Monetary penalties are the attention-grabbing headline when the FTC or any regulator brings an enforcement action against a company.  They are the looming threat to incentivize and influence compliance.  Over the summer, FTC Chairman Joseph J. Simons (“Chairman Simons”) issued a statement in connection with a settlement that Chairman Simons believes “the goal of a civil penalty should be to make compliance more attractive than violation.  Said another way, violation should not be more profitable than compliance.”

Continue Reading FTC Fines: FTC Chairman Reminds Companies That Fines Are the FTC’s Strategic Tool To Deter Noncompliance

On September 17, 2020, four Republican Senators (Roger Wicker – Mississippi, Chairman, John Thune – South Dakota, Deb Fischer – Nebraska, and Marsha Blackburn – Tennessee) introduced sweeping federal privacy legislation entitled: Setting an American Framework to Ensure Data Access, Transparency, and Accountability (“SAFE DATA”) Act. This proposed comprehensive national privacy law has three main components:

  1. Provides consumers with more choice and control over their data
  2. Directs business to be more transparent and accountable
  3. Strengthens the FTC’s enforcement power


Continue Reading Federal Data Privacy Legislation: Will it Help the US Remain Competitive in the Global Marketplace?

On August 14, 2020, the California Attorney General announced final approval of the California Consumer Privacy Act Regulations by the Office of Administrative Law.  The Regulations take effect immediately.

While the revisions made to the Final Regulations mostly consist of “non-substantive changes” to correct grammatical errors or clarify the wording of various provisions, business should be aware of the “global modifications” made in a few key areas.  These are summarized below along with our take on what they may mean for businesses:


Continue Reading Finally Final: CCPA Regulations Take Effect

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

Earlier this year, several pieces of privacy related legislation pending in the 2020 General Assembly session were referred by a standing committee of the Virginia House of Delegates to the Joint Commission on Technology and Science (JCOTS) for study outside of the regular legislative session.  JCOTS has taken its first steps toward establishing study committees to look at several issues prior to the 2021 regular legislative session.

Specifically, JCOTS established the following study committees:

  • Data Protection & Privacy Advisory Committee
  • Children’s Online Protection Advisory Committee
  • Facial Recognition within Law Enforcement Advisory Committee


Continue Reading Virginia Legislative Commission Set to Begin Look at Data Protection, Privacy and Children’s Online Privacy Protection Issues

In its long awaited judgment in the Schrems II case, the ECJ has this morning invalidated the EU-US Privacy Shield citing the “limitations on the protection of personal data arising from the domestic law of the United States on the access and use by US public authorities” in respect of personal data transferred from the European Union to the United States on the basis that such limitations do not provide the protections ensured under EU law. The ECJ’s concerns centered around certain US surveillance programs which are not limited to what is strictly necessary and EU data subjects not having effective rights of enforcement against US authorities under US laws.

Continue Reading ECJ Invalidates the EU-US Privacy Shield! How Safe is it to Use SCCs for Data Transfers from the EU to the US?

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?

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