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Anthony has a broad array of experiences assisting with compliance issues, regulatory and enforcement matters, internal investigations, and individual and class litigation. His diverse practice helps him achieve the most efficient and practical results for his clients spanning the financial services, technology, automobile, and retail sectors.

On June 14, 2021, the Board of the newly-formed California Privacy Protection Agency (“CPPA”) held its first public meeting.  The Board had an extensive agenda, covering topics such as the laws affecting the Board and CPPA, initial hiring strategy for the CPPA, policies and practices on delegations of authority and conflicts of interest, establishment of subcommittees of the Board, notice to the Attorney General regarding the assumption of rulemaking under the California Privacy Rights Act (the “CPRA”), and setting future agenda items and a meeting schedule for the Board.  (As a refresher, when the CPRA passed as a ballot measure last Fall, it established the CPPA as a first-of-its-kind agency solely devoted to the regulation and enforcement of consumer privacy.  The CPPA is tasked with enforcing the CPRA and developing a set of regulations providing guidance for businesses on how to comply with that new law.  For more on the CPRA, please see our post here.)

While the CPPA Board’s June 14 full-day meeting covered a lot of ground, it is clear there is much work to be done for the CPPA to emerge as an independent, fully-functional agency, let alone promulgating regulations in time to meet the CPRA’s July 1, 2022 deadline for final regulations.  Overall, the Board members appeared to be committed to working through these challenges, but acknowledged that they are under a lot of time pressure.Continue Reading Starting at the Beginning: California Privacy Protection Agency Board Meets for the First Time

Almost exactly a year ago, the first COVID-19 tuition reimbursement lawsuits were filed against higher education institutions across the United States and we warned of the continued onslaught of such litigation.  With the filing of those reimbursement class actions decreasing, higher education institutions should be cognizant of a potential new wave of COVID-19 class actions: privacy class action lawsuits related to the COVID-19 vaccine.
Continue Reading Colleges Should Brace for Next Phase of COVID-19 Class Actions

As we discussed in Part I, the United States does not have a single, comprehensive federal law governing biometric data.  However, we have recently seen an increasing number of states focusing on this issue.  Part I summarized legislative activity on this issue in 2020.  In this Part II, we discuss noteworthy legislation to monitor in 2021.

What to Expect in 2021

At least two states—New York and Maryland—have already introduced biometrics legislation in this first month of 2021.

New York – AB 27

On January 6, 2021, the New York Assembly introduced the Biometric Privacy Act (BPA), a New York state biometric law aimed at regulating businesses handling biometric data.  BPA will prohibit businesses from collecting biometric identifiers or information without first receiving informed consent from the individual, prohibit profiting from the data, and will require a publicly available written retention and destruction policy.  As proposed, the statute contains a private right of action; and if passed, it will permit consumers to sue businesses for improperly collecting and using their biometric data.  The statute follows Illinois’s BIPA, allowing recovery of $1,000 per negligent violation and $5,000 per intentional violation, or actual damages, whichever is greater, along with attorney’s fees and costs, and injunctive relief.Continue Reading U.S. Biometrics Laws Part II: What to Expect in 2021

Data privacy laws have made significant breakthroughs in recent years, making it a top priority for businesses.  From the adoption of the European Union’s General Data Protection Regulation (GDPR) in 2016 to the enactment of the California Consumer Privacy Act (CCPA) in 2018 and the latest ballot approval of the California Privacy Rights Act (CPRA) in 2020, we continue to see data privacy laws develop and garner interest from consumers, businesses, and legislators alike.

Specific biometric privacy laws, in particular however, are often overshadowed by more general data privacy laws.  As we discussed in our prior article, biometrics are physical and behavioral human characteristics (i.e., face, eye, fingerprint, and voice features) that can be used to digitally identify a person.  As the collection and use of biometric data become more common in daily life and its applications in different industries continue to expand, new privacy considerations will emerge in this field.  Biometrics laws, in their own right, require separate recognition because of the nuanced application of these specific laws.

The United States does not have a single, comprehensive federal law governing biometric data.  Recently, we have seen an increasing number of individual states focus on this issue, and the recent introduction of legislation in a number of states specifically aimed at protecting the collection, retention, and use of biometric data.  In Part I, we summarize some of the legislative activity on biometric laws from 2020.  We will describe other noteworthy legislation to monitor for 2021 in Part II.Continue Reading U.S. Biometrics Laws Part I: An Overview of 2020

FRENEMIES Podcast logo

The third season in Frenemies has been released — watch these episodes.

  • The One Where California Falls in Love With Privacy: The California Consumer Privacy Act in 10 Minutes (featuring Bethany Lukitsch and Justin Yedor)
  • The One Where “Sale” Doesn’t Mean What You Think: What Is a Sale and Why Does it Matter? (featuring Ali

On November 9, 2020 the FTC entered into a consent agreement with Zoom Video Communications, Inc. to address concerns over the videoconferencing platform’s security practices. With the onset of the COVID-19 pandemic, the need for a reliable, online videoconferencing and meeting platform skyrocketed. Zoom met that need. It advertised its platform as a secure space with various safety measures to protect user data, including “end-to-end” 256-bit encryption. In short order, individuals, businesses, and organizations quickly flocked to the user-friendly communications platform; and, by the end of April 2020 Zoom’s user base was booming.

Then came a backlash of sorts. The FTC began investigating Zoom’s security practices, and private plaintiffs brought class-action lawsuits alleging violations of the California Consumer Privacy Act and failure to adhere to Zoom’s terms of service. The FTC’s complaint alleged several concerns with Zoom’s advertising and security promises, concluding that Zoom made misleading claims about the strength of its encryption and security of its platform that gave customers a false sense of security. The five-count complaint alleged that Zoom:Continue Reading FTC “Zooms” Into Settlement Agreement with Communications Company Over Concerns with its Security Practices

On October 13. 2020, White Castle System, Inc. petitioned the United States Court of Appeals for the Seventh Circuit for permission to seek an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).  This petition arises out of the United States District Court for the Northern District of Illinois’ opinion on White Castle’s motion for judgment on the pleadings issued on August 7, 2020.  The matter hinged on whether repeated collection of the same biometric information from an employee without prior consent constituted separate violations of the Illinois Biometric Information Privacy Act (BIPA).

Summary of District Court’s Cothron v. White Castle Opinion

In the district court’s opinion, Judge Tharp held that “[a] party violates Section 15(b) [of the BIPA] when it collects, captures, or otherwise obtains a person’s biometric information without prior informed consent.”  Judge Tharp continued, “[t]his is true the first time an entity scans a fingerprint or otherwise collects biometric information, but it is no less true with each subsequent scan or collection.”  Similarly, Judge Tharp held that BIPA requires that dissemination of information without consent, even if to the same third party as previously disseminated, is an additional violation of the BIPA.Continue Reading Does Continued Collection of The Same Biometric Information Increase BIPA Violations? The Seventh Circuit (or Illinois Supreme Court) Has An Opportunity to Clear the Air

Does your phone immediately unlock for use after you glance at it?  Have you visited your favorite social media platform only to find that you have been tagged in dozens of pictures?  Or how about that time you scanned your fingerprints or eyes to open your phone, gain admittance to a theme park, or pass through airport security?  These features all involve biometrics technology—the latest trend and high-growth area of technology used to help organizations provide consumers with a more effortless and interactive experience in exchange for personal information about your physical or behavioral attributes.  Companies should be mindful in collecting this data and how they use and store that information.

Biometrics include facial, fingerprint, iris, gestures, and voice recognition.  While biometrics technology is becoming more ubiquitous in daily life and being employed by more governmental agencies and service providers, new privacy considerations will continue to emerge as a result of the pieces of personal information shared by consumers to increase convenience.Continue Reading As Biometrics Technology Permeates Everyday Life, What Laws Should Companies Be Aware Of?

The global coronavirus pandemic continues on, and the cyberattacks and scams continue to multiply.  In the midst of the pandemic, hackers are capitalizing on fears surrounding the outbreak by crafting COVID-19-themed attacks aimed at infecting computers with malware or obtaining sensitive, personal information.  Below are some of the latest examples of attacks and vulnerabilities to be aware of:
Continue Reading Update: Coronavirus Cyberscams and Other Attacks – Scammers Are Still at It

COVID-19 is delaying just about everything these days—except the CCPA.

In letters submitted on March 17 and March 20, a coalition of nearly sixty business and organizations called on California Attorney General Xavier Becerra to temporarily defer CCPA enforcement by six months to January 2, 2021 due to COVID-19. The coalition, which spans a range of industries including tech, telecommunications, advertising, retail, insurance, transportation and real estate, argued that a deferral of enforcement would allow businesses to prioritize the needs of their workforce during the global pandemic. The coalition also pointed to the still-changing nature of the CCPA’s regulations as grounds for a temporary enforcement hiatus, contending that businesses need time to implement the final CCPA requirements.Continue Reading California Attorney General: CCPA Enforcement on Schedule Despite COVID-19