Center and Partners File Briefs on False Advertising and Consumer Privacy

It's been a hotter-than-normal summer here in Berkeley, and we're not just talking about the weather! This past month, the Center teamed up with our friends (of-the-court and otherwise!) at Truth In Advertising, Inc. (TINA) and the Electronic Frontier Foundation (EFF) to file amicus briefs in the Fifth and Ninth Circuit Courts of Appeals on two hot topics for consumers:

In one brief, we weighed in with Truth In Advertising, Inc. on the FTC's lawsuit against Intuit for its well-known, and oft-maligned, marketing practices related to its tax preparation software Turbotax. You've probably seen the ads proclaiming that Turbotax is "Free, Free, Free, Free" for anyone to use--with a tiny, ambiguous disclaimer that the software is free just for "simple filings only." Turbotax's marketing does not make clear what a simple filing entails, and in fact, 2/3 of Turbotax's customers don't qualify for its free version at all. Turbotax requires customers to input all of their tax documents--including very sensitive information--and then, at the very end of the process, the program reveals that the tax filing is not going to be so "Free, Free, Free, Free" after all. The FTC brought an administrative enforcement action against Turbotax's parent company Intuit for these deceptive marketing practices, which Intuit is challenging directly in the Fifth Circuit Court of Appeals (Intuit Inc. v. Federal Trade Commission). The Center and TINA's brief, joined by other consumer advocacy organizations and First Amendment scholar Prof. Rebecca Tushnet, argues that Turbotax's practices violate the bedrock law--accepted in every federal circuit--that claims that are literally true can nonetheless be false or misleading in context. TINA staff attorney (and former and inaugural Center staff attorney) Eliza Duggan penned this blog post about the brief.  

In the second brief, we joined with the Electronic Frontier Foundation to argue that out-of-state third-party data brokers that use consumers' data that is acquired in California without their consent are subject to personal jurisdiction in California courts. In that case, Briskin v. Shopify, Inc., the proposed class of consumers allege that Shopify, an online ecommerce payment platform and processor, tracked their browsing activities on various internet retailers' websites and compiled the information into comprehensive user profiles. The district court dismissed the lawsuit and held that Shopify, which is based in Canada, did not have sufficient connections or presence in California to warrant personal jurisdiction in this state. The proposed class, represented on appeal by Public Citizen, appealed to the Ninth Circuit, but a three-judge panel affirmed dismissal. The Ninth Circuit, however, agreed to rehear the case en banc and requested additional briefing to address the personal jurisdiction standard for defendants like Shopify that engage primarily in online--as opposed to brick-and-mortar--activities. EFF and the Center's brief elucidates the practices of data brokers, including how they collect consumers' data without authorization and for what purposes, and why these practices fit within longstanding U.S. Supreme Court and Ninth Circuit personal jurisdiction jurisprudence. As we explain, consumers must have the ability to bring their claims in courts where the alleged harm occurred. If, because of the nationwide reach of these data brokers' activities, they have to file suit across the country, they likely will not be able to file their claims at all. Check out this blog post about the brief authored by EFF staff here.