On May 16, 2008 the U.S. Court of Appeals for the Fifth Circuit agreed with a number of other courts, holding that the Communications Decency Act (“CDA”) (47 U.S.C. Sec. 230) protects social networking websites from liability with respect to negligence claims based on third-party content published on the website and the consequences stemming from such content. In Doe v. MySpace, Inc., No. 07-50345, 2008 WL 2068064 (5th Cir. May 16, 2008), the plaintiff argued that MySpace negligently failed to implement appropriate technological safeguards to prevent the plaintiff, a 13-year-old, from registering on MySpace. The plaintiff lied in her registration materials, pretending to be 18 years old, and ignored MySpace’s warnings against sharing personal information on the website by posting her phone number. According to the plaintiff, the technological safeguards would have prevented her from meeting and being sexually assaulted by another MySpace user.

On May 12, 2008 the Federal Trade Commission issued its long awaited final set of rules under the CAN-SPAM Act of 2003 (the “Act”). The rule:

  • Modifies the term “sender” with respect to multi-advertiser e-mails;
  • Clarifies the opt-out request process;
  • Defines the term “person”; and
  • Clarifies the meaning of “valid physical postal address” of the sender.
  • The accompanying report:
  • Explains the FTC’s interpretation of the Act’s application to affiliate marketing programs and tell-a-friend campaigns.

The rule will take effect on July 7, 2008.

The June 18, 2008 Ninth Circuit panel decision in Quon et al. v. Arch Wireless et al., No. 07-55282 (9th Cir. June 18, 2008) has sparked a flurry of news reports and speculation regarding employers’ ability to monitor employees’ e-mails and text messages. In fact, the decision appears to change very little for private employers who wish to review employee communications stored on, or sent through, their own servers and computers. However, Quon does limit employers’ ability to request from third-party providers the contents of employees’ electronic communications.

New amendments to the Fair and Accurate Transactions Act (“FACTA”) (itself an amendment to the Fair Credit Reporting Act (“FCRA”)) bar consumers from alleging willful violation and seeking statutory damages based on the printing of credit card expiration dates on receipts where the account number is otherwise properly truncated in accordance with FACTA. This development means the end is near for scores of class action lawsuits filed last year.
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Many B2C companies are beginning to explore marketing to consumers’ wireless devices using text messaging (“SMS,” or “short message service”) and MMS messaging (“Multi-media Messaging Service”). They may even target their promotions based on where the recipient is physically located using the wireless device’s GPS technology. They also may target their promotions to teens and tweens. What legal issues should companies be aware of as they navigate through this relatively new area?

In December 2007, Texas became the first state to file COPPA enforcement actions, by separately suing the entities behind Gamesradar.com and TheDollPalace.com in the United States District Court for the Western District of Texas. The complaints are available as an attachment to the press release on the Texas Attorney General’s website. The defendants in those cases are California and New York – and not Texas – entities.
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