The last couple of years for consumers have been jam-packed with privacy issues, wrestling with robocalls, Uber driving down the wrong side of the consumer’s road, and whatever messes Elon Musk could get himself into.
Will 2020 be more of the same? Consumer attorneys foretell much of the same, but at a higher, more rigorous level.
“The next year could be filled with significant decisions from the U.S. Supreme Court, with the justices considering petitions dealing with standing in regard to privacy violations and the constitutionality of the Telephone Consumer Protection Act and the structure of the Consumer Financial Protection Board,” is what consumer legal analyst Sophia Morris’ tea leaves show.
The issue of privacy at the Supreme Court
Just about this time last year, ConsumerAffairs reported on the trouble Facebook ran into with Illinois’ Biometric Privacy Act. The base of that complaint was that Facebook’s collection of its users’ biometric information was done without consent -- a likely no-no in any consumer’s rule book.
“Consumer protection attorneys are closely watching the Supreme Court to see whether the justices will take up Facebook’s challenge to the Ninth Circuit panel ruling that preserved a class action over its face-scanning practices, allowing the case to proceed to trial,” Morris wrote.
With facial recognition technology becoming as omnipresent as it is, if the case gets to the Supreme Court, consumers should throw a party. “The Supreme Court’s ruling on this issue has tremendous implications,” Lena Konanova, a partner at Selendy & Gay PLLC, told Law360.
“The Illinois law, for example, allows damages of one to five thousand dollars per violation for every time that someone’s image is used without consent, and given that the class can include millions of members this could really expose tech companies to billions of dollars in liability.”
Telephone Consumer Protection Act’s constitutionality
If Mark Zuckerberg doesn’t have a place in Washington D.C. to lay his weary head, he may want to find one because Facebook is going to be on Capitol Hill a lot.
Another issue the social media titan is challenging is how automatic telephone dialing systems, aka autodialers, are defined under the Telephone Consumer Protection Act (TCPA) -- an act that is meant to keep the public from being plagued by unwanted calls.
Facebook wants to know if the statute’s autodialer provision violates the First Amendment -- a claim that plaintiff Noah Duguid argued in court when he said that Facebook sent uninvited security notification text messages using an autodialer. Interestingly, Duguid’s suit claims he wasn’t even a Facebook user when his 10-month string of messages from Facebook were sent.
“If the goal of the statute is to protect the public from unwanted calls, then the issue of what classifies as an automatic telephone dialing system is not a concern if the lawsuits act as a deterrent,” Morris wrote, quoting Stephen Newman of Stroock & Stroock & Lavan LLP.
“Others may say the statute must be read literally and therefore everything, including smartphones, could be viewed as an automatic telephone dialing system.”
Is climate change a consumer protection issue?
While it may seem like a stretch, ExxonMobil recently beat a suit from the New York attorney general’s office which was trying to hold it accountable for making misleading statements the company made to its investors about the influence climate change had on its business.
“This suit is the culmination of (the NY attorney general’s) three-year investigation into Exxon,” Morris said. “While it does allege that Exxon deceived investors about climate-related risks to its business, it also accuses the company of misleading consumers about how its fossil fuel products contribute to climate change and pushing deceptive ‘greenwashing’ advertisements that promote the company as environmentally responsible.”
In light of the defeat of the securities claims in New York, Konanova told Law360 that “whether companies can be held liable for deceiving consumers about climate change is the next frontier that we’re going to be watching very closely.”