Privacy & Information Security Law Blog

As reported in BNA’s Privacy Law Watch, on April 1, 2011, a New York law went in effect requiring manufacturers of certain electronic equipment, including devices that have hard drives capable of storing personal information or other confidential data, to register with the Department of Environmental Conservation and maintain an electronic waste acceptance program.  The program must include convenient methods for consumers to return electronic waste to the manufacturer and instructions on how consumers can destroy data on the devices before recycling or disposing of them.  Retailers of covered electronic equipment will be required to provide consumers with information at the point of sale about opportunities offered by manufacturers for the return of electronic waste, to the extent they have been provided such information by the manufacturer.

A new French law containing several key amendments to the French Data Protection Act and creating a new public authority referred to as the “Defender of Rights” (Loi n°2011-334 du 29 mars 2011 relative au Défenseur des droits, or the “Law”) came into effect on March 30, 2011.  The Defender of Rights, whose role is to defend civil rights and liberties, to promote children’s rights and to fight against discrimination, also will serve as a member of the CNIL’s plenary committee.

On March 30, 2011, the Federal Trade Commission announced that Google agreed to settle charges that it used deceptive tactics and violated its own privacy promises to consumers when it launched its social network, Google Buzz, in 2010.  According to the FTC’s complaint (main document, exhibits), Google led Gmail users to believe that they could choose whether or not they wanted to join Google Buzz.  The options for declining or leaving Google Buzz, however, were ineffective.  For those who joined Google Buzz, the controls for limiting the sharing of their personal information were difficult to locate and confusing.  Furthermore, the FTC charged that Google violated its privacy policies by using information provided for Gmail for another purpose – social networking – without obtaining consumers’ permission in advance.  Finally, the FTC alleged that Google misrepresented that it was treating personal information from the European Union in accordance with the U.S.-EU Safe Harbor framework because it failed to give consumers notice and choice before using their information for a different purpose from that for which it was collected.

On March 28, 2011, the Briar Group, LLC, owner and operator of several Boston-area bars and restaurants, reached a settlement with Massachusetts Attorney General Martha Coakley regarding the breach of “tens of thousands” of consumers’ payment card information.  The settlement resolves a lawsuit filed in Massachusetts Superior Court alleging that in April 2009 hackers gained access to the Briar Group’s computer systems and misappropriated customer data by installing malcode which was not removed by the company until December of that year.  The complaint further alleged that the Briar Group’s lax data protection practices, such as allowing employees to share computer passwords and failing to secure network wireless connections, put customers’ personal information at risk.

As reported in Hunton & Williams' Employment & Labor Perspectives blog:

An employer who allegedly posted to an employee’s Facebook and Twitter accounts without her consent may face liability for its actions, according to a federal judge in Illinois.  The case is Maremont v. Susan Fredman Design Group, Ltd., in the U.S. District Court for the Northern District of Illinois (2011 U.S. Dist. LEXIS 26441, March 15, 2011).

The Plaintiff, Jill E. Maremont, worked as the Director of Marketing, Public Relations and E-Commerce for an interior designer and her company, Susan Fredman and the Susan Fredman Design Group, Ltd. (Defendants).  Maremont contends she created a “popular personal following” on Facebook and Twitter, and she also created a company blog called “Designer Diaries: Tales from the Interior.”

On March 16, 2011, at a U.S. Senate Commerce Committee hearing, Senator John Kerry (D-Mass.) announced his intention to introduce privacy legislation that would create “a common code of conduct that respects the rights of both the people sharing their information and legitimate organizations collecting and using it on fair terms and conditions.”  Kerry indicated that he had “reached out to our colleagues on both sides of the aisle, to privacy experts at firms, in academia, and in the advocacy community,” and asked for input into the process from witnesses at the hearing.

On March 21, 2011, the French Data Protection Authority (the “CNIL”) published its decision to fine Google €100,000 for violating the French Data Protection Act.

In 2009, the CNIL inspected Google’s geolocation service (“Street View”), which revealed that Google had collected huge quantities of undeclared personal data (e.g., navigation data, email content, logins and passwords) through Wi-Fi connections accessed by its Street View cars.  Google responded that the personal data had been collected by mistake, and promised to stop the Wi-Fi data collection.

On January 13, 2011, the China Banking Regulatory Commission issued Measures for the Supervision and Administration of the Credit Card Businesses of Commercial Banks (the “Measures”), which took effect that same day. The Measures are reported to be the first comprehensive regulations relating to the credit card business in China, and include a number of provisions on the protection of personal information by commercial banks, as detailed below.

On March 11, 2011, Virginia resident Peter Comstock filed a class action complaint against Netflix, Inc. in the United States District Court for the Northern District of California.  According to the complaint, Netflix “tracks its users’ viewing habits with respect to both videos watched over the Internet...and physical movies ordered through the Internet and watched at home,” while encouraging “subscribers to rank the videos they watch.”  The complaint alleges that Netflix’s practice of maintaining customer movie rental history and recommendations, “long after subscribers cancel their Netflix subscription,” violates the federal Video Privacy Protection Act (“VPPA”), and California’s Customer Records Act and Unfair Competition Law.  In addition, the complaint alleges that Netflix’s failure to properly store user information and its sale of customer data to third parties led to its unjust enrichment and a breach of its fiduciary duty.  Comstock and the putative class are seeking both an injunction to stop Netflix’s current practices and monetary damages.

As reported in Hunton & Williams' Employment & Labor Perspectives blog:

A commonly used pre-employment screening method--conducting credit checks--has drawn increased scrutiny in recent months.  Legislatures at the state and federal levels are considering bills that would limit employer use of credit checks.  Moreover, two recently-filed lawsuits, one of which was filed by the EEOC, seek to challenge the use of pre-employment credit checks in hiring decisions.