Privacy & Information Security Law Blog

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.

As previously reported, on December 16, 2010, the U.S. Department of Commerce released its Green Paper “aimed at promoting consumer privacy online while ensuring the Internet remains a platform that spurs innovation, job creation, and economic growth.”

During a press teleconference earlier that morning announcing the release of the Green Paper, Secretary Gary Locke commented on the Green Paper’s recommendation of adopting a baseline commercial data privacy framework, or a “privacy bill of rights,” built on an expanded, revitalized set of Fair Information Practice Principles (“FIPPs”).  He indicated that baseline FIPPs would respond to consumer concerns and help increase consumer trust.  The Secretary emphasized that the Department of Commerce would look to stakeholders to help flesh out appropriate frameworks for specific industry sectors and various types of data processing.  He also noted that the agency is soliciting comments on how best to give the framework the “teeth” necessary to make it effective.  The Secretary added that the Department of Commerce is also open to public comment regarding whether the framework should be enforced through legislation or simply by conferring power on the Federal Trade Commission.

On December 16, 2010, the U.S. Department of Commerce Internet Policy Task Force issued its “Green Paper” on privacy, entitled “Commercial Data Privacy and Innovation in the Internet Economy: A Dynamic Policy Framework.”  The Green Paper outlines Commerce’s privacy recommendations and proposed initiatives, which contemplate the establishment of enforceable codes of conduct, collaboration among privacy stakeholders, and the creation of a Privacy Policy Office in the Department of Commerce.  Noting that “privacy protections are crucial to maintaining the consumer trust that nurtures the Internet’s growth,” the Green Paper “recommends reinvigorating the commitment to providing consumers with effective transparency into data practices, and outlines a process for translating transparency into consumer choices through a voluntary, multistakeholder process.”

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.

On December 8, 2010, the U.S. House of Representatives approved the Social Security Number Protection Act of 2010 (S. 3789), which is aimed at reducing identity theft by limiting access to Social Security numbers.  The bill prohibits printing Social Security numbers, or any derivative of a Social Security number, on government-issued checks, and bars federal, state and local government entities from employing prisoners in jobs that would allow them to access Social Security numbers.  Although there are numerous state laws on the books to safeguard Social Security numbers, the ...

On December 2, 2010, discussions about privacy continued at a hearing on “Do Not Track Legislation: Is Now the Right Time?” held by the U.S. House of Representatives Committee on Energy and Commerce, Subcommittee on Commerce, Trade and Consumer Protection.  The hearing focused on a variety of consumer privacy issues, including the implications and challenges of a Do Not Track mechanism, the consumer’s desire for more control over the collection and use of their data and tracking practices, and the need to preserve an advertising supported Internet that promotes economic growth through online business.

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 December 1, 2010, the Federal Trade Commission released its long-awaited report on online privacy entitled “Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Businesses and Policymakers.”  Observers expected the report to address the concept of privacy by design, the burdens placed on consumers to read and understand privacy notices and make privacy choices, the provision of individual access to personal data and the rights of consumers with respect to Internet tracking.  The FTC report introduces a privacy framework to “establish certain common assumptions and bedrock protections on which both consumers and businesses can rely as they engage in commerce.”  It includes the following elements:

David Vladeck, Director of the FTC’s Division of Consumer Protection, this morning previewed the long-awaited FTC report that sums up months of discussion regarding the future of privacy regulation in the United States and examines the viability of a Do Not Track mechanism.  Vladeck indicated at the Consumer Watchdog Policy Conference that the existing privacy framework in the U.S. is not keeping pace with new technologies.  In addition, he stated that the pace of industry self-regulation, while constructive, has been too slow.  According to Vladeck, the report will address several major themes, including the following:

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.

Representative Rick Boucher (D-VA), current head of the House Subcommittee on Communications, Technology and the Internet, lost his reelection bid yesterday to Republican Morgan Griffith, the Majority Leader of the Virginia House of Delegates.  Representative Boucher, widely recognized and respected for his legislative efforts in the areas of technology, telecommunications and privacy law, co-authored the CAN-SPAM Act and also introduced draft privacy legislation earlier this year.  Congressman Boucher’s defeat leaves the House Subcommittee on Communications, Technology and the Internet panel without its top Democrat, and it is unclear who will fill that leadership vacancy.

The United States Congress is currently considering several bills addressing cybersecurity issues.  Below are brief summaries of four such bills.

The Grid Reliability and Infrastructure Defense (“GRID”) Act

The GRID Act was passed by the House of Representatives on June 9, 2010. This bill would amend the Federal Power Act to grant the Federal Energy Regulatory Commission (“FERC”) authority to issue emergency orders requiring critical infrastructure facility operators to take actions necessary to protect the bulk power system. Prior to FERC issuing such an order, the President would have to issue a written directive to FERC identifying an imminent threat to the nation’s electric grid.  FERC would be required to consult with federal agencies or facility operators before issuing an emergency order only “to the extent practicable” in light of the nature of the threat. The GRID Act is being considered by the Senate Committee on Energy and Natural Resources at this time.

In the latest chapter of the Federal Trade Commission’s ongoing efforts to promote consumer privacy with respect to online behavioral advertising, FTC Chairman Jon Leibowitz has reportedly suggested that the FTC may propose a Do Not Track Registry.  The registry would be similar to the FTC’s popular Do Not Call Registry, which allows consumers to opt-out of many types of telemarketing calls, but registration on the Do Not Track Registry would not stop online advertisements.  Instead, it would prevent those advertisements from being targeted to users based on their prior online ...

On July 27, 2010, Senator John Kerry (D-Mass.) announced his intention to introduce an online privacy bill to regulate the collection and use of consumer data.  “Our counterparts in the House have introduced legislation and I intend to work with Senator Pryor and others to do the same on this side with the goal of passing legislation early in the next Congress,” Kerry said in a prepared statement.  Senator Kerry is the Chairman of the Commerce Subcommittee on Communications, Technology, and the Internet.  He indicated that his bill would go beyond the regulation of targeted ...

On July 19, 2010, Representative Bobby Rush (D-Ill.) introduced a bill "to foster transparency about the commercial use of personal information" and "provide consumers with meaningful choice about the collection, use and disclosure of such information."  The bill, cleverly nicknamed the "BEST PRACTICES Act", presumably intends to set the standards for the use of consumer personal information by marketers.  A similar bill was introduced by Representatives Boucher and Stearns in early May.  Although both proposals would require opt-out consent for online behavioral advertising ...

As reported in BNA’s Privacy Law Watch, the Federal Trade Commission intends to agree to temporarily exempt health care providers from the FTC’s Identity Theft Red Flags Rule.  The Red Flags 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 accounts to implement an identity theft prevention program.  The FTC previously has stated that health care providers could be deemed “creditors” under the Rule.  The agreement will grant relief to ...

Breaking -- The Supreme Court has issued its decision in City of Ontario, California v. Quon, ruling unanimously that the police department did not violate an officer's Fourth Amendment rights when supervisors reviewed text messages transmitted using a work-issued pager.  In reaching this decision, the Court did not resolve whether the officer had a reasonable expectation of privacy, rather the Court based its decision on a determination that the search itself was reasonable.

Read our previous coverage of this case.

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 4, 2010, Congressmen Rick Boucher (D-VA) and Cliff Stearns (R-FL) introduced draft legislation designed to protect the privacy of personal information both on the Internet and in offline contexts.

The legislation would apply to any “covered entity,” which is defined as “a person engaged in interstate commerce that collects data containing covered information.”  The term “covered information” is very broad and includes, but is not limited to, an individual’s first name or initial and last name, a postal address, a telephone number or an email address.  Government agencies and entities that collect covered information from fewer than 5,000 individuals in any 12-month period (and do not collect sensitive information) would not be considered “covered entities” for purposes of the law.

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 ...

The U.S. Supreme Court has set oral argument for April 19, 2010, to review the Ninth Circuit’s 2008 decision on employee privacy in Quon v. Arch Wireless Operating Co.  Although Quon concerns the scope of privacy rights afforded to public employees under the Fourth Amendment, the case also has forced private employers to renew their focus on ensuring robust and consistent enforcement of employee monitoring policies.  Unlike government employers, private employers are not subject to the Fourth Amendment’s prohibition against unreasonable searches and seizures; instead, they must comply with federal wiretap statutes and state law.  In practice, however, the “reasonable expectation of privacy” test courts apply to state common law privacy claims that govern private employers is virtually identical to the Fourth Amendment test.  Accordingly, the Supreme Court’s review of the Constitutional test likely will affect how courts view privacy claims brought against private employers.

The U.S. Supreme Court announced Monday that it will review the Ninth Circuit’s 2008 decision on employee privacy in Quon v. Arch Wireless Operating Co.  In Quon, the Ninth Circuit considered whether the Ontario, California police department and the City of Ontario violated a police officer’s privacy rights by reviewing private text messages the officer sent using a two-way pager issued by the police department.  The police officer had on several occasions exceeded the limit on the text messages provided by the department-paid plan.  Each time, the officer paid for the overage without anyone reviewing his text messages.  When the officer again exceeded the limit, his supervisor requested from the service provider and subsequently reviewed transcripts of the officer’s messages to determine if the messages were work-related.

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 November 1st deadline for compliance with the FTC’s Red Flags Rule Identity Theft Prevention Program requirements is rapidly approaching.  Of late, there has been a flurry of activity aimed at limiting the scope of the rule.  The Red Flags Rule, which was jointly promulgated by several federal agencies in November 2007, requires all “creditors” that offer or maintain a “covered account” to implement a written identity theft prevention program.  A “creditor” is defined broadly to include “any person who regularly extends, renews, or continues credit.”  In March 2009, the Federal Trade Commission (“FTC”) published a how-to guide for businesses to comply with the Red Flags Rule that confirmed the FTC will broadly construe the rule, stating that the definition of a “creditor” includes all businesses that “provide goods or services and bill customers later.”

The Federal Trade Commission is having a very busy week, announcing settlements in three high profile cases all before the close of business Tuesday.

The FTC today announced a settlement with MoneyGram International, Inc., the second largest provider of money transfer services in the U.S., which allegedly facilitated a host of fraudulent activities undertaken by telemarketers and other con artists.  The FTC charged that these practices violated both the FTC Act and the Telemarketing Sales Rule.  MoneyGram has agreed to pay $18 million into a fund that will be used to pay restitution to consumers for facilitating fraud on American consumers from Canada.  The $18 million settlement represents MoneyGram’s total return on $84 million in fraudulent transactions.  The settlement further requires implementation of a comprehensive anti-fraud program that is reminiscent of the Identity Theft Prevention Programs mandated by the FTC's Red Flags Rule, including employee training and ongoing monitoring to detect fraud.

On October 5, 2009, the Federal Trade Commission (“FTC”) issued amendments to its Guides for the Use of Endorsements and Testimonials in Advertising (“Guides”).  Reactions to the amendment have primarily focused on the provisions that require bloggers to disclose their relationship with companies whose products they endorse.  Largely absent from the commentary, however, have been observations regarding theories articulated in the amendments that demonstrate the risk of enforcement for companies that do not have a blog and that do not use third-party bloggers for promotion.

On October 6, 2009, the Federal Trade Commission (“FTC”) announced proposed settlement agreements with six companies over charges that they falsely claimed membership in the U.S. Department of Commerce Safe Harbor program.  In six separate complaints, the FTC alleged that ExpatEdge Partners LLC, Onyx Graphics, Inc., Directors Desk LLC, Collectify LLC, and Progressive Gaitways LLC deceived consumers by representing that they maintained current certifications to the Safe Harbor program when such certifications had previously lapsed.  The terms of the proposed settlement agreements prohibit the companies from misrepresenting their membership in any privacy, security or other compliance program.  The six enforcement actions are significant as they mark a considerable uptick in the FTC’s enforcement related to the Safe Harbor program. The FTC recently brought its first enforcement action relevant to the program, which is detailed in our post titled FTC's First Safe Harbor Enforcement Action.

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 May 5, 2009, the Federal Trade Commission’s ("FTC's") Acting Director of the Bureau of Consumer Protection, Eileen Harrington, testified before the House Energy and Commerce Committee Subcommittee on Commerce, Trade and Consumer Protection in support of the proposed federal Data Accountability and Trust Act (H.R. 2221).  The Act would require companies to implement reasonable data security policies and procedures to protect personal information.  It would also mandate security breach notifications for consumers affected by data security breaches.

At the eleventh hour, the Federal Trade Commission announced that it will once again delay enforcement of the Red Flags Rule.  The Red Flags Rule was promulgated pursuant to the Fair and Accurate Credit Transactions Act of 2003 ("FACTA").  The previous compliance date was May 1, 2009, which was an extension from the original deadline of November 1, 2008.  The new extension applies only to the provisions of the Rule requiring financial institutions and creditors to implement an identity theft prevention program.  The continuing enforcement delays respond to ongoing uncertainty about ...

On March 20, 2009, the Federal Trade Commission (“FTC”) published its long-awaited guide to the Red Flags Rule (the “Rule”), entitled “Fighting Fraud with Red Flags Rule:  A How-To Guide for Business.”  The guide applies to creditors and certain financial institutions (such as state-chartered credit unions and mutual funds that offer accounts with check-writing privileges) that are subject to the FTC’s jurisdiction and addresses the provision of the Rule that requires implementation of an Identity Theft Prevention Program.  For entities subject to the FTC’s jurisdiction, the relevant compliance deadline is May 1, 2009.  Financial institutions that are regulated by federal bank regulatory agencies or the National Credit Union Administration (which issues their own versions of the Red Flags Rule) were required to comply with the Rule as of November 1, 2008.

On March 20, 2009, the Federal Trade Commission published a Red Flags Rule compliance guide for businesses, entitled “Fighting Fraud with the Red Flags Rule.”  The guide offers an overview of the Rule and practical steps businesses need to take to comply.  In addition, the guide addresses the issue that has raised the most concern among businesses -- the Rule's scope.  As expected, the FTC is interpreting the Rule broadly, suggesting, for example, that any company that sells goods or services and bills customers later is a "creditor" subject to the Rule.  According to the guide ...