On Dec. 20, 2023, the Federal Trade Commission announced its intent to file a notice of proposed rulemaking related to the Children’s Online Privacy Protection Rule — the first proposed changes to the rule in 10 years.

What are some of the key proposed changes?

  • Separate Opt-In for Targeted Advertising.  Covered service operators are required to obtain separate verifiable parental consent before disclosing children’s personal information to third parties unless the disclosure is integral to the nature of the online service.  Access to services cannot be conditioned on disclosure of personal information to third parties.
  • Writing Current Ed Tech Guidance into the Rule.  As in the current policy statement on education technology and COPPA, schools and school districts may authorize ed tech providers to collect, use, and disclose students’ personal information only for school-authorized educational purposes and not for any commercial purpose.
  • Children’s Personal Information Security Program.  Services operators must implement a written children’s personal information security program with safeguards appropriate for the sensitivity of the personal information collected from children.
  • Data Retention Limits. Data may only be retained for as long as necessary to fulfill the purpose for which it was collected (and may not be retained for any secondary purpose) and may not be retained indefinitely.  Operators must create and publish a written data retention policy for children’s personal information.

Why It Matters

These proposed changes come at a time when the effects of children’s use of the internet and social media are receiving significant media scrutiny and legislation on children’s privacy continues to proliferate.  States across the country are considering and enacting children’s online privacy bills and the U.S. Senate recently passed out of committee two such bills that await a floor vote.  Organizations that handle children’s data are subject to a regulatory environment with overlapping requirements and that is changing rapidly.

What’s Next

Once the NPRM is published in the Federal Register, comments to the proposed regulations will be due 60 days later.  The FTC will then take those comments into consideration and presumably publish a final rule, should Congress not enact any legislation.  Impacted organizations will need to watch this area closely to update compliance programs and internal practices implicated by any regulatory changes.

On Nov. 30, the Illinois Supreme Court, in Mosby v. The Ingalls Memorial Hospital et al., held that certain healthcare providers’ biometric data, used for healthcare operational purposes under the Health Insurance Portability and Accountability Act, is not protected under the Illinois Biometric Information Privacy Act. Read on for details about this development and why the exemption applies.

In light of a significant rise in cyberattacks against hospitals and health systems, the U.S. Department of Homeland Security Cybersecurity and Infrastructure Security Agency and the U.S. Department of Health and Human Services recently released a cybersecurity toolkit. Read on for details about the toolkit and how the federal government is prioritizing cybersecurity in healthcare.

Seeking to formalize its Sept. 15, 2021, Statement of the Commission on Breaches by Health Apps and Other Connected Devices, the Federal Trade Commission proposed broadening the Health Breach Notification Rule to cover “most health apps and similar technologies that are not covered by HIPAA.” Read on for details about this proposed rule, which is intended to better align the Health Breach Notification Rule with recent technological advancements and mobile applications that access personal health data.

Once an outlier, the 11th U.S. Circuit Court of Appeals recently joined seven other Circuit Courts in holding that receipt of a single, unwanted text message constitutes the concrete injury required for standing in class actions filed under the Telephone Consumer Protection Act. Read on for details about this development and implications for TCPA class actions moving forward.

On July 26, the U.S. Securities and Exchange Commission adopted new rules regarding public companies’ reporting of (i) cybersecurity incidents, (ii) policies and procedures for identifying and managing cybersecurity risks and (iii) management and board roles in implementing cybersecurity policies and procedures. Read on for details about the new rules and recommended next steps for reporting companies.

On June 21, the U.S. Department of Homeland Security issued a long-anticipated cybersecurity final rule that revises an existing clause and adds two new clauses to the Homeland Security Acquisition Regulation related to contractors’ handling of controlled unclassified information.

Read on for highlights from this rule, which goes into effect July 21 and is likely to complicate DHS contractors’ cybersecurity compliance programs.

Over the past year, website operators have experienced a proliferation of lawsuits under the Federal Video Privacy Protection Act (“VPPA”), a Reagan-era statute prohibiting the nonconsensual disclosure of an individual’s video tape rental history. Despite its nondigital origin, litigation under the VPPA has successfully targeted the ubiquitous use of tracking technologies on businesses’ websites, creating a risk of significant class-action damages under VPPA’s $2,500 per violation statutory-damages clause. Read on for more details about the risk of litigation under the VPPA and how best to avert it.

Continue Reading Analog Law with Digital Teeth: Litigation Under the Video Privacy Protection Act and Potential Liability for Businesses

Over the past few years, data privacy and security has been the focus of many state legislatures.  CA, CO, CT, IA, UT and VA have already passed comprehensive data privacy laws. Indiana joined them on May 1, 2023 when the Governor signed the latest consumer privacy bill into law.  Many other states have bills in the legislatures that are likely to become law, including FL, MT and TN (where the bills are awaiting the governors’ signatures).   Though most of these laws apply to businesses that control or process personal data of 100,000 or more residents in each of those states, California’s data privacy law applies to any business that has gross annual revenue of over $25M if it collects the personal data of any California resident, which includes employees and business contacts.

Continue Reading Failing to Comply With the Slew of New Data Privacy Laws Can Be Costly to Companies

On March 29, 2023, Iowa became the latest in a small but growing number of states to enact comprehensive data privacy legislation.  Like its counterpart laws in California, Connecticut, Colorado, Utah and Virginia, Iowa’s data privacy law – formally titled “An Act Relating to Consumer Data Protection, Providing Civil Penalties, and Including Effective Date Provisions” (“IDPL”) – provides a detailed framework regulating the collection and use of consumer personal data, and affords consumers various rights as to data collected about them.  Fortunately, many of the requirements imposed by the IDPL, which goes into effect on January 1, 2025, are largely similar to those applicable in the other five states, and especially those in Connecticut, Colorado, Utah and Virginia.[1]

Continue Reading Iowa Joins Data Privacy Vanguard