Eye On Privacy

Timely Updates and Analysis on Privacy and Cybersecurity Issues

Latest from Eye On Privacy

Virginia is now the second state, after California, to pass a comprehensive privacy law. The Consumer Data Protection Act (“CDPA”) will come into effect January 1, 2023 (the same time as the modification to California’s Consumer Privacy Act (“CCPA”), namely the California Privacy Rights Act). Although this new Virginia law has been compared by many to California’s current CCPA and the EU’s GDPR, there are some differences. Businesses will find most of the differences a relief, although the law does introduce a few new concepts.…
Cyberattacks have become big business from the standpoint of attackers.  Threat actors range well beyond cults of old, and now including sophisticated state actors, large businesses organized for the very purpose of cyber breach and theft, and complex threat networks that aggregate information formerly treated as innocuous.  This is a real risk for companies as we look forward to the remainder of 2021. At the same time, ransomware is changing the state of cyber insurance, with regulators across the globe entering the field to govern the conduct of attacked businesses in this climate. Regulations cover terms of ransom payments and…
Many states require insurance providers that do business in their states to complete annual certifications of compliance.  As examples, the deadline in New Hampshire is coming up on March 1.  The deadline in Alabama, Connecticut, Delaware, Louisiana, Michigan, Mississippi, Ohio, and South Carolina was February 15.  (The deadline under new laws in Michigan and Virginia will be February 15 as well, starting in 2022 and 2023, respectively.)  The deadline in New York is April 15. …
The FTC recently settled with Flo Health, Inc., a popular fertility-tracking app, based on promises made about how health data would be shared.  In its complaint, the FTC alleged that while Flo promised to keep users’ health data private and only use it to provide the app’s services to users, in fact, health information of over 100 million users was being shared with popular third party companies. Namely, third parties who provided marketing and analytics services to the app.…
Artificial intelligence continues to be a focus and concern for businesses, regulators, and lawmakers alike. As we recently wrote, there was much activity and focus on artificial intelligence and the impact on privacy laws. In addition to legal developments, there have been advancements in AI business technologies by major multinational technology firms, something focused on this post in our sister Intellectual Property Law Blog. There has been an arms race underway by the world’s leading economies to win the estimated $13 Trillion of GDP this field stands to award the winner.  In a recent podcast episode, partners Siraj…
Many have been watching facial recognition law developments closely, and saw that Portland became the first US city to regulate the use of such technology by private entities operating “places of public accommodation” within the city. Of particular concern for the Portland city council was the use potentially discriminatory use of these technologies, and its impact on “children, Black, Indigenous and People of Color, people with disabilities, immigrants, refugees, and other marginalized communities and local businesses.”…
Will HHS’ approach for imposing penalties in the aftermath of a data breach become a little clearer in 2021? This is a distinct possibility in the wake of a Fifth Circuit decision vacating penalties against MD Anderson Cancer Center. The hospital suffered three data breaches, leading HHS to impose over $4 million in civil penalties. That fine was reversed recently by the Fifth Circuit as arbitrary, capricious, and contrary to law.…
A class action lawsuit filed against PayPal in connection with a breach it suffered in 2017 was dismissed recently because the plaintiffs did not adequately allege PayPal’s intent to deceive investors.  The litigation began after PayPal’s acquired TIO Networks Corporation, a smaller payment processor and platform.  Post-acquisition, PayPal announced that it had discovered “security vulnerabilities” in TIO’s operations and it thus suspended TIO’s operations.  At that point, TIO had not yet been integrated into PayPal’s platform.  PayPal confirmed that it was investigating TIO’s security measures with the help of outside assistance, and that PayPal customers’ data remained secure.  PayPal further…
Many supervisory authorities across Europe have reported increasing numbers of data breach notifications since the introduction of GDPR. While most companies are now familiar with the 72-hour reporting obligation for controllers to supervisory authorities, whether such obligation has been triggered continues to present unique and complex questions in each specific security event. To help aid companies sorting through these potential legal notification obligations in the aftermath of a security event, the EDPB recently released draft guidance, which is open for comment until 2 March 2021.…
An effective privacy program takes into account legal requirements and litigation risk. While this series advocates for starting with strategy and designing a customized approach, this does not mean that legal obligations and risks should be ignored. Instead, by starting with strategy and focusing on customization, many legal risks can be better managed. If the legal requirement in a given law is that a data security policy addresses the risks a company faces, for example, a company is better off with a customized policy. For this reason, addressing the law can be thought of as the middle of the…
As mentioned in the prior post in this series, a strategically developed privacy program can help support companies in a rapidly changing legislative and enforcement environment. As part of taking a strategic approach, companies attempting to create a right-sized privacy program will want to customize their program to their company. Privacy and data security laws place bespoke obligations on companies. Privacy notices need to describe the company’s practices. Data security laws anticipate policies that are designed for the risks that the company faces.…
One of the biggest difficulties companies may face for effective privacy program implementation arises if they neglect strategy and focus only on the law. Namely, developing policies and procedures that mention legal requirements, but fail to address the underlying business purpose of those policies and procedures. Certainly, compliance with the law is critical. But it is not the only part. And, importantly, since regulators expect companies to follow their policies and procedures, taking time to strategize -and address how a company will comply with its policies and procedures- is critical.…
Later this week, January 28, 2021 will mark International Privacy Day: a day corporations release educational efforts around privacy and data protection. There are many reasons to approach privacy proactively in 2021: (1) January 28 will mark the second week of a new US administration, one which will likely focus more on privacy and data security; and (2) laws and enforcement in this area continue to change and develop, as we reported last year. With this in mind, privacy and data security practitioners may find themselves behind with reactive approaches. Reactivity is also costly, both monetarily and resource-use wise.…
As we reach the end of January 2021, it is becoming increasingly clear that this will be a busy year in the areas of privacy and data security. Following up on our posts discussing some of the important trends from last year, the Sheppard Mullin Privacy and Cyber Security team has put together a comprehensive resource containing all of our posts from last year.  From a focus on artificial intelligence, to international data flow and vendor transfer concerns, to ongoing enforcement of a patchwork of laws, we anticipate many of the issues facing companies in 2020 will not…