Update: On the evening of June 24, 2020—the same date we published the post below and the day before the original deadline for verification of signatures—the Secretary of State announced that the CPRA reached the signature verification threshold and qualified for the fall 2020 ballot.  While the Mactaggart lawsuit will now be a mere footnote in the history of the CPRA, any way you look at it, this was a successful week for Californians for Consumer Privacy.

On June 19, 2020, the Superior Court for Sacramento County, California issued a ruling providing relief to the promoters of the California Privacy Rights Act ballot initiative (the “CPRA”).  We wrote here about the potential problem with the timing of the signature verification process required for the CPRA to qualify for the Fall 2020 ballot, but that issue now appears to be resolved.

The specifics are to be ironed out in a further order to be jointly proposed by the parties, but suffice it to say that the procedural issue with the timing of signature verification will not prevent the CPRA from appearing on the Fall 2020 ballot.  For now, the Court ordered as follows:

Continue Reading CPRA Back on Track Following Court Order

The Court of Justice of the European Union (ECJ) has announced that it will deliver its judgment in what has become known as the Schrems II case (Case 311/18 Facebook Ireland and Schrems) on 16th July 2020. The judgment will determine the validity of the Standard Contractual Clauses (or Model Clauses) (SCCs) as a transfer mechanism under the GDPR. This case arose following a complaint from Max Schrems, a lawyer and data privacy campaigner to the Irish Data Protection Commissioner (DPA) about transfers of his personal data from Facebook Ireland to Facebook US using SCCs. Mr. Schrems’s position is that Facebook is violating the EU data protection laws by allowing US intelligence authorities to access his personal data. The DPA issued proceedings in the Irish High Court in relation to the matter, which were stayed in 2018, with various questions raised by the DPC relating to SCC referred to the ECJ for determination.

Continue Reading ECJ to Deliver Judgment on the Validity of SCCs on 16th July 2020

On May 14, California Secretary of State Alex Padilla announced that the California Privacy Rights Act of 2020 (the “CPRA”) had obtained sufficient raw signatures to qualify for the November 3, 2020 ballot.  Those signatures are currently being verified by the counties in which they were obtained.  However, based on a complaint filed June 8 by Alastair Mactaggart and other members of Californians for Consumer Privacy—the proponents of the CPRA—it appears that the verification process may not be completed in time for the CPRA to appear on the ballot this Fall.

The lawsuit, Alastair Mactaggart, et al. v. Padilla, filed in Sacramento County Superior Court, alleges that Secretary of State Padilla failed to adhere to a provision of the California Elections Code requiring his office to “immediately” notify county officials to begin the verification process upon receipt of a sufficient number of raw signatures.  Here is a brief timeline of the events alleged in the Complaint:

Continue Reading A Day Late, but Will it Fall Short? CPRA Ballot Initiative May Not Appear on Fall Ballot

Zoom’s video communications platform service and its data privacy issues and security vulnerabilities have been a very hot topic of late, covered by numerous media outlets and in our recent Password Protected post.  Due in part to the COVID-19 pandemic and resulting “stay-at-home” orders, as well as Zoom’s user-friendly set up and ability for large numbers of people to join a meeting for free, Zoom use has grown exponentially, from 10 million daily meeting participants pre-pandemic, to over 300 million daily meeting participants in April 2020. In an April 23, 2020 executive letter, Zoom touted use of its platform by over 100,000 schools and universities, U.S. and foreign governments, and numerous companies, including many Fortune 500 companies, located in over 226 countries and territories around the world.

Continue Reading Are We (Finally) Ready to Zoom?

On June 1, 2020, the California Attorney General submitted the final text of the CCPA Regulations to the California Office of Administrative Law (the “OAL”).  This was the last step the AG needed to take before the Regulations become enforceable.  But whether enforcement will still start on July 1, 2020 as set forth in the CCPA remains uncertain.

What does this mean for the timing of CCPA enforcement?

Some have questioned whether the AG’s delay in submitting the Regulations following the end of the last comment period in March signaled an intent by the AG to delay enforcement of the CCPA.  So far, however, there is no indication of any intended delay in either the AG’s press announcement regarding submission of the Final Regulations or his prior comments reiterating his intention to keep enforcement on track despite COVID-19.  Indeed, the AG requested expedited review of the Regulations by OAL in order to meet the July 1 deadline.

Continue Reading AG Submits Final CCPA Regulations—Is Enforcement Still on Track for July 1, 2020?

Two weeks ago we wrote about proposed legislation, The COVID-19 Consumer Data Protection Act of 2020 (“CCDPA”), introduced by a group of senior Republican senators, which was designed to address privacy issues arising in the wake of the COVID-19 pandemic.  In response, senior Democratic members of the Senate and House of Representatives introduced their own framework for protecting the privacy of individuals in light of the development of tools for tracking and containing the spread of the virus.

The Public Health Emergency Privacy Act

Senators Richard Blumenthal (D-CT) (Ranking Member of the Senate Commerce Committee’s Manufacturing, Trade and Consumer Protection Subcommittee) and Mark Warner (D-VA) (Vice Chairman of the Senate Intelligence Committee) lead a bicameral group of 10 lawmakers on a Democratic version of federal consumer privacy legislation as it relates to the coronavirus pandemic.  The Public Health Emergency Privacy Act (the “PHEPA”), introduced on May 14, seeks to give individuals protection and control over their covered health data by adopting an express affirmative consent regime, along with enumerated requirements for businesses. For a helpful summary of the key similarities and differences between the PHEPA and the CCDPA, please see the Chamber Technology Engagement Center’s (C_TEC) COVID-19 Privacy Bill Comparison Chart.

Continue Reading Privacy vs. Containment, Part 2: The Democratic Answer to a Framework for Federal Privacy Legislation on COVID-19

Since the outbreak of COVID-19, the U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) has issued various notifications of enforcement discretion related to compliance with the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, discussed previously. However, OCR issued guidance on May 5, 2020, reminding covered healthcare providers that the HIPAA Privacy Rule remains in force during the COVID-19 public health crisis except as expressly relaxed under OCR’s prior guidance. Specifically, OCR’s most recent guidance addresses the disclosure of patient protected health information (PHI) to the media by allowing the media to film patients in facilities where PHI is accessible.

Continue Reading OCR Warns Providers and Media: Patient Privacy Remains Protected Despite Pandemic

On March 11th, 2020, Virginia Governor Northam signed the Insurance Data Security Act (the “Act”) — HB 1334 — imposing requirements on all entities regulated by the Virginia Bureau of Insurance (“BOI” or the “Bureau”) to:

 

 

  • maintain an information security program,
  • investigate all cybersecurity events,
  • notify the Commissioner of Insurance of cybersecurity events, and
  • notify consumers affected by cybersecurity events.

Continue Reading The Virginia Insurance Data Security Act – What You Need to Know

As the federal, state, and local governments and industry grapple with how to respond to and prevent the spread of COVID-19, a group of senior Republican senators recently announced consumer privacy legislation designed to protect personal “covered data” collected from consumers relating to personal health, geolocation, and proximity. The proposed legislation is a response to contact tracing solutions aimed at tracking the virus and those who may have been exposed to it.

The COVID-19 Consumer Data Protection Act of 2020

Senate Commerce Committee Chairman Roger Wicker (R-MS), Communications, Technology, Innovation, and the Internet Subcommittee Chairman John Thune (R-SD), Consumer Protection, Product Safety, Insurance, and Data Security Subcommittee Chairman Jerry Moran (R-KS), and Senator Marsha Blackburn (R-TN), who sits on both the Commerce and Judiciary Committees, introduced the COVID-19 Consumer Data Protection Act of 2020 (the “Act”) on May 7. According to the sponsors, the legislation is intended to provide consumers more transparency, choice, and control over the collection and use of their personal data, and to hold businesses accountable to consumers if these businesses use personal COVID-19-related data for purposes unrelated to the pandemic. As Subcommittee Chairman Moran stated, “while many businesses have taken well-intentioned steps to develop technological solutions to tracking, containing and ending the COVID-19 pandemic, Congress must address potentially harmful practices that could stem from these innovations if not held accountable.”

Continue Reading Privacy vs. Containment: Federal Privacy Legislation Meets COVID-19

The COVID-19 pandemic has impacted nearly every facet of society in unpredictable ways, and the laws and regulations governing calls and text messages are no exception. The Federal Communications Commission (FCC) issued a recent declaratory ruling clarifying when calls and text messages relating to COVID-19 are permissible under the TCPA’s “emergency purposes” exception, but most businesses will not be able to rely on that exception. In certain states, COVID-19 state-of-emergency declarations have triggered widespread restrictions on telemarketing. In non-COVID-19 news, debate continues over what constitutes an “automatic telephone dialing system” (ATDS) under the TCPA, and — in a surprising turn of events — the 2nd U.S. Circuit Court of Appeals has joined the 9th Circuit in adopting a broad definition.

Continue Reading Most COVID-19 Calls Are Not an “Emergency Purpose,” and Other Unexpected Developments