Privacy & Information Security Law Blog

On April 29, 2014, the French Data Protection Authority (“CNIL”) disclosed its annual inspections program, providing an overview of its inspections in 2013 and a list of the inspections it plans to conduct in 2014. Under French data protection law, the CNIL is authorized to collect any useful information in connection with its investigations and access data controllers’ electronic data and data processing programs. Since March 2014, the CNIL also is permitted to collect such information online through remote investigations.

On April 25, 2014, a judge in the U.S. District Court for the Southern District of New York ruled that Microsoft must release user data to U.S. law enforcement when issued a search warrant, even if the data is stored outside of the U.S.

On April 23, 2014, the Department of Health and Human Services (“HHS”) announced settlements with two health care companies stemming from allegations of inadequate information security practices in the wake of investigations involving stolen laptop computers. Concentra Health Services (“Concentra”) and QCA Health Plan Inc. (“QCA”) will collectively pay nearly $2 million to settle the claims.

On April 9, 2014, the Federal Trade Commission announced settlements with two data brokers, Instant Checkmate, Inc. (“Instant Checkmate”) and InfoTrack Information Services, Inc. (“InfoTrack”), which sell public record information about consumers. The settlements stem from allegations that Instant Checkmate and InfoTrack violated various provisions of the Fair Credit Reporting Act (“FCRA”). According to the press release, the FTC asserts that the companies violated the FCRA by “providing reports about consumers to users such as prospective employers and landlords without taking reasonable steps to make sure that they were accurate, or without making sure their users had a permissible reason to have them.”

On April 10, 2014, the Federal Trade Commission announced that the Director of the FTC’s Bureau of Consumer Protection had notified Facebook and WhatsApp Inc., reminding both companies of their obligation to honor privacy statements made to consumers in connection with Facebook’s proposed acquisition of WhatsApp.

On April 7, 2014, the U.S. District Court for the District of New Jersey issued an opinion in Federal Trade Commission v. Wyndham Worldwide Corporation, allowing the FTC to proceed with its case against the company. Wyndham had argued that the FTC lacks the authority to regulate data security under Section 5 of the FTC Act. The judge rejected Wyndham’s challenge, ruling that the FTC can charge Wyndham with unfair data security practices. The case will continue to be litigated on the issue of whether Wyndham’s data security practices constituted a violation of Section 5.

On March 28, 2014, the Federal Trade Commission announced proposed settlements with Fandango and Credit Karma stemming from allegations that the companies misrepresented the security of their mobile apps and failed to secure consumers’ sensitive personal information transmitted using their mobile apps.

The Federal Trade Commission recently acted on three industry proposals in accordance with the new Children’s Online Privacy Protection Rule (the “COPPA Rule”) that came into effect July 1, 2013. Specifically, the FTC determined that it was unnecessary to rule on a proposed parental consent mechanism, approved a proposed “safe harbor” program and is seeking public comment on a separate proposed “safe harbor” program.

On March 7, 2014, the Department of Health and Human Services (“HHS”) announced a resolution agreement and $215,000 settlement with Skagit County, Washington, following a security breach that affected approximately 1,600 individuals.

On March 6, 2014, the U.S. Federal Trade Commission (“FTC”) and UK Information Commissioner’s Office (“ICO”) signed a memorandum of understanding (“MOU”) to promote increased cooperation and information sharing between the two enforcement agencies.

On February 21, 2014, Peter Hustinx, the European Data Protection Supervisor (“EDPS”), highlighted the need to enforce existing EU data protection law and swiftly adopt EU data protection law reforms as an essential part of rebuilding trust in EU-U.S. data flows.

Triple-S Management Corporation reported in the 8-K it recently filed with the U.S. Securities and Exchange Commission that its health insurance subsidiary, Triple-S Salud, Inc. (“Triple S”), which is Puerto Rico’s largest health insurer, will be fined $6.8 million for a data breach that occurred in September 2013. The civil monetary penalty, which is being levied by the Puerto Rico Health Insurance Administration, will be the largest fine ever imposed following a breach of protected health information.

On February 11, 2014, the Federal Trade Commission announced a proposed settlement with Fantage.com stemming from allegations that the company made statements in its privacy policy that deceptively claimed that Fantage.com was complying with the U.S.-EU Safe Harbor Framework.

On January 31, 2014, the Federal Trade Commission announced a settlement with GMR Transcription Services, Inc. (“GMR”) stemming from allegations that GMR’s failure to provide reasonable security allowed certain patients’ medical transcripts to be exposed to the public on the Internet. The FTC issued an accompanying press release stating it was the FTC’s 50th data security settlement.

On January 21, 2014, the Federal Trade Commission announced settlements with twelve companies that allegedly falsely claimed that they complied with the U.S.-EU Safe Harbor Framework. The settlements stem from allegations that the companies violated Section 5 of the FTC Act by falsely representing that they held current Safe Harbor certifications despite having allowed their certifications to expire. The companies involved represent a variety of industries, ranging from technology and accounting to consumer products and National Football League teams.

In January 2014, the Department of Commerce’s International Trade Administration (“ITA”) posted a Key Points document to provide additional information about the benefits, oversight and enforcement of the U.S.-European Union and U.S.-Swiss Safe Harbor Frameworks. The Key Points document supplements information about the Safe Harbor Frameworks already available on the Department of Commerce website. For example, in the Key Points, the ITA notes that: 

On January 16, 2014, the Federal Trade Commission announced a settlement with TeleCheck Services, Inc., and its affiliated debt-collection entity, TRS Recovery Services, Inc. (collectively, “TeleCheck”). The settlement stems from allegations that TeleCheck violated various provisions of the Fair Credit Reporting Act (“FCRA”). According to the press release, the settlement is “part of a broader initiative to target the practices of data brokers, which often compile, maintain, and sell sensitive consumer information” and is similar to an FTC settlement with a different company in August 2013.

On January 15, 2014, the Federal Trade Commission announced a proposed settlement with Apple Inc. stemming from allegations that the company billed consumers for mobile app charges incurred by children without their parents’ consent. Specifically, the FTC’s complaint alleges that Apple violated the FTC Act by not informing account holders that, for a 15-minute window after entering their password to approve a single in-app purchase, their children could make unlimited purchases without further action by the parent.

On January 8, 2014, Senator Patrick Leahy (D-VT), Chair of the U.S. Senate Judiciary Committee, reintroduced the Personal Data Privacy and Security Act of 2014, comprehensive information security legislation that would establish a national standard for data breach notification and require businesses to safeguard customers’ sensitive personal information from cyber threats. The bill also would establish criminal penalties for individuals who intentionally or willfully conceal a security breach involving personal data when the incident causes economic damage to consumers.

On December 18, 2013, the UK Information Commissioner’s Office (“ICO”) published its proposed strategy for handling complaints, stating that, beginning in April 2014, it will focus its efforts on the investigation of serious and repeat violations of data protection laws. The ICO also intends to publish regular reports highlighting the number of complaints it receives about organizations and enforcement actions it has taken. The ICO is seeking comments on the proposed strategy, which is explained in a public consultation document, before January 31, 2014.

On December 31, 2013, the Federal Trade Commission announced that Accretive Health, Inc. (“Accretive”) has agreed to settle charges that the company’s inadequate data security measures unfairly exposed sensitive consumer information to the risk of theft or misuse. Accretive experienced a breach in July 2011 that involved the protected health information of more than 23,000 patients.

On December 26, 2013, the Department of Health and Human Services (“HHS”) announced a resolution agreement and $150,000 settlement with Adult & Pediatric Dermatology, P.C. (“APDerm”), a private dermatology practice based in Massachusetts, following a security breach that affected approximately 2,200 individuals. In connection with the announcement, the HHS Office for Civil Rights (“OCR”) Director Leon Rodriguez stated that “[c]overed entities of all sizes need to give priority to securing electronic protected health information.”

On December 5, 2013, the Federal Trade Commission announced a proposed settlement with mobile app developer Goldenshores Technologies, LLC (“Goldenshores”) following allegations that Goldenshores’ privacy policy for its popular Brightest Flashlight Free app deceived consumers regarding how the app collects information, including geolocation information, and how that information may be shared with third parties. Brightest Flashlight Free, developed for the Android operating system, allows its users to use their cell phones as flashlights.

On December 3, 2013, the U.S. Department of Commerce’s National Telecommunications and Information Administration (“NTIA”) announced a new multistakeholder process to develop a code of conduct regarding the commercial use of facial recognition technology. The first meeting is set for February 6, 2014 in Washington, D.C., and will provide stakeholders with background on the privacy issues associated with facial recognition technology, including how facial recognition technology currently is being used by businesses and how it may be used in the near future. The February meeting is open to all interested stakeholders and will be available for viewing via webcast. Additional meetings are planned for the spring and summer of 2014.

On November 22, 2013, New Jersey’s Acting Attorney General announced that the State had entered into a settlement agreement with Dokogeo, Inc. (“Dokogeo”), a California-based company that makes mobile device applications, regarding allegations that one of the company’s mobile apps violated the Children’s Online Privacy Protection Act of 1998 (“COPPA”), the recently amended Children’s Online Privacy Protection Rule (the “Rule”) and the New Jersey Consumer Fraud Act.

As reported by Bloomberg BNA, Mexico’s Federal Institute for Access to Information and Data Protection (“IFAI”) recently issued data security guidelines that implement the security provisions of the Federal Law for the Protection of Personal Data Held by Private Parties (Reglamento de la Ley Federal de Protección de Datos Personales en Posesión de los Particulares).

On November 15, 2013, the Supreme Court of Canada declared the Alberta Personal Information Protection Act (“PIPA”) invalid because the legislation interfered with the right to freedom of expression in the labor context under Section 2(b) of the Canadian Charter of Rights and Freedoms (the “Canadian Charter”). The case arose in the context of a labor union representing employees of a casino in Alberta. During a lawful strike, the union recorded and photographed individuals crossing the union’s picket line near the main entrance of the casino. The union had posted a sign that the images of persons crossing the picket line might be placed on a website. A number of individuals who were recorded crossing the picket line filed complaints under PIPA with the Alberta Information and Privacy Commissioner, who appointed an adjudicator to determine whether the union had contravened PIPA by collecting and disclosing personal information about individuals without their consent. Under PIPA, organizations cannot collect, use or disclose personal information without the individual’s consent, unless an exception applies.

The Luxembourg data protection authority (Commission nationale pour la protection des donées, “CNPD”) has stated that it will not investigate complaints relating to the alleged involvement of Microsoft Luxembourg (“Microsoft”) and Skype Software S.a.r.l. and Skype Communications S.a.r.l. (collectively, “Skype”) in the PRISM surveillance program. The PRISM surveillance program involves the transfer of EU citizens’ data to the U.S. National Security Agency (the “NSA”).

On November 14, 2013, the Minister of the Malaysian Communications and Multimedia Commission (the “Minister”) announced that Malaysia’s Personal Data Protection Act 2010 (the “Act”) would be going into effect as of November 15, marking the end of years of postponements. The following features of the law are of particular significance:

On November 13, 2013, the Federal Trade Commission announced that it denied a proposal submitted by AssertID, Inc. for a mechanism to obtain verifiable parental consent in accordance with the new Children’s Online Privacy Protection Rule (the “COPPA Rule”) that came into effect July 1, 2013.

On November 13, 2013, Google entered into a $17 million settlement agreement with the attorneys general from 37 states and the District of Columbia related to allegations that the company bypassed users’ cookie-blocking settings on Apple’s Safari browser in 2011 and 2012. The settlement requires Google to refrain from bypassing cookie controls in the future and requires Google to maintain a page on its site informing users about cookies and how to manage them. Last year, Google agreed to a $22.5 million settlement with the Federal Trade Commission in connection with similar ...

On November 26, 2013, Kazakhstan’s new data privacy law, On Personal Data and Their Protection, will come into effect. The law was passed on May 21, 2013. Kazakhstan is the second country in Central Asia to enact a data privacy law, joining the Kyrgyz Republic, which passed the Law on Personal Data in 2008.

On October 25, 2013, the Standing Committee of the National People’s Congress of the People’s Republic of China passed an amendment to the P.R.C. Law on the Protection of Consumer Rights and Interests (the “Amendment”). The Amendment, which was adopted after three readings and will take effect on March 15, 2014, adds provisions designed to respond to the recent boom in online shopping and focuses on improving protections in the area of consumer rights and interests by:

On October 22, 2013, the Federal Trade Commission announced a proposed settlement with Aaron’s, Inc. (“Aaron’s”) stemming from allegations that it knowingly assisted its franchisees in spying on consumers. Specifically, the FTC alleged that Aaron’s facilitated its franchisees’ installation and use of software on computers rented to consumers that surreptitiously tracked consumers’ locations, took photographs of consumers in their homes, and recorded consumers’ keystrokes in order to capture login credentials for email, financial and social media accounts. The FTC had previously settled similar allegations against Aaron’s and several other companies.

On October 16, 2013, the Federal Communications Commission’s revisions to its Telephone Consumer Protection Act rules go into effect. As we previously reported, the revisions require that businesses obtain “express written consent” prior to advertising or telemarketing through (1) autodialed calls or text messages, or prerecorded calls to consumers’ mobile numbers, and (2) prerecorded calls to consumers’ residential lines. In addition, the FCC’s revisions eliminate the exemption that allowed businesses to place prerecorded advertising or telemarketing calls to a consumer’s residential phone line if the business had a pre-existing business relationship with the consumer.

At its meeting on October 7, 2013, the Council of the European Union voiced support for the “one-stop-shop” mechanism in the draft General Data Protection Regulation (the “Regulation”). The “one-stop-shop” mechanism allocates responsibility for overseeing data processing activities in multiple EU Member States to the data protection authority of the EU Member State where the data controller or processor has its main establishment. At the Council meeting, a majority of the EU Member States indicated that the responsible data protection authority should have exclusive decision powers with regard to enforcement actions, but acknowledged that the “local” DPAs should be involved in the decisionmaking process as well. The Council emphasized the need for further exploration of the European Data Protection Board’s role in ensuring consistent application of EU data protection rules.

On October 4, 2013, The Centre for Information Policy Leadership’s Senior Policy Advisor Fred Cate reported on the 35th International Conference of Data Protection and Privacy Commissioners which concluded on September 24 in Warsaw, Poland. The report indicates that four main issues dominated the Conference: (1) challenges presented by technologies such as mobile apps and online profiling, (2) multinational interoperability and enforcement, (3) pending EU data protection regulation and alternatives, and (4) repercussions of NSA surveillance activities.

On September 23 and 24, 2013, a declaration and eight resolutions were adopted by the closed session of the 35th International Conference of Data Protection and Privacy Commissioners and have been published on the conference website. This blog post provides an overview of the declaration and the most significant resolutions.

On September 9, 2013, the Federal Trade Commission announced that it is seeking public comment on another proposed mechanism (submitted by Imperium, LLC) to obtain verifiable parental consent in accordance with the new Children’s Online Privacy Protection Rule (the “COPPA Rule”) that came into effect July 1, 2013. This announcement follows on the heels of a similar recent announcement that the Commission is seeking public comment on a parental consent mechanism proposed by a different company.

On September 10, 2013, the UK Information Commissioner’s Office (“ICO”) published new guidance on direct marketing (the “Guidance”). The Guidance explains the application of the two principal legislative instruments that affect direct marketing in the UK: (1) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”), which relates specifically to direct marketing; and (2) the Data Protection Act 1998 (the “DPA”), which governs data protection issues generally. The Guidance is not legally binding, but it reflects the ICO’s interpretation of the requirements and indicates how the ICO is likely to enforce them.

On September 4, 2013, California state legislators passed an amendment to the state’s breach notification law. The bill, SB 46, would expand notification requirements to include security incidents involving the compromise of personal information that would permit access to an online or email account. Pursuant to SB 46, the definition of “personal information” contained in Sections 1798.29 and 1798.82 of California’s Civil Code would be amended to include “a user name or email address, in combination with a password or security question and answer that would permit access to an online account.” Notably, the compromise of these data elements alone  ̶  even when not in conjunction with an individual’s first name or first initial and last name  ̶  would trigger a notification obligation under the amended law. In addition, the bill does not limit the data elements that constitute “personal information” to those that would permit access to an individual’s financial account.

On September 4, 2013, the Federal Trade Commission announced a settlement with TRENDnet, Inc. (“TRENDnet”) stemming from allegations that TRENDnet’s failure to provide reasonable security for its Internet Protocol (“IP”) security cameras allowed hackers to publicly post online live feeds from approximately 700 customers’ cameras. As the FTC noted in its press release, “this is the agency’s first action against a marketer of an everyday product with interconnectivity to the Internet and other mobile devices – commonly referred to as the ‘Internet of Things.’”

In recent months, the Chinese government has focused an increasing amount of attention on the protection of personal information. As we previously reported, there have been a number of new data protection regulations in China, including the Decision on Strengthening the Protection of Information on the Internet issued by the Standing Committee of the National People’s Congress in December 2012, and new rules issued by the Ministry of Industry and Information Technology this July to protect personal information collected by telecommunications and Internet service providers. This focus also is illustrated by Shanghai authorities’ recent crackdown on crimes involving personal information.

On August 29, 2013, the FTC announced that it had filed a complaint against LabMD, Inc. (“LabMD”) for failing to protect consumers’ personal data. According to the complaint, LabMD, which performs various laboratory tests for consumers, exposed the personal information of more than 9,000 consumers on a peer-to-peer (“P2P”) file-sharing network. Specifically, a LabMD spreadsheet that was found on the P2P network contained names, Social Security numbers, dates of birth, health insurance information and medical treatment codes. In another instance, identity thieves were able to obtain LabMD documents that contained the personal information of more than 500 consumers, including names, Social Security numbers and bank account information.

As reported by Bloomberg BNA, the South African Parliament passed the Protection of Personal Information Bill on August 22, 2013. The bill, which was sent to President Jacob Zuma to be signed into law, represents South Africa’s first comprehensive data protection legislation.

On August 1, 2013, the United States District Court for the District of Minnesota denied a criminal defendant’s motion to suppress, holding that the defendant had no reasonable expectation of privacy in computer files he shared on a peer-to-peer network.

On August 15, 2013 the Federal Trade Commission announced a settlement with Certegy Check Services, Inc. (“Certegy”) stemming from allegations that Certegy violated various provisions of the Fair Credit Reporting Act (“FCRA”). The settlement agreement includes a $3.5 million civil penalty for “knowing violations ... that constituted a pattern or practice of violations.”

On August 15, 2013, the Federal Trade Commission announced that it is seeking public comment regarding a proposed mechanism to obtain verifiable parental consent in accordance with the new Children’s Online Privacy Protection Rule (the “COPPA Rule”) that came into effect July 1, 2013. The COPPA Rule requires operators of certain websites and online services to obtain a parent’s consent before collecting personal information online from a child under 13.

On August 14, 2013, the Department of Health and Human Services (“HHS”) announced a resolution agreement and $1,215,780 settlement with Affinity Health Plan (“Affinity”) stemming from a security breach that affected approximately 350,000 individuals.

As reported by Bloomberg BNA, the Irish Office of the Data Protection Commissioner (“ODPC”) has stated that it will not investigate complaints relating to the alleged involvement of Facebook Ireland Inc. (“Facebook”) and Apple Distribution International (“Apple”) in the PRISM surveillance program.

On April 19, 2013, the North Dakota legislature amended the state’s breach notification law (Section 51-30-01 of the North Dakota Century Code) to expand the definition of “personal information” to include “health insurance information” and “medical information.” Pursuant to the amended breach law, “health insurance information” is defined to mean an “individual’s health insurance policy number or subscriber identification number and any unique identifier used by a health insurer to identify the individual.” “Medical information” is defined to mean “any information regarding an individual’s medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional.” The amendment also carves out an exemption for covered entities, business associates and subcontractors that are subject to the breach notification requirements of 45 C.F.R. 164, Subpart D.

On July 26, 2013, the Federal Trade Commission announced updates to its frequently asked questions regarding the Children’s Online Privacy Protection Act of 1998 (“COPPA”). The updated FAQs, which have replaced the June 2013 version on the FTC’s Business Center website, provide additional information in the sections addressing websites and online services directed to children and disclosure of information to third parties.

On July 16, 2013, the Ministry of Industry and Information Technology of the People’s Republic of China (the “MIIT”) issued a new rule entitled Provisions on the Registration of Real Identity Information of Telephone Users (the “Provisions”), which will take effect on September 1, 2013. The Provisions were issued pursuant to the Resolution of the Standing Committee of the National People’s Congress Relating to Strengthening the Protection of Information on the Internet (the “Resolution”) and the Telecommunications Regulations of the People’s Republic of China. In April 2013, the MIIT issued a draft of the Provisions and solicited public comment.

On July 16, 2013, the Ministry of Industry and Information Technology of the People’s Republic of China (the “MIIT”) issued a new rule entitled Provisions on the Protection of Personal Information of Telecommunications and Internet Users (the “Provisions”). The Provisions, which will take effect on September 1, 2013, are intended to implement the general requirements set forth in last December’s Resolution of the Standing Committee of the National People’s Congress Relating to Strengthening the Protection of Information on the Internet (the “Resolution”). The Provisions are the first specific regulations concerning personal information protection by telecommunications service providers in China.

Senior Attorney Rosemary Jay reports from London:

On June 25, 2013, Advocate-General Jääskinen of the European Court of Justice (“ECJ”) delivered his Opinion in Google Spain S.L. and Google Inc. v Agencia Española de Protección de Datos (Case C-131/12, “Google v AEPD” or the “case”).

The case concerns Google Search results, and whether individuals have a right to erasure of search result links about them. The Opinion concludes that under current law, individuals have no such right. The European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”) would introduce a right to be forgotten. However, this Opinion appears to demonstrate unease with the basic concept of such a right.

On July 11, 2013, the Department of Health and Human Services (“HHS”) announced a resolution agreement and $1.7 million settlement with WellPoint Inc. following a security breach that affected over 600,000 individuals.

Today, July 1, 2013, the Federal Trade Commission’s changes to the Children’s Online Privacy Protection Rule (the “Rule”) officially come into effect. On December 19, 2012, the FTC announced that it had published the amended Rule following two years of public comments and multiple reviews of various proposed changes.

On June 20, 2013, the UK Information Commissioner’s Office (“ICO”) launched its Annual Report and Financial Statements for 2012/13 (the “Report”). Introducing the Report, Information Commissioner Christopher Graham strongly emphasized that, as consumers become increasingly aware of their information rights, good privacy practices will become a commercial benefit and a business differentiator. He outlined the seven key “e”s of the ICO’s role: enforce, educate, empower, enable, engage, and to be effective and efficient.

On June 13, 2013, the Department of Health and Human Services (“HHS”) announced a resolution agreement and $275,000 settlement with Shasta Regional Medical Center (“Shasta”) that pertained to impermissible disclosures of protected health information (“PHI”) by Shasta officials to the media, as well as to Shasta’s entire workforce.

On June 17, 2013, the Federal Trade Commission announced that FTC Chair Edith Ramirez has appointed Jessica Rich as Director of the Bureau of Consumer Protection. Rich has served in several leadership roles in the FTC’s Bureau of Consumer Protection during her 20-year tenure with the agency. Most recently, she served as Associate Director of the Division of Financial Practices.

On May 23, 2013, the Office of the Privacy Commissioner of Canada (“OPC”) issued a position paper (the “Paper”) proposing revisions to the Personal Information Protection and Electronic Documents Act (“PIPEDA”) to better align PIPEDA with the risks facing a modern information economy. Privacy Commissioner of Canada Jennifer Stoddart addressed the release of the Paper in her remarks at the IAPP Canada Privacy Symposium, stating that “[i]t is increasingly clear that the law is not up to the task of meeting the challenges of today – and certainly not those of tomorrow.” According to the Paper, the surge in the collection, availability and use of personal data has upset the balance between the privacy rights of individuals and the legitimate needs of businesses originally struck by PIPEDA. In response, the Paper proposes four general revisions to PIPEDA:

On May 21, 2013, the Department of Health and Human Services (“HHS”) announced a resolution agreement and $400,000 settlement with Idaho State University (“ISU”) for a breach that affected 17,500 individuals.

The ISU settlement relates to servers that had their firewall protections disabled, which left the electronic protected health information (“ePHI”) of patients at ISU’s Pocatello Family Medicine Clinic unsecured for at least ten months. Following the submission of a breach report to the HHS Office for Civil Rights (“OCR”), an investigation determined that ISU allegedly had not complied with HIPAA Security Rule requirements, including by conducting an incomplete and inadequate risk analysis and by failing to “adequately implement procedures to regularly review records of information system activity to determine if any ePHI was used or disclosed in an inappropriate manner.”

On May 9, 2013, the Federal Communications Commission (“FCC”) released a declaratory ruling clarifying the liability of a seller for violations of the Telemarketing Consumer Protection Act (“TCPA”) made by third-party telemarketers and others who place calls to market the seller’s products or services.

On May 15, 2013, the Federal Trade Commission announced that it sent educational letters to over 90 businesses that appear to collect personal information from children under the age of 13, reminding them of the impending July 1 deadline for compliance with the updated Children’s Online Privacy Protection Rule (the “Rule”). The letters were sent to domestic and foreign companies that may be collecting information from children that is now considered “personal information” under the Children’s Online Privacy Protection Act (“COPPA”) but was not previously considered “personal information.” The definition of “personal information” under COPPA was expanded to include (1) photos, videos and audio recordings of children; and (2) persistent identifiers that may recognize users over time and across various websites and online services (e.g., cookies and IP addresses).

A state court has dismissed the California Attorney General’s claims that Delta Air Lines Inc. (“Delta”) violated the California Online Privacy Protection Act by failing to have an appropriately posted privacy policy for its mobile application, Bloomberg reports. The California AG sued Delta in December as part of an enforcement campaign that began with the issuance of warning letters to approximately 100 operators of mobile apps, including Delta. According to the Bloomberg report, a basis for the dismissal was the federal Airline Deregulation Act, under which a state ...

On April 30, 2013, the regional court of Berlin enjoined Apple Sales International, which is based in Ireland, (“Apple”) from relying on eight of its existing standard data protection clauses in contracts with customers based in Germany. The court also prohibited Apple’s future use of such clauses.

On May 3, 2013, the German Federal Council (Bundesrat) passed a new bill regarding access to telecom user data, such as names, addresses, passwords and credit card PIN codes. This comes after the German Federal Diet (Bundestag) passed the German government’s bill on March 21, 2013, which amends, among other laws, Germany’s Federal Telecommunications Act.

On May 6, 2013, the Federal Trade Commission announced that it had voted unanimously to reject a request from industry groups to delay the July 1, 2013 deadline for implementation of the updated Children’s Online Privacy Protection Rule (the “Rule”). The groups had argued that the delay was necessary because they needed more time to comply with the changes to the Rule, which the FTC promulgated on December 19, 2012. In its response to the groups, the FTC asserted that the groups have been on notice of the changes since the beginning of the rulemaking process over three years ago, and ...

On April 10, 2013, the Ministry of Industry and Information Technology of the People’s Republic of China (the “MIIT”) enacted two draft rules (“Provisions on the Protection of Personal Information of Telecommunications and Internet Users” and “Provisions on the Registration of Real Identity Information of Telephone Users”) to solicit public comments. The comment period is open until May 15, 2013. Both Drafts include proposals for substantial provisions on the protection of personal information and were enacted according to the Resolution of the Standing Committee of the National People’s Congress Relating to Strengthening the Protection of Information on the Internet (issued by the Standing Committee in December 2012) and some other telecommunications rules.

On April 3, 2013, the Federal Trade Commission issued a press release announcing that it had sent warning letters to operators of six websites that provide rental history reports to landlords for tenant screening purposes. The letters informed the website operators that they may be considered consumer reporting agencies (“CRAs”) subject to the requirements of the Fair Credit Reporting Act (“FCRA”).

On March 8, 2013, the German government published a response to a formal inquiry from one of the German Parliament’s parties on the international security, data protection and surveillance implications of cloud computing. The response describes international cooperation between German and foreign law enforcement agencies that have used mutual legal assistance treaties to obtain cloud data in foreign jurisdictions. An earlier study by the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs considered the scope of U.S. laws that allow surveillance of non-U.S. residents in a cloud computing context. The German government’s response now provides information on how German law enforcement agencies obtain data from clouds outside their jurisdiction (e.g., in the United States) pursuant to mutual legal assistance treaties.

On March 22, 2013, Peru issued the implementing regulations of its new data protection law. The Reglamento de la Ley No 29733, Ley de Protección de Datos Personales (“Regulations”) provide detailed rules on a variety of topics, including the following:

• Territorial scope;
• notice and consent;
• data transfers;
• processing of personal data relating to children and adolescents;
• data processing in the communications and telecommunications sectors;
• outsourcing;
• information security;
• data subjects’ rights;
• registration of databases;
• codes of conduct; and
• enforcement.

On March 20, 2012, the UK Information Commissioner’s Office announced that it has issued a monetary penalty of £90,000 against DM Design Bedrooms Ltd. (“DM Design”) for making thousands of unwanted marketing calls.

On February 12, 2013, the UK Information Commissioner’s Office published a further analysis of the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”). This latest analysis supplements the initial analysis paper on the Proposed Regulation published on February 27, 2012. Although the general views expressed in its initial paper stand, the ICO has now provided greater detail regarding its views of the substantive provisions of the Proposed Regulation.

On March 12, 2013, Connecticut Attorney General George Jepsen announced that a coalition of 38 states had entered into a $7 million settlement with Google Inc. (“Google”) regarding its collection of unsecured Wi-Fi data via the company’s Street View vehicles between 2008 and 2010. The settlement is the culmination of a multi-year investigation by the states that we first reported on in 2010.

On March 11, 2013, in Tyler v. Michaels Stores, Inc., the Massachusetts Supreme Judicial Court effectively reinstated the suit against the retailer by answering favorably for the plaintiff three certified questions from the United States District Court for the District of Massachusetts regarding Massachusetts General Laws Chapter 93, Section 105(a) entitled “Consumer Privacy in Commercial Transactions” (“Section 105(a)”). The court ruled that (1) a ZIP code constitutes personal identification information under the Massachusetts law; (2) a plaintiff may bring an action for a violation of the Massachusetts law absent identity fraud; and (3) the term “credit card transaction form” refers equally to electronic and paper transaction forms. The Massachusetts court’s determination that a ZIP code constitutes personal identification information is similar to the determination in Pineda v. Williams-Sonoma Stores, Inc., in which the California Supreme Court held that ZIP codes are “personal identification information” under California’s Song-Beverly Credit Card Act. More than 15 states, including Massachusetts and California, have statutes limiting the type of information that retailers can collect from customers.

On February 27, 2013, the Article 29 Working Party (the “Working Party”) issued a statement on the European Commission’s proposed revised data protection framework (“Statement”), including the proposed General Data Protection Regulation (“Proposed Regulation”). The Working Party offered amendments to the Proposed Regulation in the form of two Annexes to the Statement on the topics of competence and lead data protection authority (“DPA”) and the exemption for household or personal activities.

On February 28, 2013, a White House official confirmed that President Obama will nominate Edith Ramirez as Chair of the Federal Trade Commission. Ramirez, who has served as an FTC Commissioner since April 2010, will replace outgoing Chairman Jon Leibowitz, who announced his departure earlier this month.

Prior to being nominated to the FTC in 2010, Ramirez worked as an attorney in private practice, focusing on litigation and antitrust issues. Ramirez has been an active participant in the Asia-Pacific Economic Cooperation Data Privacy Subgroup and the development of the APEC ...

On February 22, 2013, the Federal Trade Commission announced that it had settled charges against HTC America, Inc. (“HTC”) alleging that the mobile device manufacturer “failed to take reasonable steps to secure the software it developed for its smartphones and tablet computers, introducing security flaws that placed sensitive information about millions of consumers at risk.” This settlement marks the FTC’s first case against a mobile device manufacturer.

On January 28, 2013, the London office of Hunton & Williams marked European Data Privacy Day with the launch of the fourth edition of Data Protection Law & Practice, written by Senior Attorney Rosemary Jay. A panel comprised of the current UK Information Commissioner, Christopher Graham; his three predecessors, Eric Howe CBE, Elizabeth France CBE and Richard Thomas CBE; and the UK Minister of State for Justice, Lord McNally, spoke at the event and provided a retrospective on data protection in the United Kingdom since the Information Commissioner’s Office’s (“ICO’s”) inception in 1984.

On February 1, 2013, the Federal Trade Commission issued a new report entitled Mobile Privacy Disclosures: Building Trust Through Transparency. The report makes recommendations “for the major participants in the mobile ecosystem as they work to improve mobile privacy disclosures,” offering specific recommendations for mobile platforms, app developers, advertising networks and other third parties operating in this space. The FTC’s report also makes mention of the Department of Commerce’s National Telecommunications and Information Administration’s efforts to engage in a multistakeholder process to develop an industry code of conduct for mobile apps.

On February 1, 2013, the Federal Trade Commission announced that Chairman Jon Leibowitz will step down from his role on February 15, 2013. Leibowitz, who has been with the Commission since 2004 and was appointed Chairman in 2009, leaves the agency with a much more aggressive privacy agenda than the one he inherited, having helped to shape “groundbreaking work on consumer protection and competition issues.” During what may be his final press conference as Chairman, Leibowitz announced a new staff report on mobile app privacy disclosures and an enforcement action against the operator of a social networking app stemming from allegedly deceptive information collection practices that violated Section 5 of the FTC Act and the Children’s Online Privacy Protection Act.

On January 28, 2013, the Federal Trade Commission announced a proposed settlement agreement with CBR Systems, Inc. (“CBR”), an operator of a cord blood bank, which collects personal information about consumers and physicians through its websites and in connection with the provision of its services, including names, addresses, dates of birth, Social Security numbers, credit card numbers and health information.

On January 24, 2013, the UK Information Commissioner’s Office (“ICO”) served Sony Computer Entertainment Europe Limited (“Sony”) with a monetary penalty of £250,000 resulting from a serious breach of the Data Protection Act 1998. An April 2011 security incident involving the Sony PlayStation Network Platform affected the personal data of millions of customers, including names, addresses, email addresses, dates of birth, account passwords and credit card details.

In a January 13, 2013 blog post, the Federal Trade Commission’s Bureau of Consumer Protection’s Business Center Blog highlighted the FTC’s recent groundbreaking settlement for violations of the Fair Credit Reporting Act (“FCRA”) in the mobile app context. The settlement with Filiquarian Publishing, LLC, Choice Level, LLC, and Joshua Linsk (the owner of Filiquarian and Choice Level, collectively, the “Companies”), is the first FCRA enforcement action against a mobile app developer. Filiquarian offered mobile apps to consumers for purposes of conducting criminal background checks in numerous states, and Choice Level provided the criminal background checks used by the apps to Filiquarian.

As reported in BNA’s Privacy & Security Law Report, on December 14, 2012, a federal district court in California ruled that a retail store’s policy of collecting personal information only after providing customers with receipts does not violate the Song-Beverly Credit Card Act (“Song-Beverly”). Under Section 1747.08(a)(2) of Song-Beverly, a retailer that accepts credit cards for the transaction of business may not “[r]equest, or require as a condition to accepting the credit card as payment … the cardholder to provide personal identification information,” which the entity accepting the credit card then “writes, causes to be written, or otherwise records upon the credit card transaction form or otherwise.”

On January 7, 2013, Massachusetts Attorney General Martha Coakley announced that several Massachusetts medical practices have agreed to a consent judgment and $140,000 payment to settle charges they improperly disposed of medical information. The defendants, which include several pathology practices and a firm that provided medical billing services to those practices, were accused of dumping hard copy medical records at the Georgetown Transfer Station, a waste management facility open to the public. The records allegedly contained the names, Social Security numbers and medical diagnoses of approximately 67,000 individuals. The illegal dumping allegations were publicized in a Boston Globe article after a photographer for the newspaper discovered medical records at the facility while he was disposing of his own trash.

On January 2, 2013, the Department of Health and Human Services (“HHS”) announced a resolution agreement and $50,000 settlement with Hospice of North Idaho (“HONI”) for a breach that affected 441 individuals. This action is notable because prior HHS enforcement actions relating to breaches have involved a greater number of affected individuals (for example, the first breach-related enforcement action in March 2012 affected more than 1 million). The Health Information Technology for Economic and Clinical Health (“HITECH”) Breach Notification Rule sets 500 as a threshold number of affected individuals triggering certain notification requirements such as the obligation to notify HHS within 60 days of discovery of the breach.

On December 19, 2012, the Irish Data Protection Commissioner (“DPC”) wrote to 80 website operators requesting details regarding how they are complying with recent changes to Irish law governing the use of cookies and other similar technologies (SI 336/ 2011, the “Regulations”). The letter expects website operators, which include government departments as well as companies, to comply fully with the Regulations, which took effect 18 months ago and require user consent before deploying or accessing cookies or other information stored on users’ computer equipment. If the relevant organizations have not yet achieved compliance, they are expected to provide an explanation to the DPC explaining “why it has not been possible to comply by now, a clear timescale for when compliance will be achieved, and details of specifically what work is being done to make that happen.”

In an interview with Marianne Kolbasuk McGee of HealthcareInfoSecurity, Lisa J. Sotto, partner and head of the Global Privacy and Data Security practice at Hunton & Williams LLP, discusses the measures health care organizations should take to prepare for the issuance of the upcoming HIPAA Omnibus Rule. In March 2012, the Department of Health and Human Services (“HHS”) sent its final Omnibus Rule modifying the HIPAA Privacy, Security and Enforcement Rules to the White House Office of Management and Budget. In the interview, Sotto outlines her predictions of the content of the Omnibus Rule, including “modifications to the HIPAA privacy, security and enforcement rules” and “a final version of the HIPAA breach notification rule.”

Internet users have expressed increasing concern about efforts to track their online activities. As the online tracking methods used to target advertisements have expanded in both scope and complexity, regulators have taken notice and have begun to act in the online behavioral tracking and advertising space. In an article published in the November/December 2012 issue of IP Litigator, Lisa J. Sotto, partner and head of the Global Privacy and Data Security practice at Hunton & Williams LLP, and Melinda L. McLellan, a senior associate on the firm’s Privacy and Data Security team ...

U.S. Federal Trade Commission Chairman Jon Leibowitz announced on Monday that David C. Vladeck, director of the FTC's Bureau of Consumer Protection, is leaving the Commission on December 31, 2012 to return to the Georgetown University Law Center.

On December 19, 2012, the Federal Trade Commission announced the adoption of its long-awaited amendments to the Children’s Online Privacy Protection Rule (the “Rule”). The FTC implemented the Rule, which became effective on April 21, 2000, pursuant to provisions in the Children’s Online Privacy Protection Act of 1998 (“COPPA”).

On December 10, 2012, the Federal Trade Commission issued a new report, Mobile Apps for Kids: Disclosures Still Not Making the Grade, which follows up on the FTC’s February 2012 report, Mobile Apps for Kids: Current Privacy Disclosures are Disappointing. The FTC conducted a follow-up survey regarding pre-download mobile app privacy disclosures, and whether those disclosures accurately describe what occurs during use of the apps.

On December 6, 2012, California Attorney General Kamala D. Harris announced a lawsuit against Delta Air Lines, Inc. (“Delta”) for violations of the California Online Privacy Protection Act (“CalOPPA”). The suit, which the Attorney General filed in the San Francisco Superior Court, alleges that Delta failed to conspicuously post a privacy policy within Delta’s “Fly Delta” mobile application to inform users of what personally identifiable information is collected and how it is being used by the company. CalOPPA requires “an operator of a commercial Web site or online service that collects personally identifiable information through the Internet about individual consumers residing in California who use or visit its commercial Web site or online service,” such as a mobile application, to post a privacy policy that contains the elements set out in CalOPPA. According to Attorney General Harris’ complaint, Delta has operated the “Fly Delta” application for smartphones and other electronic devices since at least 2010. The complaint alleges that “[d]espite collecting substantial personally identifiable information (“PII”) such as user’s full name, telephone number, email address, frequent flyer account number and PIN code, photographs, and geo-location, the Fly Delta application does not have a privacy policy. It does not have a privacy policy in the application itself, in the platform stores from which the application may be downloaded, or on Delta’s website.”

On December 5, 2012, the Federal Trade Commission announced that the online advertising company Epic Marketplace, Inc. (“Epic”) agreed to settle charges that it engaged in “history sniffing” to secretly and illegally collect information about consumers’ interest in sensitive medical and financial issues. History sniffing is the practice of determining whether a consumer has previously visited a webpage by checking how a browser displays a hyperlink. The consent order requires Epic to destroy all data collected from history sniffing and bars Epic from engaging in history sniffing in the future.

On November 28, 2012, the UK Information Commissioner’s Office (“ICO”) issued monetary penalties totaling £440,000 to two owners of a marketing company that sent millions of unlawful spam SMS text messages over a period of three years.

On November 20, 2012, the UK Information Commissioner’s Office (“ICO”) published “Anonymisation: Managing Data Protection Risk Code of Practice” (the “Code”). The purpose of the Code is to provide organizations with a framework for assessing the risks of anonymization. It also sets forth good practice recommendations that may be adopted by organizations to provide a “reasonable degree of confidence” that the publication and sharing of anonymized data will not lead to an “inappropriate disclosure of personal data.” The published Code follows a consultation on the same topic earlier this year. The ICO also announced the creation of the UK Anonymisation Network, which will promote the sharing of good practices related to anonymization across the public and private sectors.

On November 13-15, 2012, delegates at the IAPP Europe Data Protection Congress in Brussels were given insight into how discussions with key policymakers are progressing. As European Parliament rapporteur and Member of the European Parliament Jan Philipp Albrecht aims to finalize the reform of the EU Data Protection Directive by the end of the current European Parliament’s mandate in 2014, this ambitious goal faces numerous hurdles.

On October 26, 2012, the Federal Trade Commission finalized its settlement agreements with two businesses that allegedly exposed thousands of customers’ sensitive personal information by allowing peer-to-peer (“P2P”) file-sharing software to be installed on the companies’ computer systems. The approved settlements prohibit Georgia auto dealer Franklin’s Budget Car Sales, Inc. (“Franklin”) and Utah-based debt collector EPN, Inc. (“EPN”) from misrepresenting their privacy and information security practices and requires both businesses to establish and maintain a comprehensive information security program subject to biennial, independent, third-party audits for 20 years. The settlement with Franklin also bars the company from violating the Gramm-Leach-Bliley Act (“GLBA”) Safeguards Rule and Privacy Rule.