Privacy & Information Security Law Blog

On November 7, 2024, the Commission Implementing Regulation 2024/2690 laying down rules for the application of the NIS2 Directive as regards technical and methodological requirements of cybersecurity risk-management measures and further specification of the cases in which an incident is considered to be significant with regard to certain digital service providers entered into force.

The Supreme Judicial Court of Massachusetts, the state’s highest appellate court, recently held that website operators’ use of third-party tracking software, including Meta Pixel and Google Analytics, is not prohibited under the state’s Wiretap Act.

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

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

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

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

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

On October 24, 2024, the Irish Data Protection Commission announced that it had issued a fine of 310 million euros against LinkedIn Ireland Unlimited Company for breaches of the EU GDPR related to transparency, fairness and lawfulness in the context of the company’s processing of its users’ personal data for behavioral analysis and targeted advertising.

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

October 17, 2024, is the final day for EU Member States to implement the necessary measures for transposing the NIS2 Directive into their national laws.

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

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

On October 3, 2024, Texas Attorney General Ken Paxton announced a lawsuit against TikTok for operating its platform in violation of the Texas Secure Children Online through Parental Empowerment Act.

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 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 28, 2024, California Governor Gavin Newsom signed into law a pair of bills that amend the California Consumer Privacy Act of 2018 by defining neural data as sensitive personal information and specifying that personal information can exist in various formats.

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

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

On September 13, 2024, the Colorado Department of Law issued proposed draft amendments to the Colorado Privacy Act (“CPA”) Rules and a notice of proposed rulemaking addressing biometric data, minors’ online privacy, and a framework for opinion letters and interpretative guidance.

On August 29, 2024, the California State Assembly passed California bill AB-1949, following the bill’s passage in the California State Senate. If enacted, AB-1949 would amend the California Consumer Privacy Act (as amended by the California Privacy Rights Act) to significantly expand privacy protections concerning the personal information of consumers under the age of 18.

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

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

On July 30, 2024, New York Attorney General Letitia James announced the Office of the AG’s publication of two privacy guides, one for businesses and one for consumers, both focused on the use of website tracking technologies.

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

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

On June 29, 2024, Rhode Island enacted the Rhode Island Data Transparency and Privacy Protection Act after Governor Daniel McKee transmitted the act back to the legislature without signature. The RIDTPPA will take effect on January 1, 2026.

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

On May 24, 2024, Governor Tim Walz signed H.F. 4757 into law, enacting the Minnesota Consumer Data Privacy Act. The MNCDPA will take effect on July 31, 2025. 

On May 10, 2024, the Vermont legislature passed HB 121, which was delivered to Governor Phil Scott for signature. HB 121 will enact the Vermont Data Privacy Act, the Vermont Data Broker Security Breach Notice Act and the Vermont Age-Appropriate Design Code.

The Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth recently released a report on Enabling Beneficial and Safe Uses of Biometric Technology Through Risk-Based Regulations (the “Report”).  The Report examines global laws and regulations that target biometric data and encourages adoption of a risk-based approach.  According to the Report, biometric technology applications are growing and can provide societal and economic benefits. However, there are recognized concerns over potential harms for individuals and their rights, and data protection and privacy laws are increasingly targeting the collection and use of biometric data.

On April 9, 2024, Representatives Tim Walberg (R-MI) and Kathy Castor (D-FL) introduced the Children and Teens’ Online Privacy Protection Act (“COPPA 2.0.”) The bill serves as a companion to the Senate bill by the same name.

On April 12, 2024, the UK Information Commissioner’s Office (“ICO”) launched the third installment in its consultation series examining how data protection law applies to the development and use of generative AI. This installment focuses on how the data protection principle of accuracy applies to the outputs of generative AI models, and the impact that accurate training data has on the output. The two previous installments discussed the lawful basis for web scraping to train generative AI models, and purpose limitation in the generative AI lifecycle. 

On April 2, 2024, the California Privacy Protection Agency (“CPPA”) Enforcement Division issued its first Enforcement Advisory, titled “Applying Data Minimization to Consumer Requests.”  The purpose of this Enforcement Advisory is to address the CPPA Enforcement Division’s observation that some businesses are asking consumers “to provide excessive and unnecessary personal information in response to requests that consumers make under the CCPA.” The Enforcement Advisory serves as a reminder to businesses to apply the data minimization principle to each purpose for which they collect, use, retain and share consumers’ personal information, including information that businesses collect when processing consumers’ CCPA requests.  The Enforcement Advisory provides further guidance on how businesses may comply with the principle, noting, however, that in general, Enforcement Advisories “do not implement, interpret or make specific the law enforced or administered by the [CPPA], establish substantive policy or rights, constitute legal advice or reflect the views of the [CPPA]’s Board.” The Advisory notes several other caveats, reiterating the general point that  Enforcement Advisories do not have the force of law or safe harbor for CCPA compliance purposes.  However, the guidance provides illustrative hypotheticals and substantive insight into how the CPPA may approach enforcement in certain areas and “encourages” businesses to voluntarily comply with the law.

On March 25, 2024, Florida Governor Ron DeSantis signed into law a bill prohibiting minors under the age of 14 from having accounts on social media platforms.

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 1, 2024, the Virginia legislature passed S.B. 361 (the “Bill”), which amends the Virginia Consumer Data Protection Act to introduce new protections for children’s privacy. If signed by the Virginia Governor, the new children’s privacy protections will go into effect on January 1, 2025.

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

On 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.” 

As reported on the Hunton Employment & Labor Perspectives blog, on February 15, 2024, California lawmakers introduced the bill AB 2930. AB 2930 seeks to regulate use of artificial intelligence (“AI”) in various industries to combat “algorithmic discrimination.” The proposed bill defines “algorithmic discrimination” as a “condition in which an automated decision tool contributes to unjustified differential treatment or impacts disfavoring people” based on various protected characteristics including actual or perceived race, color, ethnicity, sex, national origin, disability and veteran status. 

On February 12, 2024, California bill AB-1949 was referred to the Assembly Committee on Privacy and Consumer Protection. The bill would amend the California Consumer Privacy Act (as amended by the California Privacy Rights Act) (the “CCPA”) to significantly expand businesses’ obligations with respect to the personal information of consumers under the age of 18.

On February 21, 2024, the California Attorney General announced that it had reached a settlement resolving an enforcement action under the California Consumer Privacy Act (“CCPA”) and the California Online Privacy Protection Act (“CalOPPA”) brought against online food delivery company  DoorDash, Inc. (the “Company”). This is the AG’s second CCPA enforcement settlement, following the agency’s settlement with Sephora.

On February 9, 2024, a California state court of appeal ruled in favor of the California Privacy Protection Agency (“CPPA”) and vacated the lower court order postponing enforcement of the CPPA’s final regulations under the California Consumer Privacy Act.

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.

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

On November 28, 2023, the New York Department of Financial Services (“NYDFS”) announced that First American Title Insurance Company (“First American”), the second-largest title insurance company in the United States, would pay a $1 million penalty for violations of the NYDFS Cybersecurity Regulation in connection with a 2019 data breach. The NYDFS investigated the company’s response to the data breach and alleged that First American knew of a vulnerability in its technical systems that exposed consumers’ non-public information, but failed to investigate or ...

On November 27, 2023, the California Privacy Protection Agency (“CPPA”) published its draft regulations on automated decisionmaking technology (“ADMT”). The regulations propose a broad definition for ADMT that includes “any system, software, or process—including one derived from machine-learning, statistics, or other data-processing or artificial intelligence—that processes personal information and uses computation as whole or part of a system to make or execute a decision or facilitate human decisionmaking.” ADMT also would include profiling, which would mean the “automated processing of personal information to evaluate certain personal aspects relating to a natural person and in particular to analyze or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behavior, location, or movements.”

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

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

On 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 October 27, 2023, the Federal Trade Commission announced that it has approved an amendment to the Safeguards Rule that would require non-banking institutions to report certain data breaches to the FTC. The FTC’s Safeguards Rule currently requires certain types of non-banking financial institutions, such as mortgage brokers, motor vehicle dealers, and payday lenders, to develop, implement and maintain a comprehensive security program to keep their customers’ information safe. The amendment will require such financial institutions to notify the FTC as soon as possible, and no later than 30 days after discovery, of a security breach involving the unauthorized acquisition of unencrypted customer  information of at least 500 consumers. The notice to the FTC will need to include certain information about the event, such as the number of consumers affected or potentially affected.

On October 17, 2023, the Office of the Privacy Commissioner of Canada (“OPC”) announced the release of two companion documents that provide further guidance on protecting the privacy of young people. This guidance follows the recently adopted resolution on young people’s privacy by federal, provincial, and territorial regulators earlier in the month.

On October 8, 2023 and October 10, 2023, California Governor Gavin Newsom signed A.B. 947, A.B. 1194, S.B. 362 and S.B. 244 into law. A.B. 947 amends the California Consumer Privacy Act of 2018’s (“CCPA”) definition of “sensitive personal information” to include personal information that reveals a consumer’s “citizenship or immigration status,” while A.B. 1194 amends the CCPA to require a business to comply with the obligations imposed by the CCPA if the personal information collected by the business contains information related to accessing, procuring or searching for services regarding contraception, pregnancy care and perinatal care, including, but not limited to, abortion services, unless the personal information is used for a specified business purposes as defined by the CCPA, is only retained in aggregated and deidentified form and is not sold or shared.

On September 28, 2023, the Cyberspace Administration of China (“CAC”) released the “Provisions on Regulating and Facilitating Cross-Border Data Flows” for public comment (the “Proposal”). The deadline for public comment on the Proposal was October 15, 2023.

On October 5, 2023, Blackbaud Inc., a software provider for the philanthropy, healthcare, and education sectors, has resolved claims that the District of Columbia and 49 U.S. states raised. The claims stem from a ransomware attack that impacted Blackbaud in 2020. The company was affected by a ransomware attack that exposed user information to unauthorized third parties. The breach not only impacted approximately 13,000 Blackbaud customers, but the customers’ own clients and donors as well.

On July 5, 2023, Ohio Governor, Mike DeWine, signed into law House Bill 33, which includes the Social Media Parental Notification Act (“Act”).

On September 14, 2023, California Attorney General Rob Bonta announced a $93 million settlement with Google, LLC (“Google”) resolving alleged violations of California’s false advertising law and unfair competition law.

On August 8, 2023, the Massachusetts Gaming Commission approved 205 CMR 257: Sports Wagering Data Privacy, a set of regulations designed to create new rights and obligations with respect to sports betting operators’ use of patrons’ Confidential Information or Personally Identifiable Information. The regulations took effect on September 1, 2023.

On September 21, 2023, UK Secretary of State for Science, Innovation and Technology Michelle Donelan laid regulations in the UK Parliament, giving effect to a UK-U.S. Data Bridge. The regulations are supported by several documents, including a fact sheet and an “explainer.”  The regulations are due to take effect on October 12, 2023. U.S. companies approved to join the “UK Extension to the EU-US Data Privacy Framework” will be able to receive UK personal data under the new Data Bridge.

On September 14, 2023, the California legislature passed S.B. 362 (“Act”), a bill that would impose new requirements on data brokers and grant residents new rights designed to facilitate control over their personal data. S.B. 362 is now awaiting signature by California Governor Gavin Newsom. The Act aims to close a loophole in the California Consumer Privacy Act (“CCPA”) that allows consumers to request that data brokers delete personal information obtained directly from the consumer, but does not require data brokers to delete personal information obtained from other sources. 

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 August 9, 2023, India’s upper house (i.e., Rajya Sabha) passed the Digital Personal Data Protection Bill (“DPDPB”), two days after India’s lower house (i.e., Lok Sabha) passed the legislation. The DPDPB now heads to India President Droupadi Murmu for signature.

On June 30, 2023, the Delaware House of Representatives passed the Delaware Personal Data Privacy Act (H.B. 154) (the “DPDPA”), a day after the Delaware Senate passed the legislation. The DPDPA heads to Governor John Carney for a final signature. This could make Delaware the 13th U.S. state to enact comprehensive privacy legislation.

On July 14, 2023, California Attorney General Rob Bonta (“California AG”) announced a new enforcement sweep aimed at ensuring that companies comply with the California Consumer Privacy Act of 2018 (“CCPA”) with respect to the personal information of employees and job applicants. The exemption for HR-related data under the CCPA expired on January 1, 2023, when the amendments to the CCPA made by the California Privacy Rights Act of 2020 became operative.

On June 22, 2023, the Oregon House of Representatives passed the Oregon Consumer Privacy Act (S.B. 619) (the “OCPA”), which was previously passed by the Oregon Senate on June 20, 2023. The OCPA has been sent to the Oregon governor’s desk for signature. If signed, the OCPA would make Oregon the 12th state to have enacted comprehensive privacy legislation.

On June 19, 2023, the UK Information Commissioner’s Office (“ICO”) recommended that organizations start using privacy enhancing technologies (“PETs”) to share personal information safely, securely and anonymously. The ICO also has issued new guidance on PETs which is aimed at those using large data sets in finance, healthcare, money laundering and cybercrime. The guidance contains information on how PETs can be used to help organizations with data protection compliance and technical detail on the different types of PETs currently available.

On June 26, 2023, the Centre for Information Policy Leadership (CIPL) published the third edition of its Frequently Asked Questions on Cross-Border Privacy Rules, Privacy Recognition for Processors, and Global CBPR and PRP (FAQs).

On June 29, 2023, the Superior Court of California for the County of Sacramento issued a Tentative Ruling providing for a postponement of enforcement of final CPRA regulations for 12 months after the regulations were finalized (i.e., March 29, 2024). Tentative Rulings are posted by a court the day before a writ or motion is noticed for a hearing and state how the court intends to rule on the motion based on the papers filed by the parties. The ruling may change based on oral argument.  The hearing on the Petition for Writ of Mandate for the CPRA regulations was noticed for June 30, 2023 at ...

On June 2 and June 5, 2023, the Connecticut and Nevada state legislatures, respectively, voted in favor of sending legislation to their governors for signature that would impose restrictions, among others, on the processing of consumer health data, including geofencing provisions.  Nevada S.B. 370 was signed by Nevada Governor Joe Lombardo on June 16, 2023. These bills contain provisions similar to Washington’s My Health My Data Act and expand on protections in the Health Insurance Portability and Accountability Act of 1996 and other privacy laws.

On May 30, 2023, the Cyberspace Administration of China (“CAC”) issued the Guideline for Filing the Standard Contract for Cross-border Transfer of Personal Information (“SC”). On June 1, 2023, the SC became an effective mechanism for transferring personal data outside of China. When using the SC as a transfer mechanism, it must be filed with the CAC and the new Guideline provides guidance for doing so. The key elements of the Guideline are summarized below.

On May 24, 2023 Google LLC (“Google”) announced its recently updated privacy terms providing that, for many of Google’s advertising services, it will no longer act as a service provider for the purposes of the California Privacy Rights Act of 2020 (“CPRA”). The change may affect businesses’ prior determinations of whether they “sell” personal information under the California Consumer Privacy Act of 2018 (“CCPA”). The updated terms take effect on July 1, 2023, the day CPRA enforcement begins.

On June 8, 2023, the UK Information Commissioner’s Office (“ICO”) published a new report on neurotechnology. Neurotechnology is technology used to monitor neurodata, the information coming directly from the brain and nervous system. In its press release on the report, the ICO warns that “that newly emerging neurotechnologies risk discriminating against people if those groups are not put at the heart of their development” and predicts the use of such technologies to become “widespread over the next decade.”

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 27, 2023, Texas Governor Greg Abbott signed into law an amendment to Texas’s data breach notification law. The amendment shortens the time period for notifying the Texas Attorney General, requiring notification of a data breach as soon as practicable and not later than 30 days after discovery of the breach. The amendment also requires notification to the Texas Attorney General to be submitted electronically using a form accessed through the Texas Attorney General’s Internet website. The amendment will take effect on September 1, 2023.

On May 22, 2023, the Federal Trade Commission filed an amicus brief in support of a ruling by the United States Court of Appeals for the Ninth Circuit that COPPA does not preempt state laws claims that are consistent with COPPA.

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 24, 2023, the UK Information Commissioner’s Office (“ICO”) announced it published new guidance for businesses and employers on responding to subject access requests (“SARs”). The right of access, commonly referred to as a subject access request, gives someone the right to request a copy of their personal information from organizations. The ICO received over 15,000 complaints related to SARs during April 2022 and March 2023.

On May 17, 2023, the Federal Trade Commission issued a consumer alert regarding the Premom Ovulation Tracker app (“Premom”) sharing sensitive information with third parties without users’ permission. According to the alert, Premom is a free app that is marketed as an accurate fertility calendar, which can be used to assist users who are trying to become pregnant.

On May 17, 2023, the European Data Protection Board (EDPB) adopted the final version of its Guidelines on facial recognition technologies in the area of law enforcement (the “Guidelines”). The Guidelines address lawmakers at the EU and EU Member State level, and law enforcement authorities and their officers implementing and using facial recognition technology. 

On May 4, 2023, the Florida Senate and House of Representatives voted in favor of sending the Florida Digital Bill of Rights (“FDBR”) and other amendments related to government moderation of social media and protection of children in online spaces (S.B. 262) to Governor Ron DeSantis for signature. Unlike the other comprehensive state privacy laws that have been enacted, the FDBR applies to a much narrower subset of entities.

On May 10, 2023, the Texas Senate passed H.B. 4, also known as the Texas Data Privacy and Security Act (“TDPSA”). The TDPSA now heads to a conference committee between the Texas Senate and House to rectify the differences between the Senate and House versions. If the TDPSA is signed into law, Texas could become the tenth state to enact comprehensive privacy legislation.

On May 4, 2023, the California Privacy Protection Agency (“CPPA”) Board announced that it will hold a public meeting on May 15, 2023 to discuss California Privacy Rights Act of 2020 (“CPRA”) regulations proposals and priorities, and other CPPA activities.

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 April 21, 2023, the Tennessee legislature voted to enact the Tennessee Information Privacy Act (H.B. 1181)(“TIPA”). TIPA includes a requirement for controllers and processors to create, maintain and comply with a written privacy program that reasonably conforms to the National Institute of Standards and Technology (NIST) privacy framework. Under TIPA, the scale and scope of a controller or processor’s privacy program is appropriate if it is based on specific factors enumerated in the law. These include (1) the size and complexity of the controller or processor’s business; (2) the nature and scope of the activities of the controller or processor; (3) the sensitivity of the personal information processed; (4) the cost and availability of tools to improve privacy protections and data governance; and (5) compliance with a comparable state or federal law.

On April 21, 2023, the Montana and Tennessee legislatures voted to enact comprehensive consumer privacy bills in their respective states. If signed by their governors, Montana’s Consumer Data Privacy Act (S.B. 384) (“MCDPA”) and Tennessee’s Information Protection Act (H.B. 1181) (“TIPA”) could make these states the eighth and ninth U.S. states to enact comprehensive privacy legislation.

On April 12, 2023, the U.S. Department of Health and Human Services (“HHS”) issued a Notice of Proposed Rulemaking (“NPRM”) to modify protections under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) to strengthen reproductive health care privacy.

On April 12, 2023, Arkansas Governor Sarah Huckabee Sanders signed into law S.B. 396 creating the state’s Social Media Safety Act (the “Act”). The Act comes after Utah’s similar social media laws enacted in March.

On March 30, 2023, the California Privacy Protection Agency (“CPPA”) announced that California’s Office of Administrative Law (“OAL”) approved the CPPA’s substantive rulemaking package to implement the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 (“CPRA”).

On March 27, 2023, New York Attorney General Letitia James announced that a New York-based law firm (Heidell, Pittoni, Murphy & Bach LLP) had agreed to pay $200,000 in penalties and enhance its cybersecurity practices to settle charges stemming from a 2021 data breach. 

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

On March 15, 2023, the Colorado Attorney General’s Office finalized rules implementing the Colorado Privacy Act (“CPA”). The finalized rules were released with an official redline that reflects prior revisions of the rules dated December 21, 2022, January 27, 2023, and February 23, 2023. The rules will be published in the Colorado Register later this month and will go into effect on July 1, 2023, when the CPA takes effect.

On March 9, 2023, the U.S. Securities and Exchange Commission (SEC) announced settled administrative charges against Blackbaud Inc. The case stems from disclosures Blackbaud made to investors regarding a 2020 ransomware attack that targeted donor data management software the company provides to non-profit organizations.

On March 1-3, 2023, the Utah legislature passed a series of bills, SB 152 and HB 311, regarding social media usage for minors. For social media companies with more than five million users worldwide, SB 152 would require parental permission for social media accounts for users under age 18, while HB 311 would hold social media companies liable for harm minors experience on the platforms. Both bills have been sent to the governor’s desk for signature.