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
U.S. Biometrics Laws Part II: What to Expect in 2021
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.
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Department of Health and Human Services Announces Proposed Changes to the HIPAA Privacy Rule
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).
The proposed rule is part of HHS’ Regulatory Sprint to Coordinated Care, which seeks to promote value-based healthcare by examining federal regulations that impede efforts among healthcare providers and health plans to better coordinate care for patients. Specifically, HHS aims to amend the regulations implemented pursuant to HIPAA and HITECH where the rules present barriers to coordinated care and case management or where they otherwise impose burdens on covered entities that do not increase individuals’ privacy protections.
U.S. Biometrics Laws Part I: An Overview of 2020
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
Information Blocking Compliance: What Providers Need To Know As Deadlines Approach
On November 4, 2020, the Office of the National Coordinator for Health Information Technology (ONC) published an Interim Final Rule with Comment Period (IFC) that delays compliance dates necessary to meet certain requirements related to information blocking initially finalized in the ONC Cures Act Final Rule (Final Rule) in March of 2020. The Final Rule implemented health IT provisions enacted under the 21st Century Cures Act (the Cures Act) to achieve ubiquitous interoperability among health IT systems and to improve patient’s ability to access their electronic health information (EHI). Among these provisions is a prohibition of information blocking. This article will define information blocking, provide and explain exceptions to such practice, detail the IFC’s deadline extensions, and highlight key compliance concerns and solutions regarding these reforms.
Information Blocking
The term “Information Blocking” is broadly defined by the Cures Act as any practice that is likely to interfere with, prevent, or materially discourage access, exchange, or use of EHI when the entity knows (or should know) that it is likely to do so. The Cures Act specifies four types of “actors” that must comply with the information blocking rule:
- Healthcare Providers
- Health information technology companies that have a certified health IT system
- Health information networks (HINs)
- Health information exchanges (HIEs)
Continue Reading Information Blocking Compliance: What Providers Need To Know As Deadlines Approach
Data Privacy Day 2021: Privacy and Cybersecurity Are On Our Minds, Too
Data privacy is a top concern for many in-house legal professionals – and for good reason – data privacy and cybersecurity legal requirements are complex and continually evolving. Data Privacy Day is a great day to start addressing your organization’s data privacy and cybersecurity needs.
On Data Privacy Day 2021, here is what is top of mind for some of our Data Privacy & Security Team members:
- Andrew Konia – A Federal Privacy Law: “Calls (pleas?) for federal privacy legislation are nothing new, and last year we came close, with both parties presenting draft bills for consideration (surprise, neither passed!). But now, with the White House and both chambers of Congress under Democratic control, there appears to be renewed (and more serious) interest in a federal privacy law. We have seen (admittedly narrow) hints of the federal government taking a stronger stance on cybersecurity standards with the IoT Cybersecurity Improvement Act of 2020, which applies to federal agency purchases. But you take the recent and intense backlash on “Big Tech’s” use/sharing of data and perceived lack of data transparency, and mix in the Biden Administration’s prioritization of consumer protection generally, and you have the recipe – and a strong political appetite – for a comprehensive federal privacy law.”
- Bethany Lukitsch – California: “CPRA will be here before we know it, and most companies are going to have a lot to do to get ready. Updating privacy policies and adding ‘do-not-share’ links are one thing, but as with CCPA, it’s the behind-the-scenes work that is really going to take some time. It’s certainly not too early to get started.”
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5th Circuit Weakens HHS’ Ability to Enforce HIPAA Safeguards
Healthcare providers and other covered entities are not required by HIPAA regulations to have “bulletproof” protections for safeguarding patient information stored in electronic form, according to a January 14, 2021 decision of the 5th U.S. Circuit Court of Appeals. In University of Texas M.D. Anderson v. U.S. Department of Health and Human Services, the 5th Circuit vacated a $4.3 million civil monetary penalty imposed by the U.S. Department of Health and Human Services (HHS) against the University of Texas’ M.D. Anderson Cancer Center.
The case arises from three separate incidents where M.D. Anderson employees lost laptops and USB thumb drives that contained unencrypted protected health information (PHI) for more than 34,000 patients. M.D. Anderson reported the breach incidents to HHS’ Office for Civil Rights (OCR), the office tasked with enforcing HIPAA. As a result of the reported breaches, OCR ordered M.D. Anderson to pay $4.3 million in civil monetary penalties (CMPs). M.D. Anderson appealed the decision to an HHS administrative law judge and to the HHS Departmental Appeals Board (DAB), both of which upheld OCR’s penalties. M.D. Anderson argued that the HIPAA regulations do not require encryption, that it complied with the regulations and employed other effective measures to safeguard electronic protected health information (ePHI), that the three incidents were the fault of staff who violated M.D. Anderson’s policies, and that the proposed CMPs were excessive.
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The Status of EU–UK Data Flows Following Brexit
The end of the Brexit transition period on 31 December 2020 means the UK now has full autonomy over its data protection policies. As of 1 January 2021 the UK is recognised as a ‘third country’ under EU General Data Protection Regulation (GDPR) rules. The EU-UK Trade and Cooperation Agreement, which is an agreement in principle between the EU and UK, does not yet include a provision for the vast flow of personal data being transferred between the two jurisdictions. The transfer of personal data will be subject to a separate adequacy decision from the EU due in early 2021. This separate adequacy decision will determine whether the EU will allow the ongoing free flow of data from EU/EEA countries to the UK. If an adequacy decision is not granted, then organizations who transfer personal data from the EU/EEA to the UK will have to take additional steps to ensure data being transferred is provided equivalent protections to those under the EEA. The UK has already determined that it considers all EEA/ EU states to be adequate which means that personal data flows from the UK to the EU/EEA will remain unaffected.
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Virginia Legislature Is Set to Consider Comprehensive Data Privacy Legislation
Once again, the Virginia legislature is set to consider comprehensive data privacy legislation. In the 2020 regular session of the Virginia General Assembly, the House of Delegates referred several bills dealing with privacy issues, including a proposed data privacy law, to the Virginia Joint Commission on Science and Technology for study.
This year, it appears Virginia is poised to seriously consider adoption of a broad consumer data privacy framework. Senate Bill 1392 , sponsored by Senator David Marsden (D-Fairfax), was introduced on January 13, 2021. House Bill 2307, sponsored by Delegate Cliff Hayes, Jr. (D-Chesapeake), was introduced on January 20, 2021. The bills create the “Consumer Data Protection Act.”
Virginia does not currently have a comprehensive data privacy law governing consumer data. Like most states, it has a data breach notification law and various protections for specific types of data in certain contexts.
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California Privacy Rights Act: A Move Closer to GDPR? Part II
In Part II of this series, California-based Ali Baiardo, and London-based Alice O’Donovan, continue their comparison of the GDPR and California privacy law. To view Part I in the series, click here.
NEW DATA PROTECTION PRINCIPLES AND OBLIGATIONS ON BUSINESSES
a. Key data protection principles
The GDPR revolves around seven key data protection principles:
- Lawfulness, fairness and transparency;
- Purpose limitation;
- Data minimisation;
- Accuracy;
- Storage limitation;
- Integrity and confidentiality (security); and
- Accountability
Continue Reading California Privacy Rights Act: A Move Closer to GDPR? Part II