Privacy & Information Security Law Blog

On January 17, 2013, the Department of Health and Human Services (“HHS”) issued a Final Omnibus Rule modifying the Privacy, Security and Enforcement Rules promulgated pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) as well as the Breach Notification Rule promulgated pursuant to the Health Information Technology for Economic and Clinical Health Act (the “HITECH” Act) enacted in 2009. The Final Rule comes two and a half years after the proposed rule was published in July 2010.

On January 16, 2013, the French Data Protection Authority (“CNIL”) released its opinion on the draft report issued by Jan Philipp Albrecht, the rapporteur to the EU Parliament’s Committee on Civil Liberties, Justice and Home Affairs (the “Report”). The Report included detailed amendments to the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”) submitted by various stakeholders which Rapporteur Albrecht consolidated and distilled into a single text. The CNIL’s Report welcomes these amendments and in particular, the following:

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.”

Recently, the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE”) released a study titled Fighting cyber crime and protecting privacy in the cloud (the “Study”). The Study originally was prepared in October 2012 at the request of the LIBE Committee by the European Parliament’s Policy Department of Citizens’ Rights and Constitutional Affairs, with the help of the Centre for European Policy Studies and the Centre d’Etudes sur les Conflits.

On January 10, 2013, the rapporteur to the EU Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE”), Jan Philipp Albrecht, presented his draft report (the “Report”) on the proposed amendments to the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”) to the LIBE Committee.

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.

Reporting from Washington, D.C., Hunton & Williams associate Andrew Walsh writes:

Data embedded in photos can make a picture worth far more than a thousand words. To provide an example rich in irony, a well-known figure in Internet security who was wanted for police questioning recently inadvertently pinpointed his location for the authorities with an online posting of a photo containing Exchangeable Image File (“EXIF”) data. EXIF data is saved with JPG files on digital cameras and, if the camera has GPS, the EXIF data may include geolocation information such as the date, time, longitude, latitude and altitude of the photo.

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.”