In a unanimous decision, the U.S. Supreme Court limited the reach of the Telephone Consumer Protection Act (“TCPA”) by narrowing what technology qualifies as an Automatic Telephone Dialing System (“ATDS”). Among other restrictions, the TCPA prohibits calls to phone numbers using an ATDS without prior express consent. The TCPA defines an ATDS as “equipment which
Assaults on Section 230 of the Communications Decency Act (the “CDA”)—which shields online platforms from civil liability for third party content on their services—are abundant these days. On October 15, 2020, FCC Chairman Ajit Pai announced that his agency, at the request of President Trump, will draft rules explaining when platforms’ efforts to moderate user-posted…
The U.S. Supreme Court’s grant this week of the petition for certiorari in a case involving the Telephone Communication Protection Act (TCPA) prohibition on unsolicited fax advertisements could have significant implications for the Federal Communication Commission’s (FCC) anticipated ruling on what constitutes an automatic telephone dialing system (ATDS) under the TCPA.
The petitioner in PDR Network v. Carlton & Harris Chiropractic sent a fax in 2013 to a West Virginia chiropractor offering a free copy of the Physicians’ Desk Reference. The chiropractor declined the offer and sued PDR in West Virginia federal court, alleging that PDR had violated the TCPA by sending it an unsolicited fax advertisement. PDR moved to dismiss, arguing that the fax was not an “unsolicited advertisement” because it offered the desk reference for free rather than for purchase. The chiropractor disagreed, arguing that the fax was an “unsolicited advertisement” because a 2006 FCC rule interpreted the term to include “facsimile messages that promote goods or services even at no cost.”
Continue Reading SCOTUS Decision in Unsolicited Fax Case Could Have Broader TCPA Implications
The Pennsylvania Supreme Court recently issued a sweeping ruling “that accessing any information from a cell phone without a warrant” violates the Fourth Amendment to the United States Constitution. In Commonwealth v. Fulton, the Court suppressed the warrantless search of the contents of a ‘flip phone’ and reversed a murder conviction that flowed from the unlawful search. The Supreme Court held that the Superior Court’s decision contravened U.S. Supreme Court precedent in Riley v. California and United States v. Wurie, 134 S. Ct. 2473 (2014), holding that searches of cell phones generally require a warrant.
In June 2010, Philadelphia Police arrested I. Dean Fulton and three others on suspicion of unlawful drug activity and gun possession. They seized Fulton’s “smart phone” from his body at the time of the arrest. They subsequently obtained a search warrant for the vehicle Fulton and the others were in at the time of their arrests. That search turned up a firearm, a holster, three cell phones and other property. The cell phones – which included one ‘flip phone’ later connected to Fulton –were provided to the Homicide Division, which was investigating a recent drug-related murder.
Continue Reading Pennsylvania Supreme Court: If You Want to Search a Cell Phone, Get a Warrant!
The U.S. Supreme Court heard oral arguments this morning in United States v. Microsoft, No. 17-2, which presents the question whether a United States court may issue a search warrant to a U.S.-based electronic communications service for email account data held on a server outside of the United States.
Here’s the transcript of this…
Earlier today, the Supreme Court of the United States denied certiorari in CareFirst v. Attias, a closely watched case that some thought provided the Court with an opportunity to clarify the standing analysis under Spokeo v. Robins in data breach class actions.
In January, we blogged about CareFirst. We noted that the core issue in the case – whether fear of identity theft flowing from a data breach is an “injury in fact” sufficient to trigger Article III standing – could have major impact on the viability of future data breach class actions. The district court’s finding in favor of CareFirst on the standing issue was reversed and remanded last August by the U.S. Court of Appeals for the D.C. Circuit, which held that plaintiffs had alleged a risk of future injury because it was at least “plausible” that the cybercriminals had the intent and ability to use the stolen data for wrongful purposes. CareFirst then filed a petition for certiorari to the United States Supreme Court, which today denied the petition leaving in place the D.C. Circuit’s ruling in favor of Plaintiffs.
Continue Reading Supreme Court Denies Cert Petition in CareFirst v. Attias
The U.S. Supreme Court on Monday denied the petition for certiorari seeking review of the U.S. Court of Appeals for the Ninth Circuit’s most recent decision in Spokeo v. Robins (Spokeo II), foregoing an opportunity to clarify the confusion that has ensued since the Supreme Court’s 2016 decision in Spokeo (Spokeo I…
2018 is shaping up to be a potentially momentous year for data privacy, with a number of pending cases whose impact could fundamentally alter the scope of future privacy lawsuits and criminal investigations. This post will take a look at some of these cases and their potential impact.
Carpenter v. United States
We’ll start with Carpenter, which is pending in the U.S. Supreme Court and focuses on whether the Fourth Amendment requires the government to secure a search warrant to obtain a criminal defendant’s cell phone records from his or her cellular service provider.
Continue Reading Data Privacy Cases to Watch in 2018