Interactive Counsel

Arent Fox's interactive media law blog - latest news and trends in advertising, data security & privacy, and IP.

Interactive Counsel

Blog Posts by Sarah L. Bruno

Advertising
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FTC Obtains Court Orders Banning Marketer from Negative-Option Sales

The Federal Trade Commission recently reached a settlement agreement over charges against an online marketing operation accused of deceptively luring consumers into expensive subscriptions by offering “free trials” of teeth-whiteners and related products. According to FTC, the defendants obtained consumers’ billing information under the pretense of a nominal fee before unexpectedly charging them up to $200 per month. The order imposes a judgment of over $92 million on the defendants and bans them from engaging in negative option sales in the future.

Negative option marketing refers to the practice of billing a consumer on a periodic, recurring basis for a product or service until the consumer affirmatively opts out of the subscription. While negative option marketing is legal when conducted appropriately, regulators are willing to pursue companies that abuse this practice.

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Advertising, Privacy & Security, Blockchain
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The FTC Prepares for Blockchain and Cryptocurrency Fraud Crackdowns

Got blockchain? For many, the answer to this question is “no” but the technology and the medium of exchange built on it have arrived and many platforms and industries are looking to see how it can help facilitate transactions and allow for more efficiencies. Enter cryptocurrency, which relies upon blockchain technology, and is a secure, non-cash digital currency that is being considered in many industries as a form of payment or exchange for value. And, as often the case with newly implemented and much hyped technology, especially one that facilitates a financial transaction, the Federal Trade Commission is now paying attention.  

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Privacy & Security
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Sarah Bruno Named Top Cybersecurity and AI Attorney by Daily Journal

San Francisco — Arent Fox LLP is pleased to announce the selection of Partner Sarah L. Bruno to the Daily Journal's inaugural list of the "Top Cyber/Artificial Intelligence Lawyers" in California. As noted by the Daily Journal, this ranking honors 20 attorneys who help thwart cyber threats by advising companies on best practices, navigating legal and regulatory mandates on privacy and data security, and responding to data incidents and breaches.

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Media & Entertainment, Gaming & Interactive Media
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Show Me the Loot! Loot Boxes Driving Gambling Talks Around the Globe

What’s the News?

Belgium, Australia, the United Kingdom, and the State of Hawaii are looking into the lawfulness of “loot boxes” in mobile games. “Loot boxes” are virtual prize packages that may be purchased in mobile games where the player is unaware of what virtual items are inside the package until following the purchase. It is important to note that while several regulatory bodies have expressed some concern with this form of prizing, none have taken any formal action to ban them.

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Privacy & Security, COPPA & GLB
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Are You Listening? The FTC Has Been: Enforcement Policy Issued for Child Audio Recordings

What’s the News?

Take out the microphone and get ready to record! Just don’t ask any personal questions and make sure that you’re prepared to then dump it all. This sums up the guidance provided by the Federal Trade Commission in a recently released Enforcement Policy. The Policy was released in response to frequently raised concerns from industry members regarding the need for developers of voice commanded technologies to comply with the Children’s Online Privacy Protection Act (COPPA) Rule, particularly where such technologies are designed for home use and may record the voices of children. Under the Policy, the FTC has stated that it will not take action against companies that offer devices that can record the voice of children if several requirements are met:

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Privacy & Security
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SEC Enforcement Division Creates Cyber Unit to Pursue Data Security Cases

Last month, the SEC announced the creation of a new “Cyber Unit” within the Enforcement Division to target misconduct related to cybersecurity. The unit is being created in conjunction with internal SEC initiatives to strengthen cybersecurity in the wake of the agency’s infamous data breach last year.
 

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Privacy & Security
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Shutterfly Biometric Privacy Face Off Gets Go-Ahead

The latest question in privacy law is not what’s in a name (or IP address, PHI, TV viewing activity, etc.), but what’s on a face. Consumers are becoming increasingly concerned with how companies are using their biometric information such as facial, fingerprint, and iris information. In one closely watched case, photo sharing website Shutterfly faces allegations that it violated consumer privacy by collecting facial scans without consent.

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Privacy & Security
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FTC and 3 Companies Settle Enforcement Charges Regarding False Privacy Shield Claims

Just as the Sword in the Stone could only be used by its rightful owner, the Privacy Shield can only be claimed by the rightfully certified entities. If not, false representations may stir Federal Trade Commission action. The FTC recently announced their first enforcement actions involving the EU-US Privacy Shield framework, settling complaints with three US companies.

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Advertising, Social Media, User-Generated Content, Gaming & Interactive Media
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It’s Every Influencer for Themselves as FTC Settles Debut Case Against Individual Social Stars

Calling all #influencers: that promotional post may attract more attention than you bargained for with your brand if you fail to use required disclosures. With several enforcement actions against companies, assistance from Instagram’s new paid partnerships tool, and the first ever complaint directly against social media influencers, the Federal Trade Commission has made it clear that they are fed up with deceptive endorsements.

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Privacy & Security, GDPR
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Read Here to Update: Privacy Policies, Connectivity, and Consent in the Age of the GDPR

Thinking about updating your privacy policy? Consider how to get consumer buy-in as part of the process. Your organization may be in the process of revamping its privacy practices, and as a result its external privacy policy, to keep up with the European General Data Protection Regulation (GDPR) and Federal Trade Commission (FTC) rules. This is good practice, but your organization should also consider how to publish the revised policies externally and internally, and whether consumer consent is appropriate.

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Advertising, Social Media, User-Generated Content
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Instagram Signals to #Influencers That There’s a #NewSheriff in Town

TLDR

Instagram has a message for social media Influencers: the Wild West is coming to an end. The popular photo-sharing platform is rolling out a new tool that will make it easier to tag and track paid commercial content. The tool offers a potential replacement for the much loathed “#ad” disclosure, but it also signals a coming crackdown on Influencer posts.

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Privacy & Security, Blockchain
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Sarah Bruno Discusses Legal Landscape of Blockchain-Ready Industries at ILTACON 2017

Privacy, Cybersecurity & Data Protection group leader Sarah Bruno will discuss "Blockchain in Legal" with Thomson Reuters' Joseph Raczynski at the 2017 International Legal Technology Association (ILTA) Annual Educational Conference, ILTACON.

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Privacy & Security
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Data Divide: Japan’s Clarity and China’s Chaos in Reshaped Privacy and Security Regs

What’s New?

Major regulatory changes in data governance recently went into effect in Japan and China that are likely to impact organizations doing business in these Asian markets. While the regulations are long-awaited, their implementation follows on the heels of the global Wannacry ransomware data scare and at the same time as companies attempt to prepare for the European General Data Protection Regulation. Both countries’ changes warrant reviews of company policies and procedures, but they are also quite different: Japan’s straightforward amendments focus on consumer information and data protection, while China turned a controversial focus to network operators managing data.

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Privacy & Security, Advertising
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Daily Journal Names Arent Fox Partners Sarah Bruno and Jennifer Terry 'Top Women Lawyers'

Arent Fox LLP is pleased to announce that Privacy, Cybersecurity & Data Protection partner Sarah L. Bruno and Labor & Employment partner Jennifer C. Terry have been named among the “Top Women Lawyers” in California by the Daily Journal as a result of their impressive track record of successes on behalf of clients, their role as mentors within the firm, and their impact on the overall legal profession.
 

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Privacy & Security
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This Ransomware Will Make You WannaCry

What’s New?

Ransomware is old news, as we had previously written here. Its latest iteration, the currently circulating WannaCry ransomware, is no laughing matter. The WannaCry vulnerability was reportedly first uncovered by the National Security Agency (NSA) but kept under wraps as a potential tool for possible surveillance. It was subsequently found by hackers who released a cache of stolen NSA documents on the internet, including details about WannaCry.
 

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Privacy & Security, Health Privacy & Security
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Our Allies Under Attack! Ransomware Hits the Brits and Quickly Spreading Across Globe – Batten Down the Hatches NOW

What’s New?

Last week, numerous hospitals operated by Britain’s National Health Service (NHS) suffered a ransomware event in which hospital computer systems were encrypted, phone lines became inoperable, patients were diverted, and a Bitcoin ransom was demanded. Hospitals across Britain shut down their computer systems in order to protect patient data and prevent further spread and advised people to stay home unless there was an emergency. NHS Digital, Britain’s national hospital cybersecurity overseer, stated that 16 NHS organizations across Britain had reported an incident, but that the attack did not appear to be specifically targeting NHS hospitals. At this time, there is no indication that the ransomware has exfiltrated any personal data from the NHS.

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Product Placement & Distribution, Advertising
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FTC Fires Warning Shot Over Misleading Instagram Posts

What’s New?

The Federal Trade Commission recently sent more than 90 letters to celebrities, athletes, and other influencers reminding them that brand endorsements made in social media posts must comply with the FTC’s Endorsement Guides. The letters reminded social media influencers – individuals or groups recruited to promote a brand’s products or services – that social media endorsements must clearly and conspicuously disclose “material connections” between the influencer and the brand, and focused on the need to disclose such connection in Instagram posts.
 

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Privacy & Security
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Vizio Smart TVs Fail FTC Privacy Test

What’s the News?

The Federal Trade Commission is asking “who’s watching who?” in a recent settlement with Vizio over the consumer electronics brand’s smart TVs. Vizio’s settlement with the FTC and the New Jersey Attorney General comes in at $2.2 million after a complaint that Vizio tracked consumer viewing data on 11 million smart TVs since 2014 without their knowledge and sold it to third parties. Vizio must also delete all data collected up until March 2016, disclose its data practices, and improve its privacy policies.

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Privacy & Security, GDPR
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A29WP Issues Guidance Addressing GDPR Woes: Data Portability Right

This article is one of a three-part series. Read about the data protection officer or the lead supervisory authority at the links.

What’s New?

In December 2016, the EU’s Article 29 Working Party (A29WP)—a group comprised of EU national data protection authorities (DPAs) that advises the EU Commission on EU data protection law—issued a number of GDPR guidance documents, including explanations for the mandatory DPO role, new individual right to data portability, and how to identify a “lead authority” for the GDPR’s one-stop shop enforcement mechanism.

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Intellectual Property
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In Fight Between Moose Knuckles and Counterfeiters, It’s a KO for the Retailer

What’s New?

An Illinois federal court recently awarded the Canadian retailer Moose Knuckles a $52 million default judgment related to claims of trademark infringement, counterfeiting, and cybersquatting by 26 Chinese defendants. The case offers a useful roadmap for companies that are trying to crack down on anonymous foreign infringers.

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ABOUT ARENT FOX LLP

Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.