Privacy & Information Security Law Blog

On October 25, 2022, the Federal Trade Commission announced the agenda for its annual PrivacyCon to be held on November 1, 2022. The event will cover consumer surveillance, automated decision-making systems, children’s privacy, listening devices, augmented and virtual reality, interfaces and dark patterns, and AdTech.

On October 24, 2022, the New York City Department of Consumer and Worker Protection (“DCWP”) proposed rules to implement its new law regarding automated employment decision tools (“AEDTs”).

On October 24, 2022, the Federal Trade Commission announced a proposed consent order with Drizly, an online alcohol ordering and delivery service, and the company’s CEO, for the alleged failure to maintain appropriate security safeguards that led to a data breach that affected 2.5 million consumers’ personal information.

On October 9, 2022, TC260 of China issued the Information Security Technology - Basic Security Requirements for Pre-installed App of Smartphones for public comment ending December 6, 2022 (the “Guidelines”). The Guidelines are applicable to smartphone manufacturers and also provide reference to relevant regulators and third-party assessments.

On October 20, 2022, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth published a white paper entitled Protecting Children’s Data Privacy, Policy Paper I, International Issues and Compliance Challenges. The paper identifies and explores the key issues and challenges that organizations and data protection authorities face in the context of globally divergent legal standards and policy approaches relating to children’s data.

On October 18, 2022, the Transportation Security Administration (“TSA”) issued a new cybersecurity directive requiring passenger and freight railroad carriers to create plans for responding to cybersecurity incidents. The new directive is one of many actions taken by the Biden Administration to strengthen the cybersecurity posture of the U.S.’s critical infrastructure following a significant ransomware attack on a major U.S. pipeline in 2021.

On September 23, 2022, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted a response to the UK Department for Digital, Culture, Media & Sport (“DCMS”) on its Consultation on establishing a pro-innovation approach to regulating AI (the “Response”).

On September 23, 2022, New York State Senator Andrew Gounardes introduced S9563, also known as the “New York Child Data Privacy and Protection Act.” The bill, which resembles the recently passed California Age-Appropriate Design Code Act, bans certain data collection and targeted advertising and requires data controllers to, among other obligations, assess the impact of their products on children.

On October 20, 2022, Texas Attorney General Ken Paxton brought suit against Google alleging various violations of Texas’s biometric privacy law, including that the company unlawfully collected and used the biometric data of millions of Texans without obtaining proper consent. The lawsuit alleges that, since 2015, Google has collected millions of biometric identifiers of Texas consumers, such as voiceprints and records of face geometry, through Google’s various products, including Google Photos, Google Assistant and Nest Hub Max, in violation of Texas’s biometric privacy law. Texas’s biometric privacy law prohibits the collection of biometric identifiers for a commercial purpose unless the individual whose biometric identifiers are collected is informed of the collection and provides consent. The law also requires companies to destroy biometric identifiers within a reasonable time, but not later than the first anniversary of the date the purpose for collecting the biometric identifier expires (except in limited circumstances).

On October 24, 2022, the UK Information Commissioner’s Office (“ICO”) issued a £4.4 million fine to Interserve Group Limited for failing to keep employee personal data secure, which violates Article 5(1)(f) and Article 32 of the EU General Data Protection Regulation (“GDPR”), during the period of March 2019 to December 2020. The ICO determined that such violations rendered Interserve vulnerable to the cyber attack which took place between March 2020 and May 2020, affecting the personal data of up to 113,000 Interserve employees. The compromised data included contact details, national insurance numbers and bank account details, as well as special category data, including ethnic origin, religion, details of any disabilities, sexual orientation and health information.

On October 17, 2022, the French Data Protection Authority (the “CNIL”) imposed a €20 million fine on Clearview AI for unlawful use of facial recognition technology. The fine was imposed after the CNIL’s prior formal notice remained unaddressed by Clearview AI.

On October 18, 2022, the New York State Department of Financial Services (“NYDFS”) announced that EyeMed Vision Care LLC (“EyeMed”) agreed to a $4.5 million settlement for violations of the Cybersecurity Regulation (23 NYCRR Part 500) that contributed to the exposure of hundreds of thousands of consumers’ health data in connection with a cybersecurity event in 2020.

On October 19, 2022, Bloomberg Law reported that the White House is planning to introduce a system to label Internet of Things (“IoT”) devices with information related to the devices’ cybersecurity risk.

On October 12, 2022, a federal jury found BNSF Railway, operator of one of the largest freight railroad networks in North America, violated the Illinois Biometric Information Privacy Act (“BIPA”) in the first ever BIPA case to go to trial. In Richard Rogers v. BNSF Railway Company (Case No. 19-C-3083, N.D. Ill.), truck drivers’ fingerprints were scanned for identity verification purposes when visiting BNSF rail yards to pick up and drop off loads. The jury found that BNSF recklessly or intentionally violated the law 45,600 times when it collected such fingerprint scans without written, informed permission or notice.

On October 12, 2022, New York Attorney General Letitia James announced that her office had secured a $1.9 million penalty from e-commerce retailer Zoetop, owner of SHEIN and ROMWE, following an improperly handled data breach. The Office of the Attorney General of the State of New York (“NYAG”) alleged in its Assurance of Discontinuance that Zoetop failed to properly handle the breach and lied about its scope to consumers.

On October 17, 2022, the California Privacy Protection Agency (“CPPA”) released modified proposed regulations for compliance with the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 (“CCPA/CPRA”), along with an explanation of the modifications as materials for an upcoming CPPA Board Meeting. The Board Meeting scheduled for October 28-29, 2022, will discuss and take possible action, including adoption or modification, regarding the proposed regulations.

On October 14, 2022, the Federal Trade Commission announced it is extending the deadline by one month to submit comments on its Advance Notice of Proposed Rulemaking (“ANPR”) on commercial surveillance and lax data security practices.

The FTC launched the ANPR in August and has sought public comment on it, including through a virtual public forum held in September.

Comments now must be filed by November 21, 2022.

On October 12, 2022, the UK Information Commissioner's Office (“ICO”) launched a public consultation on its draft guidance on employers’ obligations when monitoring at work (“Draft Guidance”). In addition, the ICO has published an impact scoping document, which outlines some of the context and potential impacts of the Draft Guidance (“Impact Scoping Document”).

On September 27, 2022, California Governor Gavin Newsom signed into law a pair of bills designed to prevent medical information and other data held by California entities from being used in out-of-state abortion prosecutions. 

On October 11, 2022, the Biden-Harris Administration released an informational statement about the current Administrations’ progress in strengthening America’s national cybersecurity. The statement provides detail into several new initiatives and sets goals for America’s future in cybersecurity:

On October 13, 2022, the Interactive Advertising Bureau (“IAB”) released for public comment an updated version of its contractual framework and new U.S. State Signals (“Signals”) specifications to help the digital advertising industry comply with the comprehensive state privacy laws of California, Virginia, Colorado, Utah and Connecticut.

On October 3, 2022, Google LLC (“Google”) agreed to pay the State of Arizona $85 million to settle a consumer privacy lawsuit that alleged the company surreptitiously collected consumers’ geolocation data on smartphones even after users disabled location tracking. 

On October 21 and October 22, 2022, the California Privacy Protection Agency (“CPPA”) Board will hold public meetings to discuss and take possible action, including adoption or modification of proposed regulations, to “implement, interpret, and make specific” the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 .

On October 4, 2022, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth published a white paper outlining 10 key recommendations for regulating artificial intelligence (“AI”) in Brazil (the "White Paper"). CIPL prepared the White Paper to assist the special committee of legal experts established by Federal Senate of Brazil (the “Senate Committee”) as it works towards an AI framework in Brazil.

On October 4, 2022, the White House Office of Science and Technology Policy (“OSTP”) unveiled its Blueprint for an AI Bill of Rights, a non-binding set of guidelines for the design, development, and deployment of artificial intelligence (AI) systems. 

On October 7, 2022, President Biden signed Executive Order on Enhancing Safeguards for United States Signals Intelligence Activities, which provides a new framework for legal data transfers between the European Union and the United States. The legal basis for transatlantic data transfers has been uncertain since 2020, when the European Court of Justice (“ECJ”) declared the previous framework, the EU-U.S. Privacy Shield, invalid under EU law. 

On October 3, 2022, the U.S. Department of Justice (“DOJ”) announced that the agreement between the U.S. Government and the UK Government on Access to Electronic Data for the Purpose of Countering Serious Crime (the “CLOUD Act Agreement”) entered into force, effective the same day. The CLOUD Act Agreement, which is authorized by the U.S. Clarifying Lawful Overseas Use of Data (“CLOUD”) Act, is the first of its kind and will allow each country’s investigators to gain access to data held by service providers in the other country, for the purpose of combating serious crime. According to DOJ, this “will greatly enhance the ability of the United States and the United Kingdom to prevent, detect, investigate and prosecute serious crime, including terrorism, transnational organized crime, and child exploitation, among others.”

Background

On September 15, 2022, the European Commission presented its proposal for a Regulation on horizontal cybersecurity requirements for products with digital elements (the “Cyber Resilience Act”). According to the European Commission, the Cyber Resilience Act will be the first EU-wide legislation introducing “cybersecurity requirements for products with digital elements, throughout their whole lifecycle.”

On October 5, 2022, former Uber security chief Joe Sullivan was found guilty by a jury in U.S. federal court for his alleged failure to disclose a breach of Uber customer and driver data to the FTC in the midst of an ongoing FTC investigation into the company. Sullivan was charged with one count of obstructing an FTC investigation and one count of misprision, the act of concealing a felony from authorities.