Two U.S. Circuit Courts of Appeals recently weighed in on what it takes to establish standing to pursue a Telephone Consumer Protection Act (TCPA) claim. The 5th Circuit held that receipt of one unwanted text message is enough to satisfy Article III, which deviates from a prior 11th Circuit decision holding that one text message
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.
Yesterday, the Supreme Court resolved a circuit split on the scope of the Computer Fraud and Abuse Act of 1986 (CFAA) in a decision that emphasizes the importance of how organizations manage access to their systems. Employees with access to information at work sometimes access that information with improper motives, and in violation of office policies. This inappropriate use of access has led to federal criminal prosecution for some. In Van Buren v. United States, No. 19-783, the United States Supreme Court held that the CFAA is not properly applied to justify those prosecutions.
Nathan Van Buren was a police officer who accepted $6,000 from Andrew Albo, a participant in an FBI sting operation, to search a police database to determine whether a woman Albo professed interest in was an undercover police officer. Van Buren ran a search for the woman’s license plate in the Georgia Crime Information Center database. For doing so, Van Buren was charged and convicted of violating the CFAA, because he had “exceeded” his authority to access that database.
On January 21, 2021, the Department of Health and Human Services (HHS) published proposed modifications to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH), discussed in a previous McGuireWoods’ post. The comment period for these proposals recently ended on May 6, 2021, and HHS received almost 1500 comments from interested stakeholders. If finalized, these proposals will require HIPAA-covered entities and business associates to implement many changes, including updates to their policies, procedures, security standards, notices of privacy practices, authorization and disclosure forms, and business associate agreements. In the age of digital targeting and ransomware, possibly the most important of these is a change to security standards.
Continue Reading As HIPAA, HITECH Undergo Modernization, NIST Seeks Comment on Security Standard Guidance
On April 14, 2021, the United States Department of Labor (the “DOL”) issued for the first time guidance to retirement plan sponsors, fiduciaries, record keepers, service providers and plan participants guidance on cybersecurity issues. The DOL’s press release includes three pieces of guidance, including: (1) Tips for Hiring Service Providers; (2) Cybersecurity Program Best Practices; and (3) Online Security Tips.
The Employee Benefits Security Administration, a sub-agency of the DOL (the “EBSA”) long ago stated that addressing cybersecurity has been on the agency’s “to do” list and even published a report in 2016 reflecting the need for such guidance, which we previously covered here.
The Employee Retirement Income Security Act of 1974, as amended (“ERISA”), includes fiduciary standards that require a retirement plan to be administered in accordance with a standard of care for a prudent person who is familiar with such matters. Common sense dictates that ERISA fiduciaries administer their plans in accordance with industry standards for cybersecurity, safeguard plan assets and ensure that appropriate controls are in place to avoid financial losses to plans that may result from a cybersecurity breach. However, the legal issues concerning who is responsible (plan participant, plan sponsor or record keeper) remain open questions in many jurisdictions.
On April 1, 2021, the U.S. Supreme Court issued its long-awaited opinion in Facebook v. Duguid, which resolved a circuit split regarding the meaning of “automatic telephone dialing system” (autodialer or ATDS) under the Telephone Consumer Protection Act (TCPA). In a decision authored by Justice Sonia Sotomayor, the court adopted the narrow, pro-defendant definition of autodialer.
Continue Reading U.S. Supreme Court Adopts Narrow Autodialer Definition in 9-0 Defense Victory
On March 9, the Department of Health and Human Services announced it was extending until May 6, 2021, the comment period for proposed changes to regulations implementing the Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act of 2009.
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2021 is shaping up to be a groundbreaking year for employment litigation topics, and Illinois’ Biometric Information Privacy Act (BIPA) is no exception. State and federal appellate courts in Illinois are poised to decide several open issues, including the proper limitations period, whether the Workers Compensation Act pre-empts BIPA claims and whether BIPA liquidated damages…
“Information security is critical to the operation of the financial markets and the confidence of its participants. . . The Division is acutely focused on working with firms to identify and address information security risks, including cyber-attack related risk . . .” SEC Division of Examinations, 2021 Examination Priorities, at 24.
On March 3, 2021, the Securities and Exchange Commission’s newly renamed Division of Examinations (EXAMS) (formerly the Office of Compliance Inspections and Examinations (OCIE)) announced its 2021 examination priorities. Information security and operational resiliency ranked number two out of the top five priorities sending a clear message that the SEC is focused on emergent security threats, particularly cyber-attacks, resulting from the sudden and unprecedented increase in remote operations.
On Feb. 15, Rep. Fiona McFarland (R-Sarasota) filed HB 969, following a press conference in which Gov. Ron DeSantis and House Speaker Chris Sprowls made clear their intent to crack down on “big tech.” A Senate companion bill is expected to be filed shortly, and the issue has support from Senate President Wilton Simpson. McGuireWoods Consulting expects a version of this bill will pass by the time Florida’s legislative session ends on April 30.
Continue Reading Florida House Moving on Major Consumer Data Privacy Legislation