Libby Weingarten

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On June 3, 2022, members of the U.S. Congress released a bipartisan, bicameral discussion draft of a comprehensive national data privacy and data security framework. The draft is notable in that it reflects a compromise on the two issues that have for years vexed lawmakers angling for federal privacy legislation: preemption and private right of action. The House Energy and Commerce Committee has announced a hearing for June 14 to discuss the draft.

The discussion draft has become widely known as the “three corners” bill, because it has the support of three of the four “corners” of the relevant committees: the Chair and Ranking Member of the House Energy and Commerce Committee and the Ranking Member of the Senate Commerce Committee. Notably, the fourth “corner,” Senate Commerce Committee Chair Maria Cantwell, is circulating her own draft.[1] While there are similarities between the two drafts, the differences reflect the likely sticking points among the negotiators.Continue Reading Privacy Legislation Update: The “Three Corners” Bill and the Cantwell Draft

As a fintech company, platform offering payment services, or a cryptocurrency business, you may be used to operating in uncharted waters; the Consumer Financial Protection Bureau (CFPB), however, is ready to start drawing some maps. It has announced that it will begin to exercise its supervisory authority over non-bank consumer financial entities that the CFPB has reason to believe pose risks to consumers. It also announced a new procedural rule to govern when CFPB decisions related to these supervisory actions will be made available to the public.
Continue Reading CFPB and Fintech Companies: Charting a New Course on Regulatory Supervision

On April 19, 2022, the BBB National Programs’ Center (BBB NP) for Industry Self-Regulation launched the TeenAge Privacy Program (TAPP) Roadmap, a new operational framework to help companies develop digital products and services attuned to privacy risks facing teenage consumers. In the United States, children 12 and under are protected by the Children’s Online Privacy Protection Act (COPPA). Once these children become teenagers, they age out of COPPA’s protections and, with limited exceptions, are treated as adults online. Yet a growing body of research indicates that these teenage consumers are uniquely affected by privacy risks resulting in harms ranging from cyberbullying, to platform addiction, to amplified insecurities.1 Regulators are increasingly interested in investigating these harms. For instance, in a widely publicized incident, a coalition of state Attorneys General recently opened an investigation into Instagram following news reports of a whistleblower’s allegations that Facebook’s privacy practices harmed teenage users. Despite increased public and regulatory scrutiny, no federal law has been enacted to provide companies with guidance on these issues. While it is not legally binding, the TAPP Roadmap aims to help fill this guidance gap by providing organizations with concrete operational considerations and best practices to address teen privacy risks.
Continue Reading BBB National Programs’ Center for Industry Self-Regulation Launches Roadmap for Teen Privacy

On February 16, 2022, the Federal Trade Commission (FTC) filed a proposed settlement order in federal court in its case against WW International, Inc (formerly known as Weight Watchers International, Inc.) and its subsidiary Kurbo, Inc. (Kurbo) to resolve allegations that the defendants violated the Children’s Online Privacy Protection Act and its implementing rules (COPPA).1 The FTC alleged that the defendants violated COPPA by failing to provide required notices and obtain verifiable parental consent prior to collecting, using, and disclosing personal information from children using their weight loss app. As part of the proposed settlement, the defendants are required to, among other things: 1) update their procedures to ensure that they obtain verifiable parental consent before collecting personal information from children, 2) destroy all of the personal information they obtained in violation of COPPA as well as any models or algorithms based on that information, and 3) pay a civil penalty of $1.5 million.
Continue Reading FTC Settles with Weight Watchers in First Children’s Privacy Case Requiring Deletion of Algorithms

On November 26, 2021, the Court of Justice of the European Union (CJEU) held[1] that the display of advertising messages in an email inbox, in a form similar to an email, constitutes direct marketing and requires users’ consent under the ePrivacy Directive.[2]

The CJEU also held that this practice constitutes ‘persistent and unwanted solicitations’ under the Unfair Commercial Practices Directive[3] when those advertising messages are displayed to users without prior consent, on a frequent and regular basis.
Continue Reading European Court of Justice Finds That “Inbox Advertising” Is Direct Marketing