Privacy & Information Security Law Blog

On October 12, 2020, the California Attorney General (“AG”) issued a third set of proposed modifications to the regulations implementing the California Consumer Privacy Act of 2018 (“CCPA”). As we previously reported, the long-awaited CCPA regulations were approved by the California Office of Administrative law and became effective on August 14, 2020. This new set of proposed modifications would revise portions of the regulations relating to the notice of right to opt-out, methods for submitting opt-out of sale requests, and verification of authorized agents ...

On September 18, 2020, the U.S. Department of Commerce (“Commerce”) announced detailed sanctions relating to the mobile applications WeChat and TikTok. These prohibitions were issued in accordance with President Trump’s Executive Orders issued on August 6, 2020, imposing economic sanctions against the platforms under the International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq.) and the National Emergencies Act (50 U.S.C. § 1601 et seq.). These orders, if they become fully effective, will (1) prohibit mobile app stores in the U.S. from permitting downloads or updates to the WeChat and TikTok mobile apps; (2) prohibit U.S. companies from providing Internet backbone services that enable the WeChat and TikTok mobile apps; and (3) prohibit U.S. companies from providing services through the WeChat mobile app for the purpose of transferring funds or processing payments to or from parties. The sanctions do not target individual or business use of the applications but are expected to degrade the ability of persons in the United States to use the apps for the purposes they were designed to serve.

UPDATE: On September 29, 2020, California Governor Gavin Newsom vetoed AB 1138.

On September 8, 2020, AB 1138, the Parent’s Accountability and Child Protection Act, was enrolled and presented to the California Governor for signature. If signed into law by the Governor, the bill would require a business that operates a social media website or application, beginning July 1, 2021, to obtain verifiable parental consent for California-based children that the business “actually knows” are under 13 years of age (hereafter, “Children”). The bill defines “social media” to mean an electronic service or account held open to the general public to post, on either a public or semi-public page dedicated to a particular user, electronic content or communication, including but not limited to videos, photos or messages intended to facilitate the sharing of information, ideas, personal messages or other content.

UPDATE: On September 25, 2020, California Governor Gavin Newsom vetoed SB-980.

On August 31, 2020, the California Senate joined the Assembly in passing SB-980, as amended, a bill to establish the Genetic Information Privacy Act (the “Act”), which would require direct-to-consumer genetic testing companies to comply with certain privacy and data security provisions, including providing consumers with prescribed notice; obtaining consumers’ express consent regarding the collection, use and disclosure of genetic data; and enabling consumers to access and delete their genetic data. The bill is pending California Governor Gavin Newsom’s signature.

On August 30, 2020, the California legislature passed AB-1281. As background, the California Consumer Privacy Act of 2018 (“CCPA”) currently exempts from most of its requirements certain information collected in the HR context and certain information collected about B2B personnel. Each exemption is scheduled to sunset on January 1, 2021. As we previously reported, the California Privacy Rights Act (“CPRA”) ballot initiative, if passed during the state’s November 3, 2020 general election, would extend the CCPA’s HR and B2B exemptions to January 1, 2023 ...

On August 14, 2020, the California Attorney General announced that the California Office of Administrative Law (“OAL”) approved the final regulations issued under the California Consumer Privacy Act of 2018 (“CCPA”) and filed them with the California Secretary of State. As we previously reported, the California Attorney General submitted the draft regulations to the OAL on June 1, 2020, and requested that the regulations become effective on the same day they are filed with the Secretary of State. The OAL has complied with that request, and the regulations go into effect ...

Earlier this year, The Retail Equation, a loss prevention service provider, and Sephora were hit with a class action lawsuit in which the plaintiff claimed Sephora improperly shared consumer data with The Retail Equation without consumers’ knowledge or consent. The plaintiff claimed The Retail Equation did so to generate risk scores that allegedly were “used as a pretext to advise Sephora that attempted product returns and exchanges are fraudulent and abusive.”

On July 1, 2020, the Dubai International Financial Centre (“DIFC”) Data Protection Law No. 5 of 2020 came into effect (“New DP Law”). Due to the current pandemic, a three-month grace period, running until October 1, 2020, has been provided for companies to comply. The New DP Law replaces DIFC Law No. 1 of 2007. The release of the New DP Law is, in part, an effort to ensure that the DIFC, a financial hub for the Middle East, Africa and South Asia, meets the standard of data protection required to receive an “adequacy” finding from the European Commission and the United Kingdom, meaning that companies may transfer EU/UK personal data to the DIFC without putting in place a transfer mechanism (such as Standard Contractual Clauses).

On July 1, 2020, the California Consumer Privacy Act of 2018 (“CCPA”) became enforceable by the California Attorney General. Under the statute, businesses are granted 30 days to cure any alleged violations of the law after being notified of alleged noncompliance. If a business fails to cure the alleged violation, it may be subject to an injunction and liable for a civil penalty of up to $2,500 for each violation or $7,500 for each intentional violation.

According to a memorandum issued by the California Secretary of State on June 24, 2020, the California Privacy Rights Act (“CPRA”) has garnered enough signatures to be placed on the State’s General Election ballot this November 3, 2020. As we previously reported, the CPRA would amend the California Consumer Privacy Act of 2018 (“CCPA”) to create new and additional privacy rights and obligations in California. According to early polling by Californians for Consumer Privacy (the group behind the CPRA), nine in 10 Californians would vote to support a ballot measure ...

On June 11, 2020, the California Senate amended AB-713 to the California Consumer Privacy Act of 2018 (“CCPA”). The Senate’s recent amendments impose new contractual obligations on the use or sale of de-identified information and modify the exemption from the CCPA for information used for public health purposes. The California Assembly had originally passed AB-713 in 2019 to (1) explicitly carve out from coverage by the CCPA information de-identified pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) Privacy Rule, and (2) expand the CCPA exemption for information used for research purposes. AB-713 is intended to “preserv[e] access to information needed to conduct important health-related research that will benefit Californians.” The revised version of AB-713 containing the Senate’s recent amendments has not yet passed either house of the California legislature.

The Federal Trade Commission (“FTC”) announced its latest Children’s Online Privacy Protection Act (“COPPA”) settlement with California-based app developer HyperBeard and its individual principals. According to the FTC, since at least 2016, HyperBeard has offered a number of child-directed mobile apps, with names like BunnyBuns, KleptoCats and NomNoms that featured brightly colored, animated characters, such as cats, dogs, bunnies, chicks, monkeys and other cartoon characters, and that are described in child-friendly terms like “super cute” and “silly.” These apps are free to download and play, but they generate revenue through in-app advertising and purchases. The FTC alleges that the defendants were aware that children were using their apps, and that they promoted them to child audiences on a kids’ entertainment website, through children’s books and through the merchandizing of officially licensed plush stuffed animals and toys. Defendants allowed third-party ad networks to collect persistent identifiers from children in order to serve them with interest-based ads without parental notice or consent, in violation of COPPA.

On June 1, 2020, the Office of the California Attorney General submitted the final California Consumer Privacy Act (“CCPA”) proposed regulations to the California Office of Administrative Law (“OAL”). Notably, the final proposed regulations are the same as the draft issued in March. The OAL must review the rulemaking package for procedural compliance with California’s Administrative Procedure Act. The OAL’s typical 30-day review period has been extended by 60 calendar days under an executive order related to the COVID-19 pandemic. Assuming OAL approves the regulations, the final text will be filed with the Secretary of State.

On May 4, 2020, Californians for Consumer Privacy (the group behind the ballot initiative that inspired the California Consumer Privacy Act of 2018 (“CCPA”)) announced that it had collected over 900,000 signatures to qualify the California Privacy Rights Act (“CPRA”) for the November 2020 ballot. The group announced that it was taking steps to submit the CPRA for inclusion on the November ballot in counties across California. The CPRA would amend the CCPA to create new and additional privacy rights and obligations in California, including the following:

California Attorney General (“AG”) Xavier Becerra recently issued an alert emphasizing the rights of California consumers under the California Consumer Privacy Act (“CCPA”) during the COVID-19 pandemic. The alert follows media reports that the AG’s office is “committed to enforcing the law upon finalizing the rules or [by] July 1, whichever comes first,” even with the “new reality created by COVID-19.”

On April 2, 2020, Hunton Andrews Kurth LLP will host a webinar on the California Consumer Privacy Act (“CCPA”): The CCPA Is Here—Are You Litigation-Ready? Most companies have now developed a framework for compliance with the CCPA. Having a compliance program in place is critical, and that includes preparing for the inevitable onslaught of class action litigation that is coming.

Hunton’s Centre for Information Policy Leadership (“CIPL”) reports on the top privacy-related priorities for this year:

1.  Global Convergence and Interoperability between Privacy Regimes

Around the world, new privacy laws are coming into force and outdated laws continue to be updated: the EU General Data Protection Regulation (“GDPR”), Brazil’s Lei Geral de Proteção de Dados Pessoais (“LGPD”), Thailand’s Personal Data Protection Act, India’s and Indonesia’s proposed bills, California’s Consumer Privacy Act (“CCPA”), and the various efforts in the rest of the United States at the federal and state levels. This proliferation of privacy laws is bound to continue.

On March 11, 2020, the California Attorney General (“AG”) issued a second set of modified draft regulations implementing the California Consumer Privacy Act of 2018 (“CCPA”). The AG has provided a redline to the initial modified draft regulations about which we previously reported. According to the AG’s website, the second set of modified draft regulations are subject to another public comment period. The deadline to submit written comments is March 27, 2020, at 5:00 p.m. (PST).

On February 10, 2020, the California Attorney General issued a slightly revised version of the modified draft regulations implementing the California Consumer Privacy Act of 2018, having omitted a revision in Section 999.317(g) from the version published on February 7, 2020. The deadline to submit written comments has been extended to February 25, 2020, at 5:00 p.m. (PST).

On February 7, 2020, the California Attorney General (“AG”) issued modified draft regulations implementing the California Consumer Privacy Act of 2018 (“CCPA”). The AG has provided a redline to the initial draft regulations about which we previously reported.  According to the AG’s website, the modified draft regulations are subject to another public comment period. The deadline to submit written comments is February 24, 2020, at 5:00 p.m. (PST).

Though all may be quiet on New Year’s Day, January 1, 2020, is the compliance date for the California Consumer Privacy Act of 2018 (“CCPA”). On the cusp of a new decade, we enter a new era of privacy rights.

The CCPA is now in effect, but the California Attorney General cannot begin enforcement until July 1, 2020. We want to congratulate everyone on their hard work this past year and a half.

If you watched the ball drop in New York City last night, we hope you can say that you didn’t drop the ball on CCPA compliance. They say hindsight is always 20/20. CCPA compliance can be your New Year’s ...

As part of National Cybersecurity Awareness Month, Lisa Sotto, partner and chair of Hunton Andrews Kurth’s Privacy and Cybersecurity practice, was highlighted as the featured author in Wolters Kluwer’s October issue of Author Insights. Lisa is the editor and lead author of Wolters Kluwer’s Privacy and Cybersecurity Law Deskbook, a guide to managing privacy and data security issues globally.

On November 5, 2019, Representatives Anna G. Eshoo (CA) and Zoe Lofgren (CA) introduced the Online Privacy Act (the “Act”), which proposes sweeping legislation that would create federal privacy rights for individuals, require companies to adhere to data minimization and establish a federal Digital Privacy Agency (“DPA”).

On November 19, 2019, Hunton Andrews Kurth will host an in-person breakfast briefing in the firm’s London office to explore the California Consumer Privacy Act (“CCPA”), against the backdrop of the EU General Data Protection Regulation (“GDPR”).

In the seminar, we will discuss:

• The CCPA in the context of the GDPR, covering the similarities and differences between the frameworks
•  Key CCPA obligations
• The CCPA’s approach to enforcement and penalties
• How businesses are approaching CCPA compliance, and leveraging their GDPR work

The event will be led by Hunton partners ...

On October 11, 2019, California Governor Gavin Newsom signed into law AB 1130, which expands the types of personal information covered by California’s breach notification law to include, when compromised in combination with an individual’s name: (1) additional government identifiers, such as tax identification number, passport number, military identification number, or other unique identification number issued on a government document commonly used to verify the identity of a specific individual; and (2) biometric data generated from measurements or technical analysis of human body characteristics (e.g., fingerprint, retina, or iris image) used to authenticate a specific individual. Biometric data does not include a physical or digital photograph unless used or stored for facial recognition purposes.

On October 11, 2019, California Governor Gavin Newsom announced that he signed all five of the California Legislature’s September 2019 amendments to the California Consumer Privacy Act of 2018 (“CCPA”) into law: AB-25, AB-874, AB-1146, AB-1355 and AB-1564. The Governor had until October 13, 2019, to sign or veto the amendments, which were passed at the end of the Legislature’s 2019 legislative session. This news came just a day after California Attorney General Xavier Becerra released proposed regulations implementing the CCPA.

On October 10, 2019, the California Attorney General (“AG”) announced Proposed Regulations implementing the California Consumer Privacy Act of 2018 (“CCPA”). Along with a Notice of Proposed Rulemaking Action and the Text of Proposed Regulations, the AG issued an Initial Statement of Reasons elaborating on the purposes of the proposed regulations.

On September 24, 2019, Alastair Mactaggart, drafter of the 2018 California ballot initiative that served as the basis for the California Consumer Privacy Act of 2018 (“CCPA”), announced that he is filing a new initiative for California’s November 2020 ballot, the California Privacy Enforcement Act (“CPEA”).

On September 20, 2019, Bloomberg Law reported that California Attorney General Xavier Becerra anticipates that draft regulations implementing the California Consumer Privacy Act of 2018 (“CCPA”) will be published this October. According to Bloomberg’s reporting, the Attorney General aims to issue final regulations by January 1, 2020, the CCPA’s compliance deadline. Under the CCPA, the Attorney General may begin enforcement of the law six months after the publication of final regulations or July 1, 2020, whichever is sooner ...

California marked the end of the 2019 legislative session this past Friday, September 13, by passing five out of six pending bills to amend the California Consumer Privacy Act of 2018 (“CCPA”). The bills – AB-25, AB-874, AB-1146, AB-1355 and AB-1564 – now head to California Governor Newsom’s desk for signature, which must occur by October 13 for the bills to be signed into law. The only pending bill not to pass was AB-846, which would have addressed the law’s application to customer loyalty programs; it was ordered to the inactive file at the request of Senator Jackson.

There are six bills pending before the California legislature that would amend the California Consumer Privacy Act of 2018 (“CCPA”). These bills could significantly alter the law’s application and associated compliance obligations, including with respect to HR data, B2B customer data, loyalty programs and the definition of “personal information.” As of September 12, three bills have passed out of the California Senate and are pending before the Assembly for a concurring vote: AB 874, AB 1146 and AB 1564. The California legislature must vote on all pending CCPA ...

A number of bills to amend the California Consumer Privacy Act of 2018 (“CCPA”) are still pending before the California legislature. Of particular interest to many businesses is AB 25. AB 25 would exempt from the CCPA’s application “[p]ersonal information collected by a business about a natural person in the course of the natural person acting as a job applicant to, an employee of, owner of, director of, officer of, medical staff member of, or contractor of that business” if the personal information is collected and used by the business solely within the context of the person’s role or former role as a job applicant to, an employee of, owner of, director of, officer of, medical staff member of, or a contractor of that business. The bill also would exempt from the CCPA’s application emergency contact information of these exempted categories of individuals and information necessary to administer benefits for persons related to such individuals.  Notably, AB 25 does not appear to exempt business-to-business customer representatives or representatives of other third-party business partners.  AB 25 also would authorize a business to require authentication of a consumer that is reasonable in light of the nature of the personal information requested. The bill further would authorize a business to require a consumer to submit the consumer’s verifiable request through the consumer’s account, where the consumer maintains an account with the business.

Today marks one year since the California Consumer Privacy Act of 2018 (“CCPA”) was passed and signed into law. The CCPA signals a dramatic shift in the data privacy regime in the United States, imposing on covered businesses the most prescriptive general privacy rules in the nation. In addition, the past year has seen a legislative explosion in the form of similar proposed state laws and potential federal data privacy legislation.

On June 4, 2019, Hunton hosted a webinar with partners Lisa Sotto, Aaron Simpson, Brittany Bacon and Fred Eames on the evolving U.S. privacy landscape. The past year has seen highly consequential legislative developments in U.S. privacy law affecting compliance obligations for businesses that have or use consumer data. Various states and the U.S. Congress are considering bills that could transform privacy in the United States. In this program, our speakers discuss the California Consumer Privacy Act of 2018 (“CCPA”) and other significant state and federal privacy legislation.

On May 16, 2019, the California State Senate Appropriations Committee did not approve SB 561, a bill that would have amended the California Consumer Privacy Act (“CCPA”) to expand the private right of action to permit consumers to sue for any violations of the CCPA. The Committee’s decision to hold the bill means it will not pass out of the Senate this session.

In late April, the California state legislature’s Privacy and Consumer Protection Committee held hearings on nine bills that seek to refine the California Consumer Privacy Act of 2018 (“CCPA”) by clarifying the legislation and limiting its scope. Eight bills advanced to the Assembly Appropriations Committee; the ninth is non-fiscal and will next be heard by the full Assembly. Last week, the California Assembly Appropriations Committee approved three of the bills. These bills, now on the Assembly’s “Consent Calendar,” will be heard this week. The Appropriations Committee will hold hearings on the other five bills in the next two weeks.

From the Assembly’s Appropriations Committee, bills must go through the full Assembly, the California Senate and the California governor to be enacted as law.

Hunton Andrews Kurth LLP is pleased to announce the launch of a dedicated site focused on the California Consumer Privacy Act of 2018 (“CCPA”), which serves as a resource for businesses to understand and prepare to comply with the CCPA. Transformative in nature, the CCPA will impact most businesses that process the personal information of California residents, and is likely to set the stage for a wider shift in standards on data privacy across the United States.

On February 22, 2019, California state senator Hannah Beth-Jackson introduced a bill (SB-561) that would amend the California Consumer Privacy Act of 2018 (“CCPA”) to expand the Act’s private right of action and remove the 30-day cure period requirement for enforcement actions brought by the State Attorney General. The bill would not change the compliance deadline for the CCPA, which remains January 1, 2020. California Attorney General Xavier Becerra supports the amendment bill, characterizing it as “a critical measure to strengthen and clarify the CCPA.”

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.

As we move closer to implementation of the California Consumer Privacy Act of 2018 (“CCPA”), companies should consider how the new law could affect their operations in multiple ways – including, for example, data collected through their employee benefit plans.

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 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.

As reported on the Blockchain Legal Resource, California Governor Jerry Brown recently signed into law Assembly Bill No. 2658 for the purpose of further studying blockchain’s application to Californians. In doing so, California joins a growing list of states officially exploring distributed ledger technology.

Vizio, Inc. (“Vizio”), a California-based company best known for its internet-connected televisions, agreed to a $17 million settlement that, if approved, will resolve multiple proposed consumer class actions consolidated in California federal court. The suits’ claims, which are limited to the period between February 1, 2014 and February 6, 2017, involve data-tracking software Vizio installed on its smart TVs. The software allegedly identified content displayed on Vizio TVs and enabled Vizio to determine the date, time, channel of programs and whether a viewer watched live or recorded content. The viewing patterns were connected to viewer’s IP addresses, though never, Vizio emphasized in its press release announcing the proposed settlement, to an individual’s name, address, or similar identifying information. According to Vizio, viewing data allows advertisers and programmers to develop content better aligned with consumers’ preferences and interests.  

On September 28, 2018, California Governor Jerry Brown signed into law two identical bills regulating Internet-connected devices sold in California. S.B. 327 and A.B. 1906 (the “Bills”), aimed at the “Internet of Things,” require that manufacturers of connected devices—devices which are “capable of connecting to the Internet, directly or indirectly,” and are assigned an Internet Protocol or Bluetooth address, such as Nest’s thermostat—outfit the products with “reasonable” security features by January 1, 2020; or, in the bills’ words: “equip [a] device with a reasonable security feature or features that are appropriate to the nature and function of the device, appropriate to the information it may collect, contain, or transmit, and designed to protect the device and any information contained therein from unauthorized access, destruction, use, modification, or disclosure[.]”

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. 

On September 5, 2018, the U.S. District Court for the Central District of California held that a class action arising from a 2016 Uber Technologies Inc. (“Uber”) data breach must proceed to arbitration. The case was initially filed after a 2016 data breach that affected approximately 600,000 Uber drivers and 57 million Uber customers. 

On August 31, 2018, the California State Legislature passed SB-1121, a bill that delays enforcement of the California Consumer Privacy Act of 2018 (“CCPA”) and makes other modest amendments to the law. The bill now goes to the Governor for signing. The provisions of the CCPA will become operative on January 1, 2020. As we have previously reported, the CCPA introduces key privacy requirements for businesses. The Act 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. The CCPA’s hasty passage resulted in a number of drafting errors and inconsistencies in the law, which SB-1121 seeks to remedy. The amendments to the CCPA are primarily technical, with few substantive changes.

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 in BNA Privacy Law Watch, a California legislative proposal would allocate additional resources to the California Attorney General’s office to facilitate the development of regulations required under the recently enacted California Consumer Privacy Act of 2018 (“CCPA”). CCPA was enacted in June 2018 and takes effect January 1, 2020. CCPA requires the California Attorney General to issue certain regulations prior to the effective date, including, among others, (1) to update the categories of data that constitute “personal information” under CCPA ...

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."

During the week of June 25, 2018, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP hosted its annual executive retreat in San Francisco, California. The annual event consisted of a closed pre-retreat session for CIPL members, a CIPL Panel at the APPA Forum Open session followed by a CIPL reception and dinner and a special all day workshop with data protection commissioner members of the Asia Pacific Privacy Authorities (“APPA”) on Accountable AI.

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 June 21, 2018, California lawmakers introduced AB 375, the California Consumer Privacy Act of 2018 (the “Bill”). If enacted and signed by the Governor by June 28, 2018, the Bill would introduce key privacy requirements for businesses, but would also result in the removal of a ballot initiative of the same name from the November 6, 2018, statewide ballot. We previously reported on the relevant ballot initiative.

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 August 25, 2017, U.S. District Judge Lucy Koh signed an order granting preliminary approval of the record class action settlement agreed to by Anthem Inc. this past June. The settlement arose out of a 2015 data breach that exposed the personal information of more than 78 million individuals, including names, dates of birth, Social Security numbers and health care ID numbers. The terms of the settlement include, among other things, the creation of a pool of funds to provide credit monitoring and reimbursement for out-of-pocket costs for customers, as well as up to $38 million in attorneys’ fees. Anthem will also be required to make certain changes to its data security systems and cybersecurity practices for at least three years.

Recently, Nevada enacted an online privacy policy law which will require operators of websites and online services to post a notice on their website regarding their privacy practices. The Nevada law contains content requirements for online privacy notices, specifying that the notice must (1) identify the categories of personally identifiable information (“PII”) collected through the website and the categories of third parties with whom PII may be shared; (2) provide information about users’ ability to review and request changes to PII collected through the website; (3) disclose whether third parties may collect information about users’ online activities from the website; and (4) provide an effective date of the notice.

On June 23, 2017, Anthem Inc., the nation’s second largest health insurer, reached a record $115 million settlement in a class action lawsuit arising out of a 2015 data breach that exposed the personal information of more than 78 million people. Among other things, the settlement creates a pool of funds to provide credit monitoring and reimbursement for out-of-pocket costs for customers, as well as up to $38 million in attorneys’ fees.

On June 13, 2017, Judge Andrea R. Wood of the Northern District of Illinois dismissed with prejudice a putative consumer class action filed against Barnes & Noble. The case was first filed after Barnes & Noble’s September 2012 announcement that “skimmers” had tampered with PIN pad terminals in 63 of its stores and exposed payment card information. The court had previously dismissed the plaintiffs’ original complaint without prejudice for failure to establish Article III standing. After the Seventh Circuit’s decision in Remijas v. Neiman Marcus Group, the plaintiffs filed an almost identical amended complaint that alleged the same causes of action and virtually identical facts. Although the court found that the first amended complaint sufficiently alleged Article III standing, the plaintiffs nevertheless failed to plead a viable claim. The court therefore dismissed the first amended complaint under Rule 12(b)(6). 

On October 14, 2016, California Attorney General Kamala D. Harris announced the release of a publicly available online form that will enable consumers to report potential violations of the California Online Privacy Protection Act (“CalOPPA”). CalOPPA requires website and mobile app operators to post a privacy policy that contains certain specific content.

On February 16, 2016, California Attorney General Kamala D. Harris released the California Data Breach Report 2012-2015 (the “Report”) which, among other things, provides (1) an overview of businesses’ responsibilities regarding protecting personal information and reporting data breaches and (2) a series of recommendations for businesses and state policy makers to follow to help safeguard personal information.

On December 15, 2015, the California Attorney General announced an approximately $25 million settlement with Comcast Cable Communications, LLC (“Comcast”) stemming from allegations that Comcast disposed of electronic equipment (1) without properly deleting customer information from the equipment and (2) in landfills that are not authorized to accept electronic equipment. The settlement must be approved by a California judge before it is finalized.

On October 8, 2015, California Governor Jerry Brown signed into law the California Electronic Communications Privacy Act (“CalECPA”). The law requires police to obtain a warrant before accessing an individual’s private electronic information, such as text messages, emails, GPS data and online documents that are stored in the cloud and on smartphones, tablets, computers and other digital devices. The government also must obtain a warrant before requiring a business to produce an individual’s electronic information.

On October 2, 2015, California Attorney General Kamala D. Harris announced that her office settled a lawsuit against home design website, Houzz Inc. (“Houzz”). Houzz was charged with secretly recording incoming and outgoing telephone calls for training and quality assurance purposes without notifying its customers, employees or call recipients, in violation of California eavesdropping and wiretapping laws. As part of the settlement, the Attorney General required Houzz to destroy the recordings, pay a fine of $175,000 and hire a Chief Privacy Officer to supervise its compliance with privacy laws and conduct privacy risk evaluations to assess Houzz’s privacy practices. This is the first time that the Attorney General has required the hiring of a Chief Privacy Officer as part of a settlement.

On July 9, 2015, the National Telecommunications and Information Administration (“NTIA”) announced the launch of its first cybersecurity multistakeholder process, in which representatives from across the security and technology industries will meet in September to discuss vulnerability research disclosure.

The U.S. District Court for the Central District of California recently granted, only in part, a motion to dismiss a data breach class action against Sony Pictures Entertainment, Inc. (“Sony”) in Corona v. Sony Pictures Entertainment, Inc., No. 14-CV-09600 (RGK) (C.D. Cal. June 15, 2015). The case therefore will proceed with some of the claims intact.

On May 5, 2015, the Financial Crimes Enforcement Network of the U.S. Treasury Department (“FinCEN”), in coordination with the U.S. Attorney’s Office for the Northern District of California (“USAO”), announced a civil monetary penalty of $700,000 against Ripple Labs, Inc. (“Ripple Labs”) and its subsidiary XRP II, LLC (“XRP II”) for violations of the Bank Secrecy Act (“BSA”). This assessment represents the first BSA enforcement action against a virtual currency exchanger by FinCEN. The fine coincides with a settlement agreement between Ripple Labs, XRP II and the USAO to resolve any criminal and civil liability arising out of these activities, the terms of which include a $450,000 forfeiture and full cooperation by Ripple Labs in the ongoing investigation.

On January 5, 2015, the Alameda County District Attorney’s Office announced that Safeway Inc. (“Safeway”) has agreed to pay $9.87 million to settle claims that the company unlawfully disposed of customer medical information and hazardous waste in violation of California’s Confidentiality of Medical Information Act and Hazardous Waste Control Law. In a series of waste inspections from 2012 to 2013, a group of California district attorneys and environmental regulators found that Safeway was disposing of both its pharmacy customers’ confidential information and various types of hazardous wastes in the company’s dumpsters. Based on the investigation, 42 California district attorneys and two city attorneys brought a complaint on December 31, 2014, alleging, among other things, that more than 500 Safeway stores and distribution centers engaged in the disposal of their customers’ medical information in a manner that did not preserve the confidentiality of the information.

On November 18, 2014, Hunton & Williams’ Global Privacy and Cybersecurity practice group hosted the latest webcast in its Hunton Global Privacy Update series. The program covered a number of privacy and data protection topics, including a report on the International Conference of Data Protection and Privacy Commissioners, highlights on the Council of the European Union’s proposed revisions to the compliance obligations of data controllers and data processors included in Chapter IV of the forthcoming EU General Data Protection Regulation, and U.S. highlights on California’s breach report and Federal Communications Commission enforcement actions.

Hunton & Williams Labor & Employment partner Susan Wiltsie reports:

Fears of a worldwide Ebola pandemic appear to have abated, but the tension between workplace safety and employee privacy, thrown into relief by this health emergency, remains an issue relevant to all employers. Any potential health threat created by contagious illness requires employers to plan and put into effect a reasonable response, including policies governing the terms and conditions under which employees may be required to stay away from the workplace, and in which their health care information may be relevant to workplace decisions.

On October 28, 2014, California Attorney General Kamala D. Harris announced the release of the second annual California Data Breach Report. The report provides information on data breaches reported to California’s Attorney General in 2012 and 2013. Overall, 167 breaches were reported by 136 different entities to California’s Attorney General in 2013. According to the report, 18.5 million records of California residents were compromised by these reported breaches, up more than 600 percent from the 2.6 million records compromised in 2012. In addition, the number of reported data breaches increased by 28 percent in 2013, rising from 131 in 2012 to 167 in 2013.

On October 14, 2014, rent-to-own retailer Aaron’s, Inc. (“Aaron’s”) entered into a $28.4 million settlement with the California Office of the California Attorney General related to charges that the company permitted its franchised stores to unlawfully monitor their customers’ leased laptops.

On September 30, 2014, California Governor Jerry Brown announced the recent signings of several bills that provide increased privacy protections to California residents. The newly-signed bills are aimed at protecting student privacy, increasing consumer protection in the wake of a data breach, and expanding the scope of California’s invasion of privacy and revenge porn laws. Unless otherwise noted, the laws will take effect on January 1, 2015.

On August 19, 2014, California state legislators made final amendments to a bill updating the state’s breach notification law. The amended bill, which passed the State Senate on August 21 and the Assembly on August 25, is now headed to California Governor Jerry Brown for signature. If signed, the scope of the existing law would extend to apply to entities that “maintain” personal information about California residents. Currently, only entities that “own” or “license” such personal information are required to implement and maintain reasonable security procedures and practices to protect the personal information from unauthorized access, destruction, modification or disclosure.

On May 21, 2014, California Attorney General Kamala D. Harris issued guidance for businesses (“Guidance”) on how to comply with recent updates to the California Online Privacy Protection Act (“CalOPPA”). The recent updates to CalOPPA include requirements that online privacy notices disclose how a site responds to “Do Not Track” signals, and whether third parties may collect personal information about consumers who use the site. In an accompanying press release, the Attorney General stated that the Guidance is intended to provide a “tool for businesses to create clear and transparent privacy policies that reflect the state’s privacy laws and allow consumers to make informed decisions.” The Guidance is not legally binding; it is intended to encourage companies to draft transparent online privacy notices.

As reported in the Hunton Employment & Labor Perspectives Blog:

On February 14, 2014, San Francisco passed the San Francisco Fair Chance Ordinance and became the latest national municipality to “ban the box” and limit the use of criminal background checks in employment hiring decisions. The deadline for San Francisco employers to comply with the San Francisco Fair Chance Ordinance is August 13, 2014. The “ban the box” campaign continues to gain momentum – San Francisco joins other cities (Buffalo, Newark, Philadelphia, and Seattle) and states (Hawaii, Massachusetts ...

On January 21, 2014, Hunton & Williams’ Global Privacy and Cybersecurity practice group hosted the latest webcast in its Hunton Global Privacy Update series. The program highlighted some of the key privacy developments that companies will encounter in 2014, including cybersecurity issues in the U.S., California’s Do Not Track legislation, Safe Harbor, the EU General Data Protection Regulation and the CNIL’s new cookie guidance.

On October 12, 2013, California Governor Jerry Brown vetoed an electronic communications privacy bill. The bill, SB 467, would have compelled law enforcement to obtain a search warrant before seeking to access any email or other electronic communication maintained by service providers. The bill went beyond the scope of the federal Electronic Communications Privacy Act, which obligates law enforcement to obtain search warrants only for electronic communications that are unopened or stored by service providers for fewer than 180 days. The California bill was very similar to a bill signed into law in Texas earlier in 2013 that required law enforcement agencies to obtain warrants before accessing customer electronic data held by email service providers.

On October 7, 2013, the United States District Court for the Central District of California held that a general liability insurance policy covered data breach claims alleging violations of California patients’ right to medical privacy. Hartford Casualty Insurance Co. v. Corcino & Associates, CV 13-03728-GAF (C.D. Cal. Oct. 7, 2013). The court rejected the insurer’s argument that coverage was negated by an exclusion for liabilities resulting from a violation of rights created by state or federal acts. The decision also rejected an attempt commonly made by insurers to exclude ...

On September 27, 2013, California Governor Jerry Brown signed into law a bill amending the California Online Privacy Protection Act (“CalOPPA”) to require website privacy notices to disclose how the site responds to “Do Not Track” signals, and whether third parties may collect personal information when a consumer uses the site. Although the changes to the law do not prohibit online behavioral advertising, this is the first law in the United States to impose disclosure requirements on website operators that track consumers’ online behavior.

On September 23, 2013, California Governor Jerry Brown signed a bill that adds “Privacy Rights for California Minors in the Digital World” to the California Online Privacy Protection Act (“CalOPPA”). The new CalOPPA provisions prohibit online marketing or advertising certain products to anyone under age 18, and require website operators to honor requests made by minors who are registered users to remove content the minor posted on the site. In addition, operators must provide notice and instructions to minors explaining their rights regarding the removal of content they’ve posted.

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 August 26, 2013, the U.S. District Court for the Northern District of California approved a settlement with Facebook, Inc., related to the company’s alleged misappropriation of certain Facebook members’ personal information, such as names and profile pictures, that was then used in ads to promote products and services via Facebook’s “Sponsored Stories” program.

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 March 14, 2013, the United States District Court for the Northern District of California granted a motion to prohibit the government from issuing National Security Letters (“NSLs”) to electronic communication service providers (“ECSPs”) requesting “subscriber information” and enforcing nondisclosure clauses contained in such letters. The nondisclosure clauses are intended to prevent ECSPs from disclosing that they received an NSL. The court also held that the sections of two federal statutes relating to the nondisclosure provisions of NSLs, 18 U.S.C. §2709(c) and 18 U.S.C. §3511(b), (collectively, the “NSL Nondisclosure Statutes”) were unconstitutional because they violated the First Amendment as well as separation of powers principles. In light of the significant constitutional and national security implications, the court stayed enforcement of its judgment pending appeal to the Ninth Circuit, or for 90 days if no appeal is filed.

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 4, 2013, the Supreme Court of California examined whether Section 1747.08 of the Song-Beverly Credit Card Act (“Song-Beverly”) prohibits an online retailer from requesting or requiring personal identification information from a customer as a condition to accepting a credit card as payment for an electronically downloadable product. In a split decision, the majority of the court ruled that Song-Beverly does not apply to online purchases in which the product is downloaded electronically.

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 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.”

In late October 2012, California Attorney General Kamala D. Harris began sending letters to approximately 100 mobile app operators, informing them that they are not in compliance with the California Online Privacy Protection Act (“CalOPPA”). Pursuant to CalOPPA, “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” must post a privacy policy that contains specified elements. A mobile app arguably could be an “online service” under CalOPPA, which provides that an online service operator that collects “personally identifiable information” and “fails to post its policy within 30 days after being notified of noncompliance” is in violation of CalOPPA. The law affects a wide range of mobile app operators because of its very broad definition of “personally identifiable information,” which includes any “individually identifiable information about an individual consumer collected online by the operator from that individual and maintained by the operator in an accessible form,” such as a name, an email address or any other identifier “that permits the physical or online contacting of a specific individual.”

As reported in the Hunton Employment & Labor Perspectives Blog:

Employees use social media extensively in communication for personal and business reasons. Employers are increasingly monitoring this use, and insisting on access to some of the more popular sites. California took notice of this trend and passed legislation to protect employee privacy. On September 27, 2012, Governor Edmund G. Brown Jr. signed AB 1844 making California the third state to limit access to employees’ social media account, joining Maryland and Illinois.

On August 10, 2012, a federal district court in California denied Hulu’s motion to dismiss the remaining claim in a putative class action suit alleging that the online streaming video provider transmitted users’ personal information to third parties in violation of the Video Privacy Protection Act (“VPPA”). The VPPA prohibits a “video tape service provider” from transmitting personally identifiable information of “consumers,” except in certain, limited circumstances. According to the complaint, Hulu allegedly allowed KISSmetrics, a data analytics company, to place tracking codes on the plaintiffs’ computers that re-spawned previously-deleted cookies, and shared Hulu users’ video viewing choices and “personally identifiable information” with third parties, including online ad networks, metrics companies and social media networks.

In recent months we have seen a dismissal and two settlements in class action suits alleging violations of the Telephone Consumer Protection Act (“TCPA”) by companies that used text messaging as part of advertising campaigns. The TCPA is a federal privacy law that imposes restrictions on telephone solicitations, including telemarketing calls and text messages.

As reported in BNA’s Privacy & Security Law Report,on June 25, 2012, a federal district court in California ruled that the California Supreme Court’s 2011 Pineda decision, which held that requesting and recording zip codes during credit card transactions violates the state’s Song-Beverly Credit Card Act, applies retrospectively to OfficeMax’s collection of zip codes from its customers. The Plaintiffs in Dardarian v. OfficeMax had filed a class action lawsuit against OfficeMax over the company’s collection of ZIP code information from customers at the point of sale, a practice that OfficeMax ended the day the Pineda decision was handed down.

On July 19, 2012, California Attorney General Kamala Harris announced the formation of a new Privacy Enforcement and Protection Unit (“Privacy Unit”) within the state’s Department of Justice. The new unit will centralize existing Department of Justice efforts to protect privacy, educate consumers and forge partnerships with relevant industry players. According to the Attorney General’s press release, the broad mission of the Privacy Unit will include enforcing laws on issues such as cyber privacy, health privacy, financial privacy, identity theft, government ...

In recent months, two high-profile cases involving Hulu and Netflix have raised questions regarding the scope and application of the Video Privacy Protection Act (“VPPA”), a federal privacy law that has been the focus of increasing attention over the past few years. In the Hulu case, Hulu users claimed that the subscription-based video streaming service disclosed their viewing history to third parties. 

As reported in BNA’s Privacy & Security Law Report, on May 4, 2012, the United States District Court for the Southern District of California granted plaintiffs’ motion for class certification in an action against IKEA U.S. West, Inc. (“IKEA”) under the Song-Beverly Credit Card Act of 1971 (the “Song-Beverly Act”). The suit alleges that IKEA violated the Song-Beverly Act by requesting that cardholders provide their ZIP codes during credit card transactions, and then recording that information in an electronic database. The Court found that the class definition was not overbroad and that IKEA’s practice of requesting ZIP codes demonstrated common questions of law best resolved through a class action.

On April 5, 2012, social media giant Twitter, Inc. (“Twitter”) filed a civil lawsuit against spammers and makers of spamming software claiming violations of Twitter’s user agreement and various California state and common laws. Borrowing from the popular term for unsolicited email messages, Twitter’s complaint describes “spam” on Twitter as “a variety of abusive behaviors” including “posting a Tweet with a harmful link … and abusing the @reply and @mention functions to post unwanted messages to a user.” The suit alleges that certain defendants violated Twitter’s Terms of Service, which prohibit “spam and abuse,” by distributing software tools “designed to facilitate abuse of the Twitter platform and marketed to dupe customers into violating Twitter’s user agreement.” Other defendants allegedly operated large numbers of automated Twitter accounts through which they attempted to “trick Twitter users into clicking on links to illegitimate websites.”