Articles Posted in Consumer Law

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The answer to many questions is an online search away. However, online searches are not free of all consequences. Indeed, search engines can track and store a user’s search history and even sell this personal information to third parties for profit. What someone types into a search bar then becomes part of a permanent link tied to that Internet Protocol (“IP”) address. This certainly raises several concerns regarding online and individual privacy. In a highly digitized era, this affects anyone with Internet access, a computer, and even a cellphone.

What are the Main Concerns of Search Engine Privacy?

Search engines track personal information using users’ search history, including a user’s IP address, search terms, name, and location. Websites, such as Google and Yahoo, can then use this information for their marketing, or they can sell users’ search history to marketing firms. Online search history generates an impression of the user, which the public can then use to its advantage–e.g., for criminal investigations, employment opportunities, and to fuel personal disputes. Public opinion in this area strongly disfavors this level of surveillance. As a result, websites have begun to compete in terms of which search engine provides the greater privacy protection. Efforts to improve search engine privacy consider, among other standards, how long a search engine stores user information, how a search engine deletes such information, whether the search engine engages in behavioral targeting (i.e. whether a site uses search history to provide targeted advertisements), and whether the search engine uses profile information to manipulate advertisements. Based on a recent survey by CNet, only Ask.com does not record search terms. Outside the circle of the large search engines, sites such as ixquick.com allege that they do not record IP addresses when users conduct searches through their website. According to the survey, Google also does not engage in behavioral targeting.

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The Federal Trade Commission proposed a revision to the federal Children’s Online Privacy Protection Act (“COPPA”), which became effective as of July 1, 2013. As the FTC and state attorneys become increasingly stricter with online child protection standards, this rule will mean that online activity will be monitored more closely for inappropriate material. Indeed, this new rule has expanded what inappropriate material entails. Do you have a child with access to the internet? Are you a business entity that collects user information over the internet for marketing purposes? In both cases, this new rule may apply to your activities.

What Does the New Rule Add to COPPA?

First, the new rule substantially expands the meaning of “personal information.” Prior to this revision, personal information applied to an online user’s name, physical address, email address, telephone number, and social security number. However, the revision expands this category to include significantly more information. Online contact information will now include identifiers for instant messaging, Voice over Internet Protocol (VoIP), and video chat users. Additionally, online screen names will now be considered “contact information” because such information may be used to locate minors on the web. To this same effect, any online information that can help locate the physical address of a minor will constitute “personal information.” This information will include photographs, videos, and audio files that contain a child’s picture or voice. It will also include information such as an Internet Protocol address (“IP address”) or mobile device identification names, since they can help locate users as well. Indeed, any information that configures with geographic locations, such as street names and cities, will constitute “personal information.” The rule also limits the extent to which companies that gather “personal information” from minors can share this information with third parties.

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A buyer who has ever committed to a wrong purchase knows the nagging feeling that accompanies the realization that committing to the purchase of a product was entirely unnecessary. Often informally referred to as “Buyer’s Remorse,” this feeling of extreme regret usually accompanies very expensive purchases, such as automobiles or real estate. Recognizing that consumers do not always make the soundest purchases, the California legislature has provided state laws that give consumers the right to cancel certain contracts after a short period of time (i.e., cooling-off period) if those contracts fall under the Buyer’s Remorse exception.

What Types of Contracts Fall Under the Buyer’s Remorse Exception?

Whether or not a contract falls under the Buyer’s Remorse exception is entirely up to the governing law in a jurisdiction. For example, California does not provide a cancellation period for automobile sales and leases. Unless a specific dealership or lease agreement provides otherwise, buyers do not have the option to cancel an automobile sale or lease without first showing legal cause. In looking to determine whether a buyer may cancel a contract after a showing of legal cause, courts will often look for instances of fraud, undue influence, illegality, or a breach of a duty. However, under California Civil Code section 1689.6(a), buyers maintain the right to cancel a contract from door-to-door sales within three days. The intent of this statute is to protect buyers from overly ambitious salespeople and give buyers the opportunity to reflect on their purchases without the overbearing presence of the salesperson.

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Introduction

On December 1, 2010, the Federal Trade Commission (“FTC”) released its highly anticipated consumer privacy protection framework titled “Protecting Consumer Privacy in an Era of Rapid Change” (“Privacy Report”).  A copy of the Privacy Report may be obtained on the FTC website: http://www.ftc.gov/os/2010/12/101201privacyreport.pdf.  The FTC seeks public comment on the proposed privacy framework by January 31, 2011.

The proposed privacy framework has three major components: (1) privacy by design; (2) expansion of consumer choices about how companies collect and use consumer information; and (3) increased transparency of data collection practices.  All three components have already ignited a lively debate among consumer advocates, businesses, advertisers and policy makers.  Although, stated as tasks that a company “should do,” there is worry the FTC could take steps to use its enforcement powers against a non-compliant company.

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