Privacy & Information Security Law Blog

On October 28, 2021, the Federal Trade Commission announced the issuance of a new enforcement policy statement warning companies against using dark patterns that trick consumers into subscription services. The policy statement comes in response to rising complaints about deceptive sign-up tactics like unauthorized charges or impossible-to-cancel billing.

As reported on the Hunton Retail Resource Blog, on October 20, 2021, a new wave in the fight against “robocalls” is targeting telemarketing text messages. In the past six months, there has been an uptick in activity at both the state and federal level to reign in telemarketing text messages.

On October 12, 2021, New Jersey Acting Attorney General Andrew J. Bruck and the Division of Consumer Affairs announced a settlement with Diamond Institute for Infertility and Menopause, LLC, over a data breach that compromised the personal information of 14,663 patients, including 11,071 New Jersey residents. The Division of Consumer Affairs alleged that the fertility clinic violated the New Jersey Consumer Fraud Act and the federal Health Insurance Portability and Accountability Act’s (“HIPAA”) Privacy and Security Rules by removing protected health information (“PHI”) safeguards.

On October 4, 2021, the California Privacy Protection Agency (“CPPA”) appointed Ashkan Soltani as its first Executive Director. Soltani, a former chief technologist for the Federal Trade Commission and senior advisor to the White House, began his new role on Monday. He also is a distinguished fellow at the Georgetown Law Institute for Technology Law and Policy and the Georgetown Center on Privacy and Technology.

On September 29 and 30, 2021, the U.S. Senate Committee on Commerce, Science and Transportation convened hearings on how to better protect consumer and children’s privacy.

On September 14 and 15, 2021, the National Institute of Standards and Technology (“NIST”) held a public workshop, as part of its effort to create a consumer labeling program to communicate the security capabilities of consumer Internet of Things (“IoT”) devices and software development practices, as mandated by the Biden administration’s May 2021 Executive Order on Improving the Nation’s Cybersecurity. NIST, in coordination with the Federal Trade Commission  and other agencies, must identify the criteria and components of such a labeling program by February 6, 2022.

On September 22, 2021, the California Privacy Protection Agency (“CPPA” or “Agency”) issued an Invitation for Preliminary Comments on Proposed Rulemaking Under the California Privacy Rights Act of 2020 (“CPRA”). The CPPA was established by the CPRA, which vested the Agency with full administrative power, authority and jurisdiction to implement and enforce the CCPA. The Agency’s responsibilities include updating existing regulations and adopting new regulations.

On September 14, 2021, the Federal Trade Commission authorized new compulsory process resolutions in eight key enforcement areas: (1) Acts or Practices Affecting United States Armed Forces Members and Veterans; (2) Acts or Practices Affecting Children; (3) Bias in Algorithms and Biometrics; (4) Deceptive and Manipulative Conduct on the Internet; (5) Repair Restrictions; (6) Abuse of Intellectual Property; (7) Common Directors and Officers and Common Ownership; and (8) Monopolization Offenses.

On September 13, 2021, the Federal Trade Commission published final revisions to five rules promulgated pursuant to the Fair Credit Reporting Act (“FCRA”), to clarify that the rules apply only to motor vehicle dealers. The final revisions were made to bring the rules in line with the Dodd-Frank Wall Street Reform and Consumer Protection Act. Entities other than motor vehicle dealers are still subject to the Consumer Financial Protection Bureau’s (“CFPB's”) FCRA counterpart rules and the concurrent jurisdiction of the CFPB and FTC to enforce them.

On September 14, 2021, the U.S. House Committee on Energy and Commerce (“E&C Committee”) voted in favor of a legislative recommendation that would create a new Federal Trade Commission privacy bureau as part of the proposed $3.5 trillion federal budget reconciliation package.

On September 13, 2021, President Biden is expected to nominate Alvaro Bedoya to the Federal Trade Commission. Bedoya would replace FTC Commissioner Rohit Chopra, who was earlier nominated, but has not yet been confirmed, as Director of the Consumer Financial Protection Bureau.

On September 1, 2021, the Federal Trade Commission banned Support King, LLC, the operator of SpyFone.com (“SpyFone”), and its CEO, Scott Zuckerman, from offering, promoting, selling or advertising any surveillance app, service or business. The FTC alleged SpyFone allowed purchasers to illegally surveil other individuals by surreptitiously monitoring a device user’s activity without the device user’s knowledge. The FTC also alleged that SpyFone failed to safeguard such illegally harvested personal information by failing to put in place basic security measures.

The Children’s Advertising Review Unit (“CARU”), a part of a part of the Better Business Bureau National Programs (“BBBNP”), released its revised Children’s Advertising Guidelines (the “Guidelines”) earlier this month. The Guidelines, which contain some notable changes, will go into effect in January 2022.

On July 31, 2021, Zoom Video Communications, Inc. (“Zoom” or the “Company”) agreed to pay $85 million to settle a class action suit that alleged the Company violated users’ privacy rights by misleading consumers about encryption security, sharing data through third-party integrations without adequate notice or consent, and failing to protect private meetings from being disturbed by “zoombombings.” Class members would be eligible to receive payment, regardless of whether they paid for a Zoom account.

The California Attorney General (“AG”) recently released a summary of enforcement actions the agency brought against companies in violation of the CCPA since enforcement of the Act began on July 1, 2020. The summary provides 27 illustrative examples of instances in which the AG sent notices of alleged noncompliance with the CCPA and how each company cured the alleged noncompliance.

The California Attorney General has updated its CCPA FAQs to state that the newly developed Global Privacy Control (“GPC”) “must be honored by covered businesses as a valid consumer request to stop the sale of personal information.”

On July 8, 2021, Colorado Governor Jared Polis signed SB21-190, the Colorado Privacy Act (“the Act”), into law, making Colorado the third state to have a comprehensive data privacy law on the books, following California and Virginia. The Colorado House voted 57-7 in favor of the Act on June 7 after it had previously passed the Senate unanimously on May 26. The Senate voted unanimously to adopt the House’s amendments to the Act on June 8. The Act will go into effect on July 1, 2023, with some specific provisions going into effect at later dates.

On June 17, 2021, Senator Kirsten Gillibrand (D-NY) announced the reintroduction of the Data Protection Act of 2021 (the “bill”), which would create an independent federal agency, the Data Protection Agency, to “regulate high-risk data practices and the collection, processing, and sharing of personal data.” The bill was first introduced in 2020 and has since been revised to include updated provisions intended to protect against privacy harms, oversee the use of “high-risk data practices” and examine the social, ethical, and economic impacts of data collection.

July 1, 2021 marks the deadline for certain businesses to comply with the metrics reporting obligations under the California Consumer Privacy Act of 2018 (“CCPA”) regulations. Section 999.317(g) of the regulations applies to any business that is subject to the CCPA and that knows or reasonably should know that it, alone or in combination, buys, receives for the business’s commercial purposes, sells, or shares for commercial purposes the personal information of 10,000,000 or more California residents in a calendar year.

As reported on the Hunton Retail Law Resource blog, this week, the Federal Trade Commission voted 3 to 1 to accept a settlement agreement with MoviePass, Inc., its parent company, and two of the now-defunct company’s former employees, after allegations of failure to take reasonable measures to secure consumers’ data and deceptive trade practices. The Commission brought an enforcement action against MoviePass pursuant to the FTC Act and the Restore Online Shoppers’ Confidence Act (“ROSCA”), the latter of which requires disclosure of all material terms, a consumer’s informed consent, and a simple mechanism to stop recurring charges when marketing negative option services.

On June 2, 2021, Nevada’s governor approved SB 260 (the “Amendment Bill”), which expands on the previously amended Nevada Privacy of Information Collected on the Internet from Consumers Act (the “Act”). Specifically, the Amendment Bill broadens the definition of key terms along with providing several new exemptions.

On May 25, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP submitted its response (in English and in Mandarin) to the Standing Committee of the National People’s Congress (“NPC”) of the People’s Republic of China on the updated version of the Draft Personal Information Protection Law (“PIPL”).

On May 26, 2021, the Court of Appeal handed down its judgment in the case of R (Open Rights Group and the3million) v Secretary of State for the Home Department and Others [2021] EWCA Civ 800, finding that the UK 2018 Data Protection Act’s (“DPA 2018”) “immigration exemption” is unlawful.

On May 25, 2021, the Office for Civil Rights (“OCR”) of the U.S. Department of Health and Human Services (“HHS”) announced that it had reached a settlement with Peachstate Health Management, LLC (“Peachstate”) for violations of the HIPAA Security Rule. As part of this settlement, Peachstate (dba AEON Clinical Laboratories) agreed to pay OCR $25,000 and to implement a robust corrective action plan.

On May 20, 2021, the U.S. Department of the Treasury announced a proposal that would require any cryptocurrency transaction of $10,000 or more to be reported to the Internal Review Service (“IRS”). As a supplement to President Biden’s American Families Plan, which focuses on investments in American children and families, the Treasury detailed the cryptocurrency reporting requirement and other tax compliance initiatives in a new report titled The American Families Plan Tax Compliance Agenda (the “Report”).

On May 18, 2021, New York Attorney General (“AG”) Letitia James announced a settlement agreement with Filters Fast LLC (“Filters Fast”) over a data breach that compromised personal information of approximately 324,000 consumers nationwide, including over 16,500 New York state residents. The breach affected purchases made on Filters Fast website for almost a year – from July 16, 2019 to July 10, 2020.

On April 29, 2021, the New York City Council passed the Tenant Data Privacy Act (“TDPA”), which would regulate the collection, use, safeguarding and retention of tenant data by owners of “smart access” buildings. The TDPA has been sent to the New York City Mayor’s desk for signature.

On May 11, 2021, Senators Edward Markey (D-MA) and Bill Cassidy (R-LA) introduced the Children and Teens’ Online Privacy Protection Act (the “Bill”). The Bill, which would amend the existing Children’s Online Privacy Protection Act (“COPPA”), would prohibit companies from collecting personal information from children ages 13 to 15 without their consent.

On May 2, 2021, the Norwegian data protection authority, Datatilsynet, notified Disqus Inc. (“Disqus”), a U.S. company owned by Zeta Global, of its intention to issue a fine of 25 million Norwegian Krone (approximately 2.5 million Euros). The preliminary fine was issued for failure to comply with the General Data Protection Regulation’s (“GDPR”) accountability, lawfulness and transparency requirements, primarily due to Disqus’ tracking of website visitors.

On April 23, 2021, the National Information Security Standardization Technical Committee of China published a draft standard (in Chinese) on Security Requirements of Facial Recognition Data (the “Standard”). The Standard, which is non-mandatory, details requirements for collecting, processing, sharing and transferring data used for facial recognition.

On April 23, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the European Data Protection Board (“EDPB”) consultation on draft guidelines on virtual voice assistants (the “Guidelines”). The Guidelines were adopted on March 12, 2021 for public consultation.

As reported on the Hunton Retail Law Blog, on April 26, 2021, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal on Article III standing grounds of a data breach class action predicated on an alleged increased risk of identity theft. McMorris v. Carlos Lopez & Assocs., LLC, No. 19-4310, 2021 WL 1603808 (2d Cir. Apr. 26, 2021). Notably, the district court that dismissed the action raised the issue of standing sua sponte in advance of a scheduled class settlement fairness hearing.

Building upon its April 2020 business guidance on Artificial Intelligence and algorithms, on April 19, 2021, the FTC published new guidance focused on how businesses can promote truth, fairness and equity in their use of AI.

On April 21, 2021, the European Commission (the “Commission”) published its Proposal for a Regulation on a European approach for Artificial Intelligence (the “Artificial Intelligence Act”). The Proposal follows a public consultation on the Commission’s white paper on AI published in February 2020. The Commission simultaneously proposed a new Machinery Regulation, designed to ensure the safe integration of AI systems into machinery.

On April 12, 2021, the Biden administration announced it intends to nominate Chris Inglis, a former Deputy Director of the National Security Agency, to be the first U.S. National Cyber Director (“NCD”), subject to Senate confirmation. The newly established NCD position, which will serve as the President’s principal cybersecurity policy and strategy advisor, and the Office of the National Cyber Director (the “ONCD”) were created under the National Defense Authorization Act for Fiscal Year 2021 (the “NDAA”), which became law on January 1, 2021.

On April 9, 2021, the First-Tier Tribunal of the General Regulatory Chamber stayed proceedings in Ticketmaster UK Limited’s (“Ticketmaster’s”) appeal against a fine issued by the UK Information Commissioner’s Office (“ICO”) until 28 days after a judgment in civil litigation brought by 795 customers against Ticketmaster. The group action, which relates to the breach for which Ticketmaster was fined by the ICO, is currently before the High Court in England. As a result of the stay in proceedings, the appeal likely will not be heard before the Tribunal until mid to late 2023.

On April 8, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted comments in response to the Ministry of Public Security (“MPS”) of Vietnam’s Draft Decree on Personal Data Protection (“Draft Decree”).

On March 18, 2021, Lisa Sotto, Chair of Hunton’s global Privacy and Cybersecurity practice, and Mike Swift, MLaw Chief Global Digital Risk Correspondent, led a webinar on Everything You Need to Know About the California Privacy Rights Act. The webinar, which was part of LexisNexis’ Emerging Issues Webinar Series, provides an immersive look at the California Privacy Rights Act (“CPRA”) and other recent privacy laws.

On April 1, 2021, California’s Supreme Court ruled unanimously that the state’s prohibition on recording calls without consent applies to parties on the call and not just third-party eavesdroppers. Writing for the Court, Chief Justice Tani G. Cantil-Sakauye wrote that California’s penal code “prohibits parties as well as nonparties from intentionally recording a communication transmitted between a cellular or cordless phone and another device without the consent of all parties to the communication.”

On March 25, 2021, the Centre for Information Policy Leadership at Hunton Andrews Kurth organized an expert roundtable on the EU Approach to Regulating AI–How Can Experimentation Help Bridge Innovation and Regulation? (the “Roundtable”). The Roundtable was hosted by Dragoș Tudorache, Member of Parliament and Chair of the Artificial Intelligence in the Digital Age (“AIDA”) Committee of the European Parliament.  The Roundtable gathered industry representatives and data protection authorities (“DPAs”) as well Axel Voss, Rapporteur of the AIDA Committee.

On April 1, 2021, the Supreme Court issued its long-awaited opinion in Facebook, Inc. v. Duguid et al., No. 19-511 (Apr. 1, 2021).  At issue in Facebook, was the question of what technology constitutes an “automatic telephone dialing system” (“ATDS”) within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. §227 et seq (“TCPA”). The Supreme Court’s unanimous decision is a huge win for companies who communicate with their consumers by telephone/text message.

On March 15, 2021, China’s State Administration for Market Regulation (“SAMR”) issued Measures for the Supervision and Administration of Online Transactions (the “Measures”) (in Chinese). The Measures implement rules for the E-commerce Law of China and provide specific rules for addressing registration of an online operation entity, supervision of new business models (such as social e-commerce and livestreaming), platform operators’ responsibilities, protection of consumers’ rights and protection of personal information.

On March 26, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its comments on the Irish Data Protection Commissioner’s (“DPC”) draft guidance on safeguarding the personal data of children when providing online services, “Children Front and Centre—Fundamentals for a Child-Oriented Approach to Data Processing” (the “Draft Guidance”).

On March 12, 2021, the Cyberspace Administration of China released Provisions on the “Scope of Necessary Personal Information Required for Common Types of Mobile Internet Applications” (the “Provisions”) (available here in Chinese).

On March 30, 2021, Hunton Andrews Kurth will host a webinar examining Virginia’s new Consumer Data Protection Act.

On March 12, 2021, the European Data Protection Board (“EDPB”) published its Guidelines 01/2021 on Virtual Voice Assistants for consultation (the “Guidelines”). Virtual voice assistants (“VVAs”) understand and execute voice commands or coordinate with other IT systems. These tools are available on most smartphones and other devices and collect significant amounts of personal data, such as through user commands. In addition, VVAs require a terminal device equipped with a microphone and transfer data to remote service. These activities raise compliance issues under both the General Data Protection Regulation (“GDPR”) and the e-Privacy Directive.

On March 3, 2020, the New York Department of Financial Services (“NYDFS”) announced it had entered into a settlement with Residential Mortgage Services, Inc. (“RMS”) related to allegations that RMS violated the NYDFS Cybersecurity Regulation in connection with a 2019 data breach.

On March 2, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the European Data Protection Board (“EDPB”) consultation on draft guidelines on examples regarding data breach notification (the “Guidelines”). The Guidelines were adopted on January 14, 2021 for public consultation.

On March 1, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted a response to the new Brazilian data protection authority’s (Agência Nacional de Proteção de Dados, the “ANPD’s”) public consultation (in Portuguese) on the impact of the Brazilian data protection law (Lei Geral de Proteção de Dados, the “LGPD”) on small and medium-sized enterprises (“SMEs”), which will inform the ANPD’s upcoming special rules for SMEs.

On March 2, 2021, Virginia’s Governor, Ralph Northam, signed the Consumer Data Protection Act into law without any further amendments. In addition to California, Virginia is now the second state to enact major privacy legislation of general applicability in the U.S.

On February 24, 2021, the Federal Trade Commission announced that it will hold a workshop on digital dark patterns on April 29, 2021. The workshop will aim to understand the ways in which user interfaces can have the effect, intentionally or unintentionally, of obscuring, subverting or impairing consumer autonomy, decision-making or choice.

As reported on the Hunton Insurance Recovery blog, on February 4, 2021, the New York Department of Financial Services (“NYDFS”), which regulates the business of insurance in New York, has issued guidelines, in the Insurance Circular Letter No. 2 (2021) regarding “Cyber Insurance Risk Framework” (the “Guidelines”), calling on insurers to take more stringent measures in underwriting cyber risks. In the Guidelines, NYDFS cites the 2020 SolarWinds attack as an example of how managing growing cyber risk is “an urgent challenge for insurers.”

The concept of regulatory sandboxes has gained traction in the data protection community. Since the UK Information Commissioner’s Office (the “ICO”) completed its pilot program of regulatory sandboxes in September 2020, two European Data Protection Authorities (“DPAs”) have created their own sandbox initiatives following the ICO’s framework.

In the February 2021 issue of the Data Protection Leader, Hunton partner Dora Luo discusses China’s draft Personal Information Protection Law (“Draft PIPL”) (in Chinese) in the context of other comprehensive data protection frameworks, such as the EU General Data Protection Regulation (“GDPR”).

On February 16, 2021, the New York Department of Financial Services (“NYDFS”) issued a Cyber Fraud Alert (the “Alert”) to regulated entities in light of a growing campaign to steal Nonpublic Information (“NPI”), as defined under New York law, from public-facing websites that provide instant quotes for products like auto insurance (“Instant Quote Websites”).

As we previously reported, significant data privacy bills, titled the Consumer Data Protection Act, are working their way through the Virginia legislature. If enacted, Virginia would be the second state to enact major data privacy legislation of general applicability.

On February 10, 2021, the European Data Protection Supervisor (“EDPS”) published two opinions on the European Commission’s proposals for a Digital Services Act (“DSA”) and a Digital Markets Act (“DMA”). The proposed DSA and DMA are part of a set of measures announced in the 2020 European Strategy for Data and have two main goals: (1) creating a safer digital space in which the fundamental rights of all users of digital services are protected, and (2) establishing a level playing field to foster innovation, growth and competitiveness in the European Single Market and globally.

On February 5, 2021, the state Senate of Virginia voted unanimously to approve Senate Bill 1392, titled the Consumer Data Protection Act, after the House of Delegates approved an identical House bill by an 89-9 vote. Each bill likely will be heard in committee next week by the opposite chamber, which provides additional opportunities to make amendments. Minor, clarifying amendments will likely be added in committee, but they are not expected to alter the main components of the bill. Virginia’s General Assembly will adjourn Sine Die on March 1, and legislators have until then to finalize the details of the legislation. Virginia’s Governor Ralph Northam would be in a position to sign the bill later in March. Notably, the Governor has line item veto authority, so the bill could also possibly be amended after it passes the General Assembly.

On February 5, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted a response to the European Commission’s (the “Commission’s”) public consultation on the Commission’s Proposal for a Regulation on European Data Governance (the “Data Governance Act,” or “DGA”). This proposal is the first set of initiatives announced under the broader European Data Strategy.

On February 10, 2021, representatives of the EU Member States reached an agreement on the Council of the European Union’s (the “Council’s”) negotiating mandate for the draft ePrivacy Regulation, which will replace the current ePrivacy Directive. The text approved by the EU Member States was prepared under Portugal’s Presidency and will form the basis of the Council’s negotiations with the European Parliament on the final terms of the ePrivacy Regulation.

On January 28, 2021, international Data Privacy Day, the newly formed Brazilian data protection authority (Agência Nacional de Proteção de Dados, the “ANPD”) published its regulatory strategy for 2021-2023 and work plan for 2021-2022 (in Portuguese).

On February 4, 2021, the French Data Protection Authority (the “CNIL”) announced (in French) that it sent letters and emails to approximately 300 organizations, both private and public, to remind them of the new cookie law rules and the need to audit sites and apps to comply with those rules by March 31, 2021.

On January 27, 2021, the French Data Protection Authority (the “CNIL”) announced (in French) that it imposed a fine of €150,000 on a data controller, and a fine of €75,000 on its data processor, for failure to implement adequate security measures to protect customers’ personal data against credential stuffing attacks on the website of the data controller. The CNIL decided not to make its decisions public, thereby not disclosing the name of the companies sanctioned.

The recent UK case of Soriano v Forensic News and Others tested the territorial reach of the General Data Protection Regulation (“GDPR”) and represents the first UK judgment dealing with the territorial scope of the GDPR. This was a “service out” case, where the claimant, Walter T. Soriano, sought the Court’s permission under the UK Civil Procedure Rules to serve proceedings on the defendants, who were all domiciled in the U.S.

On January 21, 2021, President Biden designated Rebecca Kelly Slaughter as Acting Chair of the Federal Trade Commission.

On January 18, 2021, the European Data Protection Board (“EDPB”) released draft Guidelines 01/2021 on Examples regarding Data Breach Notification (the “Guidelines”). The Guidelines complement the initial Guidelines on personal data breach notification under the EU General Data Protection Regulation (“GDPR”) adopted by the Article 29 Working Party in February 2018. The new draft Guidelines take into account supervisory authorities’ common experiences with data breaches since the GDPR became applicable in May 2018. The EDPB’s aim is to assist data controllers in deciding how to handle data breaches, including by identifying the factors that they must take into account when conducting risk assessments to determine whether a breach must be reported to relevant supervisory authorities and/or the affected data subjects.

On January 13, 2021, Advocate General (“AG”) Michal Bobek of the Court of Justice of the European Union (“CJEU”) issued his Opinion in the Case C-645/19 of Facebook Ireland Limited, Facebook Inc., Facebook Belgium BVBA v. the Belgian Data Protection Authority (“Belgian DPA”).

On January 13, 2021, the FTC announced that fertility-app developer Flo Health, Inc. (“Flo”) agreed to a settlement over allegations that the company shared app users’ health information with third-party data analytics providers despite representations that Flo would keep such information private.

As reported on the Hunton Retail Law Resource blog, the Federal Trade Commission settled charges with mobile advertising company Tapjoy, Inc., on allegations that the company failed to provide promised rewards in exchange for completed activities such as the payment of money, disclosure of sometimes-sensitive personal information or registration for “free trial” marketing offers.

On January 11, 2021, the FTC announced that Everalbum, Inc. (“Everalbum”), developer of the “Ever” photo storage app, agreed to a settlement over allegations that the company deceived consumers about its use of facial recognition technology and its retention of the uploaded photos and videos of users who deactivated their accounts.

The Federal Trade Commission issued a call for presentations on consumer privacy and data security research for its sixth annual PrivacyCon, which is to be held on July 27, 2021. The call for presentations asks for empirical research and demonstrations, including economic analyses, with implications for privacy and data security policy and law.

On December 15, 2020, the Federal Trade Commission announced a proposed settlement with Ascension Data & Analytics, LLC, a Texas-based mortgage industry data analytics company (“Ascension”), to resolve allegations that the company failed to ensure one of its vendors was adequately securing personal information of mortgage holders.

On December 18, 2020, federal financial regulatory agencies, including the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation and the Office of the Comptroller of the Currency (collectively, the “Agencies”) announced a proposed rule (the “Proposed Rule”) that would require “banking organizations” to notify their primary federal regulator within 36 hours following any “computer-security incident” that rises to the level of a “notification incident.” The Proposed Rule also would require service providers to notify at least two individuals at the banking organizations they service immediately after experiencing a computer-security incident that materially disrupts, degrades or impairs the services they provide.

On December 21, 2020, the European Data Protection Board (the “EDPB”) released its 2021-2023 Strategy (the “Strategy”). The Strategy aims at setting out the four main pillars of the EDPB strategic objectives through 2023 and key actions to help achieve those objectives:

On December 14, 2020, the Federal Trade Commission announced that it had issued orders to nine social media and video streaming companies, requesting information on how the companies collect, use and present personal information, their advertising and user engagement practices and how their practices affect children and teens. The orders will assist the FTC in conducting a study of these policies, practices and procedures. The FTC issued the orders pursuant to Section 6(b) of the FTC Act, which allows the agency to undertake broad studies separate from its law enforcement activities.

On December 15, 2020, the Irish Data Protection Commission (“DPC”) announced its fine of €450,000 against Twitter International Company (“Twitter”), following its investigation into a breach resulting from a bug in Twitter’s design. The fine is the largest issued by the Irish DPC under the EU General Data Protection Regulation (“GDPR”) to date and is also its first against a U.S.-based organization.

On December 10, 2020, the French Data Protection Authority (the “CNIL”) announced that it has levied fines of €60 million on Google LLC and €40 million on Google Ireland Limited under the French cookie rules for their alleged failure to (1) obtain the consent of users of the French version of Google's search engine (google.fr) before setting advertising cookies on their devices; (2) provide users with adequate information about the use of cookies; and (3) implement a fully effective opt-out mechanism to enable users to refuse cookies. On the same date, the CNIL announced that it has levied a fine of €35 million on Amazon Europe Core under the same rules for its alleged failure to (1) obtain the consent of users of the amazon.fr site before setting advertising cookies on their devices; and (2) provide adequate information about the use of cookies.

On December 2, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the UK Department for Digital, Culture, Media and Sport’s (“DCMS”) UK National Data Strategy  (“NDS”) consultation.

On December 1, 2020, the Cyberspace Administration of China released draft rules on the “Scope of Necessary Personal Information Required for Common Types of Mobile Internet Applications” (the “Draft Rules”) (in Chinese).

On November 25, 2020, the European Commission published its Proposal for a Regulation on European Data Governance (the “Data Governance Act”). The Data Governance Act is part of a set of measures announced in the 2020 European Strategy for Data, which is aimed at putting the EU at the forefront of the data empowered society. The European Commission also released a Questions & Answers document and a Factsheet on European data governance.

On November 27, 2020, New Mexico Attorney General Hector Balderas filed a notice of appeal to the U.S. Court of Appeals for the Tenth Circuit in the lawsuit it brought against Google on February 20, 2020, regarding alleged violations of the federal Children’s Online Privacy Protection Act (“COPPA”) in connection with G-Suite for Education (“GSFE”). As we previously reported, the U.S. District Court of New Mexico had granted Google’s motion to dismiss, in which it asserted that its terms governed the collection of data through GSFE and that it had complied with COPPA by using schools both as “intermediaries” and as the parent’s agent for parental notice and consent, in line with Federal Trade Commission Guidance.

On November 26, 2020, the French Data Protection Authority (the “CNIL”) announced that it imposed a fine of €2.25 million on Carrefour France and a fine of €800,000 on Carrefour Banque for various violations of the EU General Data Protection Regulation (“GDPR”) and Article 82 of the French Data Protection Act governing the use of cookies.

On November 23, 2020, the Dutch District Court of Midden-Nederland (the “Court”) determined that the concept of a legitimate interest for processing is broader than simply being an interest derived from law, overturning a fine by the Dutch data protection authority (the “Dutch DPA”).

On November 24, 2020, the European Parliament endorsed the new directive on representative actions for the protection of the collective interests of consumers (the “Collective Redress Directive”). The Collective Redress Directive requires all EU Member States to put in place at least one effective procedural mechanism allowing qualified entities to bring representative actions to court for the purpose of injunction or redress. The Collective Redress Directive was presented in April 2018 by the European Commission and is part of the European Commission’s New Deal for Consumers. The Collective Redress Directive was proposed as a response to several scandals related to breaches of consumers’ rights by multinational companies.

On December 3, 2020, Hunton Andrews Kurth will host a webinar on Machine Learning Hot Topics: Negotiating Global Data Protection and IP Terms. Join our Hunton speakers, Brittany Bacon, Tyler Maddry and Anna Pateraki, as they discuss key data protection and intellectual property considerations when drafting and negotiating global agreements involving machine learning (“ML”) services and engaging in new ML practices.

On November 18, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the Standing Committee of the National People’s Congress (“NPC”) of the People’s Republic of China on the Draft Personal Information Protection Law (“PIPL”).

On November 13, 2020, the UK Information Commissioner’s Office (“ICO”) fined Ticketmaster UK Limited (“Ticketmaster”) £1.25 million for failing to keep its customers’ personal data secure. The ICO found that Ticketmaster had failed to implement appropriate security measures to prevent a cyber attack, breaching the requirements of Articles 5(1)(f) and 32 of the EU General Data Protection Regulation (“GDPR”). The ICO acted as the lead supervisory authority with regard to the cross-border processing affected by this breach, and the penalty has been approved by the other EU data protection authorities through the GDPR’s cooperation process. Ticketmaster has indicated that it will appeal the fine.

On November 9, 2020, the Federal Trade Commission announced it had entered into an consent agreement (the “Proposed Settlement”) with Zoom Video Communications, Inc. (“Zoom”) to settle allegations that the video conferencing provider engaged in a series of unfair and deceptive practices that undermined the security of its user base, which, according to the FTC, has grown from 10 million users in December 2019 to 300 million in April 2020 during the COVID-19 pandemic.

On November 19, 2020, Hunton Andrews Kurth will host a webinar examining the recently approved California Privacy Rights Act (“CPRA”) and how it revises the California Consumer Privacy Act of 2018 (“CCPA”).

On October 27, 2020, the UK Information Commissioner’s Office (“ICO”) published a report following its investigation into data protection compliance in the direct marketing data broking sector, alongside its enforcement action against Experian. During the investigation, the ICO conducted audits of the direct marketing data broking businesses of the UK’s three largest credit reference agencies (“CRAs”) – Experian, Equifax and TransUnion – and found “significant data protection failures at each” that were “deeply embedded” within the businesses.

On November 3, 2020, California voters approved California Proposition 24, the California Privacy Rights Act (“CPRA”). As we previously reported, the CPRA significantly amends and expands upon the California Consumer Privacy Act of 2018, which became enforceable earlier this year. The new and modified obligations under the CPRA will become operative on January 1, 2023, and, with the exception of access requests, will apply to personal information collected by businesses on or after January 1, 2022. Notably, the CPRA establishes the California Privacy Protection Agency ...

On October 30, 2020, the UK Information Commissioner’s Office (“ICO”) announced its fine of £18.4 (approximately $23.9 million) issued to Marriott International, Inc., (“Marriott”) for violations of the EU General Data Protection Regulation (“GDPR”). This is a significant decrease from the proposed fine of £99,200,396 (approximately $124 million) announced by the ICO in July 2019. The ICO’s fine only relates to the breach from the point at which the GDPR came into force in May 2018, and is the second largest fine levied by the ICO thus far under the GDPR. Marriott has not admitted liability for the breach, but has indicated that it does not plan to appeal.

On October 27, 2020, the UK Information Commissioner’s Office (“ICO”) published its enforcement notice against credit reference agency Experian Limited (“Experian”) under Section 149 of the Data Protection Act 2018 (“DPA”) (the “notice”). The notice requires Experian to make fundamental changes to its offline direct marketing practices, and was issued after the ICO undertook a two-year investigation into the use of personal data by data broking businesses Experian, Equifax and TransUnion.

On October 29, 2020, the non-governmental organization co-founded by privacy activist Max Schrems, None of Your Business (“NOYB”), announced it can now file representative actions and claim damages on behalf of consumers for violations of various laws regarding consumer protection (including data protection law) in Belgium. Specifically, in a decision published in the Official Gazette on September 30, 2020, the Belgian Minister of Employment, Economy and Consumer Affairs approved NOYB as a qualified entity under the collective action scheme set forth in the Belgian ...

On October 22, 2020, the Consumer Financial Protection Bureau (“CFPB”) issued a notice of proposed rulemaking (the “Proposed Rule”) to implement Section 1033 of the Dodd-Frank Act (the “Act”) regarding consumers’ access to their financial information.

On October 1, 2020, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) issued an advisory alerting companies of potential sanctions risks related to facilitating ransomware payments.  The five-page advisory states that ransomware victims who pay ransom amounts, and third-party companies that negotiate or pay ransom on their behalf, “not only encourage future ransomware payment demands but also may risk violating OFAC regulations.”

On September 25, 2020, the District Court of New Mexico granted Google’s motion to dismiss a lawsuit filed on February 20, 2020, by New Mexico Attorney General Hector Balderas alleging, among other claims, that the company violated the federal Children’s Online Privacy Protection Act (“COPPA” or the “Act”) by using G Suite for Education to “spy on New Mexico students’ online activities for its own commercial purposes, without notice to parents and without attempting to obtain parental consent.”

In an op-ed recently published by The Richmond Times-Dispatch, former Governor of Virginia and Global Strategy Advisor of the Centre for Information Policy Leadership at Hunton Andrews Kurth Terry McAuliffe discusses why a U.S. federal privacy law is essential to economic recovery in the wake of the COVID-19 pandemic. McAuliffe highlights how the U.S., unlike other countries, lacks a comprehensive privacy law.

On September 17, 2020, Senator Roger Wicker (MS), Chairman of the Senate Commerce Committee, along with Senators John Thune (SD), Deb Fischer (NE) and Marsha Blackburn (TN) introduced the Setting an American Framework to Ensure Data Access, Transparency, and Accountability (SAFE DATA) Act (“the Bill”). The Bill marks an official introduction of an update of Senator Wicker’s draft United States Consumer Data Privacy Act of 2019, which was circulated last November.

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.