agreement last month with Nomi Technologies, Inc.

Nomi is a startup whose technology allows retail merchants to analyze aggregate data about consumer traffic in the merchants’ stores. Although different companies track this data in different ways, it is generally done by monitoring signals emitted from a mobile phone to see where a device moves over time. Nomi’s technology can tell a retailer where a customer walks in a store, or whether she is a repeat customer; it is not able to identify her personally.

Notwithstanding heavy criticism from the public and privacy advocates for invading customers’ privacy by tracking their movement without their consent, the FTC’s action was not brought pursuant to any privacy law or privacy-based right. Instead, the FTC’s action amounted to a run-of-the-mill consumer deception claim. The FTC alleged that Nomi misled consumers by falsely promising to provide mechanisms for consumers to opt-out of tracking and be notified when their information is being tracked. The proposed settlement prohibits the startup from misrepresenting people’s options for controlling whether information about them or their devices is collected, used, disclosed or shared. Notably, it did not impose notice and consent requirements for retail trackers or offer more specific guidance for retailers who track their customers.

The FTC’s decision, which was split 3-2, highlights the tension between allowing emerging retail technologies to grow and innovate, and the potential privacy risks that come with allowing companies to track consumers. The dissenters argued that the FTC should have refrained from bringing this action, given the immateriality of the representation, the lack of evidence of consumer harm and the potential chilling effect to other innovative startups.

Lack of Formal Guidance for Retailers

Even though thousands of retailers currently use some type of in-store tracking technology, the FTC has not yet issued formal standards for how retailers should use this technology without violating customers’ right to privacy.

Still, the FTC has made its interest in this area clear. Over the last several years, the FTC has published several guidance documents related to mobile phone tracking more generally, which touched on retailers’ tracking of their customers. Last spring, the FTC hosted a seminar dedicated to the in-store tracking technology, including the different kinds of technology available and the privacy concerns with each. The Nomi action was just the latest reflection of the FTC’s increasing concern with this issue.

Days after the Nomi settlement, Ashkan Soltani, chief technologist at the FTC, blogged about the policy trade-offs in retail tracking. Soltain emphasized a point that was also clear in the FTC’s majority opinion in Nomi: “Retail tracking has many benefits for retailers and consumers alike. Stores are able to better understand the behaviors and preferences of their shoppers, and individuals in turn receive better service.” For example, by knowing where customers walk in a store, retailers are able to improve store layouts and reduce customer wait times.

Retailers looking to protect customer privacy should look to both Soltani’s blog and the FTC’s cell phone tracking reports for advice. Each reiterates that to best strike the balance between information and privacy, companies should disclose what information they are taking and how they plan on using it, and should ask for customers’ consent. Below are several considerations that apply specifically to the retail context:

1. Individual Identification

Currently, the predominant use for tracking information is to track customers in the aggregate. Although this is done by using unique identifiers to track each individual phone over time and across locations, each phone’s owner remains anonymous in this process.

However, the technology is available to track customers on a more individual basis. When a customer signs into a commercial hotspot, her MAC address can give a retailer access to her name and other WiFi networks she has used, and can “link” the customer’s online and in-store shopping behavior. Although it is unclear whether any companies collect or use this information, accessing this more personal information would clearly elevate privacy concerns related to in-store tracking. Notably, both dissenters in the Nomi case emphasized that Nomi’s technology did not provide the company with information about individual consumers, which suggests that they may have applied different analyses had Nomi been tracking individual customers.

Several efforts are currently being made to randomize phones’ wireless identifiers, so that retailers are not able to track individuals across multiple trips to multiple stores. For example, some smartphone manufacturers have attempted to build in features that limit retail tracking by randomizing the phone’s wireless identifier; according to Soltani, however, the effectiveness of these technologies is somewhat limited. The Internet Engineering Task Force (an Internet standards body) is currently working to achieve the same goal.

2. Consent

Although the FTC has not yet required that retailers obtain customers’ consent before tracking their locations, its recent publications in this area suggest that receiving consent is an effective way to minimize privacy risks.

Notably, it is much easier to receive customer consent for some kinds of tracking technology than others. Soltani distinguished active monitoring, which “is typically performed by the service the device is communicating with, such as by the cellular provider or by the WiFi hotspot the device is connected to,” and passive monitoring, which intercepts signals from the device as it communicates or searches for other devices and networks. Typically, customers are required to agree to terms and conditions before the retailer can use active monitoring; for example, by signing a cellular service contract or by connecting to a WiFi hotspot.

By creating a loyalty program application or offering free in-store WiFi, stores can offer benefits to their customers while also receiving their consent to data tracking. Another option, which is currently used by Apple, Macy’s, Coca-Cola, and Procter & Gamble, is known as proximity marketing. This is an opt-in system that allows retailers to send promotions to customers who are in the proximity of their stores.

Several smartphone location technology companies also allow customers to opt out of data tracking through an opt-out website, http://www.smart-places.org/. This website is one aspect of The Mobile Location Analytics Code of Conduct, which was created by analytics companies in October 2013 to assuage customers’ privacy concerns. Additionally, the Code also calls for companies to obtain consent before collecting customers’ personal information. Although the FTC praised the Code for “[recognizing] consumer concerns about invisible tracking in retail spaces and [taking] a positive step forward in developing a self-regulatory code of conduct,” this code is not legally enforceable. Following the Nomi decision, however, analytics companies could be liable for deceiving consumers by claiming to comply with the Code but then failing to actually do so.

3. Notice

Notice is closely intertwined with consent. By not imposing a notice requirement on Nomi, the FTC — at least for the meantime — seems to have signaled that retailers are not required to notify their customers that they are being tracked through their cell phones. However, both Soltani’s blog post and the FTC’s recent cell phone guidance publications treat notice as a best practice.

As with consent, customers normally receive notice before signing up for a cell phone contract, opening a retailers’ phone app or joining a wireless hotspot. Unlike with these forms of active monitoring, however, customers are generally not notified before being tracked through passive monitoring.

Notice may prove difficult for retailers who use passive monitoring. Although retailers can notify many of its customers by posting signs within their stores, this would not notify every person being tracked because the tracking technology also pulls cell phone signals from people passing by the storefront. To solve this problem, Soltani suggests that passive retail analytics technology devices begin to automatically notify users to the existence of mobile retail tracking and allow them to temporarily join in order to opt-out.

4. Other Ideas from Nomi

Until the FTC issues more concrete guidance in this area, retailers should at least make sure to follow the FTC’s guidance in Nomi by fulfilling any promises they make regarding privacy. Although Nomi provides rather than uses tracking services, the same legal principles apply to retailers. Retailers should act in accordance with every part of their privacy policies by respecting customers’ opt-out options and heeding any statements about what kind of information they collect or how they use that information.

Given that the law in this area is rapidly evolving, retailers should consult with legal counsel before implementing data tracking technology in their stores.

California’s Song-Beverly “Consumer Perception Test” in Jeopardy — Will Retailers in California Be Barred from Requesting Any Personal Information from Consumers at the Point-of-Sale?

May 8th, 2015 by Meegan Brooks and Stephanie Sheridan

On May 5, 2015, the Ninth Circuit certified for the California Supreme Court the issue of whether the Song-Beverly Credit Card Act (“the Act”) prohibits retailers from requesting a customer’s personal information at the point-of-sale (POS) after the customer has already paid, even if a reasonable consumer would not interpret the request as a condition for paying by credit card.
 
The case, Davis v. Devanlay Retail Group, concerns retailer Lacoste’s practice of requesting customers’ ZIP codes after the customer’s card has already been swiped. The lower court, like courts in a number of other district court cases, interpreted the statute to impose a “reasonableness” standard. Because a reasonable customer would not believe that she is required to share her information once her card has been swiped, the lower court determined that Lacoste did not violate the Act.
 
Plaintiff argues that “the consumer perception standard” has been improperly read into the Act by district courts, and that the law prohibits retailers from requesting any information while the customer is at the POS, regardless of whether the customer believes that she is required to share her information. According to Plaintiff’s counsel Gene Stonebarger, who has brought many suits pursuant to Song-Beverly, the Act even prohibits retailers from collecting information from customers who offer it, or to enroll customers in a store loyalty program.
 
The Ninth Circuit’s Order
 
The three-judge panel — which consisted of Judges Consuela Callahan, Milan Smith and Paul Watford — found the statute’s language, legislative history and case law to be ambiguous, and noted that each could be interpreted to support Plaintiff’s broad interpretation of the Act. The relevant portion of the statute, which appears in Civil Code § 1747.08, states that businesses shall not “[r]equest, or require as a condition to accepting the credit card as payment in full or in part for goods or services, the cardholder to provide personal identification information [PII]. …” The court noted that although this text suggests that the Act broadly prohibits any information requests, the grammatical rule used in reaching that interpretation had been rejected by California Courts of Appeal in other Song-Beverly cases. In Absher v. AutoZone, for example, a California Court of Appeal explicitly interpreted the disputed portion of the Act to “prohibit[] merchants from requesting or requiring credit card customers to write personal identification information on a credit card form as a condition precedent to accepting payment by credit card.”
 
The court also found that while many district courts have cited Florez v. Linens ’n Things as endorsing an objective consumer perception test, the Florez opinion is ambiguous and could also be read to hold that Song-Beverly prohibits all requests for information “in conjunction with” credit card transactions:
 
[W]e also find it plausible that the passage means Song-Beverly prohibits requests for PII that are “in conjunction with the use of a credit card” … We note that the Florez court does not appear to have actually applied an objective test in deciding the case … [A portion of Florez concerning the timing of a request] cuts against interpreting Florez to endorse an objective consumer perception test [and] suggests instead that Song-Beverly prohibits requests for PII that a consumer might interpret as a condition to payment by credit card, even if it would not be objectively reasonable to do so.
 
The court also explained that the court in Florez never explained how to determine whether a request for information was made “in conjunction with the use of a credit card,” and that a request made after the customer returns a customer’s credit card may not fall into that category.
 
At oral argument in March 2015 (attended by these authors), the panel seemed compelled by Plaintiff’s strict reading of the statute, but also emphasized the issues that would arise if retailers were never allowed to request customer information at the POS. Judge Callahan, who described herself as an “expert shopper,” noted that it would be “absurd” for the law to require customers who want to sign up for a store’s mailing list to first put their cards away and then walk away from the POS before they could legally sign up to receive information they desired. Justice Smith joked that Plaintiff wanted shoppers to “go to the bathroom … or do three somersaults” before being able to share their information.
 
The court’s order notes that a broad construction of Song-Beverly, as proposed by Plaintiff, “could have a significant impact on the practices of thousands of California retailers.” Although this statement was in reference to retailers who request information after the transaction, a broad construction of the Act would impact any retailer that requests information “in conjunction with” the use of a credit card. In effect, the statute could become a strict liability prohibition against any information requests at the POS during credit card transactions.
 
Certification to the Supreme Court
 
It is rare for the California Supreme Court to receive requests, and even rarer for them to accept them — the Court decided two civil cases resulting from Ninth Circuit certifications in 2014, three in 2013, and none in 2012. Although the Court is not required to accept a certified issue, the Court will likely accept the Ninth Circuit’s request, given the significance of the issue to many retailers and the current lack of guidance in this area. If the Supreme Court does accept the case, it will have the authority to reformulate the question presented to it by the Court, or to explore additional issues. Assuming the Court does accept the Devanlay issue, the case will be added to the Court’s regular civil docket, which means that it is likely to be a year or more before the Court hands down its decision.
 
If the Supreme Court adopts Plaintiff’s broad interpretation of the Act, retailers who currently request customer information at the POS may also be subject to retroactive lawsuits. In the month after the Supreme Court decided that ZIP codes are “personal information” under Song-Beverly in the 2011 Pineda v. Williams-Sonoma Stores, Inc. decision, for example, 106 class-action lawsuits were filed based on transactions that occurred before the decision was issued. If the Supreme Court again decides to apply its ruling retrospectively, retailers could be liable for any requests for information made in the year leading up to the decision. 
 
Retailers are advised to consult counsel with expertise in this area for guidance as to “best practices” in light of this new development.

New FCC Rules on CPNI Will Impact ISP’s and Businesses Who Rely on Internet Tracking Data

April 2nd, 2015 by Jia-Ming Shang

By now, most people know that in its recent Open Internet Order adopted on February 26, 2015, the FCC reclassified internet access services as common carrier “telecommunications services” subject to FCC jurisdiction under the Telecommunications Act of 1996.  The Order imposes a new regulatory framework on internet providers and, among many other things, augurs a sea change in how internet providers and their business partners may use certain data, including a class of information called Customer Proprietary Network Information (“CPNI”).

CPNI is defined as “(A) information that relates to the quantity, technical configuration, type, destination, location, and amount of use of a telecommunications service subscribed to by any customer of a telecommunications carrier, and that is made available to the carrier by the customer solely by virtue of the carrier-customer relationship; and (B) information contained in the bills pertaining to telephone exchange service or telephone toll service received by a customer of a carrier.”  See 2007 FCC CPNI Order.

Outside of telecom insiders, most people have probably never heard of CPNI or the FCC’s specific regulations on their use.  But later this month, new rules on collection, disclosure, consent and use of CPNI in the internet context will be take center stage as the FCC decides whether and to what extent previously-exempt internet service providers and their business partners are bound by CPNI rules that phone and cable companies have observed for years.

Of course, the Devil’s in the details.  Current CPNI rules, for example, prevent phone companies from sharing the phone numbers a customer calls or receives without express consent.  How that rule translates in the internet context, where the entire notion of internet marketing relies on some measure of tracking, is less clear.  But some restrictions on the current system is likely, with the FCC indicating that many of the same consumer privacy concerns applicable to phone companies are present with internet providers:

[c]onsumers’ privacy needs are no less important when consumers communicate over and use broadband Internet access than when they rely on [telephone] services.  As broadband Internet access service users access and distribute information online, the information is sent through their broadband provider.  Broadband providers serve as a necessary conduit for information passing between an Internet user and Internet sites or other Internet users, and are in a position to obtain vast amounts of personal and proprietary information about their customers. Absent appropriate privacy protections, use or disclosure of that information could be at odds with those customers’ interests.

Feb. 26, 2015 Open Internet Order, para. 463.

In short, if your business relies on or uses tracking data on consumer internet traffic or behavior in any way (e.g., customized ad buys, cookies, big data algorithms, mobile payments processing), there’s a good chance that the forthcoming new CPNI rules will affect you in some way.

For now, ISP’s have a reprieve, and the FCC has stated that it will forbear from applying its existing rules because they are “not well suited to broadband Internet access service.”  In particular, the FCC found that existing rules are more focused on concerns that have been associated with voice telephone service and do not address many of the types of sensitive information to which broadband providers (more so than phone companies) are likely to have access.

These comments suggest the possibility that the new CPNI rules may be more strict than the current ones for phone companies.  FCC Chairman Tom Wheeler has announced that the agency will hold a workshop on April 28 for stakeholders to discuss details, with final rules probably coming out in Q3 or Q4 of 2015.

Second Circuit Joins Chorus In Favor Of CDA Immunity

April 1st, 2015 by Afigo Fadahunsi

In Ricci v. GoDaddy.com, the United State Court of Appeals for the Second Circuit affirmed a dismissal of defamation claims against GoDaddy.com, a website host, invoking the immunity and preemption provisions of the Communications Decency Act (“CDA”), 47 U.S.C. § 230. The lawsuit against GoDaddy stemmed from an “offline” dispute between the Ricci plaintiffs and the Teamsters’ Union, to which Mr. Ricci belonged. Following Mr. Ricci’s refusal to endorse the union president at the time, Ricci endured various forms of retaliation from union leadership, including the union’s publication of newsletters containing offensive and defamatory statements about the Riccis. The newsletters were posted onto a website hosted on GoDaddy’s servers.

In the Complaint, the Ricci’s acknowledged that GoDaddy had no role in creating the alleged defamatory letters. Rather, the Riccis sought to impose liability upon GoDaddy because it hosted the website on which the newsletters were republished, refused to remove the newsletters, and refused to investigate the plaintiffs’ complaints about the statements in the newsletters. The trial court dismissed the Riccis’ suit based on CDA immunity, and the Second Circuit affirmed.

The CDA shields hosts like GoDaddy from publisher liability (with respect to third-party or user-generated web content) when it acts in the capacity as the provider of an interactive computer service. Section 230 offers broad protection to website operators and courts have typically rejected any interpretation that renders meaningless the core immunity provided by Section 230(c), or clouds the vision of an uninhibited and open Internet. Section 230(c)(1) provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by an information content provider.” Section 230(e)(3) further states that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

In its first opinion construing the immunity provisions of the CDA, the Second Circuit made three critical points in its ruling: First, “a plaintiff defamed on the internet can sue the original speaker, but typically cannot sue the messenger.” The Riccis’ should have pursued defamation claims only against the union, and not against GoDaddy. Second, GoDaddy did not play a role in creating the alleged defamatory newsletters. Since GoDaddy was sued in its capacity as a provider of an “interactive computer service,” it is immune from defamation liability under the CDA. Third, an interactive computer service like GoDaddy can win a Section 230 lawsuit on a motion to dismiss. According to the court, although preemption under the CDA is an affirmative defense, “it can still support a motion to dismiss if the statute’s barrier to suit is evident from the face of the complaint.” The court found that the defect was patently evident in the Riccis’ case.

FTC Advises That Mergers Don’t Eliminate Privacy Promises of Acquired Companies

March 28th, 2015 by Paul Pittman

The FTC recently posted comments on its business blog about the responsibility of companies to comply with privacy representations made to prior customers on how the companies will collect, use or disclose personal information, following a merger or change in ownership. Noting that companies must keep their promises to customers regarding the privacy of the personal information, the FTC identified three options for a company to consider when merging or changing ownership:

• Companies can continue to honor the privacy promises made to consumers before the merger or acquisition;

• To change the privacy promises already made to consumers, such as sharing personal information with third parties, companies will need to inform consumers and get their express affirmative consent to opt in to any new practices;

• To change how information is collected in the future, companies need to provide consumers with notice of the change and a choice of whether to agree to the collection. According to the FTC, simply revising the language in a privacy policy or user agreement isn’t sufficient because existing customers may have viewed the original policy and may reasonably assume it’s still in effect. Further, the notice and choice must be sufficiently prominent and robust to ensure that existing customers can see the notice and easily exercise their choices.

The FTC’s commentary and cites to specific case examples can be found at

https://www.ftc.gov/news-events/blogs/business-blog/2015/03/mergers-privacy-promises?utm_source=govdelivery

Net Neutrality: More Winners Than Losers

March 17th, 2015 by John Stephens

On March 12, 2015, The Federal Communications Commission (FCC) released the full text of the Net Neutrality rules it approved last month. Net Neutrality essentially means an open Internet where all traffic is equal, anyone can publish content, and everyone has access to media. The new rules are not a guarantee that the Internet will remain neutral as there will very likely be legal challenges to the proposal, but for now, things should remain pretty much the same in cyber-world. This post will explain Net Neutrality, the FCC’s new rules and explain how Net Neutrality benefits most.

The agency’s move to reclassify broadband Internet as a “telecommunications service,” which gives it more legal muscle to force broadband providers to treat all Web traffic equally, was given the green light in a high-profile party-line vote on Feb. 26, 2015 but the agency took two weeks to incorporate dissenting opinions from Republican commissioners and meet other procedural requirements.

History of Net Neutrality

Fundamentally, Net Neutrality is the idea that broadband providers deliver every Internet site’s traffic without discrimination. At its core, Net Neutrality demands equality in the treatment of consumers who pay for the same or a greater quality of service, permitting peer-to-peer communication in any platform of the consumers’ choosing, regardless of the amount of content transmitted or bandwidth utilized.

Prior to the new rules, the FCC classified broadband providers as information services under Title I of the Communications Act of 1934.   In the past 10 years, the FCC twice issued Net Neutrality principles under Title I, each time losing to challenges by broadband providers like Verizon. In the most recent challenge, Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014), the Court of Appeals for the District of Columbia Circuit rejected the FCC’s second set of proposed Net Neutrality regulations because the rules treated broadband providers as entities regulated under Title II of the Act.

FCC’s New Rules

The court in Verizon held that the FCC had regulatory power to impose Net Neutrality standards, but not under Title I. The court effectively invited the FCC to adopt a Title II regulatory program. The newly-proposed rules accept the court’s invitation by declaring the Internet to be a public utility under Title II.  Under the proposed neutrality rules, any retail broadband service Americans buy from a cable operator, telecommunications company or a wireless operator would be reclassified as a telecommunications service, instead of a lightly-regulated information service.

The new rules provide:

•No blocking: Broadband providers will not be able to block access to legal content, applications, services or non-harmful devices.

•No throttling: Broadband providers will not be able “impair or degrade” lawful Internet traffic on the basis of content, applications, services or non-harmful devices.

•No paid prioritization: Broadband providers may not favor some lawful Internet traffic over other lawful traffic in exchange for payment, i.e., there will be no “fast lanes.” Broadband providers will also be barred from prioritizing content and services of their affiliates.

•The commission’s new rules would also include a “standard for future conduct,” with the rationale being that because the Internet is always evolving, “there must be a known standard by which to determine whether new practices are appropriate or not.

Legal Challenges Ahead

The FCC’s proposal is leveraging two main elements of legal authority: Title II of the Communications Act and Section 706 of the Telecommunications Act of 1996. By using these two provisions, the FCC said the “proposal provides the broad legal certainty required for rules guaranteeing an open Internet.”

Already, reports have emerged that the broadband providers AT&T and Verizon are ready to launch legal challenges to the FCC’s proposal. The reason why broadband providers have been so adamantly opposed to an open Internet is obvious and summed up well by SBC CEO Ed Whitacre in a 2005 interview with Business Week:

We own the pipes and we should be able to control the traffic that flows through them!… How do you think they’re going to get to customers? Through a broadband pipe. Cable companies have them. We have them. Now what they would like to do is use my pipes free, but I ain’t going to let them do that because we have spent this capital and we have to have a return on it.

Besides these broadband providers, the FCC’s proposal is being challenged by a group of Republican lawmakers that have proposed another method to ensure the openness of the Internet while not permitting the agency to reclassify broadband as a utility under Title II of the Communications

The Future

Critics of the rules, like AT&T, quickly jumped on the release of the rules as another chance to criticize the agency’s approach and to lightly threaten litigation.

“Unfortunately, the order released today begins a period of uncertainty that will damage broadband investment in the United States,” AT&T Senior Executive Vice President Jim Cicconi said. “Ultimately, though, we are confident the issue will be resolved by bipartisan action by Congress or a future FCC, or by the courts.”

It’s unclear when that legal action might come, but Thursday’s release does move the FCC’s rules forward through the process of becoming law. Barring any unforeseen complications, they could be finalized, and published in the Federal Register, by the end of the month. Certain transparency requirements in the new rules will face additional procedures at the Office of Management and Budget, which could delay things further.

After they’re published, the rules will take effect in 60 days. Internet service providers or other interested parties will also have 30 days from the date of publication to file a lawsuit. Before then, they can also petition the FCC to stay the rules pending judicial review.

The FCC’s decision to support Net Neutrality brings to a close an era of uncertainty as to exactly what position the FCC would take on the issue. The FCC’s action set sustainable rules of the cyber roads that should protect free expression, continue to encourage and reward innovation and grow our economy.

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