Privacy & Information Security Law Blog

On December 21, 2020, the European Data Protection Board (the “EDPB”) released its 2021-2023 Strategy (the “Strategy”). The Strategy aims at setting out the four main pillars of the EDPB strategic objectives through 2023 and key actions to help achieve those objectives:

On December 14, 2020, the Federal Trade Commission announced that it had issued orders to nine social media and video streaming companies, requesting information on how the companies collect, use and present personal information, their advertising and user engagement practices and how their practices affect children and teens. The orders will assist the FTC in conducting a study of these policies, practices and procedures. The FTC issued the orders pursuant to Section 6(b) of the FTC Act, which allows the agency to undertake broad studies separate from its law enforcement activities.

On December 15, 2020, the Irish Data Protection Commission (“DPC”) announced its fine of €450,000 against Twitter International Company (“Twitter”), following its investigation into a breach resulting from a bug in Twitter’s design. The fine is the largest issued by the Irish DPC under the EU General Data Protection Regulation (“GDPR”) to date and is also its first against a U.S.-based organization.

On December 10, 2020, the French Data Protection Authority (the “CNIL”) announced that it has levied fines of €60 million on Google LLC and €40 million on Google Ireland Limited under the French cookie rules for their alleged failure to (1) obtain the consent of users of the French version of Google's search engine (google.fr) before setting advertising cookies on their devices; (2) provide users with adequate information about the use of cookies; and (3) implement a fully effective opt-out mechanism to enable users to refuse cookies. On the same date, the CNIL announced that it has levied a fine of €35 million on Amazon Europe Core under the same rules for its alleged failure to (1) obtain the consent of users of the amazon.fr site before setting advertising cookies on their devices; and (2) provide adequate information about the use of cookies.

On December 2, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the UK Department for Digital, Culture, Media and Sport’s (“DCMS”) UK National Data Strategy  (“NDS”) consultation.

On December 1, 2020, the Cyberspace Administration of China released draft rules on the “Scope of Necessary Personal Information Required for Common Types of Mobile Internet Applications” (the “Draft Rules”) (in Chinese).

On November 25, 2020, the European Commission published its Proposal for a Regulation on European Data Governance (the “Data Governance Act”). The Data Governance Act is part of a set of measures announced in the 2020 European Strategy for Data, which is aimed at putting the EU at the forefront of the data empowered society. The European Commission also released a Questions & Answers document and a Factsheet on European data governance.

On November 27, 2020, New Mexico Attorney General Hector Balderas filed a notice of appeal to the U.S. Court of Appeals for the Tenth Circuit in the lawsuit it brought against Google on February 20, 2020, regarding alleged violations of the federal Children’s Online Privacy Protection Act (“COPPA”) in connection with G-Suite for Education (“GSFE”). As we previously reported, the U.S. District Court of New Mexico had granted Google’s motion to dismiss, in which it asserted that its terms governed the collection of data through GSFE and that it had complied with COPPA by using schools both as “intermediaries” and as the parent’s agent for parental notice and consent, in line with Federal Trade Commission Guidance.

On November 26, 2020, the French Data Protection Authority (the “CNIL”) announced that it imposed a fine of €2.25 million on Carrefour France and a fine of €800,000 on Carrefour Banque for various violations of the EU General Data Protection Regulation (“GDPR”) and Article 82 of the French Data Protection Act governing the use of cookies.

On November 23, 2020, the Dutch District Court of Midden-Nederland (the “Court”) determined that the concept of a legitimate interest for processing is broader than simply being an interest derived from law, overturning a fine by the Dutch data protection authority (the “Dutch DPA”).

On November 24, 2020, the European Parliament endorsed the new directive on representative actions for the protection of the collective interests of consumers (the “Collective Redress Directive”). The Collective Redress Directive requires all EU Member States to put in place at least one effective procedural mechanism allowing qualified entities to bring representative actions to court for the purpose of injunction or redress. The Collective Redress Directive was presented in April 2018 by the European Commission and is part of the European Commission’s New Deal for Consumers. The Collective Redress Directive was proposed as a response to several scandals related to breaches of consumers’ rights by multinational companies.

On December 3, 2020, Hunton Andrews Kurth will host a webinar on Machine Learning Hot Topics: Negotiating Global Data Protection and IP Terms. Join our Hunton speakers, Brittany Bacon, Tyler Maddry and Anna Pateraki, as they discuss key data protection and intellectual property considerations when drafting and negotiating global agreements involving machine learning (“ML”) services and engaging in new ML practices.

On November 18, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the Standing Committee of the National People’s Congress (“NPC”) of the People’s Republic of China on the Draft Personal Information Protection Law (“PIPL”).

On November 13, 2020, the UK Information Commissioner’s Office (“ICO”) fined Ticketmaster UK Limited (“Ticketmaster”) £1.25 million for failing to keep its customers’ personal data secure. The ICO found that Ticketmaster had failed to implement appropriate security measures to prevent a cyber attack, breaching the requirements of Articles 5(1)(f) and 32 of the EU General Data Protection Regulation (“GDPR”). The ICO acted as the lead supervisory authority with regard to the cross-border processing affected by this breach, and the penalty has been approved by the other EU data protection authorities through the GDPR’s cooperation process. Ticketmaster has indicated that it will appeal the fine.

On November 9, 2020, the Federal Trade Commission announced it had entered into an consent agreement (the “Proposed Settlement”) with Zoom Video Communications, Inc. (“Zoom”) to settle allegations that the video conferencing provider engaged in a series of unfair and deceptive practices that undermined the security of its user base, which, according to the FTC, has grown from 10 million users in December 2019 to 300 million in April 2020 during the COVID-19 pandemic.

On November 19, 2020, Hunton Andrews Kurth will host a webinar examining the recently approved California Privacy Rights Act (“CPRA”) and how it revises the California Consumer Privacy Act of 2018 (“CCPA”).

On October 27, 2020, the UK Information Commissioner’s Office (“ICO”) published a report following its investigation into data protection compliance in the direct marketing data broking sector, alongside its enforcement action against Experian. During the investigation, the ICO conducted audits of the direct marketing data broking businesses of the UK’s three largest credit reference agencies (“CRAs”) – Experian, Equifax and TransUnion – and found “significant data protection failures at each” that were “deeply embedded” within the businesses.

On November 3, 2020, California voters approved California Proposition 24, the California Privacy Rights Act (“CPRA”). As we previously reported, the CPRA significantly amends and expands upon the California Consumer Privacy Act of 2018, which became enforceable earlier this year. The new and modified obligations under the CPRA will become operative on January 1, 2023, and, with the exception of access requests, will apply to personal information collected by businesses on or after January 1, 2022. Notably, the CPRA establishes the California Privacy Protection Agency ...

On October 30, 2020, the UK Information Commissioner’s Office (“ICO”) announced its fine of £18.4 (approximately $23.9 million) issued to Marriott International, Inc., (“Marriott”) for violations of the EU General Data Protection Regulation (“GDPR”). This is a significant decrease from the proposed fine of £99,200,396 (approximately $124 million) announced by the ICO in July 2019. The ICO’s fine only relates to the breach from the point at which the GDPR came into force in May 2018, and is the second largest fine levied by the ICO thus far under the GDPR. Marriott has not admitted liability for the breach, but has indicated that it does not plan to appeal.

On October 27, 2020, the UK Information Commissioner’s Office (“ICO”) published its enforcement notice against credit reference agency Experian Limited (“Experian”) under Section 149 of the Data Protection Act 2018 (“DPA”) (the “notice”). The notice requires Experian to make fundamental changes to its offline direct marketing practices, and was issued after the ICO undertook a two-year investigation into the use of personal data by data broking businesses Experian, Equifax and TransUnion.

On October 29, 2020, the non-governmental organization co-founded by privacy activist Max Schrems, None of Your Business (“NOYB”), announced it can now file representative actions and claim damages on behalf of consumers for violations of various laws regarding consumer protection (including data protection law) in Belgium. Specifically, in a decision published in the Official Gazette on September 30, 2020, the Belgian Minister of Employment, Economy and Consumer Affairs approved NOYB as a qualified entity under the collective action scheme set forth in the Belgian ...

On October 22, 2020, the Consumer Financial Protection Bureau (“CFPB”) issued a notice of proposed rulemaking (the “Proposed Rule”) to implement Section 1033 of the Dodd-Frank Act (the “Act”) regarding consumers’ access to their financial information.

On October 1, 2020, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) issued an advisory alerting companies of potential sanctions risks related to facilitating ransomware payments.  The five-page advisory states that ransomware victims who pay ransom amounts, and third-party companies that negotiate or pay ransom on their behalf, “not only encourage future ransomware payment demands but also may risk violating OFAC regulations.”

On September 25, 2020, the District Court of New Mexico granted Google’s motion to dismiss a lawsuit filed on February 20, 2020, by New Mexico Attorney General Hector Balderas alleging, among other claims, that the company violated the federal Children’s Online Privacy Protection Act (“COPPA” or the “Act”) by using G Suite for Education to “spy on New Mexico students’ online activities for its own commercial purposes, without notice to parents and without attempting to obtain parental consent.”

In an op-ed recently published by The Richmond Times-Dispatch, former Governor of Virginia and Global Strategy Advisor of the Centre for Information Policy Leadership at Hunton Andrews Kurth Terry McAuliffe discusses why a U.S. federal privacy law is essential to economic recovery in the wake of the COVID-19 pandemic. McAuliffe highlights how the U.S., unlike other countries, lacks a comprehensive privacy law.

On September 17, 2020, Senator Roger Wicker (MS), Chairman of the Senate Commerce Committee, along with Senators John Thune (SD), Deb Fischer (NE) and Marsha Blackburn (TN) introduced the Setting an American Framework to Ensure Data Access, Transparency, and Accountability (SAFE DATA) Act (“the Bill”). The Bill marks an official introduction of an update of Senator Wicker’s draft United States Consumer Data Privacy Act of 2019, which was circulated last November.

UPDATE: On September 29, 2020, California Governor Gavin Newsom vetoed AB 1138.

On September 8, 2020, AB 1138, the Parent’s Accountability and Child Protection Act, was enrolled and presented to the California Governor for signature. If signed into law by the Governor, the bill would require a business that operates a social media website or application, beginning July 1, 2021, to obtain verifiable parental consent for California-based children that the business “actually knows” are under 13 years of age (hereafter, “Children”). The bill defines “social media” to mean an electronic service or account held open to the general public to post, on either a public or semi-public page dedicated to a particular user, electronic content or communication, including but not limited to videos, photos or messages intended to facilitate the sharing of information, ideas, personal messages or other content.

UPDATE: On September 25, 2020, California Governor Gavin Newsom vetoed SB-980.

On August 31, 2020, the California Senate joined the Assembly in passing SB-980, as amended, a bill to establish the Genetic Information Privacy Act (the “Act”), which would require direct-to-consumer genetic testing companies to comply with certain privacy and data security provisions, including providing consumers with prescribed notice; obtaining consumers’ express consent regarding the collection, use and disclosure of genetic data; and enabling consumers to access and delete their genetic data. The bill is pending California Governor Gavin Newsom’s signature.

On August 30, 2020, the California legislature passed AB-1281. As background, the California Consumer Privacy Act of 2018 (“CCPA”) currently exempts from most of its requirements certain information collected in the HR context and certain information collected about B2B personnel. Each exemption is scheduled to sunset on January 1, 2021. As we previously reported, the California Privacy Rights Act (“CPRA”) ballot initiative, if passed during the state’s November 3, 2020 general election, would extend the CCPA’s HR and B2B exemptions to January 1, 2023 ...

On August 14, 2020, the California Attorney General announced that the California Office of Administrative Law (“OAL”) approved the final regulations issued under the California Consumer Privacy Act of 2018 (“CCPA”) and filed them with the California Secretary of State. As we previously reported, the California Attorney General submitted the draft regulations to the OAL on June 1, 2020, and requested that the regulations become effective on the same day they are filed with the Secretary of State. The OAL has complied with that request, and the regulations go into effect ...

Earlier this year, The Retail Equation, a loss prevention service provider, and Sephora were hit with a class action lawsuit in which the plaintiff claimed Sephora improperly shared consumer data with The Retail Equation without consumers’ knowledge or consent. The plaintiff claimed The Retail Equation did so to generate risk scores that allegedly were “used as a pretext to advise Sephora that attempted product returns and exchanges are fraudulent and abusive.”

On July 27, 2020, the Enforcement Bureau of the Federal Communications Commission (the “FCC”) designated the Industry Traceback Group (“ITG”) as the FCC’s official consortium for coordinating efforts to trace illegal robocalls. The ITG is a collaboration of wireline, wireless, VoIP and cable industry companies, led by USTelecom, with the mission of tracing and identifying the source of illegal robocalls. According to the ITG, it conducted more than 1,000 trace-back operations in 2019 and unmasked the source of more than 10 million robocalls.

On Wednesday, July 22, the New York Department of Financial Services (the “NYDFS”) announced that it had filed administrative charges against First American Title Insurance Co. under the NYDFS Cybersecurity Regulation, marking the agency’s first enforcement action since the rules went into effect in March 2017.

On June 24, 2020, the Washington State Attorney General (“Washington AG”) announced that it had settled an enforcement action against the owners of the “We Heart It” social media platform for alleged violations of the Children’s Online Privacy Protection Act (“COPPA”) and the Washington State Consumer Protection Act. Under the consent decree, the defendants must pay $100,000, with an additional $400,000 suspended contingent upon compliance with the consent decree.

On July 1, 2020, the California Consumer Privacy Act of 2018 (“CCPA”) became enforceable by the California Attorney General. Under the statute, businesses are granted 30 days to cure any alleged violations of the law after being notified of alleged noncompliance. If a business fails to cure the alleged violation, it may be subject to an injunction and liable for a civil penalty of up to $2,500 for each violation or $7,500 for each intentional violation.

According to a memorandum issued by the California Secretary of State on June 24, 2020, the California Privacy Rights Act (“CPRA”) has garnered enough signatures to be placed on the State’s General Election ballot this November 3, 2020. As we previously reported, the CPRA would amend the California Consumer Privacy Act of 2018 (“CCPA”) to create new and additional privacy rights and obligations in California. According to early polling by Californians for Consumer Privacy (the group behind the CPRA), nine in 10 Californians would vote to support a ballot measure ...

On June 9, 2020, the Federal Communications Commission (“FCC”) announced a proposed $225 million fine, the largest in the history of the FCC, against several individuals for telemarketing violations.

On May 4, 2020, Californians for Consumer Privacy (the group behind the ballot initiative that inspired the California Consumer Privacy Act of 2018 (“CCPA”)) announced that it had collected over 900,000 signatures to qualify the California Privacy Rights Act (“CPRA”) for the November 2020 ballot. The group announced that it was taking steps to submit the CPRA for inclusion on the November ballot in counties across California. The CPRA would amend the CCPA to create new and additional privacy rights and obligations in California, including the following:

On April 30, 2020, Senator Roger Wicker (MS), Chairman of the Senate Commerce Committee, along with Senators John Thune (SD), Jerry Moran (KS) and Marsha Blackburn (TN), announced plans to introduce the COVID-19 Consumer Data Protection Act of 2020 (“the bill”), which would put temporary rules in place regarding the collection, processing and transfer of data used to combat the spread of the coronavirus. The bill would only apply during the course of the COVID-19 Public Health Emergency as declared by the Secretary of Health and Human Services, and would only apply to specific uses of certain personal data.

California Attorney General (“AG”) Xavier Becerra recently issued an alert emphasizing the rights of California consumers under the California Consumer Privacy Act (“CCPA”) during the COVID-19 pandemic. The alert follows media reports that the AG’s office is “committed to enforcing the law upon finalizing the rules or [by] July 1, whichever comes first,” even with the “new reality created by COVID-19.”

On April 14, 2020, the Indiana Attorney General’s office announced that the state had reached a settlement agreement with Equifax in connection with Equifax’s 2017 data breach. Under the terms of the settlement, Equifax will pay a $19.5 million penalty. Indiana previously elected not to participate in a July 2019 multistate and Federal Trade Commission settlement with Equifax regarding the same data breach.

As of early April, hundreds of millions of workers around the world have been affected by “stay-at-home” or “station-in-place” orders issued by governments in response to the COVID-19 pandemic. To cope, transaction processors are shifting work out of their high-security delivery centers and into the spare bedrooms and home offices of their personnel. That shift creates security challenges that have chief information security officers’ (“CISOs’”) heads spinning. Specifically, special challenges are created when work-from-home (“WFH”) orders affect payment cardholder data that is subject to the Payment Card Industry’s Data Security Standard (“PCI DSS”).

Listen as Phyllis H. Marcus, partner at Hunton Andrews Kurth and Co-Chair of the ABA Antitrust Law Section’s Privacy and Information Security Committee, speaks about the privacy concerns over using smart devices on the ABA’s Our Curious Amalgam podcast, Is Your Assistant Spying on You? Understanding the Privacy Law Issues Involving In-Home Assistants.

On April 2, 2020, Hunton Andrews Kurth LLP will host a webinar on the California Consumer Privacy Act (“CCPA”): The CCPA Is Here—Are You Litigation-Ready? Most companies have now developed a framework for compliance with the CCPA. Having a compliance program in place is critical, and that includes preparing for the inevitable onslaught of class action litigation that is coming.

The Spanish Data Protection Authority (the “AEPD”) recently published a report on data processing activities carried out by data controllers in the private and public sectors as a result of the spread of the COVID-19 virus (the “Report”).

On March 21, 2020, the data security provisions of New York’s Stop Hacks and Improve Electronic Data Security Act (“SHIELD Act”) went into effect. The SHIELD Act requires any person or business owning or licensing computerized data that includes the private information of a resident of New York (“covered business”) to implement and maintain reasonable safeguards to protect the security, confidentiality and integrity of the private information.

On March 12, 2020, the Washington State Legislature passed SB 6280, which establishes safeguards for the use of facial recognition technology by state and local government agencies. Its stated goal is to allow the use of facial recognition services in ways that benefit society, but prohibit uses that put freedoms and civil liberties at risk.

On March 10, 2020, the Vermont Attorney General filed a lawsuit against Clearview AI (“Clearview”), alleging that Clearview violated Vermont’s consumer protection law and data broker law. We previously reported on Vermont’s data broker law, which was the first data broker legislation in the U.S.

On March 12, 2020, Senator Jerry Moran (KS) introduced a comprehensive federal privacy bill entitled the Consumer Data Privacy and Security Act of 2020 (the “Act”).

Hunton’s Centre for Information Policy Leadership (“CIPL”) reports on the top privacy-related priorities for this year:

1.  Global Convergence and Interoperability between Privacy Regimes

Around the world, new privacy laws are coming into force and outdated laws continue to be updated: the EU General Data Protection Regulation (“GDPR”), Brazil’s Lei Geral de Proteção de Dados Pessoais (“LGPD”), Thailand’s Personal Data Protection Act, India’s and Indonesia’s proposed bills, California’s Consumer Privacy Act (“CCPA”), and the various efforts in the rest of the United States at the federal and state levels. This proliferation of privacy laws is bound to continue.

The meaning of an “automatic telephone dialing system” (“ATDS”) as defined by the Telephone Consumer Protection Act (“TCPA”) has been hotly contested since the D.C. Circuit invalidated the prior Federal Communications Commission (“FCC”) rulings interpreting the TCPA in 2018. The Ninth Circuit has held that merely calling numbers from a stored list is sufficient to meet the definition of an ATDS, while the Third Circuit has at least indicated that the ability to generate numbers randomly or sequentially is the defining characteristic.

At this point, most companies doing business in California are aware of the California Consumer Privacy Act (“CCPA”), and most have been bracing for the eventual onslaught of class action litigation to follow its passage.

On February 1, 2020, the Italian Data Protection Authority (Garante per la protezione dei dati personali, the “Garante”) announced that it had levied a fine of €27,802,946 on TIM S.p.A. (“TIM”), a telecommunications company, for several unlawful marketing data processing practices. Between 2017 and 2019, the Garante received numerous complaints from individuals (including from individuals who were not existing customers of TIM) claiming that they had received unwanted marketing calls, without having provided their consent or despite having registered on an opt-out list. The Garante indicated that the violations impacted several million individuals.

On January 16, 2020, the Federal Trade Commission announced that settlements with five companies of separate allegations that they had falsely claimed certification under the EU-U.S. Privacy Shield framework had been finalized.

2019 was the “Year of the CCPA” as companies around the world worked tirelessly to comply with the California Consumer Privacy Act of 2018 (“CCPA”). The CCPA aims to provide data privacy rights for California residents and imposes significant new requirements on covered businesses.

On January 8, 2020, the Information Commissioner's Office (“ICO”) launched a consultation on its draft direct marketing code of practice (the “Draft Code”), as required by section 122 of the Data Protection Act 2018 (“DPA 18”). The Draft Code is open for public consultation until March 4, 2020.

On January 6, 2020, the Federal Trade Commission announced that it granted final approval to a settlement with InfoTrax Systems, L.C. and its former CEO, Mark Rawlins, related to allegations that InfoTrax failed to implement reasonable, low-cost and readily available security safeguards to protect the personal information the company maintained on behalf of its business clients.

In a January 6, 2020 blog post, the Director of the Federal Trade Commission’s Bureau of Consumer Protection reflected on how the FTC has taken action over the past year to strengthen its orders in data security cases. These orders have been a subject of focus for the FTC: in June 2018, the 11th Circuit’s LabMD decision struck down an FTC data security order as unenforceably vague, and the FTC subsequently held a hearing in the course of the FTC’s Hearings on Competition and Consumer Protection in the 21st Century on how it could improve data security orders.

On December 18, 2019, the House Energy and Commerce Committee released a bipartisan staff-level draft privacy bill (“the bill”). While comprehensive in scope, much of the key language in the bill was left in brackets, meaning the two sides have not yet reached a compromise on final language.

On December 6, 2019, the Federal Trade Commission announced its Final Order and Opinion in the matter of Cambridge Analytica, LLC, finding that Cambridge Analytica violated the FTC Act’s Section 5 prohibition against “unfair or deceptive acts or practices” when harvesting personal information through its “GSRApp” Facebook application.

On December 3, 2019, the Federal Trade Commission announced that it had reached settlements in four separate Privacy Shield cases. Specifically, the FTC alleged that Click Labs, Inc., Incentive Services, Inc., Global Data Vault, LLC, and TDARX, Inc. each falsely claimed to participate in the EU-U.S. Privacy Shield framework. The FTC also alleged that Click Labs and Incentive Services falsely claimed to participate in the Swiss-U.S. Privacy Shield framework and that Global Data and TDARX continued to claim participation in the EU-U.S. Privacy Shield after their Privacy Shield certifications lapsed. The complaints further alleged that Global Data and TDARX failed to comply with the Privacy Shield framework, including by failing to (1) verify annually that statements about their Privacy Shield practices were accurate, and (2) affirm that they would continue to apply Privacy Shield protections to personal information collected while participating in the program.

On November 29, 2019, Senator Roger Wicker (MS), Chairman of the Senate Commerce Committee, circulated a draft of a comprehensive federal privacy bill entitled the United States Consumer Data Privacy Act of 2019 (“the Bill”).

On November 26, 2019, Senate Commerce Committee Ranking Member Maria Cantwell (WA), alongside Senators Brian Schatz (HI), Amy Klobuchar (MN) and Ed Markey (MA), unveiled a new comprehensive federal privacy bill entitled the Consumer Online Privacy Rights Act (“COPRA”).

The bill would create a new bureau within the Federal Trade Commission  focusing on privacy and data security to enforce the law and promulgate new rules and regulations in the space. It also would provide enforcement authority for state attorneys general as well as a private right of action. It would preempt only state laws that “directly conflict with the provisions of the Act,” and specifically notes that state laws that afford a “greater level of protection to individuals” would not be considered in direct conflict.

On November 18, 2019, the ranking members from four Senate Committees (Senator Maria Cantwell (WA) from Commerce, Senator Dianne Feinstein (CA) from Judiciary, Senator Sherrod Brown (OH), and Senator Patty Murray (WA) from Health, Education, Labor and Pensions) released a set of “core principles” for federal privacy legislation.

On November 19, 2019, the Federal Trade Commission announced that Medable, Inc. (“Medable”) agreed to settle allegations that the company had misrepresented its participation in the EU-U.S. Privacy Shield program. The FTC alleged that, from December 2017 to October 2018, Medable falsely claimed in its online privacy policy that it was a certified participant in the EU-U.S. Privacy Shield framework and adhered to the framework’s principles. According to the complaint, although Medable did initiate an application with the Department of Commerce in December 2017, the company never completed the steps necessary to participate in the framework.

The European Data Protection Board recently published on its website that the Austrian Data Protection Authority (“Austrian DPA”) imposed an €18 million fine (approximately $20 million) on the Austrian Postal Service, Österreichische Post AG (“ÖPAG”), for various violations of the EU General Data Protection Regulation (“GDPR”). After conducting an investigation, the Austrian DPA established that ÖPAG unlawfully processed and sold data with respect to its customers’ alleged political affinities. Another GDPR violation was related to the ÖPAG’s ...

On October 21, 2019, the Federal Trade Commission took action against two companies alleged to have engaged in the business of false online reviews and social media influence. In the first case, the FTC entered into a consent decree with cosmetics marketer Sunday Riley, LLC, and the company’s owner, who sell products at Sephora stores and online at Sephora.com. According to the FTC’s complaint, disguised as ordinary consumers, Sunday Riley employees and Ms. Riley herself posted fake 5-star reviews of the company’s products on Sephora’s website. Under the terms of the FTC’s agreement, the company and its principal are barred from posting fake reviews, must clearly identify endorsers, and must instruct staff on their disclosure obligations. The FTC vote on the action was 3-2, with Commissioners Chopra and Slaughter dissenting on the grounds that the settlement did not include a monetary payment or an admission of guilt.

On October 22, 2019, the Federal Trade Commission announced that, for the first time, it has brought a case against a developer of “Stalking” Apps. The agency alleges that Retina-X Studios, and its owner, James N. Johns, Jr., developed and marketed three apps that allowed purchasers to surreptitiously monitor the movements and online activities of users of devices on which the apps were installed without the knowledge or permission of the device’s user. The FTC also alleges that the app developer took steps to ensure that a device user would not be aware that the app had been installed, bypassing mobile device manufacturers’ security restrictions and leaving the device vulnerable to cybersecurity risks. The apps were marketed as tools for monitoring the behavior of employees and children. The FTC further alleges that the app developer issued policies that made inaccurate representations regarding the security of their online systems, which were recently found to have been hacked twice during earlier incidents.

On October 11, 2019, California Governor Gavin Newsom signed into law AB 1130, which expands the types of personal information covered by California’s breach notification law to include, when compromised in combination with an individual’s name: (1) additional government identifiers, such as tax identification number, passport number, military identification number, or other unique identification number issued on a government document commonly used to verify the identity of a specific individual; and (2) biometric data generated from measurements or technical analysis of human body characteristics (e.g., fingerprint, retina, or iris image) used to authenticate a specific individual. Biometric data does not include a physical or digital photograph unless used or stored for facial recognition purposes.

On September 24, 2019, Alastair Mactaggart, drafter of the 2018 California ballot initiative that served as the basis for the California Consumer Privacy Act of 2018 (“CCPA”), announced that he is filing a new initiative for California’s November 2020 ballot, the California Privacy Enforcement Act (“CPEA”).

California marked the end of the 2019 legislative session this past Friday, September 13, by passing five out of six pending bills to amend the California Consumer Privacy Act of 2018 (“CCPA”). The bills – AB-25, AB-874, AB-1146, AB-1355 and AB-1564 – now head to California Governor Newsom’s desk for signature, which must occur by October 13 for the bills to be signed into law. The only pending bill not to pass was AB-846, which would have addressed the law’s application to customer loyalty programs; it was ordered to the inactive file at the request of Senator Jackson.

As an update to our previous blog posts, the FTC announced that it and the New York Attorney General reached a $170 million agreement with Google to resolve allegations that the company violated COPPA through its YouTube platform. Under the agreement, Google will pay $136 million to the FTC and $34 million to New York. The FTC voted 3-2 to authorize the action.

On August 29, 2019, the Maryland Insurance Administration issued new breach notification requirements for entities that provide health insurance or related services. The new requirements will apply to insurers, non-profit health plans, HMOs, third-party administrators, and certain other managed care entities. The new rules will take effect on October 1, 2019.

As an update to our previous blog post, according to media reports, Google has reached a settlement with the FTC in the range of $150 to $200 million over the agency’s investigation into the company’s alleged violations of COPPA through its YouTube platform. The settlement has not been announced by the FTC or Google, and the details of the settlement have not been made publicly available. These reports follow Google’s announcement earlier this week that it has created a separate YouTube Kids site, which will include different content for different age groups. This news also ...

On August 8, 2019, the FTC announced that Unrollme Inc. (“Unrollme”), an email management company, agreed to settle allegations the company deceived consumers about how it accesses and uses their personal emails. Unrollme offered users a service whereby the company would help unsubscribe users from unwanted subscription emails. In connection with this service, Unrollme required users to provide the company with access to their email accounts. The FTC alleged that Unrollme falsely told consumers it would not “touch” their personal emails. In fact, the FTC alleged, Unrollme shared its users’ email receipts (“e-receipts”) (i.e., emails sent to consumers following a completed transaction) with its parent company, Slice Technologies, Inc. The FTC’s complaint alleged that the parent company used information from the e-receipts (such as the user’s name, address, and information about products or services the individual purchased) for purposes of its own market research analytics products.

In addition to Facebook’s record-breaking Federal Trade Commission penalty and settlement order, on July 24, 2019, the Securities and Exchange Commission announced charges against Facebook for inadequate and misleading disclosures over its privacy practices. Facebook, without admitting or denying the SEC’s allegations, has agreed to the entry of a final judgment ordering a fine of $100 million.

As previously reported on July 12, 2019, Facebook will pay a $5 billion penalty to the Federal Trade Commission to resolve a privacy probe into whether Facebook violated a prior FTC consent decree requiring the company to better protect user privacy. The $5 billion penalty is the largest imposed on any company for violating consumers’ privacy – nearly 20 times the largest privacy or data security penalty to date.

On July 22, 2019, the Federal Trade Commission announced that Equifax Inc. (“Equifax”) agreed to pay at least $575 million, and potentially up to $700 million, as part of a global settlement agreement with the FTC, the Consumer Financial Protection Bureau (“CFPB”), and 48 U.S. states and territories to resolve investigations into the colossal data breach the company suffered in 2017. This is the largest data breach settlement in U.S. history.

According to media reports, the Federal Trade Commission has approved a multimillion dollar fine as part of a settlement with Google related to the FTC’s investigation into YouTube’s children’s data privacy practices. The FTC found that, in violation of COPPA, Google had failed to adequately protect children under 13 who used the video-streaming service and improperly collected their data.

A number of bills to amend the California Consumer Privacy Act of 2018 (“CCPA”) are still pending before the California legislature. Of particular interest to many businesses is AB 25. AB 25 would exempt from the CCPA’s application “[p]ersonal information collected by a business about a natural person in the course of the natural person acting as a job applicant to, an employee of, owner of, director of, officer of, medical staff member of, or contractor of that business” if the personal information is collected and used by the business solely within the context of the person’s role or former role as a job applicant to, an employee of, owner of, director of, officer of, medical staff member of, or a contractor of that business. The bill also would exempt from the CCPA’s application emergency contact information of these exempted categories of individuals and information necessary to administer benefits for persons related to such individuals.  Notably, AB 25 does not appear to exempt business-to-business customer representatives or representatives of other third-party business partners.  AB 25 also would authorize a business to require authentication of a consumer that is reasonable in light of the nature of the personal information requested. The bill further would authorize a business to require a consumer to submit the consumer’s verifiable request through the consumer’s account, where the consumer maintains an account with the business.

According to media reports, the Federal Trade Commission has approved a roughly $5 billion settlement with Facebook, Inc. to resolve a privacy probe investigating whether Facebook had violated a prior FTC consent decree requiring the company to better protect user privacy. The investigation followed reports that Cambridge Analytica improperly accessed the personal data of 87 million Facebook users.

On July 11, 2019, Washington Attorney General Bob Ferguson announced that his office had entered into a consent decree and $10 million settlement with Premera Blue Cross (“Premera”) that stems from a 2014-2015 breach that affected more than 11 million individuals. The settlement, which includes a payment of roughly $5.4 million to Washington state and $4.6 million to a coalition of 29 other state Attorneys General (the “Multistate AGs”), is one of the largest ever for a breach involving protected health information (“PHI”) and comes just one month after another notable HIPAA settlement involving a similar coalition of state AGs.

On July 2, 2019, the Federal Trade Commission announced a case involving the operator of an online rewards website who allegedly failed to take reasonable steps to secure consumers’ personal data.

On June 14, 2019, the Federal Trade Commission announced that it has taken action against a number of companies that allegedly misrepresented their compliance with the EU-U.S. and Swiss-U.S. Privacy Shield frameworks (collectively, the “Privacy Shield”) and other international privacy agreements.

Arizona Attorney General Mark Brnovich recently announced a settlement with healthcare software provider Medical Informatics Engineering Inc. (“MIE”) and its wholly owned subsidiary NoMoreClipboard, LLC. The settlement resolves a multistate litigation arising out of a May 2015 data breach in which hackers infiltrated WebChart, a web application run by MIE, and stole the electronic Protected Health Information (“ePHI”) of over 3.9 million individuals. Arizona and 15 other states (the “Multistate AGs”) filed the suit in December 2018, asserting claims under the federal Health Insurance Portability and Accountability (“HIPAA”) as well as various applicable state data protection laws. Notably, the lawsuit was the first-ever multistate litigation alleging claims under HIPAA.

On May 24, 2019, Oregon Governor Kate Brown signed Senate Bill 684 (the “Bill”) into law. The Bill, which takes effect January 1, 2020, amends the Oregon Consumer Identity Theft Protection Act (“OCITPA”) by enhancing the breach notification requirements applicable to third-party vendors.

On June 4, 2019, Hunton hosted a webinar with partners Lisa Sotto, Aaron Simpson, Brittany Bacon and Fred Eames on the evolving U.S. privacy landscape. The past year has seen highly consequential legislative developments in U.S. privacy law affecting compliance obligations for businesses that have or use consumer data. Various states and the U.S. Congress are considering bills that could transform privacy in the United States. In this program, our speakers discuss the California Consumer Privacy Act of 2018 (“CCPA”) and other significant state and federal privacy legislation.

On May 29, 2019, Nevada’s governor approved SB 220 (the “Amendment Bill”), which provides amendments to an existing law that requires operators of websites and online services (“Operators”) to post a notice on their website regarding their privacy practices. The Amendment Bill will require Operators to establish a designated request address through which a consumer may submit a verified request directing the Operator not to make any “sale” of covered information collected about the consumer. Pursuant to the Amendment Bill, Operators must respond to a verified opt-out request within 60 days of receipt.

On May 16, 2019, the California State Senate Appropriations Committee did not approve SB 561, a bill that would have amended the California Consumer Privacy Act (“CCPA”) to expand the private right of action to permit consumers to sue for any violations of the CCPA. The Committee’s decision to hold the bill means it will not pass out of the Senate this session.

As reported by Bloomberg Law, on May 7, 2019, Washington State Governor Jay Inslee signed a bill (HB 1071) amending Washington’s data breach notification law. The new requirements include the following:

• Expanded Definition of Personal Information. HB 1071 expands the definition of “personal information.” Washington’s breach notification law previously defined personal information as an individual’s name in combination with the individual’s Social Security number, state identification card number, or financial account or credit or debit card number in combination with any required security code, access code or password that would permit access to an individual’s financial account. HB 1071 adds the following data elements to the definition, when compromised in combination with an individual’s name:
  • full date of birth;
  • private key that is unique to an individual and that is used to authenticate or sign an electronic record;
  • student, military or passport identification number;
  • health insurance policy number or health insurance identification number;
  • any information about a consumer’s medical history or mental or physical condition or about a health care professional’s medical diagnosis or treatment of the consumer; or
  • biometric data generated by automatic measurements of an individual’s biological characteristics such as a fingerprint, voiceprint, eye retinas, irises or other unique biological patterns or characteristics that is used to identify a specific individual.

In late April, the California state legislature’s Privacy and Consumer Protection Committee held hearings on nine bills that seek to refine the California Consumer Privacy Act of 2018 (“CCPA”) by clarifying the legislation and limiting its scope. Eight bills advanced to the Assembly Appropriations Committee; the ninth is non-fiscal and will next be heard by the full Assembly. Last week, the California Assembly Appropriations Committee approved three of the bills. These bills, now on the Assembly’s “Consent Calendar,” will be heard this week. The Appropriations Committee will hold hearings on the other five bills in the next two weeks.

From the Assembly’s Appropriations Committee, bills must go through the full Assembly, the California Senate and the California governor to be enacted as law.

On April 24, 2019, the Federal Trade Commission announced two data security cases involving online operators—one, an online rewards website, and the second, a dress-up games website—that were alleged to have failed to take reasonable steps to secure consumers’ data, which allowed hackers to breach both websites.

Hunton Andrews Kurth LLP is pleased to announce the launch of a dedicated site focused on the California Consumer Privacy Act of 2018 (“CCPA”), which serves as a resource for businesses to understand and prepare to comply with the CCPA. Transformative in nature, the CCPA will impact most businesses that process the personal information of California residents, and is likely to set the stage for a wider shift in standards on data privacy across the United States.

During the week of April 1, 2019, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP hosted its annual executive retreat in Washington, D.C. (the “Retreat”). During the Retreat, CIPL held a full-day working session on evolving technologies and a new U.S. privacy framework followed by a closed members only half-day roundtable on global privacy trends with special guest Helen Dixon, Data Protection Commissioner of Ireland.

On February 22, 2019, California state senator Hannah Beth-Jackson introduced a bill (SB-561) that would amend the California Consumer Privacy Act of 2018 (“CCPA”) to expand the Act’s private right of action and remove the 30-day cure period requirement for enforcement actions brought by the State Attorney General. The bill would not change the compliance deadline for the CCPA, which remains January 1, 2020. California Attorney General Xavier Becerra supports the amendment bill, characterizing it as “a critical measure to strengthen and clarify the CCPA.”

On February 27, 2019, the U.S. Senate Committee on Commerce, Science and Transportation will hold a hearing titled “Privacy Principles for a Federal Data Privacy Framework in the United States.” The hearing will focus on potential Congressional action to “address risks to consumers and implement data privacy protections for all Americans.” Committee Chairman Sen. Roger Wicker described the hearing as an opportunity to “help set the stage for meaningful bipartisan legislation.”

On January 10, 2019, Massachusetts Governor Charlie Baker signed legislation amending the state’s data breach law. The amendments take effect on April 11, 2019.

In connection with its hearings on data security, the Federal Trade Commission hosted a December 12 panel discussion on “The U.S. Approach to Consumer Data Security.” Moderated by the FTC’s Deputy Director for Economic Analysis James Cooper, the panel featured private practitioners Lisa Sotto, from Hunton Andrews Kurth, and Janis Kestenbaum, academics Daniel Solove (GW Law School) and David Thaw (University of Pittsburgh School of Law), and privacy advocate Chris Calabrese (Center for Democracy and Technology). Lisa set the stage with an overview of the U.S. data security framework, highlighting the complex web of federal and state rules and influential industry standards that result in a patchwork of overlapping mandates. Panelists debated the effect of current law and enforcement on companies’ data security programs before turning to the “optimal” framework for a U.S. data security regime. Among the details discussed were establishing a risk-based approach with a baseline set of standards and clear process requirements. While there was not uniform agreement on the specifics, the panelists all felt strongly that federal legislation was warranted, with the FTC taking on the role of principal enforcer.

On December 4, 2018, the Federal Trade Commission published a notice in the Federal Register indicating that it is seeking public comment on whether any amendments should be made to the FTC’s Identity Theft Red Flags Rule (“Red Flags Rule”) and the duties of card issuers regarding changes of address (“Card Issuers Rule”) (collectively, the “Identity Theft Rules”). The request for comment forms part of the FTC’s systematic review of all current FTC regulations and guides. These periodic reviews seek input from stakeholders on the benefits and costs of specific FTC rules and guides along with information about their regulatory and economic impacts.

The Federal Trade Commission published the agenda for the ninth session of its Hearings on Competition and Consumer Protection in the 21st Century (“Hearings Initiative”), a wide-ranging series of public hearings. The ninth session, to take place on December 11-12, 2018, will focus on data security. Lisa Sotto, chair of Hunton Andrews Kurth’s Privacy and Cybersecurity practice, is one of five panel participants discussing “The U.S. Approach to Consumer Data Security.” The panel will be moderated by James Cooper, Deputy Director for Economic Analysis of the FTC’s ...