Susan Ross (US)

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HHS updates online tracker guidance

On March 18, 2024, the US Department of Health and Human Services (HHS) issued an updated, 17-page Bulletin titled “Use of Online Tracking Technologies by HIPAA Covered Entities and Business Associates (the Bulletin). Our readers may recall that HHS had originally issued the Bulletin in December of 2002, which we summarized here. HHS’ changes are generally clarifications … Continue reading

Executive Order on access to Americans’ bulk sensitive data and Attorney General proposed regulations – Part 2

Approximately at the same time as the Executive Order that we described in Part 1 was issued, the Attorney General (AG) unofficially released 90 pages of Advanced Notice of Proposed Rulemaking (ANPRM), which will become official once published in the Federal Register.  The AG has proposed several regulations, and has solicited public comments on over … Continue reading

Executive Order on access to Americans’ bulk sensitive data – Part 1

On February 28, 2024, the White House issued an Executive Order on Preventing Access to Americans’ Bulk Sensitive Data and United States Government-Related Data by Countries of Concern.  The 17-page Executive Order pointed out that “countries of concern” could use bulk sensitive data in a variety of ways that could adversely affect U.S. national security, … Continue reading

Two FTC complaints that over-retention of personal data violates Section 5

On January 18, 2024, the U.S. Federal Trade Commission announced a complaint and proposed consent order with InMarket Media, LLC, a digital marketing platform and data aggregator.  Less than two weeks later, on February 1, the FTC announced a complaint and proposed consent order with software licensor and data provider Blackbaud, Inc.  In both cases, … Continue reading

$8 million penalty to NYDFS – and another case of over-retention

2024 was not a happy new year for Genesis Global Trading, Inc. (“GGT”).  On January 3, 2024, the New York Department of Financial Services announced a consent order with GGT, where GGT agreed to pay NYDFS $8 million and to surrender its BitLicense (for cryptocurrency trading), due to alleged violations of NYDFS’ cybersecurity and its … Continue reading

California proposes rules for automated decision-making

On November 27, 2023, the California Privacy Protection Agency (“CPPA”) released a first draft of rules for automated decision-making technologies under California’s privacy law. The proposed rules revolve around providing notice of the technology’s use, opting out, and consumer access to business information. In general, the proposed rules would require businesses using automated decision-making technology … Continue reading

NYDFS finalizes cybersecurity rule amendments

On November 1, 2023, the New York Department of Financial Services (NYDFS) finalized the second amendment to its cybersecurity regulations, which are available here.  The rules contain the provisions we had described in the original NYDFS proposal a year ago (see our blog post here), but include some changes.  NYDFS included comments on the proposed … Continue reading

US SEC issues final rule on cybersecurity disclosures

On July 26, 2023, the US SEC issued the long-awaited final rules for public companies and foreign private issuers requiring rapid disclosure of material cybersecurity incidents as well as periodic disclosure of cybersecurity risk management and policies and procedures (the “SEC Final Rule”).  The SEC Final Rule reflects the SEC’s desire to standardize company disclosures … Continue reading

European Commission adopts its adequacy decision for the EU-US Data Privacy Framework

On 10 July, the European Commission adopted its adequacy decision for the EU-US Data Privacy Framework (the DP Framework). It thereby declared that the United States (the US) ensures an adequate level of protection for personal data transferred from the EU to US companies that have self-certified their adherence to the DP Framework Principles. More … Continue reading

Court delays new California privacy regulations

On June 30, 2023—the day before the regulations were scheduled to go into effect—the Superior Court of California halted the enforcement of the California regulations that had been finalized on March 29, 2023 until March 29, 2024. (California Chamber of Commerce v. California Privacy Protection Agency, No. 34-2023-80004106-CU-WM-GDS (Cal. Super. June 30, 2023) (minute order).) … Continue reading

Texas enacts comprehensive privacy law

On June 13, 2023, the Texas Governor signed HB4, making Texas the tenth state to have a comprehensive privacy law, joining California, Colorado, Connecticut, Montana, Virginia, and Utah (all in effect or going into effect in 2023), Montana and Tennessee (which, like Texas, go into effect in 2024), Iowa (effective 2025) and Indiana (effective 2026).  … Continue reading

Biden restricts U.S. government use of commercial spyware

Governments state that they use commercial spyware exclusively for criminal investigations, but critics claim such spyware has purportedly been used for human rights abuses targeting journalists, human rights defenders, lawyers, and political dissidents.  Moreover, the U.S. Government and its employees have been allegedly targeted by such spyware.  To set an example for governments globally—both authoritarian … Continue reading

FTC proposed consent order prohibits perpetual retention of personal information

We had previously written about an FTC proposed consent order that would prohibit a company from perpetual retention of personal health information.  On March 2, 2023, the FTC announced a complaint and proposed consent with BetterHelp, Inc. that would prohibit the company from perpetual retention of personal information—a broader category.   Also unlike the previous matter, … Continue reading

BIPA damages accrue per transaction

On February 17, 2023, the Illinois Supreme Court decided, by a 4-3 vote, that each time a private entity scans or transmits an individual’s biometric information without complying with Illinois Biometric Information Privacy Act (BIPA), that constitutes a separate violation under BIPA.  (Cothron v. White Castle System, Inc., 2023 IL 128004 (Ill. Feb. 17 2023).)  … Continue reading

“Forever and forever, farewell”:  FTC prohibits indefinite retention of PHI in consent order

On February 1, 2023, the Federal Trade Commission announced a complaint and stipulated order with GoodRx, with the FTC using for the first time its interpretation of the Health Breach Notification Rule.  Under the Rule, the FTC interpreted a “breach” to include disclosures of personal health information without notice to the individual and consent by … Continue reading

BIPA and the record retention requirement

On November 30, 2022, an Illinois court of appeals ruled that Illinois’ biometrics privacy law—known as BIPA—requires that anyone subject to that law must develop a retention and destruction schedule when it possesses biometric data.  In this case, the court found that the employer (J&M Plating Inc.) violated BIPA because it did not create its … Continue reading

HHS: Online trackers without prior authorization and BAAs can violate HIPAA

HHS: Online trackers without prior authorization and BAAs can violate HIPAA By Steve Roosa, Sue Ross, Dan Rosenzweig On the evening of December 1, 2022, the U.S. Department of Health and Human Services (HHS) issued a 12-page Bulletin titled “Use of Online Tracking Technologies by HIPAA Covered Entities and Business Associates (the “Bulletin”).  In the … Continue reading

NYDFS proposes significant cybersecurity regulation amendments

On November 9, 2022, the New York Department of Financial Services (NYDFS) officially proposed changes to its cybersecurity regulation and opened a 60-day public comment period.  NYDFS had issued a “pre-proposed” version of the changes in July of this year, which we had summarized here.  NYDFS retained many of those earlier proposed changes, and made … Continue reading

Ignoring cyber threats can affect your job—and haunt your next one

On October 21, 2022, the US Department of Health and Human Services, along with the FBI and the Cybersecurity Infrastructure and Security Agency (CISA), issued a bulletin warning that a cyber threat actor group known as “Daixin Team,” is actively targeting US businesses, predominantly in the healthcare and public health sectors, with ransomware and data … Continue reading

NYDFS settles with EyeMed for $4.5 million

On October 18, 2022, the New York Department of Financial Services announced a settlement with EyeMed, a licensed life, accident, and health insurer, with respect to a security incident that occurred in 2020.  The settlement claimed that EyeMed had committed seven violations of the NYDFS Cybersecurity Regulation, including failure to have an appropriate annual risk … Continue reading

First part of EU/ US Transatlantic Data Protection Framework published today

On 7 October 2022, the US White House published the Executive Order on enhancing safeguards for United States signals intelligence activities. This action is the first part of the US legal apparatus required for the EU Commission to find certain transfers to the US to be adequate. It is also likely in due course to … Continue reading
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