Privacy Law Blog

Businesses That Use Consumer Data or Data Products (Everyone?) Take Heed: FTC Moves Ahead with Rulemaking Process on “Commercial Surveillance” Practices

On August 11, 2022, the Federal Trade Commission (FTC) issued an Advance Notice of Proposed Rulemaking (ANPR) and announced it was exploring a rulemaking process to “crack down on harmful commercial surveillance” and lax data security.  The agency defines commercial surveillance as “the collection, aggregation, analysis, retention, transfer, or monetization of consumer data and the direct derivatives of that information.”

Read the full post on Proskauer’s New Media and Technology Law Blog.

DOJ’s Civil Cyber-Fraud Initiative Secures More Than $9 Million in Two False Claims Act Settlements for Alleged Cybersecurity Violations

Last fall, the United States Department of Justice (“DOJ”) launched its Civil Cyber-Fraud Initiative (“CCFI”) as part of its effort to “combat new and emerging cyber threats to the security of sensitive information and critical systems.” Led by the Civil Fraud Section of DOJ’s Commercial Litigation Branch, the CCFI leverages the False Claims Act (“FCA”) to prosecute, in part, government contractors and federal grant recipients for cybersecurity-related fraud. Continue Reading

“A Full Plate”: FTC’s Open Meeting on PBMs, AI, Privacy and Online Harms

During a much anticipated Open Commission Meeting announced by Commission Chair Lina M. Khan, the Federal Trade Commission (“FTC”) voted in favor of issuing one new policy statement and one new report to Congress. Continue Reading

California Privacy Protection Agency Released Proposed CPRA Regulations

The California Privacy Protection Agency (the “Agency”) released draft regulations to the California Privacy Rights Act (“CPRA”) on May 31, 2022 (the “Proposed Regulations”). The Proposed Regulations are drafted as comments to the California Attorney General’s regulations for the California Consumer Privacy Act, California’s landmark privacy law, which was amended by CPRA. Continue Reading

Department of Health and Human Services Issues Request for Information on Cybersecurity Standards

The Department of Health and Human Services (“HHS”) has issued a formal request for information from the public about how regulated entities are implementing industry recognized security practices. The request for information represents a chance for the private sector to contribute to HHS regulation. Interested parties have until June 6, 2022 to submit comments.

HHS seeks this information to be better informed when making determinations regarding fines, audits, and remedies after a potential violation of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) Security Rule. The request for information was issued by HHS’s Office for Civil Rights (“OCR”), which enforces the privacy and security rules for health providers and insurers that hold health data.

The Health Information Technology for Economic and Clinical Health (“HITECH”) Act requires that HHS consider industry recognized security practices during enforcement, and does not require nor prohibit rulemaking based on the same. The HITECH Act defines “recognized security practices” as (i) the standards found in section 2(c)(15) of the National Institute of Standards and Technology (“NIST”) Act, (ii) the approaches found in section 405(d) of the Cybersecurity Act of 2015, and (iii) “other programs and processes that address cybersecurity and that are developed, recognized, or promulgated through regulations under other statutory authorities”. OCR seeks information in order to improve guidelines about these standards.

Uncorrected violations under the HITECH Act can carry a minimum of $50,000 per violation in civil penalties. Enforcement actions are initiated by OCR through investigating complaints alleging violations of HIPAA Rules, as well as compliance reviews conducted by OCR following a breach report. Covered entities are required to submit breach reports after cybersecurity incidents under certain circumstances.

The request for information, found here contains specific prompts on the topic.

 

U.S. and EU Agree in Principle on New Trans-Atlantic Data Privacy Framework

In a joint press conference on March 25, 2022, U.S. President Joseph Biden and European Commission President Ursula von der Leyen announced an agreement “in principle” on a framework, called the Trans-Atlantic Data Privacy Framework (“Privacy Shield 2.0”), to replace the U.S.-EU Privacy Shield. The EU General Data Protection Regulation (“GDPR”) places restrictions on personal data transfers to countries outside of the European Economic Area (“EEA”). Privacy Shield 2.0 is designed to replace the original Privacy Shield which allowed companies that had self-certified to lawfully transfer personal data from the EEA to the U.S. However, the Court of Justice of the European Union (“CJEU”) in the so called Schrems II decision in 2020 invalidated the original Privacy Shield as a mechanism for such lawful transfers. Continue Reading

Growing Risks to Corporate Groups and the Global PE Industry from Robust European Privacy and Cybersecurity Enforcement

Since the EU General Data Protection Regulation (“GDPR”) came into effect in May 2018 there have been numerous high-profile enforcement actions (~US$880m is the largest GDPR fine to-date) and private litigation (including class-action type claims). Notable fines have included the ~US$25m fine levied in October 2020 by the UK’s GDPR regulator against Marriott International for alleged cybersecurity failures in connection with its acquisition of Starwood Hotels. Still, the GDPR exposure for corporate groups and the private equity (“PE”) industry (whether or not established in Europe) continues to expand – notably, from a growing focus on so-called “parental GDPR liability”. Continue Reading

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