Privacy & Information Security Law Blog

On November 5, 2021, the Federal Trade Commission suggested two preventative steps small businesses can take to protect against ransomware risks:

As reported on the Hunton Retail Resource Blog, on October 20, 2021, a new wave in the fight against “robocalls” is targeting telemarketing text messages. In the past six months, there has been an uptick in activity at both the state and federal level to reign in telemarketing text messages.

The UK Information Commissioner’s Office (“ICO”) has issued a Monetary Penalty Notice to pensions release provider Grove Pensions Solutions Ltd (“Grove”), fining it £40,000 after the company used contact details collected by a third party for its direct marketing campaign. Grove used a specialist third-party marketing agency to send emails on its behalf to mailing lists, negligently failing to obtain valid consent from individuals who received the marketing emails. Despite seeking external advice (including legal advice), the ICO decided that Grove should have known of the risk that its conduct would breach rules on direct marketing, particularly given recent widespread publicity of this issue in the UK. The fine was imposed under the Data Protection Act 1998.

The UK’s Information Commissioner’s Office (“ICO”) has fined Vote Leave Limited (the UK’s official Brexit campaign) £40,000 for sending almost 200,000 unsolicited texts promoting the aims of the campaign. In an unrelated action, the ICO has carried out searches of a business believed to have been responsible for initiating nuisance telephone calls. The ICO has highlighted nuisance calls, spam texts and unsolicited direct marketing as areas of “significant public concern,” and is increasingly imposing sanctions on businesses that infringe the Privacy and Electronic Communications Regulations 2003 (“PEC Regulations”), which prohibit these practices. In its view, the monetary penalty imposed on Vote Leave should act as a “deterrent against non-compliance, on the part of all persons running businesses currently engaging in these practices.”

On September 11, 2015, the Federal Communications Commission (“FCC”) announced that Lyft Inc. (“Lyft”) and First National Bank Corporation (“FNB”) violated the Telephone Consumer Protection Act (“TCPA”) by forcing their users to consent to receive automated text messages as a condition of using their services. The FCC warned that these violations could result in fines if they continue.

On July 10, 2015, the Federal Communications Commission (“FCC”) released a Declaratory Ruling and Order that provides guidance with respect to several sections of the Telephone Consumer Protection Act (“TCPA”). The Declaratory Ruling and Order responds to 21 separate requests from industry, government and others seeking clarifications regarding the TCPA and related FCC rules.

On May 19, 2015, China’s Ministry of Industry and Information Technology promulgated its Provisions on the Administration of Short Messaging Services (the “Provisions”), which will take effect on June 30, 2015.

The UK government has announced proposals designed to make it easier for the Information Commissioner’s Office (“ICO”) to fine companies responsible for nuisance calls and text messages. Under the proposals, the current maximum fine of £500,000 would remain unchanged, but the threshold for imposing fines would be lowered.

On October 22, 2014, the Federal Trade Commission announced that several interrelated online marketing and advertising companies (“Stipulating Defendants”) agreed to pay nearly $10 million to settle allegations that they engaged in a pattern of text message spamming, robocalling and mobile cramming practices in violation of Section 5 of the FTC Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, and the Telemarketing Sales Rule.

On September 2, 2014, a federal district court in California granted final approval to a settlement ending a class action against Bank of America (“BofA”) and FIA Card Services stemming from allegations that the defendants “engaged in a systematic practice of calling or texting consumers’ cell phones through the use of automatic telephone dialing systems and/or an artificial or prerecorded voice without their prior express consent, in violation of the Telephone Consumer Protection Act (“TCPA”).” The court granted preliminary approval to the settlement in December 2013.

On May 19, 2014, the Federal Communications Commission announced that Sprint Corporation agreed to pay $7.5 million to settle an FCC Enforcement Bureau investigation stemming from allegations that the company failed to honor consumers’ requests to opt out of telemarketing calls and texts. Sprint also agreed to implement a two-year plan to help ensure future compliance with Do-Not-Call registry rules.

On October 16, 2013, the Federal Communications Commission’s revisions to its Telephone Consumer Protection Act rules go into effect. As we previously reported, the revisions require that businesses obtain “express written consent” prior to advertising or telemarketing through (1) autodialed calls or text messages, or prerecorded calls to consumers’ mobile numbers, and (2) prerecorded calls to consumers’ residential lines. In addition, the FCC’s revisions eliminate the exemption that allowed businesses to place prerecorded advertising or telemarketing calls to a consumer’s residential phone line if the business had a pre-existing business relationship with the consumer.

On June 20, 2013, the UK Information Commissioner’s Office (“ICO”) launched its Annual Report and Financial Statements for 2012/13 (the “Report”). Introducing the Report, Information Commissioner Christopher Graham strongly emphasized that, as consumers become increasingly aware of their information rights, good privacy practices will become a commercial benefit and a business differentiator. He outlined the seven key “e”s of the ICO’s role: enforce, educate, empower, enable, engage, and to be effective and efficient.

On March 20, 2012, the UK Information Commissioner’s Office announced that it has issued a monetary penalty of £90,000 against DM Design Bedrooms Ltd. (“DM Design”) for making thousands of unwanted marketing calls.

On December 18, 2012, the Information Commissioner’s Office (“ICO”) released an enforcement report (the “Report”) on the extent of compliance with recent changes to UK law governing the use of cookies (The Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011). The ICO previously issued an interim report on organizations’ attempts to achieve compliance, in which it concluded that organizations “must try harder” with their cookie compliance efforts.

On November 29, 2012, the Federal Communications Commission (“FCC”) issued a declaratory ruling finding that certain text messages businesses send to confirm a consumer’s request to opt out of text message programs do not violate a federal prohibition on sending text messages without prior express consent. This prohibition has spawned class actions against companies that have followed the provisions in the Mobile Marketing Association’s U.S. Consumer Best Practices and other industry guidelines that require companies to send a confirmatory text message in response to a consumer’s opt-out request. The FCC’s finding is limited to sending confirmatory text messages under the following conditions:

On November 28, 2012, the UK Information Commissioner’s Office (“ICO”) issued monetary penalties totaling £440,000 to two owners of a marketing company that sent millions of unlawful spam SMS text messages over a period of three years.

On November 9, 2012, a federal District Court in Washington certified a national class and a Washington state sub-class in an action alleging that Papa John’s International, Inc. (“Papa John’s”) violated the Telephone Consumer Protection Act (“TCPA”) by sending unsolicited text messages advertising its pizza products. The court determined that plaintiffs had standing and satisfied all other requirements for class certification.

On October 30, 2012, the U.S. District Court for the Southern District of California ruled that an opt-out confirmation text sent by Citibank (South Dakota), N.A. (“Citibank”) did not violate the Telephone Consumer Protection Act (“TCPA”). Under a “common sense” interpretation, the court determined that Citibank’s opt-out text does not demonstrate the type of invasion of privacy the TCPA seeks to prevent.

In recent months we have seen a dismissal and two settlements in class action suits alleging violations of the Telephone Consumer Protection Act (“TCPA”) by companies that used text messaging as part of advertising campaigns. The TCPA is a federal privacy law that imposes restrictions on telephone solicitations, including telemarketing calls and text messages.

On June 11, 2012, the Federal Communications Commission published in the Federal Register its final revised rules requiring prior express written consent for all autodialed or prerecorded telemarketing “calls” to wireless phones, and for prerecorded telemarking calls to residential lines. The FCC takes the position that the “calls” covered by this written consent requirement include essentially all marketing-oriented text messages. The FCC’s rules implement the findings of the Commission’s February 2012 Report and Order.

On May 27, 2011, a class action complaint was filed in the United States District Court for the Northern District of California against Google and its recently acquired subsidiary, Slide, alleging that they violated the Telephone Consumer Protection Act (“TCPA”) when they sent text messages to people’s cell phones without first obtaining their consent.

In a pair of lawsuits filed against Twitter, Inc. and American Express Centurion Bank, plaintiffs in a California federal court are seeking class-action status to assert claims that the defendants violated the Telephone Consumer Protection Act (“TCPA”) by sending each plaintiff a single text message to confirm that they had processed the plaintiff’s request to opt-out of receiving further text messages.  This litigation highlights a potential vulnerability in the mobile marketing programs of companies that have not fully considered how telemarketing law should inform their implementation of the Mobile Marketing Association’s U.S. Consumer Best Practices (the “MMA’s Best Practices”), the authoritative compilation of policies enforced by the major wireless carriers.

“LOANMOD TXT MSGS VIOL8 LAW, SEZ FTC.”  So reads the headline on the Federal Trade Commission’s Bureau of Consumer Protection’s Business Center Blog.  The posting announced the FTC’s complaint against a marketer who sent more than 5.5 million spam text messages at a “mind boggling” rate of about 85 per minute, every minute of every day.  Allegedly, most or all of the messages were unsolicited, and, like most text messages, they caused many recipients to incur standard text messaging charges.

Breaking -- The Supreme Court has issued its decision in City of Ontario, California v. Quon, ruling unanimously that the police department did not violate an officer's Fourth Amendment rights when supervisors reviewed text messages transmitted using a work-issued pager.  In reaching this decision, the Court did not resolve whether the officer had a reasonable expectation of privacy, rather the Court based its decision on a determination that the search itself was reasonable.

Read our previous coverage of this case.

The U.S. Supreme Court has set oral argument for April 19, 2010, to review the Ninth Circuit’s 2008 decision on employee privacy in Quon v. Arch Wireless Operating Co.  Although Quon concerns the scope of privacy rights afforded to public employees under the Fourth Amendment, the case also has forced private employers to renew their focus on ensuring robust and consistent enforcement of employee monitoring policies.  Unlike government employers, private employers are not subject to the Fourth Amendment’s prohibition against unreasonable searches and seizures; instead, they must comply with federal wiretap statutes and state law.  In practice, however, the “reasonable expectation of privacy” test courts apply to state common law privacy claims that govern private employers is virtually identical to the Fourth Amendment test.  Accordingly, the Supreme Court’s review of the Constitutional test likely will affect how courts view privacy claims brought against private employers.

The U.S. Supreme Court announced Monday that it will review the Ninth Circuit’s 2008 decision on employee privacy in Quon v. Arch Wireless Operating Co.  In Quon, the Ninth Circuit considered whether the Ontario, California police department and the City of Ontario violated a police officer’s privacy rights by reviewing private text messages the officer sent using a two-way pager issued by the police department.  The police officer had on several occasions exceeded the limit on the text messages provided by the department-paid plan.  Each time, the officer paid for the overage without anyone reviewing his text messages.  When the officer again exceeded the limit, his supervisor requested from the service provider and subsequently reviewed transcripts of the officer’s messages to determine if the messages were work-related.