State AG Updates: Arizona, Texas, California, North Carolina, Washington, New York and an AG Coalition

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In this edition of Faegre Drinker’s State Attorneys General Update, we discuss:

Arizona AG Enters $85 Million Settlement With Google for Alleged Improper Use of Consumer Location Data

Google agreed to an $85 million settlement for alleged violations of Arizona’s Consumer Fraud Act. Specifically, the Arizona AG alleged that Google violated the Act by building “coercive design tactics used to manipulate users’ behavior,” known as “dark patterns,” into its Android phone software. In this instance, the AG alleged that Google created misleading settings, so even if a consumer turned off location tracking in the “Location History” menu, location data would still be tracked and used to sell advertisements through other settings — specifically, the “Web & App Activity” menu.

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First Biometric Information Privacy Act Trial Results in $228M Verdict

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Last week, the first jury trial under the Illinois Biometric Privacy Act (BIPA) resulted in a $228 million verdict in favor of the plaintiff and the class.

The case, Rogers v. BNSF Railway Co., was filed in May 2019 and was pending in the U.S. District Court for the Northern District of Illinois. A class was certified in March 2022. Plaintiff alleged that BNSF unlawfully scanned his and other truck drivers’ fingerprints for identity verification when he and they visited BNSF rail yards. He claimed the company took this scan without written notice or consent as required under BIPA. BNSF argued, among other things, that the third-party vendor it hired to control gate access was the only party to collect drivers’ fingerprints, and that BNSF therefore had not independently violated BIPA.

Pretrial briefing in the case was extensive. Each side filed several motions in limine seeking to bar or include certain evidence in the trial. For example, the Plaintiff found several references to use of “biometrics” or “biometric identities” on BNSF’s website that they alleged were responsive to former document requests. Anticipating objections from BNSF, Plaintiff filed a preemptive motion asking the court to permit them to introduce these exhibits at trial. Plaintiff were able to use this information at the trial and suggest that BNSF was aware of the biometric collection and that BNSF itself was collecting the information.

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Protecting Your Internet Brand and Online Identity – Faegre Drinker on Law and Technology Podcast

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In current times where an online presence is just as crucial as a business’s physical assets, it is more important than ever to proactively protect and maintain your organization’s brand and identity. In this episode of the Faegre Drinker on Law and Technology Podcast, host Jason G. Weiss discusses strategies and solutions to protect your brand with intellectual property partner Tore DeBella.

The conversation tackles a number of questions, including:

  • How do we protect a company’s brand and how does that affect the organization’s identity?
  • What are the primary ways bad actors can attack a company’s brand or identity online?
  • How can an organization protect their domain?
  • What steps can clients take to protect their brands and identities online?

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Artificial Intelligence Briefing: FTC Holds Forum on Commercial Surveillance and Data Security

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Our latest briefing explores the recent FTC commercial surveillance and data security forum (including discussion on widespread use of AI and algorithms in advertising), California’s inquiry into potentially discriminatory health care algorithms, and the recent California Department of Insurance workshop that could shape future rulemaking regarding the industry’s use of artificial intelligence, machine learning and algorithms.

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What Are Blockchain, Crypto and NFTs? A Deeper Look – Faegre Drinker on Law and Technology Podcast

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As of March 2022, there are more than 18,000 different crypto currencies in service for a total market capitalization of $2 trillion. In this episode of the Faegre Drinker on Law and Technology Podcast, host Jason G. Weiss chats with Faegre Drinker partner Jeff Blumberg and associate Jane Blaney, to revisit the world of crypto and not only discuss the foundations of crypto currencies, but also explore the world of blockchain and non-fungible tokens, or NFTs.

The conversation tackles a number of questions, including:

  • What is blockchain and what makes it different from traditional recordkeeping processes?
  • What exactly is crypto currency? What is important to understand about it?
  • What exactly is an NFT? How do they work in easy-to-understand concepts?
  • What uses are there for blockchain, both using crypto currencies and in uses other than crypto currency?
  • Are crypto currencies considered “legal tender”? Can people use them like normal money?
  • How can and will NFTs be used in other ways in our society as these concepts grow?

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Sephora Settles with California AG for $1.2M for Alleged CCPA Violations Relating to Third-Party Cookies and User-Enabled Opt-Out Signals

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On August 24, 2022, California Attorney General Rob Bonta announced a settlement with Sephora for violations of the California Consumer Privacy Act (CCPA). The action places online consumer tracking, analytics and advertising squarely in the regulatory crosshairs. “Sephora, like many online retailers, installs third-party companies’ tracking software on its website and in its app so that these third parties can monitor consumers as they shop,” the AG alleged, “. . . [and] when a company like Sephora utilizes third-party tracking technology without alerting consumers and giving them the opportunity to control their data, they deprive consumers of the ability to limit the proliferation of their data on the web.”

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