Privacy & Information Security Law Blog

On December 12, 2024, the French Data Protection Authority announced that it had issued notices to several organizations ordering them to modify the cookie banners on their websites to bring them into compliance.

The Colorado Attorney General announced the adoption of the draft amendments on December 5, 2024, and the adopted rules were filed with the Secretary of State and the Office of Legislative Legal Services on December 17, 2024. The amendments underwent minor clarifying changes prior to the Department of Law hearing, and in response to comments and testimony received during the public comment period.

In December 2024, the Centre for Information Policy Leadership at Hunton Andrews Kurth published a discussion paper titled, “Applying Data Protection Principles to Generative AI: Practical Approaches for Organizations and Regulators.”

The telehealth and prescription drug discount provider, GoodRx, recently agreed to pay $25 million to settle class action claims originating from the company’s unauthorized disclosure of consumers’ personal health information, according to recent filings with the U.S. District Court for the Northern District of California.

On December 3, 2024, the European Data Protection Board published its draft Guidelines 02/2024 on Article 48 of the GDPR, which focus on how a controller should act when subject to a judgment or administrative decision requiring the transfer or disclosure of personal data to a public authority in a third country.

Patrick Gunning of King & Wood Mallesons reports that on November 29, 2024, the Australian Parliament passed more than 30 bills on the final sitting day for the calendar year. Among the flurry of legislative activity were the Privacy and Other Legislation Amendment Act 2024 and the Online Safety Amendment (Social Media Minimum Age) Act 2024, the latest developments in Australia’s ongoing efforts to update its privacy legislation and address concerns related to children’s privacy.

In November 2024, the Federal Trade Commission released a staff perspective paper titled “Smart Device Makers’ Failure to Provide Updates May Leave You Smarting” that reflects on the findings from an FTC survey regarding software updates for smart products. 

On November 6, 2024, the Transportation Security Administration published a Notice of Proposed Rulemaking that would subject critical surface transportation owners and operators to cyber risk management and reporting requirements.

On November 27, 2024, the Centre for Information Policy Leadership at Hunton Andrews Kurth filed a response to the Department of Justice’s Notice of Proposed Rulemaking, which implements Executive Order 14117 of February 28, 2024.

On November 25, 2024, the New York Attorney General and New York Department of Financial Services announced a $11.3 million settlement with insurance companies GEICO and Travelers over alleged legal violations related to cybersecurity incidents.

On November 6, 2024, a Texas state district court jury found that a large e-discovery vendor violated Title 7, Chapter 33 of the Texas Penal Code, which provides that accessing a computer without its owner’s permission is a Class B misdemeanor. This case highlights the importance for e-discovery vendors of considering data privacy and security requirements in the course of discovery proceedings.

Last month, the UK government resurrected previous attempts to reform UK data protection law and introduced the draft Data (Use and Access) Bill into the House of Lords. This blog entry provides a link to read more about the Bill.

The California Privacy Protection Agency recently announced that it is conducting an investigative sweep focused on enforcing requirements for data brokers to register with the CPPA by January 31, 2024, under California’s Delete Act.

On November 7, 2024, the UK Information Commissioner’s Office released a report exploring data privacy concerns in genomic technology.

On November 1, 2024, the U.S. Department of Health and Human Services’ Office for Civil Rights and the Assistant Secretary for Technology Policy announced the release of a new version of the Security Risk Assessment Tool.

On November 6, 2024, the UK Information Commissioner’s Office published a report following consensual audit engagements conducted between August 2023 and May 2024 with developers and providers of artificial intelligence powered sourcing, screening, and selection tools used in recruitment.

On November 4, 2024, the European Data Protection Board adopted its first report under the EU-U.S. Data Privacy Framework.

On October 31, 2024, the UK Information Commissioner’s Office published its response to the draft Data (Use and Access) Bill.

On October 4, 2024, the Court of Justice of the European Union (“CJEU”) issued its judgment in case KNLTB (C‑621/22). In this judgment, the CJEU was called upon to clarify the concept of “legitimate interests” and, in particular, whether purely commercial interests can be considered as legitimate under the EU General Data Protection Regulation (“GDPR”).

The U.S. Government Accountability Office has launched an investigation into how retirement plan providers use data collected from 401k plan participants to engage in cross-selling of financial products.

On October 23, 2024, the UK government introduced the draft Data (Use and Access) Bill to the House of Lords. 

On October 21, 2024, the U.S. Department of Justice National Security Division issued a Notice of Proposed Rulemaking implementing Executive Order 14117 that will restrict certain transactions with high-risk countries.

On October 22, 2024, the Consumer Financial Protection Bureau finalized a rule concerning the portability of consumers’ personal financial data.

On October 16, 2024, the New York Department of Financial Services (“NYDFS”) issued an Industry Letter warning companies to update their AI security procedures around multifactor authentication, which are potentially vulnerable to deepfakes and AI-supplemented social engineering attacks.

On October 16, 2024, the European Data Protection Board announced it had adopted Guidelines 2/2023 on Technical Scope of Art. 5(3) of ePrivacy Directive following a public consultation.

On October 10, 2024, the Council of the European Union adopted the EU’s new regulation on horizontal cybersecurity requirements for products with digital elements.

On October 4, 2024, the Court of Justice of the European Union issued its judgment in case C‑446/21 to assess whether the GDPR imposes limits to Meta Platforms Ireland’s use of personal data collected outside of the Facebook social network for advertising purposes.

On September 30, 2024, the State Council of China published the Regulations on Administration of Network Data Security (the “Regulations”), which will take effect on January 1, 2025. The Regulations cover multiple dimensions of network data security, including personal information protection, security of important data, cross-border transfers, network platform service providers’ obligations, and regulatory supervision and administration. Certain of the key provisions are summarized below. In general, most of the provisions under the Regulations can be found in other existing laws and regulations of China.

On October 9, 2024, the European Data Protection Board adopted an Opinion on certain obligations following from the reliance on processor(s) and sub-processor(s), and Guidelines on the processing of personal data based on legitimate interest.

On September 26, 2024, the U.S. Department of Health and Human Services Office for Civil Rights entered into a resolution agreement and corrective action plan with Cascade Eye and Skin Centers, P.C. following a ransomware attack that impacted approximately 291,000 files containing electronic PHI.

On October 9, 2024, both the Federal Trade Commission and a coalition of 50 state attorneys general issued announcements that they had reached settlement agreements with Marriott International, Inc. and its subsidiary Starwood Hotels & Resorts Worldwide LLC over a multi-year series of data breaches impacting hundreds of millions of individuals.

On October 3, 2024, the U.S. Department of Health and Human Services’ Office for Civil Rights announced a monetary penalty of 240,000 dollars against Providence Medical Institute, an interstate network of medical providers, for violations of the HIPAA Security Rule in relation to a series of ransomware attacks against an orthopedics practice acquired by the entity.

On October 7, 2024, the UK Information Commissioner’s Office announced the launch of a new audit framework designed to help organizations assess and improve their compliance with key requirements of UK data protection law.

On September 18, 2024, the National Technical Committee 260 on Cybersecurity Standardization Administration of China released the Cybersecurity Standard Practice Guideline – Sensitive Personal Information Identification Guideline.

On September 30, 2024, the Federal Communications Commission announced that T-Mobile has entered into an agreement to settle multiple data protection and cybersecurity investigations stemming from data breaches in 2021, 2022 and 2023.

On September 27, 2024, the Irish Data Protection Commission announced it had issued a fine of 91 million euros and a reprimand against Meta Ireland for inadvertently storing passwords of certain users in plaintext on its internal systems.

In August 2024, the Guangzhou Internet Court in China published its final decision in the case No. (2022) Yue 0192 Minchu 6486 regarding the cross-border transfer of personal information under the Personal Information Protection Law (“PIPL”), which was originally issued on September 8, 2023. It is the first case explaining the reliance on necessity for performance of contract in cross-border data transfer activities.

On September 19, 2024, the Federal Trade Commission announced the publication of a staff report entitled, A Look Behind the Screens: Examining the Data Practices of Social Media and Video Streaming Services. The Report documents the data collection and use practices of major social media and video streaming services and provides recommendations for better protecting users’ data and privacy, with a particular focus on children and teens.

On September 4, 2024, the California Privacy Protection Agency issued an Enforcement Advisory on Avoiding Dark Patterns: Clear and Understandable Language, Symmetry in Choice.

On September 10, 2024, the European Commission and the European Data Protection Board issued a press release stating that they would be cooperating to develop guidance regarding the interplay between the Digital Markets Act and the General Data Protection Regulation.

On August 30, 2024, the Federal Trade Commission announced a proposed settlement with Verkada, a security camera firm, in connection with alleged data security failures and CAN-SPAM Act violations. Under the proposed order, Verkada will be required to implement a comprehensive information security program and pay a $2.95 million monetary penalty.

On August 30, 2024, the Beijing Municipal Internet Information Office, Beijing Municipal Commerce Bureau and Beijing Municipal Government Services and Data Administration Bureau jointly issued the Data Export Management List (Negative List) of China (Beijing) Pilot Free Trade Zone (Version 2024) and the Administrative Measures for the Negative List.

On August 28, 2024, the FCC announced that it signed a Memorandum of Understanding on Cooperation in the Enforcement of Laws Protecting Personal Information in the Private Sector with the Office of the Privacy Commissioner of Canada.

As reported on the Hunton Retail Law resource blog, on August 2, 2024, Illinois amended its Biometric Information Privacy Act (“BIPA”), curbing the potential for massive damages and modernizing the law’s written consent provisions. On their face, the amendments are not retroactive.  It remains unclear, however, whether this change in Illinois law will nonetheless be applied retroactively by the courts.

For more information click here.

On July 5, 2024, the California Privacy Protection Agency  issued a set of proposed regulations to implement the CA Delete Act, a law that imposes requirements on data brokers and grants consumers rights designed to facilitate control over their personal information. 

The U.S. Department of Commerce’s International Trade Administration recently published a notice indicating it is considering revisions to the fee schedule for the Data Privacy Framework Program and seeking public comment, which is open until August 7, 2024.

On July 30, 2024, Texas AG Ken Paxton announced that Meta agreed to pay $1.4 billion to settle a lawsuit over allegations that Meta processed facial geometry data of Texas residents in violation of Texas law, including the Texas Capture or Use of Biometric Identifier Act (“CUBI”).

On July 23, 2024, the Federal Trade Commission announced that it had launched a study of eight companies’ “surveillance pricing” practices. According to the FTC, “the orders are aimed at helping the FTC better understand the opaque market for products by third-party intermediaries that claim to use advanced algorithms, artificial intelligence and other technologies, along with personal information about consumers—such as their location, demographics, credit history, and browsing or shopping history—to categorize individuals and set a targeted price for a product or service.”

On July 17, 2024, the King’s Speech marked the start of the UK parliamentary year. In the King’s Speech, the Digital Information and Smart Data Bill and Cyber Security and Resilience Bill were announced.

Earlier this month, the Federal Trade Commission, International Consumer Protection and Enforcement Network and Global Privacy Enforcement Network announced the results of a comprehensive review regarding the use of “dark patterns.”

On July 9, 2024, the Federal Trade Commission issued a proposed order that banned NGL Labs, LLC, and two of its co-founders from offering an anonymous messaging app called “NGL: ask me anything” to children under the age of 18.

On July 12, 2024, the EU Artificial Intelligence Act was published in the Official Journal of the EU.

On July 2, 2024, the French Data Protection Authority (the “CNIL”) published a new set of guidelines addressing the development of artificial intelligence (“AI”) systems from a data protection perspective (the “July AI Guidelines”).

On July 1, 2024, a new agreement between the EU and Japan facilitating data flows between the two jurisdictions entered into force.

In April 2024, the National Institute of Standards and Technology released an initial draft of its AI Risk Management Framework Generative AI Profile. This blog entry provides a summary of the Generative AI Profile.

On June 7, 2024, following a public consultation, the French Data Protection Authority published the final version of the guidelines addressing the development of AI systems from a data protection perspective.

On May 1, 2024, Utah’s Artificial Intelligence Policy Act entered into effect.

On May 23, 2024, the European Data Protection Board adopted an Opinion on the use of facial recognition technologies by airport operators and airline companies to streamline the passenger flow at airports.

On May 17, 2024, Colorado became the first U.S. state to enact comprehensive artificial intelligence legislation. This blog entry provides highlights of the key requirements.

On April 17, 2024, Colorado enacted H.B. 1058 which amends the Colorado Privacy Act (“CPA”) and makes Colorado the first state to explicitly extend the protections of a state comprehensive privacy law to neural data.

The Act expands the definition of “sensitive data” in the CPA to include two newly-added defined terms: “biological data” and “neural data”.

On May 1, 2024, the UK Information Commissioner’s Office (“ICO”) and the UK regulator for communications and online safety, Ofcom, issued a joint statement regarding their collaboration on the regulation of online services where online safety and data protection intersect. This statement builds on the joint statement published in 2022. The latest statement outlines several areas of collaboration between the ICO and Ofcom.

In April 2024, the Centre for Information Policy Leadership at Hunton Andrews Kurth published a white paper on Leveraging Data Responsibly: Why Boards and the C-Suite Need to Embrace a Holistic Data Strategy.

On April 12, 2024, the UK Information Commissioner’s Office launched the third installment in its consultation series examining how data protection law applies to the development and use of generative AI. 

On March 27, 2024, the National Telecommunications and Information Administration (“NTIA”) issued its AI Accountability Report, and, on March 28, 2024, the White House announced the Office of Budget and Management’s (“OMB’s”) government-wide policy on AI risk management.

On March 26, 2024, the French data protection authority (the “CNIL”) published the 2024 edition of its Practice Guide for the Security of Personal Data (the “Guide”). The Guide is intended to support organizations in their efforts to implement adequate security measures in compliance with their obligations under Article 32 of the EU General Data Protection Regulation. In particular, the Guide targets DPOs, CISOs, computer scientists and privacy lawyers.

On March 22, 2024, the Cyberspace Administration of China (the “CAC”) issued the Provisions on Facilitation and Regulation of Cross-Border Data Flows (the “Provisions”), which were effective the same day. The CAC also held a press conference to introduce and explain the Provisions. The Provisions demonstrate that the regulation of cross-border transfers in China is focused on important data and critical information infrastructure operators (“CIIO”), and that the CAC aims to optimize business environment, stabilize foreign investment, and support the data flow between global companies with a Chinese presence.

Hunton Andrews Kurth released a client alert on the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) settlement with EFG International AG. On March 14, 2024, OFAC announced a settlement (the “Settlement”) with EFG International AG, a global private banking group based in Switzerland with many global subsidiaries (collectively, the “Manager”) regarding violations of OFAC rules alleged to have occurred as a result of the Manager’s buying, selling and, in many cases, merely holding, U.S. securities on behalf of persons sanctioned by OFAC. 

Bloomberg Law reported that the Federal Communications Commission adopted rules creating a voluntary cybersecurity labeling program for wireless consumer Internet of Things products, as well as a further notice of proposed rulemaking that seeks comments addressing additional disclosure requirements for program participants with respect to national security.

Last week, Utah Governor Spencer J. Cox signed three privacy-related bills into law. The bills are focused on, respectively, protection of motor vehicle consumer data, regulations on social media companies with respect to minors, and access to protected health information by third parties. The Utah legislature appears to be focused on data-related legislation this session, as Governor Cox signed two other bills related to AI into law last week as well.

On March 8, 2024, the California Privacy Protection Agency (“CPPA”) Board discussed and voted 3-2 in favor of further edits to revised draft regulations regarding risk assessments and automated decisionmaking technology (“ADMT”), which were released in February 2024, but did not initiate the formal rulemaking process for these regulations, which is anticipated to begin in July 2024.

On March 13, 2024, the Federal Communications Commission’s updates to the FCC data breach notification rules (the “Rules”) went into effect. They were adopted in December 2023 pursuant to an FCC Report and Order (the “Order”).

On March 13, 2024, the European Parliament adopted the AI Act by a majority of 523 votes in favor, 46 votes against, and 49 abstentions. The AI Act will introduce comprehensive rules to govern the use of AI in the EU, making it the first major economic bloc to regulate this technology.

As reported by Bloomberg Law, on February 27, 2024, at RemedyFest, a conference hosted by Bloomberg Beta and Y Combinator, Federal Trade Commission Chair Lina Khan said that sensitive personal data that is linked to health, geolocation and web browsing history should be excluded from training artificial intelligence (“AI”) models.

The Federal Trade Commission held its eighth annual privacy conference, PrivacyCon, on March 6, 2024. The goal of PrivacyCon is to assemble researchers, academics, industry representatives, consumer advocates and government regulators to consider and discuss cutting-edge research and trends related to consumer privacy and data security. This year’s conference consisted of remarks by FTC Commissioners Lina Khan, Alvaro Bedoya and Rebecca Kelly Slaughter, and a total of seven panels including “Economics”, “Privacy Enhancing Technologies,” “Artificial ...

On February 28, 2024, President Biden released an Executive Order (“EO”) “addressing the extraordinary and unusual national security threat posed by the continued effort of certain countries of concern to access Americans’ bulk sensitive personal data and certain U.S. Government-related data.” In tandem with the EO, the Department of Justice’s (“DOJ’s”) National Security Division is set to issue an advance notice of proposed rulemaking (“ANPRM”) pursuant to the EO, which directs the DOJ to “establish, implement and administer new and targeted national security programming” to address the threat. The DOJ regulations will identify specific categories of “data transactions” that are prohibited or restricted due to their “unacceptable risk to national security.” 

On February 26, 2024, the National Institute of Standards and Technology (“NIST”) announced the release of Version 2.0 of its voluntary Cybersecurity Framework (“CSF”).

The first iteration of the CSF was released in 2014 as a result of an Executive Order, to help organizations understand, manage, and reduce their cybersecurity risks. The original CSF was developed for organizations in the critical infrastructure sector, such as hospitals and power plants, but has since been voluntarily implemented across various sectors and industries, including throughout schools and local governments.

On March 1, 2024, the UK Information Commissioner’s Office (“ICO”) announced that it had issued an enforcement notice and a warning to the UK Home Office for failing to sufficiently assess the privacy risks posed by the electronic monitoring of people arriving in the UK via unauthorized means. The Home Office is the ministerial department of the UK government responsible for immigration, security, and law and order.

On February 21, 2024, the U.S. Department of Health and Human Services’ Office for Civil Rights (“OCR”) entered into a resolution agreement and corrective action plan with Green Ridge Behavioral Health LLC (“GRBH”) stemming from the organization’s failure to comply with the Privacy and Security Rules of the Health Insurance Portability and Accountability Act (“HIPAA”) and subsequent failure to protect against a 2019 ransomware attack that impacted the personal health information (“PHI”) of more than 14,000 patients. This marks the second such settlement with a HIPAA-regulated entity for violations that were discovered following a ransomware attack, according to HHS.

On February 20, 2024, The Centre for Information Policy Leadership at Hunton Andrews Kurth LLP  (“CIPL”) and Theodore Christakis, Professor of International, European and Digital Law at University Grenoble Alpes, released a comprehensive study titled The “Zero Risk” Fallacy: International Data Transfers, Foreign Governments’ Access to Data and the Need for a Risk-Based Approach. In the study, Prof. Christakis makes the case that the EU General Data Protection Regulation (“GDPR”), the Charter of Fundamental Rights of the European Union and EU law, more generally, allow a more nuanced and risk-based approach to data transfers than the restrictive approach often applied. CIPL and Prof. Christakis provide an approach that outlines data protection measures that are proportionate to the risks at hand, and takes into account the nature of the data, the likelihood of access by foreign governments, and the severity of the potential harm.

On February 15, 2024, the Federal Trade Commission proposed a rule that would ban the use of AI to impersonate individuals, which would extend protections of a recently finalized FTC rule against government and business impersonation.  The FTC announced a public comment period for a supplemental Notice of Proposed Rulemaking (“NPR”) regarding the proposed rule that ends 60 days after being published in the Federal Register. The FTC’s swift action is in response to an AI-generated robocall mimicking President Biden that encouraged voters not to vote in the New Hampshire primary. FTC Chair Lina Khan described the FTC’s supplemental NPR as a key step in “strengthening the FTC’s toolkit to address AI-enabled scams impersonating individuals,” as malicious actors “us[e] AI tools to impersonate individuals with eerie precision and at a much wider scale.”

On February 21, 2024, the Centre for Information Policy Leadership at Hunton Andrews Kurth LLP (“CIPL”) published a white paper on Building Accountable AI Programs: Mapping Emerging Best Practices to the CIPL Accountability Framework. The white paper showcases how 20 leading organizations are developing accountable AI programs and best practices.

On January 24, 2024, the European Commission announced that it had published the Commission Decision establishing the European AI Office (the “Decision”). The AI Office will be established within the Commission as part of the administrative structure of the Directorate-General for Communication Networks, Content and Technology, and subject to its annual management plan. The AI Office is not intended to affect the powers and competences of national competent authorities, and bodies, offices and agencies of the EU in the supervision of AI systems, as provided for by the forthcoming AI Act. The Decision details the functions and tasks of the AI Office, such as:

On February 8, 2024, the Federal Communications Commission declared that calls using AI- generated, cloned voices fall under the category of “artificial or prerecorded voice” within the Telephone Consumer Protection Act (“TCPA”) and therefore are generally prohibited without prior express consent, effective immediately. Callers must obtain prior express consent from the recipient before making a call using an artificial or prerecorded voice, absent an applicable statutory exemption or emergency.

On February 1, 2024, the Federal Trade Commission announced a proposed settlement with Blackbaud Inc. (“Blackbaud”) in connection with alleged security failures that resulted in a breach of the company’s network and access to the personal data of millions of consumers. As part of the settlement, Blackbaud will be required to comply with a variety of obligations, including deleting personal data that the company does not have a need to retain.

On February 6, 2024, the UK government published a response to the consultation on its AI Regulation White Paper, which the UK government originally published in March 2023. The White Paper set forth the UK government’s “flexible” approach to regulating AI through five cross-sectoral principles for the UK’s existing regulators to interpret and apply within their remits (read further details on the White Paper). A 12-week consultation on the White Paper was then held and this response summarizes the feedback and proposed next steps.

On January 22, 2024, a draft of the final text of the EU Artificial Intelligence Act (“AI Act”) was leaked to the public. The leaked text substantially diverges from the original proposal by the European Commission, which dates back to 2021. The AI Act includes elements from both the European Parliament’s and the Council’s proposals.

On January 18, 2024, the Federal Trade Commission announced a proposed order against geolocation data broker InMarket Media (“InMarket”), barring the company from selling or licensing precise location data. According to the FTC’s charges, InMarket failed to obtain informed consent from users of applications developed by the company and its third-party partners.  

On January 15, 2024, the UK Information Commissioner’s Office (“ICO”) announced that it has launched a consultation series on generative AI. The series will examine how aspects of UK data protection law should apply to the development and use of the technology, with the first chapter of the series focusing on when it is lawful to train generative AI models on personal data scraped from the web. The ICO invites all stakeholders with an interest in generative AI to respond to the consultation, including developers and users of generative AI, legal advisors and consultants working ...

On January 9, 2024, in its first settlement with a data broker concerning the collection and sale of sensitive location information, the Federal Trade Commission announced a proposed order against data broker X-Mode Social, Inc. and its successor Outlogic, LLC (“X-Mode”) for unfair and deceptive acts or practices in violation of Section 5 of the FTC Act.

On January 8, 2024, the French Data Protection Authority (the “CNIL”) opened a consultation on its draft guidance for the use of transfer impact assessments (“Guidance”). In describing the Guidance, the CNIL references the decision of the Court of Justice of the European Union in Schrems II and states that exporters relying on tools listed in Article 46(2) and Article 46(3) of the EU General Data Protection Regulation (“GDPR”) for personal data transfers are required to assess the level of protection in the designated third country and the need to put in place additional safeguards (i.e., conduct a transfer impact assessment (“TIA”)). The Guidance is intended to assist data exporters in carrying out TIAs. 

On December 20, 2023, the FTC issued a Notice of Proposed Rulemaking (“Notice”), which would bring long-anticipated changes to the children’s online data privacy regime at the federal level in the U.S. The Notice sets forth several important proposals aimed at strengthening the Children’s Online Privacy Protection Act Rule (“COPPA Rule”). The COPPA Rule has not been updated since 2012. The FTC received over 176,000 comments in response to its call to comment on updating the COPPA Rule.

On December 14, 2023, the Court of Justice of the European Union (“CJEU”) issued its judgment in the case of VB v. Natsionalna agentsia za prihodite (C‑340/21), in which it clarified, among other things, the concept of non-material damage under Article 82 of the EU General Data Protection Regulation (“GDPR”) and the rules governing burden of proof under the GDPR.

On December 12, 2023, the Centre for Information Policy Leadership at Hunton Andrews Kurth LLP (“CIPL”) released a white paper on Privacy-Enhancing and Privacy-Preserving Technologies: Understanding the Role of PETs and PPTs in the Digital Age.

On December 13, 2023, the Federal Communications Commission (FCC) voted to update its 16-year old data breach notification rules (the “Rules”). Pursuant to the FCC update, providers of telecommunications, Voice over Internet Protocol (VoIP) and telecommunications relay services (TRS) are now required to notify the FCC of a data breach, in addition to existing obligations to notify affected customers, the FBI and the U.S. Secret Service.

On December 8, 2023, the European Parliament and the Council reached a political agreement on the EU’s Regulation laying down harmonized rules on Artificial Intelligence (the “AI Act”).

The AI Act will introduce a risk-based legal framework for AI. Specifically, the AI Act will state that: (1) certain AI systems are prohibited as they present unacceptable risks (e.g., AI used for social scoring based on social behavior or personal characteristics, untargeted scraping of facial images from the Internet or CCTV footage to create facial recognition databases, etc.); (2) AI systems presenting a high-risk to the rights and freedoms of individuals will be subject to stringent rules, which may include data governance/management and transparency obligations, the requirement to conduct a conformity assessment procedure and the obligation to carry out a fundamental rights assessment; (3) limited-risk AI systems will be subject to light obligations (mainly transparency requirements); and (4) AI systems that are not considered prohibited, high-risk or limited-risk systems will not be under the scope of the AI Act.

On November 16, 2023, the Federal Trade Commission released a proposed order in connection with a complaint filed in August of 2020 against Global Tel*Link Corp. (“GTL”) and its subsidiaries, Telmate and TouchPay, which offers communication and payment services for incarcerated individuals. The complaint centered around a security breach where a technician for a vendor of GTL placed unencrypted, personally identifiable information in a test environment to test a new search and storage software. The test environment allegedly was accessible on the internet without password protections which permitted an unauthorized actor to access and exfiltrate the data between August 11-13, 2020. Though GTL restricted access to the test environment, GTL allegedly failed to notify its customers for roughly nine months, while also falsely representing to prospective customers that it had never experienced a security breach.

Glass Lewis & Co. recently published its updated Benchmark Policy Guidelines for 2024 (the “Policy”), which reflect investors’ continuing focus on corporate disclosure and board oversight of cyber risks. The Policy indicates that Glass Lewis may recommend “against” directors following a cybersecurity incident if it finds the board’s risk oversight or its post-incident response to be insufficient. The Policy also provides guidance on what Glass Lewis expects companies to disclose after such an incident.  

Patrick Gunning from King & Wood Mallesons reports that, on November 2, 2023, the Australian Information Commissioner filed proceedings in the Federal Court of Australia against Australian Clinical Labs Limited seeking a civil penalty (i.e., a fine) in connection with the company’s response to a data breach that occurred in February 2022. The case is significant because: (1) it is only the second time that the Australian regulator has brought court proceedings of this kind despite having the power to do so since 2014; and (2) it signals the regulator’s priority in ensuring that cybersecurity incidents are responded to swiftly. The Australian legislature increased maximum penalties for ‘serious’ contraventions of the Privacy Act with effect from December 2022 to at least A$50 million. However, the maximum penalty available in this case will be A$2.2 million because the company’s conduct occurred prior to December 2022.

On November 1, 2023, New York Governor Hochul announced that the New York State Department of Financial Services (“NYDFS”) amended its Cybersecurity Regulation applicable to covered financial institutions. Our previous blog post covered key proposed changes to the Cyber Regulation.

The NYDFS, which regulates financial institutions including insurance companies, mortgage brokers and banks, adopted the original Cybersecurity Regulation in 2017. The new amendments strengthen the initial framework and require NYDFS-regulated entities to adhere to a number of ...

On October 19, 2023, the Consumer Financial Protection Bureau (“CFPB”) proposed a new rule that would provide consumers with more control over their financial information and impose certain requirements on the following types of entities: