1. Trending Website Issues
Mehmet Munur
(614)

2. Overview GLBA Model Notice Website Privacy Policies
Electronic Payments and NACHA
ESIGN
Terms of Use
Marketplaces and Service Providers
Mobile Issues
Americans with Disabilities Act Issues
Recordkeeping

4. GLBA Model Notice
GLBA requires initial, annual, revised privacy notices.
In 2014, GLBA annual notice requirements were provided with alternative delivery mechanisms where sharing was limited.
In 2015, FAST Act eliminated some delivery of annual notices.
CFPB proposed regulations to implement the 2015 amendment.

5. GLBA Model Notice Annual notices eliminated where:
No nonpublic personal information shared about customers except as described in certain statutory exceptions; and
No changes to policies and practices with regard to disclosing nonpublic personal information from those that the institution disclosed in the most recent privacy notice it sent.
Also includes timing requirements of notices if financial institution no longer qualifies for exception.

6. Website Privacy Policies
Website privacy policy required, must include:
Categories of PII collected
Categories of third parties with whom PII is shared
Process for reviewing, requesting changes to PII
Effective data
Do Not Track provision
Using GLBA Model Privacy Notice for website privacy notice is unlikely to suffice.

7. Electronic Payments EFTs governed by Regulation E
ACH payments also governed by NACHA Rules
Generally, authorization must be:
In writing and signed or similarly authenticated
Readily identifiable
Clear and readily identifiable terms
Info about revocation
Has recordkeeping and data security requirements
Interacts with ESIGN

8. Checking/Savings Account Holder Authorization
I authorize you to initiate preauthorized electronic funds transfers and debit the authorized debit amount indicated above from the designated checking or savings account listed above. I understand this debit will be made each month on the account’s payment date due. If the payment date due falls on a weekend or holiday, the account will be debited on the next business day. This authorization will remain in effect until the my account or specific loan sequences as indicated above are paid in full, or until I notify you to terminate this agreement.
I understand you must receive a request to terminate at least three business days before the scheduled payment date due. Termination requests are to be made by contacting you at the number below or writing to the address below. I understand that if the minimum monthly installment amount changes, the authorized debit amount will also change to the new required monthly installment amount plus any optional additional amount I authorized above. The new monthly installment amount will be provided on a billing statement.
Checking/Savings Account Holder’s Signature: Please send the completed form to:
[Company]
P.O. Box [XXXX]
[Address]
For more information, call us at (888) XXX-XXXX or visit

9. ESIGN
Allows the use of electronic records where a statute, regulation, or rule requires writing
Intersection of loan documentation and electronic payments
Requires:
Affirmative consent
Clear and conspicuous statement
Reasonable demonstration of access to information

12. Terms of Use Serves many purposes, including: Limitation of liability;
Venue and governing law;
Possibility of arbitration;
Ability to update documents from time to time; and
Brings all other web legal documents together in a contractual framework.

13. Terms of Use Mandatory Non-leaky Clickthrough
Check boxes with hyperlinked terms
Adequately supported chain of evidence

15. Nguyen v. Barnes & Noble
. . . in keeping with courts' traditional reluctance to enforce browsewrap agreements against individual consumers, we therefore hold that where a website makes its terms of use available via a conspicuous hyperlink on every page of the website but otherwise provides no notice to users nor prompts them to take any affirmative action to demonstrate assent, even close proximity of the hyperlink to relevant buttons users must click on— without more—is insufficient to give rise to constructive notice

17. Sgouros v. Transunion
You understand that by clicking on the “I accept & Continue to Step 3” button below you are providing “written instructions” to TransUnion Interactive Inc. authorizing TransUnion Interactive, Inc. to obtain information from your personal credit profile from Experian, Equifax, and/or TransUnion. You authorize TransUnion Interactive, Inc. to obtain such information solely to confirm your identity and display your credit data to you.

18. Marketplaces and Service Providers
More than one entity with legal terms where the roles of each may not be readily apparent to the consumer.
Pay particular attention to FDIC/OCC marketplace and third-party guidance.
Whose legal terms (GLBA, Privacy Policy, Terms of Use, ESIGN) are presented and agreed to?
Are information sharing activities properly disclosed in these documents?
Are there any activities that will draw the attention of regulators?

19. Mobile Interface

20. Meyer v. Kalanick
The wording of Uber's hyperlink adds to the relative obscurity of Uber's User Agreement. The Court cannot simply assume that the reasonable (non-lawyer) smartphone user is aware of the likely contents of "Terms of Service," especially when that phrase is placed directly alongside "Privacy Policy."

21. Meyer v. Kalanick
In other words, "the importance of the details of the contract" was "obscured or minimized by the physical manifestation of assent expected of a consumer seeking to purchase or subscribe to a service or product." 

22. Meyer v. Kalanick
There is a real risk here that Uber's registration screen "made joining [Uber] fast and simple and made it appear — falsely — that being a [user] imposed virtually no burdens on the consumer besides payment."

23. Americans with Disabilities Act
Department of Justice enforces the ADA
World Wide Web Consortium’s Web Content Accessibility Guidelines endorsed by the DoJ
Amendments are expected in 2018
United States Access Board Section 508 applies to IT procurement by the government
Complaints and lawsuits are on the rise

24. Americans with Disabilities Act
Plaintiffs’ counsels’ demands include:
Section 508 and WCAG 2.0 compliance;
Web accessibility policies;
Training and contracting based on Section 508 and WCAG 2.0; and
Independent testing.

25. Americans with Disabilities Act
Perceivable
Provide text alternatives for any non-text content so that it can be changed into other forms people need, such as large print, braille, speech, symbols or simpler language.
Create content that can be presented in different ways (for example simpler layout) without losing information or structure.

26. Americans with Disabilities Act
Operable
Make all functionality available from a keyboard.
Provide users enough time to read and use content.
Provide ways to help users navigate, find content, and determine where they are.

27. Americans with Disabilities Act
Understandable
Make text content readable and understandable.
Make Web pages appear and operate in predictable ways.
Help users avoid and correct mistakes.
Robust
Maximize compatibility with current and future user agents, including assistive technologies.

28. Recordkeeping
Courts may question evidence and testimony relating to the:
The workings of the website at the time of the facts in question
The nature of the contracts at the time of the facts in question
Whether the individual took the actions in question
Computer programming

29. Mehmet Munur (614) 859-6962 Mehmet.Munur@Tsibouris.com
Questions & Answers
Mehmet Munur
(614)