There is a new wave of lawsuits pertaining to data sharing in the automotive industry.

What are we discussing with our clients?

• Personal data is broader than you think: Things like average speed; acceleration events, hard brake events, distance, late night driving, music that is being played in the vehicle, and information from the driver’s use of Bluetooth to make telephone calls can be personal and even sensitive personal information when used or shared to create a profile of the user. We have been seeing this in a number of different lawsuits across all industries. Personal data is expanding and companies should address this.
• Plaintiffs are looking at adequate disclosures in the marketing materials that are available BEFORE the sale, not just the terms and the privacy notice. This isn’t news per se. The FTC has been looking at marketing materials for a while, but it is getting renewed energy. Companies should take a look at the marketing materials and what they say and have a privacy lawyer look at it.
• If you get an access/restriction of use of data request, it is important to respond on time and with transparency. If the data sharing qualifies as a sale, facilitate the opt out. If you don’t do this, you are raising the odds there will be multiple complaints; negative interactions with the regulator, more class actions and, most importantly, a loss of trust.
• Plaintiffs are getting creative with the causes of action now, adding: (1) impermissible purpose and use of data under FCRA; (2) UDAP (unfair and deceptive acts) of all states; (3) tortious interference with insurers; (4) common law invasion of privacy and (5) unjust enrichment.