Privacy & Information Security Law Blog

On December 2, 2013, the Federal Trade Commission announced that it will host a series of seminars to examine the privacy implications of three new areas of technology used to track, market to and analyze consumers: mobile device tracking, predictive scoring and consumer-generated health data. The seminars will address (1) businesses tracking consumers using signals from the consumers’ mobile devices, (2) the use of predictive scoring to determine consumers’ access to products and offers, and (3) consumer-generated information provided to non-HIPAA covered websites and apps. The FTC stated that the intention of the seminars is to bring attention to new trends in big data and their impact on consumer privacy.

On September 25, 2013, Senator Jay Rockefeller (D-WV), Chair of the Senate Committee on Commerce, Science and Transportation, expanded his investigation of the data broker industry by asking twelve popular health and personal finance websites to answer questions about their data collection and sharing practices.

On August 30, 2013, following the effort by the People’s Republic of China to establish a Consumer Rights Protection Bureau in 2012, the China Banking Regulatory Commission (the “CBRC”) issued a document entitled “Guidance for the Banking Sector on the Protection of the Rights of Consumers” (the “Guidance”). Among other things, the Guidance re-emphasizes the principle of protecting personal financial information. Banking institutions are required (1) to take effective measures to protect consumers’ personal financial information; (2) not to modify or illegally use consumers’ personal financial information; and (3) to prevent the disclosure of consumers’ personal financial information to any third party without the relevant consumers’ authorization or consent.

In May 2013, the Federal Trade Commission released a new guide entitled Fighting Identity Theft with the Red Flags Rule: A How-To Guide for Business (the “Guide”) to help businesses and organizations determine whether they are subject to the FTC’s Red Flags Rule (“Red Flags Rule”) and how to meet the Rule’s requirements. The FTC’s Guide includes information regarding what types of entities must comply with the Red Flags Rule, a set of FAQs, and a four-step process to achieve compliance.

On May 7, 2013, the Federal Trade Commission announced that it issued letters to ten data broker companies warning that their practices could violate prohibitions against selling consumer information under the Fair Credit Reporting Act (“FCRA”). The FTC identified the ten data broker companies after a test-shopping operation that indicated these companies were willing to sell consumer information without adhering to FCRA requirements.

On May 7, 2013, the hacker group Anonymous announced that it, in concert with Middle East- and North Africa-based criminal hackers and cyber actors, will conduct a coordinated online attack labeled “OpUSA” against banking and government websites today. Anonymous stated that OpUSA will be a distributed denial of service (“DDoS”) in which websites may be defaced and legitimate users may be unable to access websites.

On April 10, 2013, the Securities and Exchange Commission (“SEC”) and the Commodity Futures Trading Commission (“CFTC”) jointly adopted rules that require broker-dealers, mutual funds, investment advisers and certain other regulated entities to adopt programs designed to detect “red flags” and prevent identity theft. These rules implement provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act, that amended the Fair Credit Reporting Act (“FCRA”) to direct the SEC and the CFTC to adopt rules requiring regulated entities to address risks of identity theft. The 2003 amendments to the FCRA required other regulatory authorities to issue identity theft red flags rules, but did not authorize or require the SEC or the CFTC to issue their own rules.

On April 2, 2013, the Securities and Exchange Commission issued a report regarding the investigation of a prominent public company and its CEO over disclosures made on the CEO’s personal social media page. The Commission did not bring enforcement charges in this case, but the report set forth the Commission’s view that, under certain circumstances, issuer-sponsored social media can be a permissible channel of dissemination of information under Regulation FD.

Adopted in 2000, Regulation FD generally prohibits public companies and personnel acting on their behalf from ...

On March 14, 2013, the United States District Court for the Northern District of California granted a motion to prohibit the government from issuing National Security Letters (“NSLs”) to electronic communication service providers (“ECSPs”) requesting “subscriber information” and enforcing nondisclosure clauses contained in such letters. The nondisclosure clauses are intended to prevent ECSPs from disclosing that they received an NSL. The court also held that the sections of two federal statutes relating to the nondisclosure provisions of NSLs, 18 U.S.C. §2709(c) and 18 U.S.C. §3511(b), (collectively, the “NSL Nondisclosure Statutes”) were unconstitutional because they violated the First Amendment as well as separation of powers principles. In light of the significant constitutional and national security implications, the court stayed enforcement of its judgment pending appeal to the Ninth Circuit, or for 90 days if no appeal is filed.

As reported in The Washington Post, large financial institutions are increasingly disclosing cyber attacks, and potential vulnerability to cyber threats, in their annual reports filed with the Securities and Exchange Commission. Numerous banks disclosed such attacks in their 2012 reports, even in cases where the ongoing threat of the attacks did not result in any material harm to the institution. For example:

On March 8, 2013, the Federal Trade Commission issued a staff report entitled Paper, Plastic… or Mobile? An FTC Workshop on Mobile Payments (the “Report”). The Report is based on a workshop held by the FTC in April 2012 and highlights key consumer and privacy issues resulting from the increasingly widespread use of mobile payments.

Although the FTC recognizes the benefits of mobile payments, such as ease and convenience for consumers and potentially lower transaction costs for merchants, the Report notes three areas of concern with the mobile payments system: (1) dispute resolution, (2) data security and (3) privacy.

On February 11, 2013, the Federal Trade Commission announced that a congressionally-mandated study of the U.S. credit reporting industry found that 26 percent of consumers identified at least one error that might affect their credit score. The study reported that 5 percent of consumers had errors on their credit reports that could result in less favorable terms for loans and insurance.

On January 23, 2012, the Federal Financial Institutions Examination Council (“FFIEC”) released proposed guidance, Social Media: Consumer Compliance Risk Management Guidance (the “Guidance”) to address how federal consumer protection laws may apply to the social media activities of financial institutions that are supervised by the Consumer Financial Protection Bureau. Comments on the guidance must be submitted within 60 days (before March 25, 2013). After consideration of the public comments, and once the guidance is finalized, financial institutions will be expected to “use the guidance in their efforts to ensure that their risk management practices adequately address the consumer compliance and legal risks, as well as related risks, such as reputation and operational risks, raised by activities conducted via social media.” Rather than imposing additional obligations on financial institutions, the Guidance is intended to help financial institutions comply with existing federal requirements as they apply to the use of social media platforms.

On December 18, 2012, the Federal Trade Commission issued Orders to File Special Report (the “Orders”) to nine data brokerage companies, seeking information about how these companies collect and use personal data about consumers. In the Orders, the FTC requests detailed information about the data brokers’ privacy practices, including:

• the data brokerage companies’ online and offline products and services that use personal data;
• the sources and types of personal data the data brokerage companies collect;
• whether, and how, the companies acquire consumer consent before obtaining, collecting, generating, deriving, disseminating or storing the personal data;
• whether, and how, the personal data is aggregated, anonymized or de-identified;
• how the companies monitor, audit or evaluate the accuracy of the personal data they obtain;
• if, and how, consumers are able to access, correct, delete or opt out of the collection, use or sharing of the personal data the data brokerage companies maintain about the consumers;
• how the data brokerage companies provide notice to consumers about their data privacy practices;
• the advertisements or promotional materials the companies use to describe their products and services; and
• information about any complaints or disputes, or governmental or regulatory inquiries or actions, related to the companies’ data privacy practices.

On November 30, 2012, the Federal Trade Commission announced the issuance of an interim final rule (“Interim Final Rule”) that makes the definition of “creditor” in the FTC’s Identity Theft Red Flags Rule (“Red Flags Rule”) consistent with the definition contained in the Red Flag Program Clarification Act of 2010.

On October 26, 2012, the Federal Trade Commission finalized its settlement agreements with two businesses that allegedly exposed thousands of customers’ sensitive personal information by allowing peer-to-peer (“P2P”) file-sharing software to be installed on the companies’ computer systems. The approved settlements prohibit Georgia auto dealer Franklin’s Budget Car Sales, Inc. (“Franklin”) and Utah-based debt collector EPN, Inc. (“EPN”) from misrepresenting their privacy and information security practices and requires both businesses to establish and maintain a comprehensive information security program subject to biennial, independent, third-party audits for 20 years. The settlement with Franklin also bars the company from violating the Gramm-Leach-Bliley Act (“GLBA”) Safeguards Rule and Privacy Rule.

On November 7, 2012, the Federal Trade Commission announced that it had settled charges against payday lending and check cashing companies alleged to have improperly disposed of consumers’ personal information. In its complaint, the FTC maintained that PLS Financial Services, Inc., and The Payday Loan Store of Illinois violated the FTC’s Disposal Rule as well as the Gramm-Leach-Bliley Act’s Privacy Rule and Safeguards Rule by disposing of documents that contained consumers’ Social Security numbers, bank account numbers and credit reports in unsecured dumpsters near the companies’ payday lending and check cashing retail stores. The FTC also alleged that the companies violated the FTC Act by misrepresenting that they would reasonably protect consumer information.

On October 29, 2012, the UK Information Commissioner’s Office (“ICO”) served private sector financial services company The Prudential Assurance Company Limited (“Prudential”) with a monetary penalty of £50,000 in connection with a serious violation of the Data Protection Act 1998 (“DPA”). The violation concerned a mix-up involving Prudential customer details. In March 2007, the customer records of two individuals who shared the same first name, surname and date of birth were mistakenly merged into a single customer record. Over the course of the following three years, mortgage and pension policy information relating to each customer was routinely sent to the wrong individual until Prudential took steps to separate the two customers’ records in September 2010.

Reporting from Israel, legal consultant Dr. Omer Tene writes:

In a detailed, 27-page decision (Admin. App. 24867-02-11 IDI Insurance v. Database Registrar), the Tel Aviv District Court recently upheld the validity of an instruction issued by the data protection regulator restricting financial institutions from using information about a third party’s attachment of their client’s account for the financial institution’s own purposes. The court held that the regulator is authorized to issue market instructions interpreting the law. The decision is likely to have far-reaching effects on the validity and weight given to a series of detailed guidance documents and market instructions published by the Israeli Law, Information and Technology Authority (“ILITA”) over the past two years. These include instructions regarding:

Earlier this year, the Consumer Financial Protection Bureau (“CFPB”) published a Bulletin signaling its intent to regulate and exercise enforcement authority over service providers to financial institutions. Pursuant to Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act and its implementing regulation, Regulation P, the CFPB has authority over certain large banks, credit unions and other consumer financial services companies. The Bulletin notes that the CFPB’s goal is to ensure compliance with “[f]ederal consumer financial law,” which includes the Gramm-Leach-Bliley Act and its implementing regulations, the Privacy Rule and the Safeguards Rule.

On July 10, 2012, the Federal Financial Institutions Examination Council (“FFIEC”) released a statement on outsourced cloud computing activities. The statement, which was prepared by the FFIEC Information Technology Subcommittee, discusses key risk considerations associated with using third-party vendors to implement cloud computing solutions, and identifies applicable risk mitigation considerations contained in the various booklets that comprise the FFIEC IT Examination Handbook. The statement indicates that the FFIEC agencies “consider cloud computing to be another form of outsourcing with the same basic risk characteristics and risk management requirements as traditional forms of outsourcing.” The paper focuses on addressing key risks of outsourced cloud computing identified in existing guidance. Key points include the following:

On July 24, 2012, a bipartisan group of eight members of Congress sent letters to nine major data brokerage companies requesting information on how the companies collect, assemble and sell consumer information to third parties. Representatives Ed Markey (D-MA) and Joe Barton (R-TX), who serve as co-chairmen of the Bipartisan Congressional Privacy Caucus, are leading the inquiry. The Privacy Caucus, which is an ad hoc group rather than a formally constituted congressional committee, is comprised of members who have a common interest in privacy issues. The Caucus cannot call formal hearings, compel production of materials or pass legislation.

As reported in BNA’s Privacy & Security Law Report, on May 4, 2012, the United States District Court for the Southern District of California granted plaintiffs’ motion for class certification in an action against IKEA U.S. West, Inc. (“IKEA”) under the Song-Beverly Credit Card Act of 1971 (the “Song-Beverly Act”). The suit alleges that IKEA violated the Song-Beverly Act by requesting that cardholders provide their ZIP codes during credit card transactions, and then recording that information in an electronic database. The Court found that the class definition was not overbroad and that IKEA’s practice of requesting ZIP codes demonstrated common questions of law best resolved through a class action.

Last month, two New Jersey judges issued opposing decisions in class action lawsuits regarding merchants’ point-of-sale ZIP code collection practices. The conflicting orders leave unanswered the question of whether New Jersey retailers are prohibited from requiring and recording customers’ ZIP codes at the point of sale during credit card transactions.

As reported in the Hunton Employment & Labor Perspectives Blog, Connecticut recently became the latest state to pass a law regulating employer use of credit reports. The law, which goes into effect on October 1, 2011, prohibits employers from requiring employees or prospective employees to consent to the employer requesting their credit report as a condition of employment.  The full post includes a discussion of the exceptions to this restriction.

Read our previous posts on regulatory scrutiny of employee credit checks and a similar Illinois law that went into effect on January 1 ...

On June 14, 2011, the PCI Security Standards Council’s Virtualization Special Interest Group published its “Information Supplement: PCI DSS Virtualization Guidelines”(the “Guidelines”) to Version 2.0 of the PCI Data Security Standard (“PCI DSS”).  The Guidelines provide context for the application of the PCI DSS to cloud and other virtual environments, and offer at least three critical reminders:

• the PCI DSS applies to cloud environments without exception; 
• critical analysis of the application of the PCI DSS to rapidly evolving cloud offerings is essential to compliance; and
• cloud providers must be prepared to document and contract for necessary controls.

On April 7, 2011, the Securities and Exchange Commission announced a settlement involving three former brokerage firm executives charged with “failing to protect confidential information about their customers.”  According to the announcement, “this is the first time that the SEC has assessed financial penalties against individuals charged solely with violations of Regulation S-P.”  Regulation S-P mandates that financial firms safeguard their customers’ confidential information and prevent its release to unaffiliated third parties without authorization.

On January 13, 2011, the China Banking Regulatory Commission issued Measures for the Supervision and Administration of the Credit Card Businesses of Commercial Banks (the “Measures”), which took effect that same day. The Measures are reported to be the first comprehensive regulations relating to the credit card business in China, and include a number of provisions on the protection of personal information by commercial banks, as detailed below.

On February 11, 2011, Representative Jackie Speier (D-Calif.) introduced two pieces of legislation that, in her words, “send a clear message—privacy over profit.” The Do Not Track Me Online Act of 2011 (HR 654), would direct the Federal Trade Commission to promulgate regulations that establish standards for a “Do Not Track” mechanism. The regulations also would require covered entities to disclose their information practices to consumers, and to respect consumers’ choices regarding the collection and use of their information. 

Reporting from Israel, legal consultant Dr. Omer Tene writes:

The Israeli Law, Information and Technology Authority (“ILITA”) has issued a new instruction (the “Instruction”) restricting financial institutions from using information concerning writs of execution issued against clients’ property.  Pursuant to the Instruction, if a bank or insurance company finds out that a client’s account has become subject to a writ of execution, such information may not be used to deny the client credit or to adjust the rate of his or her insurance premiums.  Information regarding writs of execution may be used only to carry out the writ.  ILITA’s Instruction is based on the purpose limitation provisions in the Israeli Privacy Protection Act, 1981, as well as a specific section in the Execution of Judgments Act, 1967.

On December 18, 2010, President Obama signed into law the “Red Flag Program Clarification Act of 2010” (S.3987), which amends the Fair Credit Reporting Act with respect to the applicability of identity theft guidelines to creditors.  The law limits the scope of the Federal Trade Commission’s Identity Theft Red Flags Rule (“Red Flags Rule”), which requires “creditors” and “financial institutions” that have “covered accounts” to develop and implement written identity theft prevention programs to help identify, detect and respond to patterns, practices or specific activities that indicate possible identity theft.

On December 10, 2010, Senior Advisor to U.S. Senator John Kerry (D-Mass.), Daniel Sepulveda, briefed the Centre for Information Policy Leadership at Hunton & Williams LLP (the “Centre”) members on Senator Kerry’s forthcoming privacy legislation.  The bill, which will be introduced next Congress, aims to establish a regulatory framework for the comprehensive protection of individuals’ personal data that authorizes rulemakings by the Federal Trade Commission.

The “Red Flag Program Clarification Act of 2010” (S. 3987) has passed the Senate.  The legislation would limit the scope of the Red Flags Rule, which requires certain “creditors” to develop and implement written identity theft prevention programs to help identify, detect and respond to patterns, practices or specific activities that indicate possible identity theft.  The new legislation would exclude from the definition of “creditor” certain entities that “[advance] funds on behalf of a person for expenses incidental to a service provided by the creditor to that ...

On November 23, 2010, the data protection authority of the German federal state of Hamburg issued a €200,000 fine against financial institution Hamburger Sparkasse AG (“Haspa”) for illegally allowing its customer service representatives access to customers’ bank data, and for profiling its customers. The bank cooperated with the DPA and has discontinued the illegal practices.

On November 17, 2010, Representative John Adler (D-NJ) introduced the Red Flag Program Clarification Act of 2010 (H.R. 6420) to “amend the Fair Credit Reporting Act with respect to the applicability of identity theft guidelines to creditors.”  The bipartisan bill seeks to limit the scope of the FTC’s Identity Theft Red Flags Rule, which requires “creditors” and “financial institutions” that have “covered accounts” to develop and implement written identity theft prevention programs to help identify, detect and respond to patterns, practices or specific activities that indicate possible identity theft.

On October 27, 2010, the U.S. Commodity Futures Trading Commission (the “CFTC”) issued two notices of proposed rulemaking (“NPRMs”), citing Gramm-Leach-Bliley Act (“GLBA”) privacy rules, and marketing and data disposal rules of the Fair Credit Report Act (“FCRA”).

The proposed rules come in the wake of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which places two new categories of covered entities (i.e., “swap dealers” and “major swap participants”) under the CFTC’s jurisdiction.  Under the proposals, those entities would be subject to certain GLBA privacy rules that regulate the treatment of consumers’ nonpublic personal information, and sections of the FCRA that address affiliate marketing and data disposal.

On August 18, 2010, the Connecticut Insurance Department (the “Department”) issued Bulletin IC-25, which requires entities subject to its jurisdiction to notify the Department in writing of any “information security incident” within five calendar days after an incident is identified.  In addition to providing detailed procedures and information to be included in the notification, the Bulletin states that the Department “will want to review, in draft form, any communications proposed to be made” to affected individuals.  The Bulletin further indicates that, “depending on the type of incident and information involved, the Department will also want to have discussions regarding the level of credit monitoring and insurance protection which the Department will require to be offered to affected consumers and for what period of time.”

On August 10, 2010, Illinois Governor Pat Quinn signed the Employee Credit Privacy Act, which prohibits most Illinois employers from inquiring about an applicant’s or employee’s credit history or using an individual’s credit history as a basis for an employment decision.  The definition of “employer” under the Act exempts banks, insurance companies, law enforcement agencies, debt collectors and state and local government agencies that require the use of credit history.

As reported in BNA’s Privacy Law Watch on July 29, 2010, three bills were introduced by House Republicans to repeal Section 929I of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”).  Section 929I of the Dodd-Frank Act has been a source of controversy because it gives the SEC significant latitude to sidestep FOIA requests by providing that the SEC "shall not be compelled to disclose" certain information it obtains pursuant to the '34 Act when conducting surveillance, risk assessments or other regulatory and oversight activities.

On May 28, 2010, the UK Information Commissioner’s Office issued a press release stating that it has been notified of more than 1,000 data security breaches since it began keeping records in late 2007.  There is no mandatory reporting requirement in the UK, so the actual number of breaches is likely to be significantly higher.  The ICO’s press release notes that the majority of breaches occur as a result of human or technical errors, such as employees improperly disclosing data to third parties or automated machines sending out letters to the wrong addresses.

On May 28, 2010, the FTC announced that it would again delay enforcement of the Identity Theft Red Flags Rule.  This is the fifth time the Commission has announced an extension of the enforcement deadline, after most recently extending the deadline to June 1, 2010.  The Red Flags Rule requires “creditors” and “financial institutions” that have “covered accounts” to develop and implement written identity theft prevention programs to help identify, detect and respond to patterns, practices or specific activities – known as “red flags” – that could indicate ...

On May 7, 2010, the data protection authority of the German federal state of North Rhine-Westphalia imposed a fine of €120,000 on Deutsche Postbank AG for illegal disclosure of customers’ bank account transaction data.  The bank unlawfully allowed approximately 4,000 self-employed agents to access information on more than a million customer accounts for sales purposes.

On April 12, 2010, the Financial Industry Regulatory Authority (“FINRA”) announced that it had fined D.A. Davidson & Co. $375,000 for failing to protect its customers’ confidential information.  In late 2007, the firm’s system was compromised when hackers employed a SQL injection attack to download the confidential customer information of approximately 192,000 individuals.  The security breach came to light when one of the persons responsible for the intrusion attempted to blackmail D.A. Davidson via email on January 16, 2008.  The firm responded quickly by notifying ...

Under a Washington law effective July 1, 2010, certain entities involved in payment card transactions may be liable to financial institutions for costs associated with reissuing payment cards after security breaches.  Designed to encourage the reissuance of payment cards as a means of mitigating harm caused by security breaches, Washington H.B. 1149 applies to three types of entities:  businesses, processors and vendors.  Under the law, a business is an entity that “processes more than six million credit card and debit card transactions annually, and who provides, offers, or sells goods or services to . . . residents of Washington.” A processor is any entity, other than a business, that “directly processes or transmits [payment card] account information for or on behalf of another person as part of a payment processing service.” A vendor is any “entity that manufactures and sells software or equipment that is designed to process, transmit, or store [payment card] account information or that maintains account information that it does not own.”

Provisions of the FTC’s revised rule that regulate advertisements for free credit reports become effective April 2, 2010.  As required by the Credit CARD Act of 2009, the FTC promulgated the revised rule on February 22, 2010, to prevent the deceptive marketing of free credit reports by companies that required consumers to sign up for paid products and services such as credit monitoring in order to receive the reports. 

On February 25, 2010, the Federal Trade Commission filed a notice that it is appealing the D.C. District Court’s December 28, 2009 judgment in favor of the American Bar Association in American Bar Association v. FTC.  The District Court’s summary judgment held that the FTC’s Identity Theft Red Flags Rule (“Red Flags Rule” or the “Rule”) does not apply to attorneys or law firms.  The Rule implements Sections 114 and 315 of the Fair and Accurate Credit Transactions Act.  In relevant part, the Rule requires creditors and financial institutions that offer or maintain certain ...

On February 11, 2010, the plenary of the European Parliament rejected by a vote of 378 to 196 the agreement reached in 2009 between the EU and the U.S. to allow access by U.S. law enforcement authorities to the payment database of the financial consortium SWIFT.  The agreement had been negotiated between the EU Council of Ministers and the European Commission with the U.S. government to allow continued access to the database, a mirror copy of which had been moved by SWIFT from the U.S. to Europe.  With the Lisbon Treaty’s entry into force, the Parliament gained new powers to approve measures affecting law enforcement and civil liberties, and a number of members of the Parliament have expressed concern regarding the level of data protection provided for in the agreement.  According to news reports, several top U.S. government officials (including Secretary of State Hillary Rodham Clinton and Treasury Secretary Timothy Geithner) had been lobbying the European Parliament to approve the agreement, on the grounds that it was essential to fight terrorism in both the U.S. and Europe.

On January 8, 2010, the Swiss Federal Administrative Court (“Bundesverwaltungsgericht”) published a decision that declared the transfer of banking data to U.S. law enforcement authorities by the Swiss bank UBS to be illegal.  In late 2009, UBS transferred the data of over 300 customers suspected of evading U.S. taxes to the U.S. Department of Justice and Internal Revenue Service following an order issued by the Swiss Financial Market Supervisory Authority (“Finma”) pursuant to an agreement Finma reached with the U.S. authorities.

On November 30, the Council of the European Union agreed to allow U.S. anti-terrorism authorities access to financial data of individuals located in the EU under certain circumstances. Under the agreement, U.S. authorities will continue to have access to data collected by Society for Worldwide Interbank Financial Telecommunication ("SWIFT") after a SWIFT database located in Switzerland becomes active later this year (the data had previously been processed in a database located in the U.S.). The agreement contains restrictions on access to the data that have been negotiated ...

Today, eight federal financial regulatory agencies issued a final Gramm-Leach-Bliley Act ("GLBA") model privacy notice.  The final model notice incorporates financial institutions' required disclosures pursuant to Section 503 of the GLBA.  The GLBA requires, in relevant part, that financial institutions provide consumers with information regarding their collection and sharing of nonpublic personal information.  Financial institutions that adopt the final model notice will be deemed in compliance with the GLBA notice requirements.  The final model notice is the result of the agencies' consumer research and testing.  It is touted as succinct, easy to use and consumer friendly. The final model notice will take effect 30 days after publication in the Federal Register. Publication is anticipated shortly.

The FTC today announced that it would, for the fourth time, delay enforcement of the Identity Theft Red Flags Rule.  The enforcement date is now June 1, 2010 for creditors and financial institutions subject to FTC jurisdiction.  The agency stated that the delay was requested by members of Congress, who are currently considering a bill that would limit the rule's scope.  That bill (which would exclude certain entities with 20 or fewer employees from the rule's definition of "creditor" and also would provide a mechanism for other entities to apply for that exclusion) recently passed the ...

It is being reported that the U.S. District Court for the District of Columbia agreed this morning with the American Bar Association's argument that the FTC's Identity Theft Red Flags Rule ("Red Flags Rule" or the "Rule") does not apply to lawyers.  The Rule implements Section 114 and 315 of the Fair and Accurate Credit Transactions Act (the "FACT Act").  In relevant part, the Rule requires creditors and financial institutions that offer or maintain certain accounts to implement an identity theft prevention program.  The program must be designed to detect, prevent, and mitigate the risk of identity theft. The FTC has interpreted the definition of "creditor" broadly.  The Commission has taken the position in publications and numerous panels that lawyers and law firms meet the definition of creditor because they allow clients to pay for legal services after the services are rendered.  For law firms (as well as for other entities that the FTC deems subject to its enforcement jurisdiction), November 1, 2009 is the deadline for compliance with the provisions of the Rule that require implementation of an identity theft prevention program.

The federal financial services agencies are expected to shortly announce a proposed-final Gramm-Leach-Bliley Act (“GLBA”) model form privacy notice.  The model notice incorporates financial institutions' required disclosures pursuant to Section 503 of the GLBA.  Financial institutions that use the form to provide notice to consumers will be deemed in compliance with the privacy notice provisions of the GLBA.  Once adopted and published in the Federal Register, the financial services agencies' final model notice will take effect in 30 days.

The GLBA requires, in relevant part, that financial institutions provide consumers with notice of their privacy policies and practices.  The privacy notice must describe a financial institution's disclosure of nonpublic personal information to affiliated and nonaffiliated third parties.  In addition, the notice must also give consumers a reasonable opportunity to opt out of certain sharing with nonaffiliated third parties.

On July 29, 2009, the Federal Trade Commission ("FTC") announced another three-month delay in the enforcement of the provision of Identity Theft Red Flags and Address Discrepancies Rule (the "Rule") that requires creditors and financial institutions to implement an Identity Theft Prevention Program.  The FTC noted that small businesses and entities with a low risk of identity theft remain uncertain about their obligations under the Rule and pledged to "redouble" its efforts to educate businesses about compliance with the Rule.  The new enforcement deadline for creditors and ...

The Federal Trade Commission (“FTC”) recently issued new rules and guidelines to promote the accuracy of consumer information included in credit reports.  The final rules and guidelines were issued in conjunction with the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the National Credit Union Administration, the Office of the Comptroller of the Currency and the Office of Thrift Supervision (the “Agencies”) pursuant to Section 312 of the Fair and Accurate Transactions Act of 2003 (“FACTA”).  The Agencies’ release regarding the new rules, entitled “Procedures to Enhance the Accuracy and Integrity of Information Furnished to Consumer Reporting Agencies Under Section 312 of the Fair and Accurate Credit Transactions Act” and “Guidelines for Furnishers of Information to Consumer Reporting Agencies,” was issued on July 1, 2009.  The final rules and guidelines will take effect on July 1, 2010. 

On June 30, 2009, the Obama Administration sent legislation to Congress that would create a new Consumer Financial Protection Agency ("CFPA").  Working with state regulators, the new agency would assume authority for the privacy provisions of the Gramm-Leach-Bliley Act, and would have the power to write rules and impose penalties pursuant to a variety of existing statutes, including the Fair Credit Reporting Act and the Fair and Accurate Credit Transactions Act.  To date, these powers have been shared among all financial services regulators, including the Federal Trade ...

The Obama Administration today formally announced its sweeping proposal for new regulation of the financial industry.  The plan proposes the formation of a new watchdog agency that would seek to protect consumers' interests.  The proposal raises a number of privacy and data security questions, such as the role of the new financial services consumer protection agency in protecting privacy and data security and the continued role of the Federal Trade Commission as the lead agency in this area.  We will keep you posted as more details regarding the plan emerge.

A lawsuit that will soon commence in Arizona has the potential to alter the data breach liability landscape by making data security auditors liable for data breaches experienced by the companies they audit.  The case, Merrick Bank Corp. v. Savvis Inc., has its origins in events that began in 2003, when Merrick Bank (“Merrick”) offered to hire CardSystems Solutions (“CardSystems”) to process credit card transactions for its merchant customers.  The offer was contingent upon CardSystems achieving certification under VISA’s Cardholder Information Security Program (“CISP”), which is the predecessor to the Payment Card Industry Data Security Standard (“PCI DSS”).  Savvis audited CardSystems in 2004 and found that it had “implemented sufficient security solutions” and followed “industry best practices.”  VISA certified CardSystems shortly after receiving Savvis’ audit report.  In 2005, CardSystems revealed that it had experienced an information security breach that compromised forty million payment cards.

A recent federal court decision offers a detailed analysis of several theories of liability for violations of a privacy policy.  Pinero v. Jackson Hewitt Tax Service Inc., No. 08-3535, 2009 WL 43098 (E.D. La. January 7, 2009). 

Plaintiff Pinero visited Jackson Hewitt Tax Service in Louisiana to have her tax returns prepared.  During her visit, she provided Jackson Hewitt with confidential information such as her Social Security number, date of birth and driver’s license number.  Pinero signed Jackson Hewitt’s privacy policy, which stated that Jackson Hewitt had policies and procedures in place, including physical, electronic, and procedural safeguards, to protect customers' private information.  Pinero alleged that she relied on this statement in her decision to turn over her information.