AT&T Proclaims It Cannot Be Sued For Selling Your Location Data To Random Nitwits

from the ill-communication dept

You'll of course recall that wireless carriers are in the midst of a massive, ongoing scandal involving your location data. As in, they've been repeatedly caught collecting and selling your daily movement habits to a rotating crop of random nitwits, including stalkers and folks pretending to be law enforcement. And while they say they've stopped the practice there's no way to be sure, given that the current industry-friendly FCC has yet to pressure (or even mildly scold) them, much less conduct any real investigation into whether mobile carriers have actually stopped, or what they've done with location data collected over the last decade.

With regulatory capture ensuring that government is feckless in the face of the scandal, the EFF sued AT&T back in July on behalf of several California AT&T users who say they were never informed, nor gave consent, for their location data to be used and sold in this fashion. The lawsuit alleges that AT&T violated the Federal Communications Act by not protecting location data, and California's Unfair Competition Law and the Consumers Legal Remedies Act by misleading consumers as to the sale of this data. The group also pushed to have AT&T delete the trove of valuable location data it has already collected.

AT&T being AT&T, the company has responded by proclaiming that it cannot be sued because its customers have agreed to mandatory binding arbitration in their user contracts:

"AT&T is arguing that its customers can’t sue the company for selling location data to bounty hunters, according to recently filed court records. AT&T says the customers signed contracts that force them into arbitration, meaning consumers have to settle complaints privately with the company rather than in court."

For years, mobile carriers used contract fine print to prohibit its customers from suing them. Instead, users were forced to participate in binding arbitration, a system whereby company-employed arbitrators weigh the evidence -- and unsurprisingly rule in favor of the company employing them a dramatic majority of the time. Initially, lower courts repeatedly derided this behavior as an "unconscionable" curtailing of consumer rights and abuse of the law. But in 2011 the Supreme Court's AT&T Mobility v. Concepcion ruling declared that what AT&T was doing was perfectly okay, resulting in countless companies now following AT&T's lead.

AT&T's problem is this new case is pending in the US District Court for the Northern District of California. Last year this same court declared that AT&T couldn't use these binding arbitration agreements to avoid class action lawsuits over accusations AT&T had repeatedly lied to users about their "unlimited" data plans being throttled. Why? Because the California Supreme Court ruled in McGill v. Citibank that "an arbitration agreement that waives the right to seek the statutory remedy of public injunctive relief in any forum is contrary to California public policy and therefore unenforceable."

Enter AT&T, which is effectively arguing that because the EFF is only representing a handful of pissed off customers and not the public as a whole, that ruling doesn't apply:

" In the new case, AT&T argues that the McGill decision does not apply "because the injunctive relief Plaintiffs seek is directed at a subgroup of AT&T customers, not the general public as a whole."

Granted AT&T's tap dancing to avoid anything even vaguely resembling accountability is a thing to behold. Like other ISPs it had argued that states can't hold it accountable for wrong doing because it would violate the company's First Amendment rights. It has also tried to tap dance in and out of the lines of FTC and FCC authority making conflicting arguments on agency authority when convenient. Here, AT&T had previously denied that selling phone location data was illegal, despite the fact that Section 222 of the Communications Act clearly says it is "without the express prior authorization of the customer."

But other court rulings on other subjects (like this one on roaming fees in the Ninth Circuit U.S. Court of Appeals) have been poking holes in AT&T's arbitration arguments, suggesting it's not quite the bullet proof "get out of jail free card" AT&T's lawyers seem to think it is.

Filed Under: arbitration, data, privacy
Companies: at&t


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  • This comment has been flagged by the community. Click here to show it
    identicon
    The Cosmic Comic-Consciousness, 26 Sep 2019 @ 6:35am

    OH, now you say corporations / EULA aren't totally binding!

    But Masnick asserts they've TOTAL immunity and TOTAL arbitrary power as Publishers to control The Public's speech on the "platforms" that they're supposed to be only Providers of mechanical details, like Printers.

    Again Techdirt just asserts whatever is handy to fit a given piece, NO consistency.

    And ATT is ALWAYS attacked, while you IGNORE Facebook / GOOGLE / Twitter doing same and worse, with total surveillance.

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 26 Sep 2019 @ 6:38am

      Re: OH such Troll

      Did you even read the article or just decide since it wasn't about Facebook it wasn't important for Karl to talk about?

      Tell you what - show us Your news site with the stories you think are important!

      ---crickets

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Sep 2019 @ 7:16am

      Re: OH, now you say corporations / EULA aren't totally binding!

      Donald?
      ...
      Is that you?

      reply to this | link to this | view in chronology ]

    • identicon
      Rocky, 26 Sep 2019 @ 7:26am

      Troll fails at reading comprehension makes an ass of himself

      But Masnick asserts they've TOTAL immunity and TOTAL arbitrary power as Publishers to control The Public's speech on the "platforms" that they're supposed to be only Providers of mechanical details, like Printers.

      Which has jack shit to do with breaking the law. But you knew that.

      You are just a lying and dishonest coward that runs away when presented with facts because you know your standpoint is built on lies.

      Have a flag.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 26 Sep 2019 @ 7:35am

      Re: OH, now you say corporations / EULA aren't totally binding!

      It's a shame really. If you put as much effort into understanding the words being said as you do railing against them, there might be a decent conversation to be had. But, since you remain proudly ignorant of the very fundamental aspects of what you're complaining about, you will always remain in an angry purgatory of your own making.

      reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 26 Sep 2019 @ 10:21am

      Re: OH, now you say corporations / EULA aren't totally binding!

      "while you IGNORE Facebook / GOOGLE / Twitter doing same and worse"

      Dear Cos..
      GET A HINT... MS started the revolution in Browsers giving out DATA away.. And ever since, as we wonder the net, we Spread out Info around.
      If you know the old internet, you know that every site can ASK for name and password before entering. Can you Guess what your browser gives them?? EVEN WITHOUT ASKING YOU..
      there is little to do that can protect yourself.
      But you can LIMIT what you insert into your browser, MAKE IT DUMB. USE incorrect data, names, and soforth..but TRY that when you have to register Win10 WITH MS..

      NOW, ATT is incharge of what? YOUR CELLPHONE, internet services, Cable and Sat TV.. which ones of these can track you Every place you go?? your cellphone.

      We went thru this before.. Let me STATE, that your OLD home phone had Protections...Your cellphone DOES NOT. Lots of this started After 2000. remember all the Spam on our internet and phones?? We had lots of news about it, as our Gov. tracked persons down around the America's...Canada and USA, and 1 other place we hit and knocked out or Scared the spammers.
      What are the odds, those persons are OUT OF JAIL NOW??

      Now,
      What did you have to say about Google, FB, Amazon, CBS, NBC, FOX, and all those other sites that collect your DATA??

      PS, just cause you Clean the cookies on a machine, they already collected your data.. They will reinstall as soon as you go back to those sites.
      But your cellphone Follows you, as long as its in your pocket..car or anywhere near you. And to trace you...all thats needed is to Ring it once.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Sep 2019 @ 6:40am

    State Actors get a pass

    At&T is a state actor since they work hand in hand with the government by providing access to their backbones. With their wholesale copying of literally everything that flows across their network, the government, in turn, allows them to be monopolies in major markets and doesn't let them lose court cases that clearly should limit their power. We won't be free of these evil companies and their anti-consumer tactics until we force our government to abide by the laws and stop spying on its own citizens.

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 26 Sep 2019 @ 7:38am

      Re: State Actors get a pass

      At&T is a state actor

      Just for the sake of clarity, I'd like to point out that statement is false.

      reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 26 Sep 2019 @ 10:24am

      Re: State Actors get a pass

      Dear AC..
      you really think our Gov. really knows anything about Tech??
      that the Corps would allow the gov. to control anything, when all they need is abit of money FROM YOU, to pay the Gov. to leave them alone??

      Fool.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 26 Sep 2019 @ 6:43am

    Mazsez Wuttabout Trump

    HOOT! You try and mock AT&T with your stinky, trollish Bangladeshis, Maz! But I know better. I HOOT at your anklebiters. HOOT, I say! HOOOOT!

    reply to this | link to this | view in chronology ]

    • identicon
      Rocky, 26 Sep 2019 @ 7:03am

      Re: Mazsez Wuttabout Trump

      You forgot to say "you kids" in a derogatory manner...

      reply to this | link to this | view in chronology ]

    • icon
      A-Sbeve-Or-Two (profile), 26 Sep 2019 @ 8:30am

      Re: Mazsez Wuttabout Sending This Troll to An animal Yard

      TechDirt, we have a troll pretending to be an owl on the loose. Proceed with caution.

      reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 26 Sep 2019 @ 10:29am

      Re: Mazsez Wuttabout Trump

      In D&D
      we love the Ankle biters...they are neat..And hard to hit.
      Take any Dwarf with a Big CLUB, and see how long you have your head in the sky..
      Take a few kinder, and if you know the stories, and how they love to Gang up...you will ever swear it NEVER HAPPENED until we see all your scares after.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 26 Sep 2019 @ 11:50am

        Re: Re: Mazsez Wuttabout Trump

        Was that English? I mean the words are individually readable but together they don't make much sense.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 26 Sep 2019 @ 12:51pm

          Re: Re: Re: Mazsez Wuttabout Trump

          Other than a misspelling of "kender" (remember those scurrilous sorts from the Dragonlance novels?), it all made sense here...

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Sep 2019 @ 8:29am

    This location data has a second nuance

    There are a lot of phone users that have not signed a contract. Usually, it's minors of parents that use the phone, and thus cannot even agree to this arbitration. The second subset are employee phones. So this could easily muddy the waters even if att wins this round.

    reply to this | link to this | view in chronology ]

    • identicon
      Michael, 26 Sep 2019 @ 9:36am

      Re: This location data has a second nuance

      If they are using the phone without agreeing to the contract, they are probably in violation of the CFAA because they have not been granted authorized access to the AT&T network.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 26 Sep 2019 @ 9:56am

        Re: Re: This location data has a second nuance

        Minors can not be bound by a contract, are they not to use a cell phone?

        reply to this | link to this | view in chronology ]

        • icon
          Gary (profile), 26 Sep 2019 @ 10:11am

          Re: Re: Re: This location data has a second nuance

          They can't sign a contract to use a cellphone. Their parent or guardian must sign it, and they are bound by the terms of the contract.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 26 Sep 2019 @ 10:32am

            Re: Re: Re: Re: This location data has a second nuance

            They can't sign a contract to use a cellphone.

            They can. Courts might let them get out of the contract while they're still a minor, or within a couple years, particularly if it has onerous terms like forced arbitration or termination fees. They might have to return rented property (like a phone) if they still have it.

            And, notably, their ability to agree to "surprising" terms—like giving up all location privacy—might be limited, although a parent can probably waive their child's privacy.

            reply to this | link to this | view in chronology ]

      • icon
        ECA (profile), 26 Sep 2019 @ 10:32am

        Re: Re: This location data has a second nuance

        Tell that at the local store..
        that sells throw away phones...
        How is a contract Valid if the Corps dont have a copy with a signature..
        JUST the use?? that part needs to goto court.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Sep 2019 @ 11:14am

    I'm not entirely sure whether one can waive their rights before the fact as in this story. For example, one has the right to not be murdered. The arbitration clause does not waive this right.

    It is possible that arbitration clauses are only applicable to civil cases and therefore when said corporation commits or collaborates in a felony they are not given a pass and it goes to a real court.
    iirc, there is a felony stalking.

    reply to this | link to this | view in chronology ]


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