Eye On Privacy

Timely Updates and Analysis on Privacy and Cybersecurity Issues

Latest from Eye On Privacy

The Seventh Circuit has recently ruled that plaintiffs have standing to enforce the Illinois Biometric Information Privacy Act’s informed consent requirements in federal court. As we have written before, , BIPA regulates the collection, use, and retention of a person’s biometric information, e.g., fingerprints, face scans, etc. For years, federal trial courts have been split on whether a violation of BIPA’s informed consent provision is alone sufficient to confer Article III standing. . The decision in Bryant v. Compass Group USA, Inc., — F.3d —-, 2020 WL 2121463 (7th Cir. May 5, 2020) removes that uncertainty and will drastically…
For the first time, the U.S. Supreme Court has agreed to review the Computer Fraud and Abuse Act (CFAA) in Van Buren v. United States, No. 19-783. A federal circuit split exists on the issue of whether the statute can only be used against hackers and unauthorized users of electronic systems, or also against authorized users who use the information for unauthorized purposes. In the context of data breaches, companies sometimes look to interpretations of the meaning of “authorization” in CFAA cases to analyze whether notification obligations may exist.…
The FTC recently issued comments on how companies can use artificial intelligence tools without engaging in deceptive or unfair trade practices or running afoul of the Fair Credit Reporting Act. The FTC pointed to enforcement it has brought in this area, and recommended that companies keep in mind four key principles when using AI tools. While much of their advice draws on requirements for those that are subject to the Fair Credit Reporting Act (FCRA), there are lessons that may be useful for many.…
The EDPB recently issued guidelines about how to use health data during the current pandemic in compliance with GDPR. Given the COVID-19 pandemic, there have been many research efforts in place to fight against the virus.  The EDPB’s guidelines shed light on the special rules for processing health data for scientific research, which apply in the context of the COVID-19 pandemic:…
As we move into the second quarter of 2020, governments around the country are analyzing how to best open up their economies. Part of this will include people returning to work, restaurants, retail establishments, and other places of public accommodation. Landlords, business owners, and others want to know how to take steps to reopen safely while government mitigation efforts are being developed to help slow the spread of COVID-19 until a vaccine is developed. And where authorities don’t have specific mitigation efforts, instituting protocols will fall squarely on landlords, business owners, and those who operate places of public accommodation.…
During COVID-19, in certain areas of the law, we have seen significant flexibility from regulators and government agencies in how they are addressing typical approval processes and/or compliance requirements. In the context of privacy and cybersecurity regulations, largely, regulators are emphasizing that personal privacy and data security are important now more than ever. New information is being collected and used in new ways. Certain data security vulnerabilities may be more prevalent in this work-from-home environment.…
A number of private and government entities have released apps and software development kits (SDKs) relying on location tracking data to help tackle the COVID-19 pandemic. While the use of such technologies are being hotly debated, commentary continues to emerge from the EU about developing such applications in compliance with EU data protection laws.…
HHS recently announced that it will not impose penalties if business associates disclose protected health information relating to COVID-19 during the public health emergency period. This waiver, announced in a Notification of Enforcement Discretion, applies if the disclosure is for public health and health oversight activities. It will apply, the Office for Civil Rights at HHS explained, even if their business associate agreement with covered entities does not specifically allow for such disclosure if two things hold true. First, that the disclosure or use is made in “good faith” for public health activities and health oversight activities.  Second, that…
The FCC recently issued a declaratory ruling explaining what calls and text message alerts it viewed as “emergency” for purposes of the Telephone Consumer Protection Act. Under TCPA, requirements to obtain consent to make certain calls and texts to cell phone numbers do not apply when a message is an “emergency.” Under the FCC’s new ruling, certain calls and texts from government officials and healthcare providers about the COVID-19 pandemic will be viewed as emergency messages.…
Apple recently revised its review guidelines to allow push notifications that include “advertising, promotions, or direct marketing.”  This changes a prior -and longstanding- prohibition on push notices that contain such content. Customers must affirmatively opt in to get promotional push notices, though (“through consent language displayed in your app’s UI”). They must also be able to opt out through an in-app mechanism.  Although promotional push notices were previously prohibited, many apps sent them. These modifications may be a step by Apple to acknowledge this use and put requirements in place around it.…
As many who have been tracking CCPA are aware, the law requires training employees who handle consumer inquiries, and ensuring that employees understand how to help consumers exercise their rights. Since most of those rights requests are arriving by web page, email, and phone, it is unlikely that rights requests will slow in the face of COVID-19. Indeed, it is possible that they may increase. Employees will thus still need training, something many companies had anticipated doing in-person.…
During their COVID-19 preparations, companies are dusting off -and deploying- their business continuity plans. Also worth revisiting are incident response plans. Teams working remotely, if faced with a data breach, will still face privilege issues. For this reason simply moving to asynchronous forms of communication (email, chat, etc.) may not suffice, or may increase legal risk and exposure. Teams will thus need to be prepared for coming together virtually. Turning on the camera to converse remotely with video can be an impactful and important way to effectively handle a breach situation. To prepare, here are three key questions companies can…