Privacy & Information Security Law Blog

On December 6, 2024, the U.S. Court of Appeals for the D.C. Circuit upheld the Protecting Americans from Foreign Adversary Controlled Applications Act, which is set to take effect on January 19, 2025, and make the distribution of TikTok illegal in the U.S. if parent company ByteDance has not divested. The D.C. Circuit is now considering a request for emergency injunction pending Supreme Court review. 

On December 3, 2024, the U.S. Federal Trade Commission published a proposed consent order that would settle its investigation into IntelliVision Technologies Corp. for making false, misleading or unsubstantiated claims regarding a lack of gender or racial bias in its AI-powered facial recognition technology.

In November 2024, the Department of Commerce’s Artificial Intelligence Safety Institute established a new taskforce to research and test AI models in areas critical to national security and public safety, while ODNI released guidance on the acquisition and use of foundation AI models, both part of the national security community’s response to the directives of the recent White House AI Memo and Executive Order 14110.

As we approach the one-year anniversary of the effective date of the U.S. Securities and Exchange Commission reporting rules on Form 8-K for material cybersecurity incidents, we provide a high-level overview of the last year’s developments.

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 October 31, 2024, the U.S. Department of Health and Human Services’ Office for Civil Rights announced two settlements over medical providers’ failures to comply with the HIPAA Security Rule, one with Plastic Surgery Associates of South Dakota and one with Bryan County Ambulance Authority.  The settlements mark the sixth and seventh OCR enforcement actions related to ransomware attacks with the latter being the first enforcement action in OCR’s Risk Analysis Initiative.

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 October 24, 2024, the White House released a memorandum implementing Executive Order 14110 on national security and responsible AI.

On October 22, 2024, the Securities and Exchange Commission charged four public companies with making materially misleading disclosures about cybersecurity risks and intrusions.

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 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 15, 2024, the U.S. Court of Appeals for the Second Circuit vacated the dismissal of a proposed class action against the National Basketball Association under the Video Privacy Protection Act, holding that the named plaintiff successfully pled that he was a “consumer” protected by the Act by virtue of his subscription to the Defendant’s online newsletter.

On October 16, 2024, the Federal Trade Commission issued a final Click-to-Cancel Rule, also known as the Negative Option Rule, updating its existing regulatory scheme that requires sellers to make it as easy for consumers to cancel their subscriptions and memberships as it is to sign up in the first place. 

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 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 24, 2024, a federal district court held that New York City’s Customer Data Law violates the First Amendment.

Last week, the House Energy and Commerce Committee advanced the Kids Online Safety Act (H.R. 7891) and the Children and Teen’s Online Privacy Protection Act (H.R. 7890).

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 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 14, 2024, the Committee on Foreign Investment in the United States disclosed that it had assessed a $60 million penalty against T-Mobile US, Inc. in connection with unauthorized data access incidents following T-Mobile’s 2020 merger with Sprint Corporation.

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 August 2, 2024, the U.S. sued ByteDance, TikTok and its affiliates for violating the Children’s Online Privacy Protection Act of 1998 and the Children’s Online Privacy Protection Rule.

On July 18, 2024, in a highly anticipated ruling, U.S. District Judge Paul A. Engelmayer dismissed a substantial portion of the U.S. Securities and Exchange Commission’s case against SolarWinds Corporation and its Chief Information Security Officer, Timothy Brown.

On July 16, 2024 the bipartisan Healthcare Cybersecurity Act was introduced, designed to improve cybersecurity in the health care and public health sectors.

On June 20, 2024, the U.S. District Court for the Northern District of Texas Fort Worth Division ruled that guidance issued by the U.S. Department of Health and Human Services (“HHS”) relating to online tracking technologies exceeded HHS’ authority and ordered that it be vacated. 

On June 27, 2024, the U.S. House of Representatives cancelled the scheduled House Energy and Commerce Committee markup of the American Privacy Rights Act, the latest version of which contains significant changes from earlier drafts.

The Texas Attorney General’s Office joined the recent swell of regulatory and judicial scrutiny into privacy issues related to connected cars, driving data and telematics, launching an investigation on the data practices of several car manufacturers. 

On June 18, 2024, the Federal Trade Commission announced its referral of a complaint to the U.S. Department of Justice (“DOJ”) against TikTok and its parent company regarding their compliance with a 2019 privacy settlement. The complaint is related to the FTC’s investigation into potential violations of the  Children’s Online Privacy Protection Act (“COPPA”) and the FTC Act.

On May 23, the U.S. House Committee on Energy and Commerce Subcommittee on Data, Innovation, and Commerce approved a revised draft of the American Privacy Rights Act (“APRA”), which includes significant changes from the initial discussion draft.

On May 21, 2024, staff of the U.S. Securities and Exchange Commission published additional interpretive guidance on reporting material cybersecurity incidents under Form 8-K. This blog entry provides highlights from the guidance.

On April 22, 2024, the U.S. Department of Health and Human Services’ Office for Civil Rights announced its final “HIPAA Privacy Rule to Support Reproductive Health Care Privacy,” which strengthens privacy protections under HIPAA for reproductive health care-related PHI.

On April 7, 2024, U.S. Sen. Maria Cantwell (D-WA) and U.S. Rep. Cathy McMorris Rodgers (R-WA) released a discussion draft of the latest federal privacy proposal, known as American Privacy Rights Act (“APRA” or the “Act”). The APRA builds upon the American Data Privacy and Protection Act (“ADPPA”), which was introduced as H.R. 8152 in the 117th Congress and advanced out of the House Energy and Commerce Committee but did not become law. As the latest iteration of a federal privacy proposal, the APRA signals that some members of Congress continue to seek to create a federal standard in the wake of—and in spite of—the ever-growing patchwork of state privacy laws.

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 20, 2024, the U.S. House of Representatives passed legislation that will prohibit data brokers from transferring U.S. residents’ sensitive personal data to foreign adversaries, including China and Russia. The House bill HR 7520 (the “Bill”), also known as the Protecting Americans’ Data from Foreign Adversaries Act of 2024, marks a significant development in executive and legislative action related to foreign access to U.S. data. The Bill follows a similarly groundbreaking Executive Order and Department of Justice Notice of Proposed Rulemaking issued at the end of February that will establish strict protective measures against data exploitation by countries considered national security threats for U.S. sensitive personal data and U.S. government-related data. The Bill also comes after the House overwhelmingly passed HR 7521, (the Protecting Americans from Foreign Adversary Controlled Applications Act) resulting from concerns that the Chinese government would compel TikTok (or other foreign adversary-controlled apps) to turn over U.S. data. HR 7521 would effectively require TikTok to divest from parent company ByteDance in order to avoid a ban in the U.S.

On March 8, 2024, the Centre for Information Policy Leadership at Hunton Andrews Kurth (“CIPL”) filed its response to the Federal Trade Commission’s notice of proposed rulemaking (“NPRM”), which addresses amendments to the Children’s Online Privacy Protection Rule (“COPPA Rule”).

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 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 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.”

As we pass the two-month anniversary of the effectiveness of the U.S. Securities and Exchange Commission’s (“SEC’s”) Form 8-K cybersecurity reporting rules under new Item 1.05, this blog post provides a high-level summary of the filings made to date.

On February 16, 2024, the U.S. Department of Health and Human Services' Office for Civil Rights (“OCR”) and the National Institute of Standards and Technology (“NIST”) published a final version of Special Publication 800-66 Revision 2, “Implementing the Health Insurance Portability and Accountability Act (“HIPAA”) Security Rule: A Cybersecurity Resource Guide.” The publication features guidance and recommendations for cybersecurity measures for HIPAA covered entities to consider in the development of their information security programs, a ...

On February 15, 2024, Senators Edward J. Markey (D-Mass.) and Bill Cassidy (R-La.) announced the addition of co-sponsors Senators Ted Cruz (R-Texas) Chair and Ranking Member of the Commerce, Science, and Transportation Committee, and Maria Cantwell (D-Wash.) to an updated version of the proposed Children and Teens’ Online Privacy Protection Act (“COPPA 2.0”) bill. The bill contains what the sponsors call “small modifications based on conversations with stakeholders and additional technical corrections.”

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 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 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.

As we previously reported, the U.S. Securities and Exchange Commission’s (“SEC”) new Form 8-K rules for reporting material cybersecurity incidents take effect today, December 18, for filers other than smaller reporting companies. The new rules require reporting to the SEC within four business days from the determination of materiality.

On October 30, 2023, U.S. President Biden issued an Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence. It marks the Biden Administration’s most comprehensive action on artificial intelligence policy, building upon the Administration’s Blueprint for an AI Bill of Rights (issued in October 2022) and its announcement (in July 2023) of securing voluntary commitments from 15 leading AI companies to manage AI risks.

On September 15, 2023, the Federal Trade Commission and the Department of Health and Human Services (“HHS”) published an updated version of the two agencies’ joint publication, entitled “Collecting, Using, or Sharing Consumer Health Information? Look to HIPAA, the FTC Act, and the Health Breach Notification Rule.” 

On September 13, 2023, the National Coordinator for Health Information Technology (“ONC”) and the Office for Civil Rights (“OCR”) at the U.S. Department of Health and Human Services released version 3.4 of the Security Risk Assessment (“SRA”) Tool under the Health Insurance Portability and Accountability Act (“HIPAA”) Security Rule.

On August 31, 2023, NetChoice, a national trade association of large online businesses, filed supplemental briefing in its challenge to the California Age-Appropriate Design Code (“CA AADC”). The success or failure of NetChoice’s lawsuit will determine whether companies need to be CA AADC-compliant on July 1, 2024 when the law is anticipated to take effect.

On September 7, 2023, Lina M. Khan, Chair of the Federal Trade Commission, announced that the FTC will hold an open meeting virtually at 11 am ET on Thursday, September 14, 2023.  The agenda of the open meeting includes a vote by the FTC on whether to release a staff perspective and recommendations on the blurring of advertising and content on digital media and its effects on children and teens.

On August 14, 2023, the Federal Trade Commission announced a proposed order against Experian Consumer Services (“Experian”) for failure to comply with the federal CAN-SPAM Act.  The complaint alleges that Experian sent marketing emails that did not provide an unsubscribe opportunity to consumers who had signed up for Experian’s credit monitoring services. The CAN-SPAM Act requires businesses to, in relevant part, clearly and conspicuously display a return email address or Internet-based mechanism that allows consumers to unsubscribe from future marketing emails. While the Experian emails contained a notice stating that the messages related to the consumer’s Experian account (which would make them “transactional” or “relationship” messages under the CAN-SPAM Act, and therefore exempt from the unsubscribe requirement), the complaint alleged that, in actuality, the emails contained only marketing material.

On July 26, 2023, the U.S. Securities and Exchange Commission (“SEC”) adopted long-anticipated disclosure rules for public companies by a 3-2 party-line vote. The final rules apply both to U.S. domestic public companies, as well as any offshore company that qualifies as a “foreign private issuer” under SEC rules due to a strong nexus to the U.S. capital markets. The new rules are effective as soon as December 18, 2023, as detailed further below.

On June 12, 2023, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted a response to the U.S. National Telecommunications and Information Administration’s (“NTIA’s”) Request for Comments (“RFC”) on Artificial Intelligence (“AI”) Accountability. The NTIA’s RFC solicited comments on AI accountability measures and policies that can demonstrate trustworthiness of AI systems.

On June 6, 2023, the Federal Deposit Insurance Corporation (“FDIC”), the Board of Governors of the Federal Reserve System (“FRB”) and the Office of the Comptroller of the Currency (“OCC”) issued their final Interagency Guidance on Third-Party Relationships (“Guidance”). The Guidance provides principles that banking organizations should consider when developing and implementing risk management practices for all stages in the life cycle of third-party relationships.

On May 31, 2023, the Federal Trade Commission announced a proposed order against home security camera company Ring LLC (“Ring”) for unfair and deceptive acts or practices in violation of Section 5 of the FTC Act.

On May 22, 2023, the Federal Trade Commission announced a proposed order against education technology provider Edmodo, LLC (“Edmodo”) for violations of the Children’s Online Privacy Protection Rule (“COPPA Rule”) and Section 5 of the FTC Act.

On May 18, 2023, the Federal Trade Commission announced it is seeking comment to proposed changes to the Health Breach Notification Rule (the “Rule”). The Rule requires  vendors of personal health records (“PHR”), PHR-related entities and service providers to these entities, to notify consumers and the FTC (and, in some cases, the media) in the event of a breach of unsecured identifiable health information, including cybersecurity intrusions and other instances of unauthorized access. By clarifying the Rule’s scope and applicability, and by modernizing allowable methods of notice, the proposed amendments seek to update the Rule to account for technological change since the Rule’s issuance, which includes the proliferation of health apps and connected devices, and the emergence of a widespread market for health data.

On May 4, 2023, the Biden-Harris Administration announced new actions to promote responsible American innovation in artificial intelligence (“AI”). The Administration also met with the CEOs of Alphabet, Anthropic, Microsoft and OpenAI as part of the Administration’s broader, ongoing effort to engage with advocates, companies, researchers, civil right organizations, not-for-profit organizations, communities, international partners, and others on critical AI issues. These efforts build upon the steps the Administration has taken so far, including the Blueprint for an AI Bill of Rights issued by the White House Office of Science and Technology Policy (“OSTP”) and the  AI Risk Management Framework released by the National Institute of Standards and Technology (“NIST”). The Administration is also actively working to address national security concerns raised by AI, especially in critical areas like cybersecurity, biosecurity and safety. 

On May 5, 2023, New York Attorney General Letitia James released proposed legislation that seeks to regulate all facets of the cryptocurrency industry. Entitled the “Crypto Regulation, Protection, Transparency, and Oversight (CRPTO) Act,” if enacted the bill would substantially expand New York’s oversight of crypto enterprises conducting business in the Empire State, including as to matters involving privacy and cybersecurity.

On April 25, 2023, officials from the Federal Trade Commission, Consumer Financial Protection Bureau (“CFPB”), Department of Justice’s Civil Rights Division (“DOJCRD”) and the Equal Employment Opportunity Commission (“EEOC”) released a Joint Statement on Enforcement Efforts against Discrimination and Bias in Automated Systems (“Statement”), also sometimes referred to as “artificial intelligence” (“AI”).

On March 15, 2023, the Securities and Exchange Commission (“SEC”) proposed three rules related to cybersecurity and the protection of consumer information.

On March 6, 2023 the Centre for Information Policy Leadership (CIPL) at Hunton Andrews Kurth filed a response to the National Telecommunications and Information Administration’s request for comment on issues at the intersection of privacy, equity and civil rights.  

On February 16, 2023, the National Credit Union Administration (“NCUA”) Board unanimously approved a final rule requiring federally insured credit unions (“FICUs”) to notify the NCUA as soon as possible, within 72 hours, after an FCIU “reasonably believes” that a reportable cyber incident has occurred.

On March 1, 2023, the U.S. House of Representatives Innovation, Data and Commerce Subcommittee (“Subcommittee”) of the Energy and Commerce Committee (“Committee”) held a hearing to restart the discussion on comprehensive federal privacy legislation. Last year, the full Committee reached bipartisan consensus on H.R. 8152, the American Data Privacy and Protection Act (“ADPPA”), by a vote of 53-2.  With many of the same players returning in the 118th Congress, House members are eager to advance bipartisan legislation again.

On March 2, 2023, the Biden-Harris Administration announced the release of the National Cybersecurity Strategy.

On February 14, 2023, the U.S. Senate Committee on the Judiciary held a hearing titled, “Protecting Our Children Online.” Chaired by Sen. Durbin, the hearing examined the potentially harmful effects of social media use on young people, and represented a renewal of the Committee’s efforts to pass legislation to protect children and teenagers online. In 2022, the Senate Judiciary Committee approved several bills designed to enhance the online safety and wellbeing of children and teenagers, among them the Kids Online Protection Act (“KOSA”), but the bills did not receive a floor vote. During the hearing, Democratic and Republican senators expressed their commitment to pass bills that would limit the immunity of social media companies under Section 230 of the Communications Decency Act, and would require website and app developers to design products that protect young people from cyberbullying, online sexual exploitation, social media addiction, and other harms. 

On February 14, 2023, in a Draft Motion for a Resolution on the adequacy of the protection afforded by the proposed EU-U.S. Data Privacy Framework (the “Framework”), the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (the “Committee”) urged the European Commission not to adopt adequacy based on the Framework, on the basis that it “fails to create actual equivalence” with the EU in the level of data protection that it provides.

On January 23, 2023, the California Privacy Protection Agency (“CPPA”) Board announced that it will hold a public meeting on February 3, 2023 regarding the status of the California Privacy Rights Act of 2020 (“CPRA”) rulemaking process, particularly with respect to the issuance of new draft rules on risk assessments, cybersecurity audits and automated decisionmaking.

On December 16, 2022, the California Privacy Protection Agency (“CPPA”) Board held a public meeting regarding the status of the California Privacy Rights Act of 2020 (“CPRA”) rulemaking process and other topics, such as the CPPA’s advocacy regarding proposed federal and state privacy legislation.

On December 7, 2022, the Federal Trade Commission released an updated Mobile Health App Interactive Tool to help developers determine what federal laws and regulations apply to apps that collect and process health data. The updated version of the tool, which revises the initial release in 2016, aims to assist developers of mobile apps that will access, collect, share, use or maintain information related to an individual consumer’s health, such as information related to diagnosis, treatment, fitness, wellness or addiction.

The Cybersecurity and Infrastructure Security Agency (“CISA”) recently released a draft of the agency’s Cross-Sector Cybersecurity Performance Goals (“CPGs”) for critical infrastructure in the United States. The CPGs provide a common set of fundamental cybersecurity practices to guide critical infrastructure entities in measuring and improving their cybersecurity maturity.  

On November 21, 2022, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth filed comments on the Federal Trade Commission’s Advanced Notice of Proposed Rulemaking (“ANPR”) on commercial surveillance and data security. The ANPR sought public comment on, among other things, whether the FTC should implement new rules addressing the ways in which companies collect, aggregate, protect, use, analyze and retain consumer data.

On November 15, 2022, the Federal Trade Commission announced a six-month extension for companies to comply with certain updated requirements of the Gramm-Leach-Bliley Act’s Safeguards Rule, a set of data security provisions covered  financial institutions must implement to protect their customers’ personal information. The new deadline is June 9, 2023.

On October 25, 2022, the U.S. Department of Justice (“DOJ” or the “Department”) announced that Google had entered into an agreement to resolve a dispute over the loss of data responsive to a search warrant issued in 2016.

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 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 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 September 12, 2022, the Cybersecurity and Infrastructure Security Agency (“CISA”) released a Request for Information (“RFI”) seeking public input regarding the Cyber Incident Reporting for Critical Infrastructure Act of 2022 (“CIRCIA”). The public comment period will close on November 14th, 2022. The RFI provides a “non-exhaustive” list of topics on which CISA seeks public input, including:

On September 21, 2022, the Federal Communications Commission (“FCC”) announced a proposed combined fine of $3.4 million against Sinclair Broadcast Group, Nexstar Media Group and 19 other broadcast television licensees for violations of rules limiting commercial matter in children's television programming.

On September 21, 2022, the Federal Trade Commission announced the agenda for its “Protecting Kids from Stealth Advertising in Digital Media” virtual event to be held on October 19, 2022. The event will cover how children recognize and understand digital advertising content; the current advertising landscape’s impact on kids, including potential harms stemming from an inability to distinguish advertising from other content; and an assessment of the current legal regime’s protection of children from potential harms, and whether additional regulatory, self-regulatory, educational and technological tools may provide additional protection.

On September 7, 2022, the Children’s Advertising Review Unit (“CARU”) of BBB National Programs announced its finding that Tilting Point Media, LLC (“Tilting Point”), owner and operator of the SpongeBob: Krusty Cook-Off app (the “App”), violated the Children’s Online Privacy Protection Act (“COPPA”) and CARU’s Self-Regulatory Guidelines for Advertising and for Children’s Online Privacy Protection (“CARU’s Guidelines”). CARU has recommended a variety of corrective actions with respect to Tilting Point’s advertising and privacy practices.

On August 23, 2022, the U.S. Department of Health & Human Services, Office for Civil Rights (“HHS”) announced that it had settled a case involving the disposal of physical protected health information (“PHI”).

On August 10, 2022, the Consumer Financial Protection Bureau (“CFPB”) issued a new interpretive rule clarifying when digital marketing providers must comply with federal consumer financial protection law. Under the new rule, Big Tech companies that use behavioral advertising techniques to market financial products will be subject to the Consumer Financial Protection Act of 2010 (“CFPA”).

On August 11, 2022, the Federal Trade Commission announced it is seeking public comment regarding its advance notice of proposed rulemaking (“ANPR”) on commercial surveillance and data security, on which we previously reported. The FTC defines “commercial surveillance” as the business of collecting, analyzing and profiting from consumer data.

On July 28, 2022, a federal judge approved TikTok’s $92 million class action settlement of various privacy claims made under state and federal law. The agreement will resolve litigation that began in 2019 and involved claims that TikTok, owned by the Chinese company ByteDance, violated the Illinois Biometric Information Privacy Act (“BIPA”) and the federal Video Privacy Protection Act (“VPPA”) by improperly harvesting users’ personal data. U.S. District Court Judge John Lee of the Northern District of Illinois also awarded approximately $29 million in fees to class counsel.

On July 28, 2022, the California Privacy Protection Agency (“CPPA”) Board held a special public meeting to discuss agency staff’s recommendations that the Board formally oppose the draft federal American Data Privacy and Protection Act (“ADPPA”). The latest version of the ADPPA recently was voted out of the U.S. House Energy and Commerce Committee, and is set to advance to the House Floor.

On July 20, 2022, the U.S. House of Representatives Committee on Energy and Commerce (the “Committee”) passed H.R. 8152, the American Data Privacy and Protection Act (“ADPPA”) (as amended), by a vote of 53-2. The ADPPA next will be put before the full House for a vote.

Following the ruling in Dobbs, the National Institutes of Health’s (“NIH’s”) certificates of confidentiality offer an important layer of privacy protection to reproductive health research data. The Public Health Service Act created the certificates of confidentiality program, which prohibits the disclosure of identifiable, sensitive research data “in any Federal, State, or local civil, criminal, administrative, legislative, or other proceeding” without the research subject’s consent. These certificates add a layer of protection to abortion and fertility data collected as part of NIH research.

On July 1, 2022, the California Privacy Protection Agency (“CPPA”) sent U.S. House of Representatives Speaker Nancy Pelosi a memo outlining how H.R. 8152, the bipartisan American Data Privacy and Protection Act (“ADPPA” or the “Act”), would lessen privacy protections for Californians, and California Democrats have joined the cause.

The CPPA’s memo asserts that the ADPPA, by preempting the California Privacy Rights Act (“CPRA”) and other state privacy laws, proposes to eliminate:

On July 11, 2022, the Federal Trade Commission’s Bureau of Consumer Protection issued a business alert on businesses’ handling of sensitive data, with a particular focus on location and health data. The alert describes the “opaque” marketplace in which consumers’ location and health  data is collected and exchanged amongst businesses and the concerns and risks associated with the processing of such information. The alert specifically focuses on the “potent combination” of location data and user-generated health and biometric data (e.g., through the use of wellness and fitness apps and the sharing of face and other biometric data for app/device authentication purposes). According to the alert, the combination of location and health data “creates a new frontier of potential harms to consumers.”

On June 22, 2022, the Federal Trade Commission submitted an updated abstract to the Office of Information and Regulatory Affairs indicating that it is considering initiating a rulemaking under Section 18 of the FTC Act to curb lax security practices, limit privacy abuses, and ensure that algorithmic decision-making does not result in unlawful discrimination.

On June 21, 2022, President Biden signed into law, the State and Local Government Cybersecurity Act of 2021 (S. 2520) (the “Cybersecurity Act”) and the Federal Rotational Cyber Workforce Program Act (S. 1097) (the “Cyber Workforce Program Act”), two bipartisan bills aimed at enhancing the cybersecurity postures of the federal, state and local governments.

On June 16, 2022, the Federal Trade Commission issued a report to Congress titled Combatting Online Harms Through Innovation (the “Report”) that urges policymakers and other stakeholders to exercise “great caution” about relying on artificial intelligence (“AI”) to combat harmful online content.

On June 23, 2022, the U.S. House of Representatives Subcommittee on Consumer Protection and Commerce passed by voice vote H.R. 8152, the American Data Privacy and Protection Act (“ADPPA”). This bipartisan legislation, sponsored by House Energy and Commerce Committee Chairman Frank Pallone (D-NJ), committee Ranking Republican Cathy McMorris Rodgers (R-WA), subcommittee Chairman Jan Schakowsky (D-IL) and subcommittee Ranking Republican Gus Bilirakis (R-FL), is based on the bipartisan, bicameral “Three Corners” draft bill released on June 2, 2022 with the support of Pallone, Rodgers and Senate Commerce Committee Ranking Republican Roger Wicker (R-MS). 

On June 3, 2022, House Energy and Commerce Chair Rep. Frank Pallone (D-NJ), Ranking Member Rep. Cathy McMorris Rodgers (R-WA) and Senate Commerce, Science and Transportation Committee Ranking Member Sen. Roger Wicker (R-MS) released a new comprehensive federal privacy bill, the American Data Privacy and Protection Act (“ADPPA”).

On May 19, 2022, the Federal Trade Commission will hold a virtual open meeting. The meeting’s tentative agenda includes a vote by the FTC on a policy statement prioritizing the enforcement of the Children’s Online Privacy Protection Act (“COPPA”) as it applies to the use of education technology. In response to the expanded use of education technology during the COVID-19 pandemic, the policy statement clarifies that parents and schools must not be required to sign up for surveillance as a condition of access to tools needed to learn. Members of the public who would like to ...