Privacy & Information Security Law Blog

On September 15, 2020, the U.S. Department of Health and Human Services’ (“HHS”) Office for Civil Rights (“OCR”) announced five more settlements under its HIPAA Right of Access Initiative. The OCR announced its Right of Access Initiative in 2019, promising vigorous enforcement of HIPAA’s access rules. The five newly announced settlements bring OCR's total to seven completed enforcement actions under the Right of Access Initiative.

On August 11, 2020, the Court of Appeal of England and Wales overturned the High Court’s dismissal of a challenge to South Wales Police’s use of Automated Facial Recognition technology (“AFR”), finding that its use was unlawful and violated human rights.

On August 5, 2020, the French Data Protection Authority (the “CNIL”) announced that it has levied a fine of €250,000 on French online shoe retailer, Spartoo, for various infringements of the EU General Data Protection Regulation (“GDPR”). This is the first penalty under the GDPR enforced by the CNIL as the lead supervisory authority (“Lead SA”) in cooperation with other EU supervisory authorities (“SAs”).

On July 30, 2020, the Council of the European Union (the “Council”) imposed for the first time restrictive measures against six individuals and three entities responsible for or involved in various cyber attacks, including the “WannaCry,” “NotPetya” and “Operation Cloud Hopper” attacks and the attack against the Organization for the Prohibition of Chemical Weapons. Sanctions imposed by the Council include a travel ban, an asset freeze and a prohibition against making funds available to the sanctioned EU individuals and entities.

On Wednesday, July 22, the New York Department of Financial Services (the “NYDFS”) announced that it had filed administrative charges against First American Title Insurance Co. under the NYDFS Cybersecurity Regulation, marking the agency’s first enforcement action since the rules went into effect in March 2017.

On July 6, 2020, the Dutch Data Protection Authority (Autoriteit Persoonsgegevens, the “Dutch DPA”) imposed a €830,000 fine on the Dutch Credit Registration Bureau (Stichting Bureau Krediet Registration, “BKR”) for non-compliance with Articles 12(2) and 12(5) of the EU General Data Protection Regulation (the “GDPR”) between May 2018 and March 2019.

On June 30, 2020, the Federal Trade Commission (“FTC”) announced it had entered into a consent agreement (the “Proposed Settlement”) with NTT Global Data Centers Americas, Inc. (“NTT”), a successor in interest to RagingWire Data Centers, Inc. (“RagingWire”), to settle allegations in a November 2019 Administrative Complaint that RagingWire misrepresented its participation in and compliance with the EU-U.S. Privacy Shield Framework (“Privacy Shield”), in violation of the FTC Act.

On July 14, 2020, the Litigation Chamber of the Belgian Data Protection Authority (the “Belgian DPA”) imposed a €600,000 fine on Google Belgium SA (“Google”) for non-compliance with the right to be forgotten.

On July 13, 2020, the Italian Data Protection Authority (Garante per la protezione dei dati personali, “Garante”) announced that it levied a €16,729,600 fine on telecoms provider Wind Tre S.p.A. (“Wind Tre”) for several unlawful data processing activities, mostly related to direct marketing.

On June 16, 2020, the Litigation Chamber of the Belgian Data Protection Authority (the “Belgian DPA”) imposed a fine on a company (the “defendant”) for unlawful and incorrect processing of personal data and non-compliance with the EU General Data Protection Regulation’s (the “GDPR”) data subject rights provisions.

On June 24, 2020, the Washington State Attorney General (“Washington AG”) announced that it had settled an enforcement action against the owners of the “We Heart It” social media platform for alleged violations of the Children’s Online Privacy Protection Act (“COPPA”) and the Washington State Consumer Protection Act. Under the consent decree, the defendants must pay $100,000, with an additional $400,000 suspended contingent upon compliance with the consent decree.

The Italian Data Protection Authority (Garante per la protezione dei dati personali, “Garante”) recently announced that it levied a €600,000 fine on banking institution UniCredit for several violations of the Italian Personal Data Protection Code, in its pre-General Data Protection Regulation (“GDPR”) form.

On June 19, 2020, France’s Highest Administrative Court (“Conseil d’Etat”) upheld the decision of the French Data Protection Authority (the “CNIL”) to impose a €50 million fine on Google LLC (“Google”) under the EU General Data Protection Regulation (the “GDPR”) for its alleged failure to (1) provide notice in an easily accessible form, using clear and plain language, when users configure their Android mobile devices and create Google accounts, and (2) obtain users’ valid consent to process their personal data for ad personalization purposes. Google had appealed this decision before the Conseil d’Etat. Because the Conseil d’Etat hears cases on appeal from the CNIL in both the first and last instances, the CNIL’s fine is now final. This fine against Google was the first fine imposed by the CNIL under the GDPR and is the highest fine imposed by an EU supervisory authority under the GDPR to date.

On June 9, 2020, the Federal Communications Commission (“FCC”) announced a proposed $225 million fine, the largest in the history of the FCC, against several individuals for telemarketing violations.

On May 29, 2020, the Litigation Chamber of the Belgian Data Protection Authority (the “Belgian DPA”) imposed a fine of €1,000 on a non-profit organization. The decision followed a complaint filed by an individual who continued to receive promotional materials from the organization after he had objected to the processing of his contact details for direct marketing purposes and had requested that the organization erase his data from its database.

On May 19, 2020, the Belgian Data Protection Authority (the “Belgian DPA”) announced that the Litigation Chamber had imposed a €50,000 fine on a social media provider for unlawful processing of personal data in connection with the “invite-a-friend” function offered on its platform.

On May 19, 2020, the Federal Trade Commission (“FTC”) announced that it reached an agreement with Swiss digital game developer Miniclip, S.A. (“Miniclip”) to settle allegations that Miniclip misled consumers about its membership in a COPPA safe harbor program.

On April 28, 2020, the Litigation Chamber of the Belgian Data Protection Authority (the “Belgian DPA”) imposed a €50,000 fine on a company for non-compliance with the requirements under the General Data Protection Regulation (“GDPR”) related to the appointment of a data protection officer (“DPO”).

On March 10, 2020, the Vermont Attorney General filed a lawsuit against Clearview AI (“Clearview”), alleging that Clearview violated Vermont’s consumer protection law and data broker law. We previously reported on Vermont’s data broker law, which was the first data broker legislation in the U.S.

On March 3, 2020, the Dutch Data Protection Authority (Autoriteit Persoonsgegevens, the “Dutch DPA”) announced that it had imposed a €525,000 fine on the Royal Dutch Tennis Association (De Koninklijke Nederlandse Lawn Tennisbond, “KNLTB”) for an illegal sale of personal data.

On March 4, 2020, the UK Information Commissioner’s Office (“ICO”) fined the international airline Cathay Pacific Airways Limited (“Cathay Pacific”) £500,000 for failing to protect the security of its customers’ personal data. The fine was issued under the Data Protection Act 1998 (the “DPA”) and represents the maximum fine available. The ICO found that between October 2014 and May 2018, Cathay Pacific’s computer systems lacked appropriate security measures which led to customers’ personal details being exposed. Of the approximately 9.4 million customers affected worldwide, 111,578 were from the UK.

On March 2, 2020, the UK Information Commissioner’s Office (“ICO”) fined CRDNN Limited, a lead generation company, £500,000—the maximum amount available for a breach of the Electronic Communications Regulations (“PECR”). The fine was imposed after CRDNN carried out over 193 million unsolicited automated direct marketing calls relating to window scrappage, window and conservatory sales, boiler sales, and debt management between June and October 2018.

Update: We are monitoring the COVID-19 situation and, like many of you, re-assessing our in-person gatherings and events over the next few months. As an immediate step, we have decided to postpone our London Breakfast Meeting and will circulate details of a webinar on this topic shortly. We thank you for your understanding.

On March 17, 2020, Hunton Andrews Kurth LLP will host a breakfast briefing in our London office, with guest speakers from Deloitte’s Cyber Breach Support team, to explore UK and EU cyber enforcement trends and discuss the current cybersecurity threat environment. In the face of record-breaking fines handed out by the regulators, securing networks, hardening systems, and protecting data from cyber attacks is becoming ever more critical. Understanding common cyber threats, including the attack vectors, how they work, and how they can be detected, is key to working with IT security colleagues to protect an organization from cyber attacks and respond to incidents.

On February 1, 2020, the Italian Data Protection Authority (Garante per la protezione dei dati personali, the “Garante”) announced that it had levied a fine of €27,802,946 on TIM S.p.A. (“TIM”), a telecommunications company, for several unlawful marketing data processing practices. Between 2017 and 2019, the Garante received numerous complaints from individuals (including from individuals who were not existing customers of TIM) claiming that they had received unwanted marketing calls, without having provided their consent or despite having registered on an opt-out list. The Garante indicated that the violations impacted several million individuals.

Facebook disclosed on January 29, 2020, that it has agreed to pay $550,000,000 to resolve a biometric privacy class action filed by Illinois users under the Biometric Information Privacy Act (“BIPA”). BIPA is an Illinois law enacted in 2008 that governs the collection, use, sharing, protection and retention of biometric information. In recent years, numerous class action lawsuits have been filed under BIPA seeking statutory damages ranging from $1,000 per negligent violation to $5,000 per reckless or intentional violation.

On January 16, 2020, the Federal Trade Commission announced that settlements with five companies of separate allegations that they had falsely claimed certification under the EU-U.S. Privacy Shield framework had been finalized.

As reported on our Hunton Retail Law Resource blog, on January 7, 2020, the Federal Trade Commission announced a settlement with Mortgage Solutions FCS, Inc., d/b/a Mount Diablo Lending, and its sole principal, Ramon Walker, to resolve allegations that the lender violated the FTC Act, the Fair Credit Reporting Act (“FCRA”) and the Gramm-Leach-Bliley (“GLB”) Act, by improperly disseminating consumers’ personal information on Yelp in response to consumers’ negative reviews posted to that site.

According to MLex, on January 6, 2020, the Seoul Eastern District Court found Kim Jin-Hwan, a privacy officer of the South Korean travel agency Hana Tour Service Inc., guilty of negligence in failing to prevent a 2017 data breach that affected over 465,000 customers of the agency and 29,000 Hana Tour employees.

On January 6, 2020, the Federal Trade Commission announced that it granted final approval to a settlement with InfoTrax Systems, L.C. and its former CEO, Mark Rawlins, related to allegations that InfoTrax failed to implement reasonable, low-cost and readily available security safeguards to protect the personal information the company maintained on behalf of its business clients.

On December 12, 2019, the U.S. Department of Health and Human Services’ (“HHS”) Office for Civil Rights (“OCR”) announced its second enforcement action and settlement under its HIPAA Right of Access Initiative. Under the terms of the settlement, Korunda Medical, LLC, agreed to pay $85,000 to settle a potential violation of HIPAA’s right of access.

On December 6, 2019, the Federal Trade Commission announced its Final Order and Opinion in the matter of Cambridge Analytica, LLC, finding that Cambridge Analytica violated the FTC Act’s Section 5 prohibition against “unfair or deceptive acts or practices” when harvesting personal information through its “GSRApp” Facebook application.

On December 3, 2019, the Federal Trade Commission announced that it had reached settlements in four separate Privacy Shield cases. Specifically, the FTC alleged that Click Labs, Inc., Incentive Services, Inc., Global Data Vault, LLC, and TDARX, Inc. each falsely claimed to participate in the EU-U.S. Privacy Shield framework. The FTC also alleged that Click Labs and Incentive Services falsely claimed to participate in the Swiss-U.S. Privacy Shield framework and that Global Data and TDARX continued to claim participation in the EU-U.S. Privacy Shield after their Privacy Shield certifications lapsed. The complaints further alleged that Global Data and TDARX failed to comply with the Privacy Shield framework, including by failing to (1) verify annually that statements about their Privacy Shield practices were accurate, and (2) affirm that they would continue to apply Privacy Shield protections to personal information collected while participating in the program.

On November 26, 2019, the French Data Protection Authority (the “CNIL”) announced that it had levied a fine of €500,000 on Futura Internationale, a French SME specializing in thermal insulation of private buildings, for various infringements of the EU General Data Protection Regulation (“GDPR”). The infringements related to the company’s direct marketing voice-to-voice calls include failure to (1) comply with the individuals’ objection to the processing of their personal data for direct marketing; (2) process only relevant personal data (by recording excessive comments in the CRM software); (3) provide sufficient notice regarding the recording of phone calls and data processing;  (4) cooperate with the CNIL; and (5) implement appropriate data transfer mechanisms for the data transfers to non-EU call center providers.

On November 19, 2019, the Federal Trade Commission announced that Medable, Inc. (“Medable”) agreed to settle allegations that the company had misrepresented its participation in the EU-U.S. Privacy Shield program. The FTC alleged that, from December 2017 to October 2018, Medable falsely claimed in its online privacy policy that it was a certified participant in the EU-U.S. Privacy Shield framework and adhered to the framework’s principles. According to the complaint, although Medable did initiate an application with the Department of Commerce in December 2017, the company never completed the steps necessary to participate in the framework.

On November 7, 2019, the Office for Civil Rights (“OCR”) of the U.S. Department of Health and Human Services (“HHS”) announced a $1.6 million civil penalty imposed against the Texas Health and Human Services Commission (“TX HHSC”), a state agency, for violations of HIPAA Privacy and Security Rules in connection with the unauthorized disclosure of electronic protected health information (“ePHI”). The ePHI breach – which exposed names, addresses, Social Security numbers, and treatment information of at least 6,617 individuals – was first reported to OCR on June 11, 2015, by Texas’s Department of Aging and Disability Services (“DADS”).

The European Data Protection Board recently published on its website that the Austrian Data Protection Authority (“Austrian DPA”) imposed an €18 million fine (approximately $20 million) on the Austrian Postal Service, Österreichische Post AG (“ÖPAG”), for various violations of the EU General Data Protection Regulation (“GDPR”). After conducting an investigation, the Austrian DPA established that ÖPAG unlawfully processed and sold data with respect to its customers’ alleged political affinities. Another GDPR violation was related to the ÖPAG’s ...

On November 5, 2019, the Berlin Commissioner for Data Protection and Freedom of Information (“the Berlin Commissioner,” Berliner Beauftragte für Datenschutz und Informationsfreiheit) announced that it had imposed a fine of €14.5 million (approximately $16 million) on Deutsche Wohnen SE, a prominent real estate company. This is the highest fine issued in Germany since the EU General Data Protection Regulation (“GDPR”) became applicable.

On October 30, 2019, Facebook reached a settlement with the UK Information Commissioner’s Office (“ICO”) under which it agreed to pay (without admission of liability) the £500,000 fine imposed by the ICO in 2018 in relation to the processing and sharing of its users’ personal data with Cambridge Analytica.

On October 21, 2019, the Federal Trade Commission took action against two companies alleged to have engaged in the business of false online reviews and social media influence. In the first case, the FTC entered into a consent decree with cosmetics marketer Sunday Riley, LLC, and the company’s owner, who sell products at Sephora stores and online at Sephora.com. According to the FTC’s complaint, disguised as ordinary consumers, Sunday Riley employees and Ms. Riley herself posted fake 5-star reviews of the company’s products on Sephora’s website. Under the terms of the FTC’s agreement, the company and its principal are barred from posting fake reviews, must clearly identify endorsers, and must instruct staff on their disclosure obligations. The FTC vote on the action was 3-2, with Commissioners Chopra and Slaughter dissenting on the grounds that the settlement did not include a monetary payment or an admission of guilt.

On October 22, 2019, the Federal Trade Commission announced that, for the first time, it has brought a case against a developer of “Stalking” Apps. The agency alleges that Retina-X Studios, and its owner, James N. Johns, Jr., developed and marketed three apps that allowed purchasers to surreptitiously monitor the movements and online activities of users of devices on which the apps were installed without the knowledge or permission of the device’s user. The FTC also alleges that the app developer took steps to ensure that a device user would not be aware that the app had been installed, bypassing mobile device manufacturers’ security restrictions and leaving the device vulnerable to cybersecurity risks. The apps were marketed as tools for monitoring the behavior of employees and children. The FTC further alleges that the app developer issued policies that made inaccurate representations regarding the security of their online systems, which were recently found to have been hacked twice during earlier incidents.

On October 2, 2019, the UK Court of Appeal handed down its judgment on the appeal in Richard Lloyd v. Google LLC, in which Richard Lloyd, a consumer protection advocate, seeks to bring a representative action on behalf of four million Apple iPhone users against Google LLC in the United States. Previously, the High Court had refused to grant permission for the proceedings to be served outside the UK. The Court of Appeal reversed the High Court’s judgment, granting permission for service outside the UK and allowing the representative action to proceed. The judgment is significant as it paves the way for representative actions (equivalent to class actions) for data protection infringements in the UK.

On October 1, 2019, the Court of Justice of the European Union (“CJEU”) issued its decision in an important case involving consent for the use of cookies by a German business called Planet49. Importantly, the Court held that (1) consent for cookies cannot be lawfully established through the use of pre-ticked boxes, and (2) any consent obtained regarding cookies cannot be sufficiently informed in compliance with applicable law if the user cannot reasonably comprehend how the cookies employed on a given website will function.

On September 17, 2019, the Belgian Data Protection Authority (the “Belgian DPA”) imposed a fine of EUR 10,000 on a shop for the disproportionate use of customers’ electronic identity cards (the “eIDs ”) – a national identification card.

On September 24, 2019, the Court of Justice of the European Union (the “CJEU”) released its judgments in cases C-507/17, Google v. CNIL and C-136/17, G.C. and Others v. CNIL regarding (1) the territorial scope of the right to be forgotten, referred to in the judgement as the “right to de-referencing,” and (2) the conditions in which individuals may exercise the right to be forgotten in relation to links to web pages containing sensitive data. The Court’s analysis considered both the EU Data Protection Directive and the EU General Data Protection Regulation (“GDPR”).

On September 4, 2019, the High Court of England and Wales dismissed a challenge to South Wales Police’s use of Automated Facial Recognition technology (“AFR”). The Court determined that the police’s use of AFR had been necessary and proportionate to achieve their statutory obligations.

As an update to our previous blog posts, the FTC announced that it and the New York Attorney General reached a $170 million agreement with Google to resolve allegations that the company violated COPPA through its YouTube platform. Under the agreement, Google will pay $136 million to the FTC and $34 million to New York. The FTC voted 3-2 to authorize the action.

As an update to our previous blog post, according to media reports, Google has reached a settlement with the FTC in the range of $150 to $200 million over the agency’s investigation into the company’s alleged violations of COPPA through its YouTube platform. The settlement has not been announced by the FTC or Google, and the details of the settlement have not been made publicly available. These reports follow Google’s announcement earlier this week that it has created a separate YouTube Kids site, which will include different content for different age groups. This news also ...

On August 21, 2019, the Swedish Data Protection Authority (the “Swedish DPA”) imposed its first fine since the EU General Data Protection Regulation (“GDPR”) came into effect in May, 2018. The Swedish DPA fined a school 200,000 Swedish Kroner for creating a facial recognition program in violation of the GDPR.

On August 8, 2019, the FTC announced that Unrollme Inc. (“Unrollme”), an email management company, agreed to settle allegations the company deceived consumers about how it accesses and uses their personal emails. Unrollme offered users a service whereby the company would help unsubscribe users from unwanted subscription emails. In connection with this service, Unrollme required users to provide the company with access to their email accounts. The FTC alleged that Unrollme falsely told consumers it would not “touch” their personal emails. In fact, the FTC alleged, Unrollme shared its users’ email receipts (“e-receipts”) (i.e., emails sent to consumers following a completed transaction) with its parent company, Slice Technologies, Inc. The FTC’s complaint alleged that the parent company used information from the e-receipts (such as the user’s name, address, and information about products or services the individual purchased) for purposes of its own market research analytics products.

On August 8, 2019, the United States Court of Appeals for the Ninth Circuit allowed a class action brought by Illinois residents to proceed against Facebook under the Illinois Biometric Information Privacy Act (“BIPA”) (740 ICLS 14/1, et seq.).

On July 29, 2019, the Court of Justice of the European Union (the “CJEU”) released its judgment in case C-40/17, Fashion ID GmbH & Co. KG vs. Verbraucherzentrale NRW eV. The Higher Regional Court of Düsseldorf (Oberlandesgericht Düsseldorf) requested a preliminary ruling from the CJEU on several provisions of the former EU Data Protection Directive of 1995, which was still applicable to the case since the court proceedings had started before the implementation of the EU General Data Protection Regulation (“GDPR”).

In addition to Facebook’s record-breaking Federal Trade Commission penalty and settlement order, on July 24, 2019, the Securities and Exchange Commission announced charges against Facebook for inadequate and misleading disclosures over its privacy practices. Facebook, without admitting or denying the SEC’s allegations, has agreed to the entry of a final judgment ordering a fine of $100 million.

As previously reported on July 12, 2019, Facebook will pay a $5 billion penalty to the Federal Trade Commission to resolve a privacy probe into whether Facebook violated a prior FTC consent decree requiring the company to better protect user privacy. The $5 billion penalty is the largest imposed on any company for violating consumers’ privacy – nearly 20 times the largest privacy or data security penalty to date.

On July 16, 2019, the Dutch Data Protection Authority (Autoriteit Persoonsgegevens, the “Dutch DPA”), announced that it had imposed a fine of €460,000 on a Dutch hospital, HagaZiekenhuis, for insufficient security measures under Article 32 of the EU General Data Protection Regulation (“GDPR”).

On July 22, 2019, the Federal Trade Commission announced that Equifax Inc. (“Equifax”) agreed to pay at least $575 million, and potentially up to $700 million, as part of a global settlement agreement with the FTC, the Consumer Financial Protection Bureau (“CFPB”), and 48 U.S. states and territories to resolve investigations into the colossal data breach the company suffered in 2017. This is the largest data breach settlement in U.S. history.

According to media reports, the Federal Trade Commission has approved a multimillion dollar fine as part of a settlement with Google related to the FTC’s investigation into YouTube’s children’s data privacy practices. The FTC found that, in violation of COPPA, Google had failed to adequately protect children under 13 who used the video-streaming service and improperly collected their data.

The UK Information Commissioner’s Office (“ICO”) published its 2018-19 Annual Report on July 9, 2019. This is the first Annual Report published by the ICO since the EU General Data Protection Regulation (“GDPR”) took effect on May 25, 2018.

According to media reports, the Federal Trade Commission has approved a roughly $5 billion settlement with Facebook, Inc. to resolve a privacy probe investigating whether Facebook had violated a prior FTC consent decree requiring the company to better protect user privacy. The investigation followed reports that Cambridge Analytica improperly accessed the personal data of 87 million Facebook users.

On July 11, 2019, Washington Attorney General Bob Ferguson announced that his office had entered into a consent decree and $10 million settlement with Premera Blue Cross (“Premera”) that stems from a 2014-2015 breach that affected more than 11 million individuals. The settlement, which includes a payment of roughly $5.4 million to Washington state and $4.6 million to a coalition of 29 other state Attorneys General (the “Multistate AGs”), is one of the largest ever for a breach involving protected health information (“PHI”) and comes just one month after another notable HIPAA settlement involving a similar coalition of state AGs.

On July 9, 2019, the UK Information Commissioner’s Office (“ICO”) announced its intention to fine Marriott International, Inc. (“Marriott”) £99,200,396 (approximately $124 million) for infringements of the EU General Data Protection Regulation (“GDPR”). The ICO’s announcement followed Marriott’s notification of the proposed fine to the U.S. Securities and Exchange Commission (“SEC”).

On July 8, 2019, the UK Information Commissioner’s Office (“ICO”) announced that it intends to fine British Airways (“BA”), which is owned by International Consolidated Airlines Group, S.A., £183,390,000 (approximately $230,000,000) for violating the EU General Data Protection Regulation (“GDPR”). This is the first fine to be announced publicly by the ICO under the GDPR and hints at the tough stance it is likely to take with regard to future breaches.

On July 2, 2019, the Federal Trade Commission announced a case involving the operator of an online rewards website who allegedly failed to take reasonable steps to secure consumers’ personal data.

On June 6, 2019, the French Data Protection Authority (the “CNIL”) announced that it levied a fine of €400,000 on SERGIC, a French real estate service provider, for failure to (1) implement appropriate security measures and (2) define data retention periods for the personal data of unsuccessful rental candidates.

On May 28, 2019, shortly after the appointment of the new Belgian commissioner and the Director of the Litigation Chamber, the Belgian Data Protection Authority (the “Belgian DPA”) imposed its first fine since the EU General Data Protection Regulation ( “GDPR”) came into effect. The Belgian DPA fined a Belgian mayor EUR 2,000 for abusive use of personal data obtained in the context of his mayoral functions for election campaign purposes.

On May 27, 2019, the Irish government announced that Helen Dixon, who currently serves as Irish Data Protection Commissioner, was appointed to a second five-year term in her position. Her reappointment was approved by a May 27 Cabinet vote.

On May 22, 2019, the European Data Protection Board (the “EDPB”) published on its website a summary of enforcement actions taken by the European Economic Area Supervisory Authorities (“EEA Supervisory Authorities”) one year after the entry into force of the General Data Protection Regulation (the “GDPR”). Reflecting on the growing numbers of data controllers designating a lead supervisory authority, the EDPB reported that of the 446 cross-border cases opened by EEA Supervisory Authorities, 205 of these cases have led to One-Stop-Shop procedures. The EDPB ...

On May 6, 2019, the U.S. Department of Health and Human Services’ Office for Civil Rights (“OCR”) announced that it had entered into a resolution agreement and $3 million settlement with Touchstone Medical Imaging (“Touchstone”). The settlement is the first OCR HIPAA enforcement action in 2019, following an all-time record year of HIPAA enforcement in 2018.

On April 9, 2019, the UK Information Commissioner’s Office (the “ICO”) levied one of its most significant fines under the Data Protection Act 1998 (the “DPA”) against pregnancy and parenting club Bounty (UK) Limited (“Bounty”), fining the company GBP 400,000. Bounty, which provides new and expectant mothers with information and offers for products and services, collects personal data online, via an app, and offline through hard copy cards. The company also offered a data broking service. Bounty came to the attention of the ICO as a “significant supplier” of personal data in the context of the ICO’s wider and ongoing investigation into the data broking industry.

The UK Information Commissioner’s Office (“ICO”) has issued a Monetary Penalty Notice to pensions release provider Grove Pensions Solutions Ltd (“Grove”), fining it £40,000 after the company used contact details collected by a third party for its direct marketing campaign. Grove used a specialist third-party marketing agency to send emails on its behalf to mailing lists, negligently failing to obtain valid consent from individuals who received the marketing emails. Despite seeking external advice (including legal advice), the ICO decided that Grove should have known of the risk that its conduct would breach rules on direct marketing, particularly given recent widespread publicity of this issue in the UK. The fine was imposed under the Data Protection Act 1998.

On March 12, 2019, the European Data Protection Board (“EDPB”) adopted an opinion on the interplay between the EU Directive on Privacy and Electronic Communications (“the ePrivacy Directive”) and the General Data Protection Regulation (“GDPR”) (the “Opinion”).

On February 26, 2019, the European Data Protection Board (the “EDPB”) presented its first overview of the GDPR’s implementation and the roles and means of the national supervisory authorities to the European Parliament (the “Overview”).

The Overview provides key statistics relating to the consistency mechanism among national data protection authorities (“DPAs”), the cooperation mechanism of the EDPB, the means and powers of the DPAs and enforcement of the GDPR at the national level.

As we previously reported, the California Consumer Privacy Act of 2018 (“CCPA”) delays the California Attorney General’s enforcement of the CCPA until six months after publication of the Attorney General’s implementing regulations, or July 1, 2020, whichever comes first. The California Department of Justice anticipates publishing a Notice of Proposed Regulatory Action concerning the CCPA in Fall 2019.

The California Department of Justice will host six public forums on the California Consumer Privacy Act of 2018 (“CCPA”) to provide the general public an opportunity to participate in the CCPA rulemaking process. Individuals may attend or speak at the events or submit written comments by email to privacyregulations@doj.ca.gov or by mail to the California Department of Justice, ATTN: Privacy Regulations Coordinator, 300 S. Spring St., Los Angeles, CA 90013.

On December 4, 2018, the New York Attorney General (“NY AG”) announced that Oath Inc., which was known as AOL Inc. (“AOL”) until June 2017 and is a subsidiary of Verizon Communications Inc., agreed to pay New York a $4.95 million civil penalty following allegations that it had violated the Children’s Online Privacy Protection Act (“COPPA”) by collecting and disclosing children’s personal information in conducting online auctions for advertising placement. This is the largest-ever COPPA penalty.

On November 19, 2018, The Register reported that the UK Information Commissioner’s Office (“ICO”) issued a warning to the U.S.-based The Washington Post over its approach to obtaining consent for cookies to access the service.

On October 30, 2018, ATA Consulting LLC (doing business as Best Medical Transcription) agreed to a $200,000 settlement with the New Jersey Attorney General resulting from a server misconfiguration that allowed private medical records to be posted publicly online. The fine was suspended to $31,000 based on the company’s financial condition. Read the settlement.

On October 23, 2018, the parties in the Yahoo! Inc. (“Yahoo!”) Customer Data Security Breach Litigation pending in the Northern District of California and the parties in the related litigation pending in California state court filed a motion seeking preliminary approval of a settlement related to breaches of the company’s data. These breaches were announced from September 2016 to October 2017 and collectively impacted approximately 3 billion user accounts worldwide. In June 2017, Yahoo! and Verizon Communications Inc. had completed an asset sale transaction, pursuant to which Yahoo! became Altaba Inc. (“Altaba”) and Yahoo!’s previously operating business became Oath Holdings Inc. (“Oath”). Altaba and Oath have each agreed to be responsible for 50 percent of the settlement.

On November 1, 2018, Senator Ron Wyden (D-Ore.) released a draft bill, the Consumer Data Protection Act, that seeks to “empower consumers to control their personal information.” The draft bill imposes heavy penalties on organizations and their executives, and would require senior executives of companies with more than one billion dollars per year of revenue or data on more than 50 million consumers to file annual data reports with the Federal Trade Commission. The draft bill would subject senior company executives to imprisonment for up to 20 years or fines up to $5 million, or both, for certifying false statements on an annual data report. Additionally, like the EU General Data Protection Regulation, the draft bill proposes a maximum fine of 4% of total annual gross revenue for companies that are found to be in violation of Section 5 of the FTC Act.

Recently, the U.S. Department of Health and Human Services’ Office for Civil Rights (“OCR”) entered into a resolution agreement and record settlement of $16 million with Anthem, Inc. (“Anthem”) following Anthem’s 2015 data breach. That breach, affecting approximately 79 million individuals, was the largest breach of protected health information (“PHI”) in history.

On September 26, 2018, the SEC announced a settlement with Voya Financial Advisers, Inc. (“Voya”), a registered investment advisor and broker-dealer, for violating Regulation S-ID, also known as the “Identity Theft Red Flags Rule,” as well as Regulation S-P, the “Safeguards Rule.” Together, Regulations S-ID and S-P are designed to require covered entities to help protect customers from the risk of identity theft and to safeguard confidential customer information. The settlement represents the first SEC enforcement action brought under Regulation S-ID.

On September 27, 2018, the Federal Trade Commission announced a settlement agreement with four companies - IDmission, LLC, (“IDmission”) mResource LLC (doing business as Loop Works, LLC) (“mResource”), SmartStart Employment Screening, Inc. (“SmartStart”), and VenPath, Inc. (“VenPath”) - over allegations that each company had falsely claimed to have valid certifications under the EU-U.S. Privacy Shield framework. The FTC alleged that SmartStart, VenPath and mResource continued to post statements on their websites about their participation in the Privacy Shield after allowing their certifications to lapse. IDmission had applied for a Privacy Shield certification but never completed the necessary steps to be certified.

On September 26, 2018, the U.S. Senate Committee on Commerce, Science, and Transportation convened a hearing on Examining Consumer Privacy Protections with representatives of major technology and communications firms to discuss approaches to protecting consumer privacy, how the U.S. might craft a federal privacy law, and companies’ experiences in implementing the EU General Data Protection Regulation (“GDPR”) and the California Consumer Privacy Act (“CCPA”).

On September 26, 2018, Uber Technologies Inc. (“Uber”) agreed to a settlement (the “Settlement”) with all 50 U.S. state attorneys general (the “Attorneys General”) in connection with a 2016 data breach affecting the personal information (including driver’s license numbers) of approximately 607,000 Uber drivers nationwide, as well as approximately 57 million consumers’ email addresses and phone numbers. The Attorneys General alleged that after Uber learned of the breach, which occurred in November 2016, the company paid intruders a $100,000 ransom to delete the data. The Attorneys General alleged that Uber failed to promptly notify affected individuals of the incident, as required under various state laws, instead notifying affected customers and drivers of the breach one year later in November 2017. 

On September 23, 2018, California Governor Jerry Brown signed into law SB-1121 (the “Bill”), which makes limited substantive and technical amendments to the California Consumer Privacy Act of 2018 (“CCPA”). The Bill takes effect immediately,  and delays the California Attorney General’s enforcement of the CCPA until six months after publication of the Attorney General’s implementing regulations, or July 1, 2020, whichever comes first. 

The Information Commissioner’s Office (“ICO”) in the UK has issued the first formal enforcement action under the EU General Data Protection Regulation (GDPR) and the UK Data Protection Act 2018 (the “DPA”) on Canadian data analytics firm AggregateIQ Data Services Ltd. (“AIQ”). The enforcement action, in the form of an Enforcement Notice served under section 149 of the DPA, requires AIQ to “cease processing any personal data of UK or EU citizens obtained from UK political organizations or otherwise for the purposes of data analytics, political campaigning or any other advertising purposes.”

On August 29, 2018, Bloomberg Law reported that four Senate Commerce Committee members are discussing a potential online privacy bill. The bipartisan group consists of Senators Jerry Moran (R-KS), Roger Wicker (R-MS), Richard Blumenthal (D-CT) and Brian Schatz (D-HI), according to anonymous Senate aides.

On August 22, 2018, California Attorney General Xavier Becerra raised significant concerns regarding the recently enacted California Consumer Privacy Act of 2018 (“CCPA”) in a letter addressed to the CCPA’s sponsors, Assemblyman Ed Chau and Senator Robert Hertzberg. Writing to “reemphasize what [he] expressed previously to [them] and [state] legislative leaders and Governor Brown,” Attorney General Becerra highlighted what he described as five primary flaws that, if unresolved, will undermine the intention behind and effective enforcement of the CCPA.

As reported on Hunton's Insurance Recovery blog, the Second Circuit has rejected Chubb subsidiary Federal Ins. Co.’s request for reconsideration of the court’s July 6, 2018, decision, confirming that the insurer must cover Medidata’s $4.8 million loss under its computer fraud insurance policy. In July, the court determined that the loss resulted directly from the fraudulent emails. The court again rejected the insurer’s argument that the fraudster did not directly access Medidata’s computer systems. But the court again rejected that argument, finding that access indeed occurred when the “spoofing” code in emails sent to Medidata employees ended up in Medidata’s computer system.

On August 15, 2018, U.S. District Judge Lucy Koh signed an order granting final approval of the record $115 million class action settlement agreed to by Anthem Inc. in June 2017. As previously reported, Judge Koh signed an order granting preliminary approval of the settlement in August 2017.

On August 3, 2018, California-based Unixiz Inc. (“Unixiz”) agreed to shut down its “i-Dressup” website pursuant to a consent order with the New Jersey Attorney General, which the company entered into to settle charges that it violated the Children’s Online Privacy Protection Act (“COPPA”) and the New Jersey Consumer Fraud Act. The consent order also requires Unixiz to pay a civil penalty of $98,618.

On July 19, 2018, the French Data Protection Authority (“CNIL”) announced that it served a formal notice to two advertising startups headquartered in France, FIDZUP and TEEMO. Both companies collect personal data from mobile phones via software development kit (“SDK”) tools integrated into the code of their partners’ mobile apps—even when the apps are not in use—and process the data to conduct marketing campaigns on mobile phones.

On July 11, 2018, computer manufacturer Lenovo Group Ltd. (“Lenovo”) agreed to a proposed $8.3 million settlement in the hopes of resolving consumer class claims regarding pop-up ad software Lenovo pre-installed on its laptops. Lenovo issued a press release stating that, "while Lenovo disagrees with allegations contained in these complaints, we are pleased to bring this matter to a close after 2-1/2 years."

On July 2, 2018, the Federal Trade Commission announced that California company ReadyTech Corporation (“ReadyTech”) agreed to settle FTC allegations that ReadyTech misrepresented it was in the process of being certified as compliant with the EU-U.S. Privacy Shield (“Privacy Shield”) framework for lawfully transferring consumer data from the European Union to the United States. The FTC finalized this settlement on October 17, 2018.

As reported in BNA Privacy Law Watch, on June 27, 2018, Equifax entered into a consent order (the “Order”) with 8 state banking regulators (the “Multi-State Regulatory Agencies”), including those in New York and California, arising from the company’s 2017 data breach that exposed the personal information of 143 million consumers.

On June 28, 2018, the Governor of California signed AB 375, the California Consumer Privacy Act of 2018 (the “Act”). The Act introduces key privacy requirements for businesses, and was passed quickly by California lawmakers in an effort to remove a ballot initiative of the same name from the November 6, 2018, statewide ballot. We previously reported on the relevant ballot initiative. The Act will take effect January 1, 2020.

On November 6, 2018, California voters will consider a ballot initiative called the California Consumer Privacy Act (“the Act”). The Act is designed to give California residents (i.e., “consumers”) the right to request from businesses (see “Applicability” below) the categories of personal information the business has sold or disclosed to third parties, with some exceptions. The Act would also require businesses to disclose in their privacy notices consumers’ rights under the Act, as well as how consumers may opt out of the sale of their personal information if the business sells consumer personal information.

On June 6, 2018, the U.S. Court of Appeals for the Eleventh Circuit vacated a 2016 Federal Trade Commission (“FTC”) order compelling LabMD to implement a “comprehensive information security program that is reasonably designed to protect the security, confidentiality, and integrity of personal information collected from or about consumers.” The Eleventh Circuit agreed with LabMD that the FTC order was unenforceable because it did not direct the company to stop any “unfair act or practice” within the meaning of Section 5(a) of the Federal Trade Commission Act (the “FTC Act”).

On May 24, 2018, the Federal Trade Commission granted final approval to a settlement (the “Final Settlement”) with PayPal, Inc., to resolve charges that PayPal’s peer-to-peer payment service, Venmo, misled consumers regarding certain restrictions on the use of its service, as well as the privacy of transactions. The proposed settlement was announced on February 27, 2018. In its complaint, the FTC alleged that Venmo misrepresented its information security practices by stating that it “uses bank-grade security systems and data encryption to protect your financial information.” Instead, the FTC alleged that Venmo violated the Gramm-Leach-Bliley Act’s (“GLBA’s”) Safeguards Rule by failing to (1) have a written information security program; (2) assess the risks to the security, confidentiality and integrity of customer information; and (3) implement basic safeguards such as providing security notifications to users that their passwords were changed. The complaint also alleged that Venmo (1) misled consumers about their ability to transfer funds to external bank accounts, and (2) misrepresented the extent to which consumers could control the privacy of their transactions, in violation of the GLBA Privacy Rule.

On April 30, 2018, the Federal Trade Commission announced that BLU Products, Inc. (“BLU”), a mobile phone manufacturer, agreed to settle charges that the company allowed ADUPS Technology Co. Ltd. (“ADUPS”), a third-party service provider based in China to collect consumers’ personal information without their knowledge or consent, notwithstanding the company’s promises that it would keep the relevant information secure and private. The relevant personal information allegedly included, among other information, text message content and real-time location information. On September 6, 2018, the FTC gave final approval to the settlement in a unanimous 5-0 vote.

The Federal Trade Commission has modified its 2017 settlement with Uber Technologies, Inc. (“Uber”) after learning of an additional breach that was not taken into consideration during its earlier negotiations with the company. The modifications are based on the fact that Uber failed to notify the FTC of a November 2016 breach, which took place during the time that the FTC was investigating an earlier, 2014 breach. The 2016 breach occurred when intruders used an access key that an Uber engineer had posted on GitHub to download more than 47 million user names, including related email addresses or phone numbers, as well as more than 600,000 drivers’ names and license numbers. The FTC alleged that after Uber learned of the breach, it paid the intruders a $100,000 ransom through its “bug bounty” program. The bug bounty program is intended to reward responsible disclosure of security vulnerabilities.