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MA Delays Implementation of Information Protection Standards

Businesses holding personal information of Massachusetts residents have at least one thing to be thankful for this holiday season.  As reported here, Massachusetts earlier this year established strict standards for protection of personal information about Massachusetts residents. Those standards include encryption of electronic data when stored or transmitted and were set to take effect January … Continue Reading

CAN of Worms?: New Decision Opens CAN-SPAM Private Right of Action to Non-ISPs

A recent decision in the Western District of Washington broadly defines the reach of the private right of action under the federal CAN-SPAM statute. In that case, Haselton v. Quicken Loans Inc., W.D. Wash., C-07-1777, 10/14/08, the court held that a company had standing to sue alleged spammers even though it is not an Internet service provider (ISP) and does not provide e-mail accounts to its customers. … Continue Reading

Telemarketers Beware: New FTC Restrictions on Prerecorded Calls Take Effect Soon

Effective September 1, 2009, companies subject to FTC jurisdiction will not be able to make interstate prerecorded telemarketing calls to EBR consumers absent the prior express written agreement of the consumer. Effective December 1, 2008, any company that continues to make such calls must comply with new restrictions that will continue even after September 1, 2009 when prior express written consent of the consumer is mandatory. … Continue Reading

Broadband Providers Commit to Self-Regulatory Affirmative Consumer Consent Before Behavioral Tracking

Behavioral tracking of consumers online in order to deliver relevant advertising is a privacy issue that is receiving a lot of attention, and one that has been the focus of Federal Trade Commission and consumer group scrutiny. On September 25th, the United States Senate Commerce Committee held a hearing on online privacy and received commitments from the three industry representatives (from AT&T, Verizon and Time Warner Cable) that if they do deploy technologies that are able to track consumer online behavior in order to tailor advertising, that consumers will have clear notice and a full opportunity to provide affirmative consent. None of the companies currently use such technologies in their roles as Internet Service Providers. The broadband providers challenged the rest of the online industry, including web site operators and application providers such as Google, to provide the same protections to consumers. Essentially, the witnesses called for an end to "opt out" when it comes to online advertising. … Continue Reading

Prying Eyes Make Headlines

Proskauer on Privacy will never be confused with TMZ, but we would be remiss if we failed to report on the high profile privacy scandal unfolding in the backyard of our Los Angeles office. As we previously reported, California's data breach notification law was amended effective January 1, 2008, to include breaches of medical and health insurance information. A number of recent incidents illustrate once again that it is not enough to have written policies and procedures in place for the handling of sensitive information - employee training is essential. … Continue Reading

Red Flag Alert — Compliance Deadline is November 1, 2008

According to regulations published by the Federal Trade Commission and the federal banking agencies, covered companies that hold any customer accounts must implement identity theft prevention programs that identify and detect "Red Flags" signaling possible identity theft. Companies establishing such programs must create policies and procedures not only to recognize and detect Red Flags, but also to respond to Red Flags by preventing or mitigating potential identity theft. Furthermore, companies must develop reasonable policies and procedures to verify the identity of a customer opening an account, and must also periodically update their identity theft programs. The rules went into effect on January 1, 2008, and businesses must comply by November 1, 2008. … Continue Reading

Northern Disclosure: Alaska Enacts 44th State Breach Notification Law

Alaska passed a breach notification law in June, making it state number 44 to do so. As most are aware by now, Alaska's new law, Alaska Stat. § 45.48.010 et seq., includes breach notification requirements, restrictions on use of Social Security numbers, and allows consumers to place a security [deep] freeze on their credit reports. Notification of a breach is not required if, after an appropriate investigation and written notification to Alaska's attorney general, the covered entity determines that there is not a reasonable likelihood that harm to consumers has resulted or will result from the breach. By popular demand, following is our updated list of security breach notification laws. … Continue Reading

“Cyber-Bullies” Potentially Face Hard Time

State governments and federal prosecutors are cracking down on individuals who use the internet to harass or threaten others.  On June 30, Missouri Governor Matt Blount signed into law a measure that criminalizes online harassment.  This new law represents a marked change in the legal treatment of this form of harassment, also known as “cyber-bullying.”  … Continue Reading

Expiration Date Imminent for Many FACTA Class Actions

New amendments to the Fair and Accurate Transactions Act ("FACTA") (itself an amendment to the Fair Credit Reporting Act ("FCRA")) bar consumers from alleging willful violation and seeking statutory damages based on the printing of credit card expiration dates on receipts where the account number is otherwise properly truncated in accordance with FACTA. This development means the end is near for scores of class action lawsuits filed last year. … Continue Reading

Texas Attorney General Settles One of First State COPPA Enforcement Actions

In December 2007, Texas became the first state to file COPPA enforcement actions, by separately suing the entities behind Gamesradar.com and TheDollPalace.com in the United States District Court for the Western District of Texas. The complaints are available as an attachment to the press release on the Texas Attorney General's website. The defendants in those cases are California and New York - and not Texas - entities. … Continue Reading

Iowa Enacts 43rd State Breach Notification Law

On May 9, 2008, Iowa Governor Chester Culver signed legislation (SF 2308) requiring any person who owns or licenses computerized data that includes a consumer's personal information to give notice of a breach of security. The law does not require notification if, after an appropriate investigation or after consultation with the relevant federal, state, or local agencies responsible for law enforcement, the person determined that no reasonable likelihood of financial harm to the consumers whose personal information has been acquired has resulted or will result from the breach. Following is an updated list of the 43 state security breach notification laws (plus District of Columbia and Puerto Rico). … Continue Reading

No Doubt No Reasonable Suspicion Required — Laptops Now Fair Game at the Border

My very first blog post addressed a precedent-setting decision of the Central District of California holding that federal agents could not conduct a border search of the private and personal information stored on a traveler's computer hard drive or electronic storage devices without reasonable suspicion. Eighteen months later, the Ninth Circuit has squarely reversed that decision. In a short opinion filed April 21, 2008, Judge O'Scannlain wrote in U.S. v. Arnold, No. 06-50581, that "reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border." As far as the Ninth Circuit is concerned, for purposes of border searches under the Fourth Amendment, laptops and other electronic storage devices are not so much like a home or the human mind - they are more akin to luggage or a car. … Continue Reading

More Breach Notification Laws — 42 States and Counting

Virginia, West Virginia, and South Carolina are the latest states to pass data breach notification laws, bringing to 42 the total number of states with such laws on the books (including the one state with a law that applies only to public entities, Oklahoma). Listed below are the 41 states with laws that apply to private entities (plus the District of Columbia and Puerto Rico). … Continue Reading

Consumer Advocates Target Online Behavioral Advertising: Broad Regulation Threatens to Impede Delivery of Relevant Advertising and Business Models for Free Online Content

The ongoing debate over online behavioral targeting is significant not only because such targeting enables consumers to receive ads that are more relevant and useful to them, but as the FTC has recognized, restrictions that inhibit companies' ability to obtain advertising revenue may fundamentally affect the ability of the Internet to continue to offer valuable content for free. … Continue Reading

FTC Sets Sights on Goal: Student Lender Taken to School for Data Security Breakdowns

On March 4 the FTC announced that a consent agreement has been reached in its 17th case challenging data security practices by a company handling sensitive consumer information. Goal Financial, LLC, a San Diego-based student loan company, has agreed to implement a comprehensive information security program, avoid future misrepresentations about its data security practices, and receive independent, third-party audits of its data security program every two years for the next 10 years. The consent order does not provide for a civil fine. … Continue Reading
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