Federal Agencies Issue Joint Alert on Imminent Cybercrime Threat to Healthcare Providers

The Cybersecurity and Infrastructure Security Agency (CISA), the Federal Bureau of Investigation (FBI), and the U.S. Department of Health and Human Services (HHS) have issued a joint cybersecurity advisory stating they have credible information of an increased and imminent cybercrime threat to U.S. hospitals and healthcare providers.

The advisory describes the tactics, techniques, and procedures (TTPs) used by cybercriminals against targets in the Healthcare and Public Health Sector (HPH) to infect systems with Ryuk ransomware for financial gain. The advisory provides technical details on the threat from Ryuk ransomware and new Trickbot malware modules named Anchor. The anticipated threat posed by this malware and ransomware is using encryption to interfere with a hospital’s access to its systems and ability to provide care and holding a decryption key for ransom.

In addition to the technical details, the advisory identifies steps hospitals and healthcare providers should take to protect themselves from this cybercrime threat. Those steps include maintaining an up-to-date business continuity plan and other best practices.

Network Best Practices

  • Patch operating systems, software, and firmware as soon as manufacturers release updates.
  • Check configurations for every operating system version for HPH organization-owned assets to prevent issues from arising that local users are unable to fix due to local administration being disabled.
  • Regularly change passwords to network systems and accounts and avoid reusing passwords for different accounts.
  • Use multi-factor authentication (MFA) where possible.
  • Disable unused remote access or Remote Desktop Protocol (RDP) ports and monitor remote access or RDP logs.
  • Audit user accounts with administrative privileges and configure access controls with the least privilege necessary in mind.
  • Audit logs to ensure new accounts are legitimate.

Ransomware Best Practices

  • CISA, FBI, and HHS do not recommend paying ransoms. Further, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) recently issued an advisory alerting companies of the potential sanctions risk for facilitating ransomware payments.
  • Regularly back up data, air gap, and password-protect backup copies offline.
  • Implement a recovery plan to maintain and retain multiple copies of sensitive or proprietary data and servers in a physically separate, secure location.

User Awareness Best Practices

  • Focus on awareness and training. Because end users are targeted, make employees and stakeholders aware of the threats (such as ransomware and phishing scams) and how they are delivered.
  • Provide users training on information security principles and techniques as well as overall emerging cybersecurity risks and vulnerabilities.
  • Ensure that employees know who to contact when they see suspicious activity or when they believe they have been a victim of a cyberattack.

The advisory notes that addressing the risks posed by malware and ransomware attacks will be particularly challenging for hospitals and healthcare providers during the COVID-19 pandemic. Additional advice on avoiding and responding to an attack is available here. If you have questions about this advisory or how best to assess and manage the risks identified in the advisory, please contact a Jackson Lewis attorney.

 

Hacked Healthcare Provider Refuses to Pay Ransom, Attackers Target Psychotherapy Patients

Earlier this year, we reported on an evolution in the form of cyberattack known as ransomware –attackers transitioning from denying affected users access to critical data by encrypting it to removing data from the compromised systems and threatening public release in exchange for payment. These attacks typically target the companies maintaining the data. However, attackers may be adopting a new tactic when they do not get paid, targeting the individuals whose sensitive personal information was compromised.

According to reports, a healthcare provider in Finland was hacked and the attackers demanded 40 bitcoins (or about $525,000) on the threat of public disclosure of patient psychotherapy records. Businesses in the US hearing these facts might be thinking of the recent advisory issued by the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) alerting companies of the potential sanctions risk for facilitating ransomware payments. The 22-location psychotherapy provider, Vastaamo, refused to pay the ransom.

When the attackers did not get paid by the provider, patients began receiving emails demanding payment of smaller amounts to avoid disclosure. Reporting on this incident states:

Therapist session notes of some 300 patients have already been published on a Tor-accessible site on the dark web. Among the victims are Finnish politicians (e.g., Member of Parliament Eeva-Johanna Eloranta) and minors.

Not much is known yet about the nature of the attack and various governmental agencies are involved.

This incident reveals a troubling pattern of cyberattacks now extending to individuals served by the organizations compromised – patients, students, customers, members, employees, etc.

Organizations devote significant resources to securing their networks and protecting the data they maintain. While that is necessary, considering the nature of the threats and current trends, it likely is not sufficient. Incident response planning is critical, but it needs to be reevaluated and evolve as the threat landscape evolves.

There are many steps organizations could take to minimize the chance and impact of a successful attack, and to be prepared to respond. Situations like this emphasize the need to understand the individuals the organization serves, what their needs might be in a case like this, and how best to communicate with them efficiently.

Eleventh Circuit rejects incentive awards for class plaintiffs

Co-Author: Eric R. Magnus

The Eleventh Circuit Court of Appeals recently ruled that “incentive” or “service” awards to lead plaintiffs in Rule 23 class actions are unlawful. It is the first circuit court of appeals to expressly invalidate such awards as a matter of law. (Johnson v. NPAS Solutions, LLC, No. 18-12344, September 17, 2020).

In a suit brought under the Telephone Consumer Protection Act (TCPA), a divided circuit panel struck down a $6,000 award to a lead plaintiff and, for this and other reasons, vacated a federal court’s order approving a proposed $1.432 million settlement. (There were 179,642 potential class members, who would have received only $7.97, but only  9,543 class members who submitted claims, bringing their haul to what could have been “a whopping $79.”)

Supreme Court precedent. The U.S. Supreme Court prohibited the award of incentive payments to plaintiffs more than a century ago, calling this particular fee for services “decidedly objectionable,” the Eleventh Circuit noted (citing Trustees v. Greenough, 105 U.S. 527 (1882), along with Central Railroad & Banking Co. v. Pettus, 113 U.S. 116 (1885), issued on the heels of that decision. This controlling precedent precedes Rule 23 by decades, as the plaintiffs pointed out to no avail, in arguing that the decisions were nonbinding here. And these opinions seem to have gone unheeded in the 140 or so years since, the majority acknowledged, conceding that incentive awards are routine features of class settlements today.

“But, so far as we can tell, that state of affairs is a product of inertia and inattention, not adherence to law,” the court said, adding: “Although it’s true that such awards are commonplace in modern class-action litigation, that doesn’t make them lawful, and it doesn’t free us to ignore Supreme Court precedent forbidding them.”

The incentive award in this case is “part fee and part bounty,” according to the majority. Such awards amount to the kind of pay for services disfavored by the Supreme Court. What’s more, such fees are meant “to promote litigation by providing a prize to be won.”

Eleventh Circuit is an outlier. Judge Martin dissented on this point, and noted that the decision “takes our court out of the mainstream.” No other circuit court has barred incentive awards; in fact, “none has even directly addressed its authority to approve incentive awards,” she pointed out. Yet, as the majority countered, the courts appear to have abandoned the inquiry whether there is actually a legal basis for such awards, turning instead to the question whether such awards are fair.

Fee objection before fee petition? The appeals court also was troubled that, in granting preliminary approval to the slapdash settlement (over the objections of the appellant here), the district court effectively required class members to opt out or object to the attorney fee award even before class counsel filed their fee petition. The appeals court found a clear violation of Federal Rule of Civil Procedure 23(h) in setting the objection date prior to the motion for fees.

However, applying the harmless-error doctrine for the first time in the context of Rule 23(h), the court concluded that this error was harmless.

“Boilerplate” approval. In addition, the lower court violated the Federal Rules and circuit precedent more generally by failing to offer a reasoned explanation for its decision to approve the terms of a class settlement and to overrule objections. The appeals court recognized that the district court’s approach to evaluating the settlement was fairly common. Here again, though, as with the court’s approval of the incentive award, it is no answer to say, “That’s just how it’s done.”

“We don’t necessarily fault the district court—it handled the class-action settlement here in pretty much exactly the same way that hundreds of courts before it have handled similar settlements. But familiarity breeds inattention, and it falls to us to correct the errors in the case before us.”

Takeaways. As a practical matter, removing the prospect of service awards for Named Plaintiffs in class actions will impact the resolution of class actions within the Eleventh Circuit, adding further nuance to the negotiation of settlements and the drafting of settlement agreements.

This decision will also further increase judicial scrutiny of class action settlements in the Eleventh Circuit, which is a Circuit that, since its seminal decision in Lynn’s Foods, Inc. v. United States in 1982, has been active in scrutinizing the terms of employment class action settlements, particularly in the area of wage and hour settlements.

A critical question that remains unanswered is whether the majority’s rationale will be applied in the context of collective actions brought under Section 216(b) of the Fair Labor Standards Act (FLSA) or to the settlement of hybrid claims under both Rule 23 and Section 216(b).

It also remains to be seen if other federal circuits will find the Eleventh Circuit’s holding persuasive, and likewise opt to prohibit the use of incentive payments, or whether the Eleventh Circuit has further distanced itself from its sister circuits in closely scrutinizing class action settlement terms.

COVID-19 Screening Program Can Lead to Litigation Concerning Biometric Information, BIPA

As organizations aim to return to some type of normalcy, and help ensure a healthy and safe workplace, many have implemented COVID-19 screening programs that check for symptoms, and an employee’s recent travel and potential contact with the virus. Moreover, many states and localities across the nation are mandating or recommending the implementation of COVID-19 screening programs in the workplace, and beyond. In many cases, organizations have leveraged various technologies, such as social distancing bands, apps, and thermal scanners, to streamline their screening programs.

Despite the benefits of COVD-19 screening programs, organizations should proceed carefully to examine not only whether the particular solution will have the desired effect, but whether it can be implemented in a compliant manner with minimal legal risk, particularly regarding the privacy and security implications. Just last week Amazon was hit with a proposed class action lawsuit in Illinois state court, claiming the company’s COVID-19 screening program violated Illinois’s Biometric Information Privacy Act (BIPA).  According to the complaint, Amazon employees were required to undergo facial geometry scans and temperature scans before entering company warehouses, without prior consent from employees as required by law when collecting biometrics identifiers, such as a facial geometry scan.

The BIPA sets forth a comprehensive set of rules for companies doing business in Illinois when collecting biometric identifiers or information of state residents. The BIPA has several key features: • Informed consent prior to collection • Limited right of disclosure of biometric information • Written policy requirement addressing retention and data destruction guidelines • Prohibition on profiting from biometric data • A private right of action for individuals harmed by BIPA violations. Statutory damages can reach $1,000 for each negligent violation, and $5,000 for each intentional or reckless violation.

The complaint alleges that Amazon employees “lost the right to control” how their biometric data was collected, used and stored, exposing them to “ongoing, serious, and irreversible privacy risks — simply by going into work”.  In addition to claims of failure to notify employees and obtain express consent regarding their biometric data collection practices, the complaint also alleges that Amazon failed to develop and follow a publicly available retention schedule and guidelines for permanently destroying workers’ biometric data.

While this case is an important reminder of BIPA implications, implementing a COVID-19 screening program, or any type social distancing or contact tracing technology to help prevent/limit the spread of coronavirus for that matter, can have privacy and security implications that extend well beyond the BIPA. In addition to the BIPA, depending on the type of data being collected and who is collecting it, such practices may trigger compliance obligations under several federal laws, such as the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the Health Insurance Portability and Accountability Act (HIPAA). In addition to BIPA, other state laws should be considered, if applicable, such as the California Consumer Privacy Act (CCPA) and state laws that require reasonable safeguards to protect personal information and notification in the event of a data breach. International laws, including the General Data Protection Regulation (GDPR) also can affected screening programs depending on their scope. In addition to statutory or regulatory mandates, organizations will also need to consider existing contracts or services agreements concerning the collection, sharing, storage, or return of data, particularly for service providers supporting the screening program.  Finally, whether mandated by law or contract, organizations should still consider best practices to help ensure the privacy and security of the data it is responsible for.

COVID-19 screening programs, as well as the extensive technology at our disposal and/or in development are certainly helping organizations address the COVID-19 pandemic, ensuring a safe and health workplace and workforce, and preventing future pandemics.  Nevertheless, organizations must consider the legal risks, challenges, and requirements with any such technology prior to implementation.

California DOJ Announces a Third Set of Modifications to the CCPA Regulations

Back in August, after much anticipation and several rounds of review and modification, the California Consumer Privacy Act (CCPA) regulations finally became effective. This was long awaited by businesses and their service providers looking for compliance guidance and clarity on key issues related to facilitation of consumer rights.  This week, the California Department of Justice (“DOJ”) announced there would now be a third set of proposed modifications made to the CCPA regulations.

As a quick recap of past of developments related to the CCPA regulations, the DOJ first published CCPA proposed regulations on October 11, 2019.  In February 2020 and again in March, the DOJ gave notice of modifications to the proposed regulations, based on comments received during the relevant public commentary periods.  The final version of the CCPA regulations that became effective in August, was substantively unchanged from the previous version from March.

Below are highlights from the third set of proposed modifications made to the CCPA regulations, released this week:

  • Addition of examples of how businesses that collect personal information in the course of interacting with consumers offline can provide the notice of right to opt-out of the sale of personal information through an offline method.
  • Guidance on how a business’s methods for submitting requests to opt-out should be easy and require minimal steps. It provides illustrative examples of methods designed with the purpose or substantial effect of subverting or impairing a consumer’s choice to opt-out.
  • Clarification on the proof that a business may require an authorized agent to provide, as well as what the business may require a consumer to do to verify their request.
  • Clarification that businesses that have actual knowledge that they sell PI of minors are required to include in their privacy policies a description of their method for verifying that the person authorizing the sale of a child’s data is actually that child’s parent or guardian.

The DOJ’s notice regarding the proposed modifications and a comparative version of the new text are available here.  The DOJ will accept written comments from the public regarding the proposed modifications between Tuesday, October 13, 2020 and Wednesday, October 28, 2020. Written comments may be submitted to the DOJ via email to PrivacyRegulations@doj.ca.gov.

Since the CCPA’s effective date back in January there have been an influx of developments, as the legislature and regulators help to clarify ambiguities and provide greater specificity on key compliance issues facing covered businesses and their service providers. Just last week we reported on CCPA amendment, AB 1281, which extended exemptions for “B2B” and employee personal information. We will continue to update on CCPA and other related developments as they unfold.

New York and New Jersey Release COVID-19 Exposure Apps

New York and New Jersey release “COVID Alert NY” and “COVID Alert NJ,” apps designed to alert their users when they have been exposed to someone who tested positive for COVID-19. These apps follow those released in Pennsylvania and Delaware and are soon to be joined by Connecticut. The states hope to enhance their contact tracing efforts, but what about privacy?

According to New Jersey Governor Murphy,

The app is free and secure, and your identity, personally identifying information, and location will never be collected. The more phones that have the app, the better we can fight this pandemic.

Larry Schwartz, a former high-ranking aid to Governor Cuomo, explains privacy is achieved “not through location services tied to smartphones but through the device’s Bluetooth proximity detection.” More specifically, the apps use the Exposure Notification System technology developed by Google and Apple. By using Bluetooth instead of GPS, location tracking of individuals is not necessary and users can turn it off at any time.

According to state officials, the COVID Alert apps will notify users if they have been in “close contact” (within six feet for at least 10 minutes) with someone who has tested positive for COVID-19. In order for the apps to work between users in close contact, a few things have to happen.

First, both users must have downloaded the app on their mobile devices and opted-in to receive “Exposure Notifications.” For COVID Alert NY and NJ, the apps are free and available to anyone 18 or older who lives, works, or attends college in New York or New Jersey, and can be downloaded in multiple languages from the Google Play Store or Apple App Store. As with all apps, users should read the app’s privacy statement – here is New Jersey’s privacy statement.

Second, one of the users would need to have tested positive for COVID-19 and cooperated with the local health department by agreeing to anonymously enter a code into the user’s app.

Third, when the two users are in close contact, as described above, their devices will exchange codes via Bluetooth. Using Bluetooth Low Energy technology, a device can detect when another phone with the same app is within six feet. If a code matches with a list of codes associated with positive COVID-19 app users, the user will get an “Exposure Alert” together with recommendations on next steps to stay safe and prevent community spread like self-quarantining and getting tested.

With reports of data breaches and intrusive government surveillance of citizens, it is no wonder New York and New Jersey state officials are touting COVID Alert’s attention to privacy. However, app users are permitted to do a “COVID Check-In” and enter any symptoms they are having. As I write this post, there were 15,561 check-ins today, with 97% percent feeling good. When Checking-In, users are reminded that the app does not reveal the user’s identity, but the information, which could include race, gender, and ethnicity, can be useful for public health action. Users also are reminded that a record is kept of symptoms entered into the app for future reference.

According to reports, the app cost $700,000 to develop, a cost reportedly paid for by the Bloomberg Foundation. It remains to be seen whether the app will serve its intended purpose and will keep user data private and secure.

The CCPA’s “B2B” Exemption Is Also Extended by Governor Newsom

By signing AB 1281 into law on September 29th, 2020, California Governor Gavin Newsom amended the California Consumer Privacy Act (“CCPA”) to extend until January 1, 2022, not only the current exemption on employee personal information from most of the CCPA’s protections, but also the so-called “B2B” exemption. Welcomed by many “B2B” (business to business) organizations, this exemption originally enacted under AB 1355 removed significant amounts of personal information from the CCPA’s reach. Note, however, this exemption could be further extended until January 1, 2023, if the California Privacy Rights Act (CPRA) is approved by voters on Nov. 3, 2020.

The “B2B” exemption applies to the following:

Personal information reflecting a written or verbal communication or a transaction between the business and the consumer, where the consumer is a natural person who is acting as an employee, owner, director, officer, or contractor of a company, partnership, sole proprietorship, nonprofit, or government agency and whose communications or transaction with the business occur solely within the context of the business conducting due diligence regarding, or providing or receiving a product or service to or from such company, partnership, sole proprietorship, nonprofit or government agency

In other words, for example, the personal information obtained by a business from a consumer under the CCPA is generally exempt under this provision when that consumer is acting as a representative of another organization and the consumer engages with the business in communications or transactions that relate solely to providing or receiving products or services.  However, similar to the employee personal information exemption, certain personal information in this context remains subject to the CCPA’s private right of action if that personal information is involved in a data breach and reasonable safeguards were not in place.

CCPA covered businesses have a temporary reprieve on employment and “B2B” personal information, and will have to wait until election day to see if they will get another year.

California Governor Newsom Signs into Law Extension to CCPA Employee Personal Information Exemption, Vetoes Another Privacy Bill

On September 29th, California Governor Gavin Newsom signed into law AB 1281, an amendment to the California Consumer Privacy Act (“CCPA”) that would extend the current exemption on employee personal information from most of the CCPA’s protections, until January 1 2022. The exemption on employee personal information was slated to sunset on December 31, 2020.  It is important to highlight that under the current exemption, while employees are temporarily excluded from most of the CCPA’s protections, two areas of compliance remain: (i) providing a notice at collection, and (ii) maintaining reasonable safeguards for a subset of personal information driven by a private right of action now permissible for individuals affected by a data breach caused by a business’s failure to do so.

Notably, the operation of the extension is contingent upon voters not approving ballot proposition 24 in November, the California Privacy Rights Act (“CPRA”), which would amend the CCPA to include more expansive and stringent compliance obligations and inter alia, would extend the employment personal information exemption until January 1, 2023.

As a reminder, during this challenging time, it is important for employers, regardless of jurisdiction, to remain vigilant on the types of personal information collected from employees and how it is used. Pre COVID-19, employers, for example, were not thinking of performing temperature checks on employees or collecting other personal information in connection with COVID-19 screenings, and as a result may need to update their privacy notices to capture this category of information and the purpose it was used.

A full discussion on AB 1281 is available here.

During the same session, Governor Newsom vetoed an additional privacy bill, AB 1138, which would have required parental or guardian consent for creation of a social media or application account for children under 13. Under the federal Children’s Online Privacy Protection Act (COPPA) operators of Internet websites or online services to obtain parental or guardian consent before collecting personal information from a child known to be under 13. States have the authority to enforce COPPA.  In Governor Newsom’s veto statement, he highlighted that “Given its overlap with federal law, this bill would not meaningfully expand protections for children, and it may result in unnecessary confusion.” However, Governor Newsom concluded that his Administration is “open to exploring ways to build upon current law to expand safeguards for children online”.

California continues to be a leader in privacy and cybersecurity legislation. We will continue to update on CCPA and other related developments as they unfold.

House Passes Internet of Things Cybersecurity Improvement Act

The House of Representatives recently passed the Internet of Things (IoT) Cybersecurity Improvement Act of 2020 (the Act).  The Act has been moved to the Senate for consideration. The legislation sets minimum security standards for all IoT devices purchased by government agencies.

IoT refers to the myriad of physical devices that are connected to the internet, collecting and sharing data.  They are used by both consumers and corporations.

Common examples include products used by consumers such as fitness trackers and home thermostats, to devices used by business and government that measure air quality and the operation of military components.

Despite the tasks that can be accomplished by IoT devices, they remain vulnerable to cyberattack.  Currently, there is no national standard addressing cybersecurity for IoT devices.  There have been several attempts in recent years to develop of a national IoT strategy. For example, in late 2017, a coalition of tech industry leaders released a report that put out a call for creation and implementation of a national strategy to invest, innovate and accelerate development and deployment of IoT, and stressed the need to enact legislation which would, inter alia, require IoT security measures in a “comprehensive manner.” Further, as far back as 2015, the FTC issued “concrete steps” businesses can take to enhance the privacy and security of IoT for consumers.

According to a statement issued by Rep. Robin Kelly (D-IL), sponsor of the Act in the House, “Securing the Internet of Things is a key vulnerability Congress must address. While IoT devices improve and enhance nearly every aspect of our society, economy and everyday lives, these devices must be secure in order to protect Americans’ personal data.”  Senator Mark Warner (D-VA), who introduced the Senate version of the legislation back in 2017, and again in 2019, stated that, “manufacturers today just don’t have the appropriate market incentives to properly secure the devices they make and sell – that’s why this legislation is so important.”  Rep. Kelly’s statement noted that many IoT devices are shipped with factory-set passwords that are frequently unable to be updated or patched. IoT devices also can represent a weak point in a network’s security, leaving the rest of the network vulnerable to attack.

The Act requires the National Institute of Standards and Technology (NIST) to publish standards and guidelines on federal government agencies’ use of IoT devices.  The Act states that the Office of Management and Budget is to review government policies to ensure they are in line with NIST guidelines. Federal agencies would be prohibited from procuring IoT devices or renewing contracts for such devices if it is determined that they do not comply with the security requirements.

New technologies and devices continuously emerge, promising a myriad of societal, lifestyle and workforce advancements and benefits including increased productivity, talent recruiting and management enhancements, enhanced monitoring and tracking of human and other assets, and improved wellness tools. While these advancements are undoubtedly valuable, the privacy and security risks should be considered and addressed prior to implementation or use, even without national IoT security legislation in place.

Will the Passing of Justice Ginsburg Impact the Future of the TCPA?

The passing of U.S. Supreme Court Justice Ruth Bader Ginsburg will likely bring with it many shifts in the Court on key issues, among which are matters regarding the Telephone Consumer Protection Act (TCPA), most imminently –  what qualifies as an auto dialer. The TCPA has been ever evolving in recent years as courts and legislatures attempt to keep pace with changes in technology.

When the TCPA was enacted in 1991, most American consumers were using landline phones, and Congress could not begin to contemplate the evolution of the mobile phone. The TCPA defines “Automatic Telephone Dialing System” (ATDS) as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C § 227(a)(1). In 2015, the Federal Communications Commission (FCC) issued its 2015 Declaratory Ruling & Order (2015 Order), concerning clarifications on the TCPA for the mobile era, including the definition of ATDS and what devices qualify. The 2015 Order only complicated matters further, providing an expansive interpretation for what constitutes an ATDS, and sparking a surge of TCPA lawsuits in recent years.

This past July the Supreme Court accepted petition for review of a Ninth Circuit ruling on the issue of whether the definition of “ATDS” in the TCPA encompasses any device that can “store” and “automatically dial” telephone numbers, even if the device does not “us[e] a random or sequential number generator.” The Supreme Court’s decision should help resolve the circuit split and provide greater clarity and certainty for parties facing TCPA class action litigation.

President Trump’s recent nomination of Seventh Circuit judge Amy Coney Barrett could be particularly impactful on the issue of defining ATDS under the TCPA.  In February of this year, Judge Barrett authored an opinion in which the Seventh Circuit narrowly held that the TCPA’s definition of Automatic Telephone Dialing System (ATDS) only includes equipment that is capable of storing or producing numbers using a “random or sequential” number generator, excluding most “smartphone age” dialers. The Seventh Circuit court expressly rejected the Ninth Circuit’s more expansive interpretation from a ruling in 2018 (currently under review by the Supreme Court), concluding that the TCPA covers any dialer that calls from a stored list of numbers “automatically”. These rulings are significant as most technologies in use today only dial numbers from predetermined lists of numbers.

In the Seventh Circuit case’s fact-pattern, the plaintiffs alleged that they had received over a dozen unsolicited calls over a one-year period, from the defendant. While the defendants acknowledged that that they had indeed placed the calls, they argued that this was not a TCPA violation, as their calling system required too much “human intervention” to qualify as an ATDS. Judge Barrett highlighted in the Seventh Circuit ruling that accepting the plaintiffs’ arguments against the defendant’s dialing system would have “far-reaching consequences…it would create liability for every text message sent from an iPhone. That is a sweeping restriction on private consumer conduct that is inconsistent with the statute’s narrower focus”.

Given Justice Ginsburg’s history as a proponent of protecting a consumer’s right to bring a class action both within the TCPA context and beyond, she very well may have supported a broader reading of the definition of ATDS. Whether Judge Barrett ultimately becomes Justice Ginsburg’s replacement remains to be seen, but anyone interested in the Supreme Court’s review of an ATDS under the TCPA should be following this development.

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