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On July 21, the New York Department of Financial Services (NYDFS) filed charges against First American Title Insurance Company (First American) for violating multiple sections of the New York Cybersecurity Regulation,  23 NYCRR 500.00, et seq.  The significance of the NYDFS enforcement action cannot be overemphasized.  This is the first action filed under the Cybersecurity Regulation, signaling a more aggressive enforcement stance by the regulator.  The good news is the filings provide important guidance on best practices and red flags to avoid agency sanctions.

The NYDFS Statement of Charges alleges that First American knowingly exposed tens of millions of documents containing consumer sensitive personal information (e.g., bank account numbers, bank statements, mortgage records, Social Security numbers, wire transaction receipts, drivers’ license images, etc.). The charges further allege that for almost 5 years (from October 2014 through May 2019) these records were available on First American’s public-facing website to anyone with a web browser.  The fact that First American failed to remediate the vulnerability, even after it was discovered by a penetration test in December 2018, was particularly troublesome for the regulators.  The charges state that, “Remarkably, [First American] allowed unfettered access to the personal and financial data of millions of its customers for six more months. . .”   Clearly, the NYDFS found this treatment of sensitive consumer data unconscionable and that First American demonstrated a total disregard for the Cyber Regulations.Continue Reading NYDFS State of Mind: Regulator Focus and Enforcement Trends

Earlier this year, U.S. Senator Sherrod Brown of Ohio released a draft discussion bill that if implemented would drastically alter corporations’ ability to collect and use personal information from consumers.

According to Sen. Brown, “We need legislation now more than ever that empowers Americans to control their personal information. No person should have to worry about being spied on, just as no one should worry about their information being bought and sold or stolen.” Brown believes that his bill would “change the fundamental framework of privacy in this country” by shifting the burden of privacy protection from consumers to corporations. Brown’s new bill is critical of the current consent-based framework that requires customers to agree to privacy policies in order to use specific online service.Continue Reading Senator Brown Proposes New Privacy Bill

Update: The Supreme Court on July 9 agreed to take up the issue of what constitutes an “automatic telephone dialing system” under the TCPA. For more details, please see our December 15 alert.

The meaning of “automatic telephone dialing system” (ATDS or “autodialer”) under the Telephone Consumer Protection Act (TCPA) has sharply divided courts, but businesses will soon have clarity. The U.S. Supreme Court on July 9, 2020, granted a petition for a writ of certiorari to resolve this hotly contested issue and the evolving circuit split.Continue Reading SCOTUS to Resolve Autodialer Circuit Split

If you’re like us, you’ve been anticipating an announcement from the California Attorney General about the types of companies it targeted in its initial enforcement of the California Consumer Privacy Act (the “CCPA”), the types of violations the AG is interested in, and the types of arguments it is making in enforcing the Act.  While official word from the AG is unlikely before the end of the 30-day cure period following its initial notice letters, a member of the AG’s office did confirm during a recent panel discussion that the AG sent out those letters on July 1, 2020.

The statement was part of a fascinating and informative panel put on by the International Association of Privacy Professionals (“IAPP”).  It featured Stacey Schesser, Supervising Deputy Attorney General for the State of California and part of a multi-member team of attorneys in the AG’s office charged with enforcing the CCPA.  A recording is available on the IAPP’s website, and we encourage you to check it out if you’re a member.  In terms of the details gleaned from Ms. Schesser’s comments, here is what we know about the AG’s enforcement of the CCPA to-date:Continue Reading California Attorney General CCPA Enforcement—Make Sure You Pay Attention to What Customers Are Saying on Twitter

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

The global pandemic has not prevented courts from addressing a host of controversial TCPA topics, starting with the biggest controversy of all: whether the Telephone Consumer Protection Act itself is unconstitutional. The U.S. Supreme Court made history this month by hearing oral arguments on this question remotely. Meanwhile, the 11th U.S. Circuit Court of Appeals weighed in on whether revocation can be limited by contract, and the 3rd Circuit addressed whether an invitation to buy — as opposed to an invitation to sell — constitutes a “solicitation” under the TCPA’s fax provisions.
Continue Reading Is the TCPA Unconstitutional and Other Controversies Percolating in the Courts

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