FTC To Hold Privacy Press Conference March 26, 2012

On Monday, March 26, at 11:00 a.m. the Federal Trade Commission will host a press conference addressing the Final Privacy Framework.

Call-In Information:
1-800-553-0327
1-888-423-3275 (international)
Confirmation number: 242349
Host: Bruce Jennings

The press conference will be webcast.

See also

www.twitter.com/FTC
Hashtag: #FTCpriv

Supreme Court Rules for Federal Question Jurisdiction Under TCPA

The U.S. Supreme Court has found the TCPA allows for federal question jurisdiction. The case is Mims v. Arrow Financial Services (Jan. 18, 2012)

The court held that "the District Court retains § 1331 jurisdiction over Mims's complaint unless the TCPA, expressly or by fair implication, excludes federal-court adjudication."

The court found that just because the TCPA grant jurisdiction to state courts, the removed federal jurisdiction. The TCPA's "language may be state-court oriented, but 'the grant of jurisdiction to one court does not, of itself, imply that the jurisdiction is to be exclusive'"

"Congress arguably gave States leeway they would otherwise lack to decide whether to entertain TCPA claims," the court wrote.

The court found Arrow's reliance on statements by Senator Ernest Hollings, the TCPA's sponsor, "is misplaced. The remarks nowhere mention federal-court jurisdiction or otherwise suggest that" the TCPA "is intended to divest federal courts of authority over TCPA claims."

"Even if Hollings and other TCPA supporters expected private actions to proceed solely in state courts, their expectation would not control this Court's judgment on § 1331's compass."

Subcommittee Approves H.R. 2577

The House subcommittee on Commerce, Manufacturing and Trade voted out H.R. 2577. The bill, sponsored by Rep. Mary Bono, would require organizations to notify customers if there was a “reasonable risk” their personal data may have been breached. It would preempt state laws as well.

Third Circuit Finds Federal Diversity Jurisdiction Under TCPA

Landsman & Funk v. Skinder-Strauss Associates (3rd Cir. April 4, 2011)

The Third Circuit has addressed the often confusing issue of whether federal courts have diversity jurisdiction over lawsuits filed by individuals for TCPA violations - In this case, as in so many others, for receiving junk faxes. The law specifically permits claims under the federal law to be heard in state courts - but does that mean that federal courts can't hear TCPA claims, or that both state and federal courts can? In other words, is state jurisdiction exclusive?

The Third Circuit held it was not:

"We hold here that Congress did not intend for exclusive state court jurisdiction. The TCPA does not strip federal courts of diversity jurisdiction over actions brought under § 227(b)(3)."

The statute reads:

A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State —

47 U.S.C. Section 227(b)(3)

Most, but not all, federal appellate courts have found that federal courts do not have federal question jurisdiction over TCPA claims. (Including the 3^rd). The ^rd circuit in this case found that while Congress did not specifically grant federal question jurisdiction over such cases, it did not specifically strip away diversity jurisdiction either.

Since 28 U.S.C. 1332 permits class action suits in federal courts with minimal diversity and $5 million in controversy, diversity jurisdiction prevails unless the law (in this case, the TCPA) takes it away.

There was no such clear directive from Congress. Congress did give state courts jurisdiction, but that does mean such suits can only be heard in a state court. In fact, the court noted, Congress seems to have allowed claims to be filed in state court in an effort to help plaintiffs with small claims representing themselves. The 3^rd Cir. joined the majority of courts and upheld diversity jurisdiction for TCPA claims.

Second Circuit Grants Standing to Challenge to FISA

New York (AP) -- A lawsuit challenging a law that lets the United States eavesdrop on overseas communications more widely and with less judicial oversight than in the past was reinstated Monday by a federal appeals court that said new rules regarding surveillance had put lawyers, journalists and human rights groups in a "lose-lose situation."

The 2nd U.S. Circuit Court of Appeals said it took no position on the merits of the lawsuit brought by those in jobs that require them to speak with people overseas, saying only that the plaintiffs had legal standing to bring it against the latest version of the Foreign Intelligence Surveillance Act.

Google Fined by CNIL Over Street View

CNIL, the French data privacy agency, fined Google 100,000 for collecting personal information such as passwords and e-mails when taking images for its Street View project.

Supreme Court Rules Corporations Don't Have Personal Privacy Rights Under FOIA

The U.S. Supreme Court today held, 8-0, that corporations do not have "personal privacy" for the purposes of the exemption from disclosure of records under FOIA. Justice Roberts totally rejected the idea that because a corporation can be considered a "person" under the law, a federal agency can and should withhold records that might be an unwarranted invasion of the corporation's personal privacy. Citing the context of the FOIA exemption, Congress' intent, longstanding interpretation of the law, the dictionary, and general understanding of the term "personal" when used with the word "privacy," Roberts ruled that the exemption was meant to protect people, not entities. The case is FCC v. AT&T.

Companies can still protect their trade secrets and other confidential information, so what does this mean? This does not change existing law, but business may want to consider that what is disclosed to an agency (in this case, in the course of contractual dispute with the FCC) can be disclosed to a business' competitors (as in this case).

Computerworld Names Top Privacy Advisors

It's a survey of 146 privacy professionals.

Hunton & Williams apparently got the most votes by far. I was not asked, but probably would have gone with H&W also.