Key point: The decision is the first to find a Daniel’s Law unconstitutional based on First Amendment grounds and could impact ongoing litigation against hundreds of companies challenging similar laws.
In what appears to be an emerging privacy litigation trend, plaintiffs’ attorneys have recently filed a series of putative class action lawsuits targeting data companies in possession of cellular telephone numbers. The lawsuits attempt to leverage an untested provision in Colorado’s Prevention of Telemarketing Fraud Act (PFTA) which prohibits knowingly listing “a cellular telephone number in a directory for a commercial purpose unless the person whose number has been listed has given affirmative consent[.]” Colo. Rev. Stat. Ann. § 6-1-304(4). Although the law was originally enacted in 2005, there is almost no case law interpreting its provisions. However, the PFTA provides for statutory damages of $300-500 per violation, attorneys’ fees, and costs, making it attractive to plaintiffs’ lawyers. Several other states have similar laws. See, e.g., Conn. Gen. Stat. Ann. § 16-247s, N.Y. Gen. Bus. Law § 399-cc.1, Minn. Stat. Ann. § 325E.318, 73 Pa. Stat. Ann. § 2403, S.D. Codified Laws § 49-31-118, and TX UTIL § 64.202.
On June 2, the New Jersey Division of Consumer Affairs announced the publication of new proposed regulations to implement the New Jersey Data Privacy Act (NJDPA), N.J. Stat. §§ 56:8-166.4 et seq., which went into effect on January 15. (Please see our prior article on the NJDPA for more details.) Although many of these proposed regulations appear familiar – similar to the finalized regulations under the California Consumer Privacy Act (CCPA) and the Colorado Privacy Act (CPA) – New Jersey introduced several new requirements worth noting.