In re-launching the inquiry into carriers' data privacy and security practices, the FCC argues that not informing customers about the software or its data practices may have violated the carriers' responsibility pursuant to Section 222 of the Communications Act of 1934 to protect customer data "that is made available to a carrier solely by virtue of the carrier-customer relationship." The law allows such data to be used only in "limited circumstances," a term which is not defined in Section 222. It appears that one of the goals of the renewed inquiry is for the FCC to define the scope of the "limited circumstances."
Last week, a plaintiff's putative class action alleging a violation of California's Shine the Light law, Cal. Civ. Code § 1798.83, was dismissed without prejudice. See Boorstein v. Men's Journal LLC, No. 12-cv-00771-DSF-E, 2012 WL 2152815 (C.D. Cal. June 14, 2012). The suit, one of several other similar pending suits, is the first reported decision applying the Shine the Light Law.
The U.S. District Court for the Southern District of California recently granted class certification in a Song-Beverly Credit Card Act case, refusing to exclude from the class individuals who joined the retailer's rewards program months after the alleged Song-Beverly violation. See Yeoman v. IKEA U.S. West, Inc., No. 11CV701, 2012 WL 1598051 (S.D. Cal. May 4, 2012). The Court's discussion suggests that a retailer may also face Song-Beverly liability even if it requests personal information at the register that it already holds by virtue of the customer's membership in its rewards program.
What happened in the privacy world last week? On Thursday, just before the release of the White House Paper, California Attorney General Kamala Harris announced an agreement with the leading operators of mobile application platforms to privacy principles designed to bring the mobile app industry in line with a California law requiring mobile apps that collect personal information to have a privacy policy. It might be argued that the White House is now enunciating principles and best practices, and encouraging legislation of principles, that have long been embodied not only as best practice but as actual legislation under California law.
On Friday, the California Court of Appeal, Fourth Appellate District, certified for publication its October 8 opinion in Pineda v. Williams-Sonoma, the most recent in a string of decisions regarding California's Song-Beverly Credit Card Act of 1971, California Civil Code § 1747.08. On first glance, Pineda appears uneventful. The Court merely reiterated its December 2008 holding in Party City v. Superior Court, 169 Cal.App.4th 497 (2008), that zip codes are not personal identification information for purposes of the Act, right? Not so fast. In fact, the Pineda court added a couple of new wrinkles that are worth a second look. First, the court reaffirmed its Party City holding even though Pineda specifically alleged that Williams-Sonoma collected the zip code for the purpose of using it and the customer's name to obtain even MORE personal identification information, the customer's address, through the use of a "reverse search" database. Second, the court held that a retailer's use of a legally obtained zip code to acquire, view, print, distribute or use an address that is otherwise publicly available does not amount to an offensive intrusion of a consumer's privacy under California law.
This week the federal court in the Hannaford class action asked the highest court in Maine to clarify whether cardholders' "loss of time and effort" are sufficient injuries to ground a negligence claim following a payment card security breach.