Posts in Enforcement.
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On May 16, 2024, the Illinois House of Representatives passed S.B. 2979, following the bill’s passage in the Illinois Senate in April.   S.B. 2979 would amend the Illinois Biometric Information Privacy Act definitions and limit liability for businesses with multiple duplicative BIPA violations that relate to the same individual.

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On April 7, 2024, U.S. Sen. Maria Cantwell (D-WA) and U.S. Rep. Cathy McMorris Rodgers (R-WA) released a discussion draft of the latest federal privacy proposal, known as American Privacy Rights Act (“APRA” or the “Act”). The APRA builds upon the American Data Privacy and Protection Act (“ADPPA”), which was introduced as H.R. 8152 in the 117th Congress and advanced out of the House Energy and Commerce Committee but did not become law. As the latest iteration of a federal privacy proposal, the APRA signals that some members of Congress continue to seek to create a federal standard in the wake of—and in spite of—the ever-growing patchwork of state privacy laws.

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The Connecticut Attorney General’s Office (“OAG”) has released a Report on the status of Connecticut’s Data Privacy Act (“CTDPA”), which took effect on July 1, 2023. The Report covers complaints, inquiries, and early enforcement activities under the CTDPA.

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On April 2, 2024, the California Privacy Protection Agency (“CPPA”) Enforcement Division issued its first Enforcement Advisory, titled “Applying Data Minimization to Consumer Requests.”  The purpose of this Enforcement Advisory is to address the CPPA Enforcement Division’s observation that some businesses are asking consumers “to provide excessive and unnecessary personal information in response to requests that consumers make under the CCPA.” The Enforcement Advisory serves as a reminder to businesses to apply the data minimization principle to each purpose for which they collect, use, retain and share consumers’ personal information, including information that businesses collect when processing consumers’ CCPA requests.  The Enforcement Advisory provides further guidance on how businesses may comply with the principle, noting, however, that in general, Enforcement Advisories “do not implement, interpret or make specific the law enforced or administered by the [CPPA], establish substantive policy or rights, constitute legal advice or reflect the views of the [CPPA]’s Board.” The Advisory notes several other caveats, reiterating the general point that  Enforcement Advisories do not have the force of law or safe harbor for CCPA compliance purposes.  However, the guidance provides illustrative hypotheticals and substantive insight into how the CPPA may approach enforcement in certain areas and “encourages” businesses to voluntarily comply with the law.

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On March 25, 2024, Florida Governor Ron DeSantis signed into law a bill prohibiting minors under the age of 14 from having accounts on social media platforms.

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After potential warning signs spanning several years, on March 14, 2024, the Federal Trade Commission brought an enforcement action against two entities selling virus protection software to consumers via online and telemarketing sales. According to the FTC’s complaint, for several years the entities, Restoro Cyprus Limited and Reimage Cyprus Limited, received excessive chargebacks on purchases, numerous consumer complaints made directly to the entities, and various indirect consumer complaints made to vendors, telecoms service providers and others. 

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On March 18, 2024, the UK Information Commissioner’s Office (“ICO”) published new data protection fining guidance on how the ICO determines penalties and calculates fines. The guidance was subject to a consultation process in 2023, and covers a variety of topics and considerations relevant to penalties and fines, including:

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On March 8, 2024, the California Privacy Protection Agency (“CPPA”) Board discussed and voted 3-2 in favor of further edits to revised draft regulations regarding risk assessments and automated decisionmaking technology (“ADMT”), which were released in February 2024, but did not initiate the formal rulemaking process for these regulations, which is anticipated to begin in July 2024.

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As reported by Bloomberg Law, on February 27, 2024, at RemedyFest, a conference hosted by Bloomberg Beta and Y Combinator, Federal Trade Commission Chair Lina Khan said that sensitive personal data that is linked to health, geolocation and web browsing history should be excluded from training artificial intelligence (“AI”) models.

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On February 13, 2024, New York Attorney General (“NY AG”) Letitia James and New York State Education Department Commissioner (“NYSED”) Betty A. Rosa announced that College Board has agreed to settle charges in connection with allegations that it violated New York Education Law § 2-d, New York’s student privacy law. 

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On March 1, 2024, the UK Information Commissioner’s Office (“ICO”) announced that it had issued an enforcement notice and a warning to the UK Home Office for failing to sufficiently assess the privacy risks posed by the electronic monitoring of people arriving in the UK via unauthorized means. The Home Office is the ministerial department of the UK government responsible for immigration, security, and law and order.

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On February 22, 2024, the Federal Trade Commission announced a settlement order against Avast Limited (“Avast”) requiring Avast to pay $16.5 million and prohibiting Avast from selling or licensing any web browsing data for advertising purposes. This ban is to settle charges that the company and its subsidiaries sold such information to third parties after promising that its products would protect consumers from online tracking.

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On February 21, 2024, the U.S. Department of Health and Human Services’ Office for Civil Rights (“OCR”) entered into a resolution agreement and corrective action plan with Green Ridge Behavioral Health LLC (“GRBH”) stemming from the organization’s failure to comply with the Privacy and Security Rules of the Health Insurance Portability and Accountability Act (“HIPAA”) and subsequent failure to protect against a 2019 ransomware attack that impacted the personal health information (“PHI”) of more than 14,000 patients. This marks the second such settlement with a HIPAA-regulated entity for violations that were discovered following a ransomware attack, according to HHS.

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On February 23, 2024, the UK Information Commissioner’s Office (the “ICO”) reported that it had ordered public service providers Serco Leisure, Serco Jersey and associated community leisure trusts (jointly, “the Companies”) to stop using facial recognition technology (“FRT”) and fingerprint scanning (“FS”) to monitor employee attendance.

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On February 21, 2024, the California Attorney General announced that it had reached a settlement resolving an enforcement action under the California Consumer Privacy Act (“CCPA”) and the California Online Privacy Protection Act (“CalOPPA”) brought against online food delivery company  DoorDash, Inc. (the “Company”). This is the AG’s second CCPA enforcement settlement, following the agency’s settlement with Sephora.

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On February 1, 2024, the Federal Trade Commission announced a proposed settlement with Blackbaud Inc. (“Blackbaud”) in connection with alleged security failures that resulted in a breach of the company’s network and access to the personal data of millions of consumers. As part of the settlement, Blackbaud will be required to comply with a variety of obligations, including deleting personal data that the company does not have a need to retain.

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On January 12, 2024, the New York State Department of Financial Services (“NYDFS”) announced a consent order with virtual currency company Genesis Global Trading, Inc. (“Genesis”) for “significant” failings in Genesis’ Anti-Money Laundering and cybersecurity compliance frameworks. According to the NYDFS, Genesis’ failure to comply with the NYDFS’ virtual currency and cybersecurity regulations left the company vulnerable to cybersecurity risks and related unlawful activity. 

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On January 9, 2024, an Ohio federal judge placed a temporary restraining order on Ohio’s Parental Notification by Social Media Operators Act, Ohio Rev. Code § 1349.09(B)(1) (the “Act”), which was approved in July 2023 and was set to go into effect on January 15,2024. Under the Act, parents must provide consent for children under 16 to set up an account on social media and online gaming platforms. The platform operators must also provide parents with a list of content moderation features.

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On January 18, 2024, the Federal Trade Commission announced a proposed order against geolocation data broker InMarket Media (“InMarket”), barring the company from selling or licensing precise location data. According to the FTC’s charges, InMarket failed to obtain informed consent from users of applications developed by the company and its third-party partners.  

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On January 9, 2024, in its first settlement with a data broker concerning the collection and sale of sensitive location information, the Federal Trade Commission announced a proposed order against data broker X-Mode Social, Inc. and its successor Outlogic, LLC (“X-Mode”) for unfair and deceptive acts or practices in violation of Section 5 of the FTC Act.

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On January 9, 2024, the Federal Trade Commission published a blog post reminding artificial intelligence (“AI”) “model-as-a-service” companies to uphold the privacy commitments they make to customers, including promises made in Terms of Service agreements, promotional materials and online marketplaces.  

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On November 27, 2023, the California Privacy Protection Agency (“CPPA”) published its draft regulations on automated decisionmaking technology (“ADMT”). The regulations propose a broad definition for ADMT that includes “any system, software, or process—including one derived from machine-learning, statistics, or other data-processing or artificial intelligence—that processes personal information and uses computation as whole or part of a system to make or execute a decision or facilitate human decisionmaking.” ADMT also would include profiling, which would mean the “automated processing of personal information to evaluate certain personal aspects relating to a natural person and in particular to analyze or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behavior, location, or movements.”

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On November 16, 2023, the Federal Trade Commission released a proposed order in connection with a complaint filed in August of 2020 against Global Tel*Link Corp. (“GTL”) and its subsidiaries, Telmate and TouchPay, which offers communication and payment services for incarcerated individuals. The complaint centered around a security breach where a technician for a vendor of GTL placed unencrypted, personally identifiable information in a test environment to test a new search and storage software. The test environment allegedly was accessible on the internet without password protections which permitted an unauthorized actor to access and exfiltrate the data between August 11-13, 2020. Though GTL restricted access to the test environment, GTL allegedly failed to notify its customers for roughly nine months, while also falsely representing to prospective customers that it had never experienced a security breach.

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The California Privacy Protection Agency (“CPPA”) Board (the “Board”) announced an upcoming public meeting to take place over Zoom on Friday, December 8, 2023 at 9 am PST.

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On November 8, 2023, the UK Information Commissioner’s Office (“ICO”) and the European Data Protection Supervisor (“EDPS”) announced they have signed a Memorandum of Understanding (“MOU”) intended to reinforce their “common mission to uphold individuals’ data protection and privacy rights, and cooperate internationally to achieve this goal”. The MOU sets out broad principles of collaboration between the ICO and EDPS and the legal framework governing the sharing of relevant information and intelligence. The ICO and EDPS consider that, when addressing similar issues, reducing divergencies in their regulatory approaches will benefit public and private organizations, individuals, and other stakeholders in the UK and EU.  

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On October 30, 2023, the Federal Trade Commission announced that it is sending nearly $100 million in refunds to consumers who were harmed as a result of internet phone service provider Vonage’s alleged use of dark patterns and other obstacles that made it difficult for users to cancel their service.

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On October 26, 2023, the UK Online Safety Act (the “Act”) received Royal Assent, making it law in the UK. The Act seeks to protect children from online harm and imposes obligations on relevant organizations, including social media platforms, to prevent and remove illegal and harmful content. In a press release, the UK Government stated that the Act “takes a zero-tolerance approach to protecting children from online harm, while empowering adults with more choices over what they see online.” For example, the Act requires relevant organizations to:

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On October 18, 2023, California Attorney General Rob Bonta filed an appeal to overturn a preliminary injunction issued by the U.S. District Court for the Northern District of California last month that prevents the enforcement of the California Age-Appropriate Design Code Act (“CA AADC”). The appeal was submitted to the U.S. Court of Appeals for the Ninth Circuit and marks an important step in assessing the potential progress of the CA AADC.

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On October 17, 2023, The First-tier Tribunal of the UK General Regulatory Chamber allowed an appeal by Clearview AI Inc. (“Clearview”) against an enforcement notice and fine issued by the UK’s Information Commissioner’s Office (“ICO”).

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On September 19, 2023, the Director of the Federal Trade Commission Bureau of Consumer Protection, Samuel Levine, delivered remarks that provided insight into the FTC’s ongoing strategy for regulating artificial intelligence (“AI”) during the National Advertising Division’s annual conference. Levine emphasized that the FTC is taking a more proactive approach to protect consumers from the harmful uses of AI, while ensuring the market remains fair, open, and competitive. Levine expressed the belief that self-regulation is not sufficient to address the regulation of ...

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On July 5, 2023, Ohio Governor, Mike DeWine, signed into law House Bill 33, which includes the Social Media Parental Notification Act (“Act”).

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On September 14, 2023, California Attorney General Rob Bonta announced a $93 million settlement with Google, LLC (“Google”) resolving alleged violations of California’s false advertising law and unfair competition law.

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On September 18, 2023, Judge Beth Labson Freeman of the U.S. District Court for the Northern District of California granted NetChoice’s request for preliminary injunction in NetChoice v. Bonta, finding that NetChoice is likely to succeed on its claim that the California Age-Appropriate Design Code (“CA AADC”) violates the First Amendment. Specifically, the Court found that, as a speech restriction, the CA AADC would likely fail both strict scrutiny and a lesser standard of scrutiny. The preliminary injunction blocks the CA AADC from going into effect until the case is ...

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On September 7, 2023, Lina M. Khan, Chair of the Federal Trade Commission, announced that the FTC will hold an open meeting virtually at 11 am ET on Thursday, September 14, 2023.  The agenda of the open meeting includes a vote by the FTC on whether to release a staff perspective and recommendations on the blurring of advertising and content on digital media and its effects on children and teens.

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On August 14, 2023, the Federal Trade Commission announced a proposed order against Experian Consumer Services (“Experian”) for failure to comply with the federal CAN-SPAM Act.  The complaint alleges that Experian sent marketing emails that did not provide an unsubscribe opportunity to consumers who had signed up for Experian’s credit monitoring services. The CAN-SPAM Act requires businesses to, in relevant part, clearly and conspicuously display a return email address or Internet-based mechanism that allows consumers to unsubscribe from future marketing emails. While the Experian emails contained a notice stating that the messages related to the consumer’s Experian account (which would make them “transactional” or “relationship” messages under the CAN-SPAM Act, and therefore exempt from the unsubscribe requirement), the complaint alleged that, in actuality, the emails contained only marketing material.

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On July 25, 2023, Hunton published a client alert discussing the importance of cyber and directors and officers (“D&O”) liability insurance for companies and their executives to guard against cyber-related exposures. In today’s ever-changing threat landscape, all organizations are at risk of damaging cyber incidents and resulting investigations and lawsuits, underscoring the importance of utilizing all tools in a company’s risk mitigation toolkit, including insurance, to address these exposures. 

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On July 14, 2023, California Attorney General Rob Bonta (“California AG”) announced a new enforcement sweep aimed at ensuring that companies comply with the California Consumer Privacy Act of 2018 (“CCPA”) with respect to the personal information of employees and job applicants. The exemption for HR-related data under the CCPA expired on January 1, 2023, when the amendments to the CCPA made by the California Privacy Rights Act of 2020 became operative.

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On June 22, 2023, the Oregon House of Representatives passed the Oregon Consumer Privacy Act (S.B. 619) (the “OCPA”), which was previously passed by the Oregon Senate on June 20, 2023. The OCPA has been sent to the Oregon governor’s desk for signature. If signed, the OCPA would make Oregon the 12th state to have enacted comprehensive privacy legislation.

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On June 28, 2023, Louisiana Governor John Bel Edwards signed into law H.B. 61, which requires interactive computer services to get parental consent (or consent from a legal representative of a minor) to enter into a contract or other agreement, including the creation of an online account, with minors younger than 18 years of age. The Act comes after similar laws enacted in Texas, Utah and Arkansas. H.B. 61 will take effect on August 1, 2024. 

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On June 2 and June 5, 2023, the Connecticut and Nevada state legislatures, respectively, voted in favor of sending legislation to their governors for signature that would impose restrictions, among others, on the processing of consumer health data, including geofencing provisions.  Nevada S.B. 370 was signed by Nevada Governor Joe Lombardo on June 16, 2023. These bills contain provisions similar to Washington’s My Health My Data Act and expand on protections in the Health Insurance Portability and Accountability Act of 1996 and other privacy laws.

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On May 24, 2023 Google LLC (“Google”) announced its recently updated privacy terms providing that, for many of Google’s advertising services, it will no longer act as a service provider for the purposes of the California Privacy Rights Act of 2020 (“CPRA”). The change may affect businesses’ prior determinations of whether they “sell” personal information under the California Consumer Privacy Act of 2018 (“CCPA”). The updated terms take effect on July 1, 2023, the day CPRA enforcement begins.

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On May 31, 2023, the Federal Trade Commission announced a proposed order against home security camera company Ring LLC (“Ring”) for unfair and deceptive acts or practices in violation of Section 5 of the FTC Act.

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On May 27, 2023, Texas Governor Greg Abbott signed into law an amendment to Texas’s data breach notification law. The amendment shortens the time period for notifying the Texas Attorney General, requiring notification of a data breach as soon as practicable and not later than 30 days after discovery of the breach. The amendment also requires notification to the Texas Attorney General to be submitted electronically using a form accessed through the Texas Attorney General’s Internet website. The amendment will take effect on September 1, 2023.

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On May 22, 2023, the Federal Trade Commission announced a proposed order against education technology provider Edmodo, LLC (“Edmodo”) for violations of the Children’s Online Privacy Protection Rule (“COPPA Rule”) and Section 5 of the FTC Act.

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On May 17, 2023, the Federal Trade Commission issued a consumer alert regarding the Premom Ovulation Tracker app (“Premom”) sharing sensitive information with third parties without users’ permission. According to the alert, Premom is a free app that is marketed as an accurate fertility calendar, which can be used to assist users who are trying to become pregnant.

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On May 4, 2023, the Florida Senate and House of Representatives voted in favor of sending the Florida Digital Bill of Rights (“FDBR”) and other amendments related to government moderation of social media and protection of children in online spaces (S.B. 262) to Governor Ron DeSantis for signature. Unlike the other comprehensive state privacy laws that have been enacted, the FDBR applies to a much narrower subset of entities.

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On May 5, 2023, New York Attorney General Letitia James released proposed legislation that seeks to regulate all facets of the cryptocurrency industry. Entitled the “Crypto Regulation, Protection, Transparency, and Oversight (CRPTO) Act,” if enacted the bill would substantially expand New York’s oversight of crypto enterprises conducting business in the Empire State, including as to matters involving privacy and cybersecurity.

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On May 10, 2023, the Texas Senate passed H.B. 4, also known as the Texas Data Privacy and Security Act (“TDPSA”). The TDPSA now heads to a conference committee between the Texas Senate and House to rectify the differences between the Senate and House versions. If the TDPSA is signed into law, Texas could become the tenth state to enact comprehensive privacy legislation.

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On April 25, 2023, officials from the Federal Trade Commission, Consumer Financial Protection Bureau (“CFPB”), Department of Justice’s Civil Rights Division (“DOJCRD”) and the Equal Employment Opportunity Commission (“EEOC”) released a Joint Statement on Enforcement Efforts against Discrimination and Bias in Automated Systems (“Statement”), also sometimes referred to as “artificial intelligence” (“AI”).

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On April 21, 2023, the Montana and Tennessee legislatures voted to enact comprehensive consumer privacy bills in their respective states. If signed by their governors, Montana’s Consumer Data Privacy Act (S.B. 384) (“MCDPA”) and Tennessee’s Information Protection Act (H.B. 1181) (“TIPA”) could make these states the eighth and ninth U.S. states to enact comprehensive privacy legislation.

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On April 13, 2023, the Indiana Senate concurred to the Indiana House’s amendments of Senate Bill 5 (“SB 5”) a day after the House returned the bill to the Senate with amendments, and a couple days after the Indiana House unanimously voted to approve SB 5. SB 5 now will head to Governor Eric Holcomb for a final signature, where he will have seven days upon transmission to sign SB 5 into law or veto it. This could make Indiana the seventh U.S. state to enact comprehensive privacy legislation.

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On April 12, 2023, Arkansas Governor Sarah Huckabee Sanders signed into law S.B. 396 creating the state’s Social Media Safety Act (the “Act”). The Act comes after Utah’s similar social media laws enacted in March.

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On March 28, 2023, the French Data Protection Authority (the “CNIL” or “French DPA”) announced a €125,000 fine on the e-scooter rental company Cityscoot for breaching EU and French data protection rules, in particular in the context of geolocation and use of Google reCAPTCHA. The fine was imposed on March 16, 2023.

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The Brazilian law firm BMA Advogados reports that the Brazilian National Data Protection Authority (“ANPD”) adopted a landmark and long-awaited regulation for the enforcement of the Brazilian General Data Protection Law (“LGPD”).

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On March 16, 2023, the Federal Trade Commission announced it issued orders to eight social media and video streaming platforms seeking Special Reports on how the platforms review and monitor commercial advertising to detect, prevent and reduce deceptive advertisements, including those related to fraudulent healthcare products, financial scams and the sale of fake goods. The FTC sent the orders pursuant to its resolution directing the FTC to use all available compulsory process to inquire into this topic, and using the FTC’s Section 6(b) authority, which authorizes the FTC to conduct studies that do not have a specific law enforcement purpose.

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On March 6 and 15, 2023, both chambers of the Iowa Legislature unanimously voted to approve Senate File 262, which could make Iowa the sixth U.S. state to enact comprehensive privacy legislation. The bill is most similar to Utah’s comprehensive privacy law.

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On March 9, 2023, the U.S. Securities and Exchange Commission (SEC) announced settled administrative charges against Blackbaud Inc. The case stems from disclosures Blackbaud made to investors regarding a 2020 ransomware attack that targeted donor data management software the company provides to non-profit organizations.

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On March 1-3, 2023, the Utah legislature passed a series of bills, SB 152 and HB 311, regarding social media usage for minors. For social media companies with more than five million users worldwide, SB 152 would require parental permission for social media accounts for users under age 18, while HB 311 would hold social media companies liable for harm minors experience on the platforms. Both bills have been sent to the governor’s desk for signature.

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On March 7, 2023, the Irish Data Protection Commission (“DPC”) published its Annual Report for 2022 (the “Report”). The Report contains details on several areas of the DPC’s work, including complaints from data subjects received by the DPC, personal data breach notifications received by the DPC and statutory inquiries conducted by the DPC.

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On March 1, 2023, the U.S. House of Representatives Innovation, Data and Commerce Subcommittee (“Subcommittee”) of the Energy and Commerce Committee (“Committee”) held a hearing to restart the discussion on comprehensive federal privacy legislation. Last year, the full Committee reached bipartisan consensus on H.R. 8152, the American Data Privacy and Protection Act (“ADPPA”), by a vote of 53-2.  With many of the same players returning in the 118th Congress, House members are eager to advance bipartisan legislation again.

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On February 28, 2023, the European Data Protection Board (“EDPB”) issued its Opinion 5/2023 on the European Commission Draft Implementing Decision on the adequate protection of personal data under the EU-US Data Privacy Framework (the “Opinion”). In the Opinion, the EDPB recognized substantial improvements in the proposed EU-U.S. Data Privacy Framework (“DPF”) when compared to Privacy Shield, whilst also stating that a number of aspects of the DPF need to be clarified, developed or further detailed.

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On February 17, 2023, the Federal Trade Commission announced the launch of their new Office of Technology. The Office of Technology will assist the FTC by strengthening and supporting law enforcement investigations and actions, advising and engaging with staff and the Commission on policy and research initiatives, and engaging with the public and relevant experts to identify market trends, emerging technologies and best practices. The Office will have dedicated staff and resources and be headed by Chief Technology Officer Stephanie T. Nguyen.

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As previously posted in our Hunton Employment & Labor Perspectives blog, on January 10, 2023, the Equal Employment Opportunity Commission (“EEOC”) published a draft of its Strategic Enforcement Plan (“SEP”) in the Federal Register, which outlines the EEOC’s enforcement goals for the next four years. While the EEOC aims to target a number of new areas – such as underserved workers and pregnancy fairness in the workplace – it is notable that it listed as priority number one the elimination of barriers in recruitment and hiring caused or exacerbated by employers’ use of artificial intelligence (“AI”). 

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On February 3, 2023, the California Privacy Protection Agency (“CPPA”) Board unanimously approved for submission to California’s Office of Administrative Law (“OAL”) proposed final California Privacy Rights Act (“CPRA”) regulations released on January 31, 2023 which update the draft CPRA regulations released on November 3, 2022.

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On February 1, 2023, the Federal Trade Commission announced that it entered into a proposed order with GoodRx, a telehealth and prescription drug discount provider, for violations of the FTC’s Health Breach Notification Rule stemming from GoodRx’s unauthorized disclosures of consumers’ personal health information to third party advertisers and other companies. This is the first enforcement action taken under the FTC’s Health Breach Notification Rule, which was issued in 2009.

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On January 27, 2023, California Attorney General Rob Bonta announced a new enforcement sweep aimed at businesses with mobile apps and other businesses that fail to comply with the California Consumer Privacy Act (“CCPA”).

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On January 20, 2023, The Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth published “Digital Assets and Privacy,” a discussion paper compiling insights from workshops with CIPL member companies that explored the intersection of privacy and digital assets, with a particular focus on blockchain technology. The paper includes recommendations for developing coherent, tech-friendly, future-focused, and pragmatic regulations and policies.

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On January 4, 2023, the Irish Data Protection Commission (“DPC”) announced the conclusion of two inquiries into the data processing practices of Meta Platforms, Inc. (“Meta”) with respect to the company’s Instagram and Facebook platforms. As a result of the investigations, the DPC fined Meta a combined €390 million for breaches of the EU General Data Protection Regulation (“GDPR”) and, following consultation with the European Data Protection Board (“EDPB”), notably held that Meta can no longer rely on the GDPR’s “performance of a contract” legal basis for processing personal data in the behavioral advertising context, a decision that has broad implications for publishers engaged in behavioral advertising in the EU.

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On January 16, 2023, the Directive on measures for a high common level of cybersecurity across the Union (the “NIS2 Directive”) and the Directive on the resilience of critical entities (“CER Directive”) entered into force. The NIS2 Directive repeals the current NIS Directive and creates a more extensive and harmonized set of rules on cybersecurity for organizations carrying out their activities within the European Union. The CER Directive repeals the European Critical Infrastructure Directive and brings with it new, stronger rules for the cyber and physical resilience of critical entities and networks.

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On January 3, 2023, an Illinois state court entered a preliminary approval order for a settlement of nearly $300,000 in a class action lawsuit against Whole Foods for claims that the company violated the Illinois Biometric Information Privacy Act (“BIPA”). The plaintiffs alleged that Whole Foods unlawfully collected voiceprints from employees who worked at the company’s distribution centers. 

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On December 21, 2022, the Colorado Attorney General published an updated version of the draft rules to the Colorado Privacy Act (“CPA”). The draft, which follows the first iteration of the proposed rules published on October 10, 2022, solicits comments on five topics: (1) new and revised definitions; (2) the use of IP addresses to verify consumer requests; (3) a proposed universal opt-out mechanism; (4) streamlining the privacy policy requirements; and (5) bona fide loyalty programs.

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On December 20, 2022, a former employee in Illinois brought a class action suit against Five Guys Enterprises, LLC (“Five Guys”), a burger chain, alleging that Five Guys violated the Illinois Biometric Information Privacy Act (“BIPA”). 

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On December 6, 2022, the California Privacy Protection Agency (“CPPA”) announced that it will hold a virtual public meeting to discuss the status of the California Privacy Rights Act of 2020 (“CPRA”) rulemaking process and other topics. Anticipated topics for discussion include:

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On November 25, 2022, Ireland’s Data Protection Commission (“DPC”) released a decision fining Meta Platforms, Inc. (“Meta”) €265 million for a 2019 data leak involving the personal information of approximately 533 million Facebook users worldwide.

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On November 30, 2022, the UK government confirmed that the Network and Information Systems (“NIS”) Regulations 2018 (“NIS Regulations”) will be strengthened to protect essential and digital services against cyber attacks. The changes bring providers of outsourced IT and managed service providers (“MSPs”) into scope of the NIS Regulations. The announcement comes in response to a public consultation held in January this year.

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On October 25, 2022, the U.S. Department of Justice (“DOJ” or the “Department”) announced that Google had entered into an agreement to resolve a dispute over the loss of data responsive to a search warrant issued in 2016.

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On November 3, 2022, the Federal Trade Commission announced a proposed order to settle an action against an internet phone service provider, Vonage, that would require Vonage to pay $100 million in refunds to customers harmed by its practices, which the FTC alleged included “dark patterns” that made it difficult for customers to cancel their service. The order also would require Vonage to not use dark patterns and provide a simple and transparent way for customers to cancel their service. 

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On November 3, 2022, the California Privacy Protection Agency (“CPPA”) released new modified proposed California Privacy Rights Act (“CPRA”) regulations, which make updates to the draft CPRA regulations released on October 17, 2022. The CPPA also released an updated list of documents and other information relied upon for this most recent rulemaking.

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On October 1, 2022, the Colorado Attorney General’s Office submitted an initial draft of the Colorado Privacy Act Rules (“CPA Rules”), which will implement and enforce the Colorado Privacy Act (“CPA”). The CPA Rules, which are currently about 38 pages, address many recent issues in state data privacy regulation, including data profiling, data protection, automated data processing, biometric data, universal opt-out mechanisms and individual data rights.

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On October 24, 2022, the Federal Trade Commission announced a proposed consent order with Drizly, an online alcohol ordering and delivery service, and the company’s CEO, for the alleged failure to maintain appropriate security safeguards that led to a data breach that affected 2.5 million consumers’ personal information.

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On September 23, 2022, New York State Senator Andrew Gounardes introduced S9563, also known as the “New York Child Data Privacy and Protection Act.” The bill, which resembles the recently passed California Age-Appropriate Design Code Act, bans certain data collection and targeted advertising and requires data controllers to, among other obligations, assess the impact of their products on children.

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On October 24, 2022, the UK Information Commissioner’s Office (“ICO”) issued a £4.4 million fine to Interserve Group Limited for failing to keep employee personal data secure, which violates Article 5(1)(f) and Article 32 of the EU General Data Protection Regulation (“GDPR”), during the period of March 2019 to December 2020. The ICO determined that such violations rendered Interserve vulnerable to the cyber attack which took place between March 2020 and May 2020, affecting the personal data of up to 113,000 Interserve employees. The compromised data included contact details, national insurance numbers and bank account details, as well as special category data, including ethnic origin, religion, details of any disabilities, sexual orientation and health information.

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On October 17, 2022, the French Data Protection Authority (the “CNIL”) imposed a €20 million fine on Clearview AI for unlawful use of facial recognition technology. The fine was imposed after the CNIL’s prior formal notice remained unaddressed by Clearview AI.

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On October 18, 2022, the New York State Department of Financial Services (“NYDFS”) announced that EyeMed Vision Care LLC (“EyeMed”) agreed to a $4.5 million settlement for violations of the Cybersecurity Regulation (23 NYCRR Part 500) that contributed to the exposure of hundreds of thousands of consumers’ health data in connection with a cybersecurity event in 2020.

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On September 27, 2022, California Governor Gavin Newsom signed into law a pair of bills designed to prevent medical information and other data held by California entities from being used in out-of-state abortion prosecutions. 

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On October 3, 2022, the U.S. Department of Justice (“DOJ”) announced that the agreement between the U.S. Government and the UK Government on Access to Electronic Data for the Purpose of Countering Serious Crime (the “CLOUD Act Agreement”) entered into force, effective the same day. The CLOUD Act Agreement, which is authorized by the U.S. Clarifying Lawful Overseas Use of Data (“CLOUD”) Act, is the first of its kind and will allow each country’s investigators to gain access to data held by service providers in the other country, for the purpose of combating serious crime. According to DOJ, this “will greatly enhance the ability of the United States and the United Kingdom to prevent, detect, investigate and prosecute serious crime, including terrorism, transnational organized crime, and child exploitation, among others.”

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On September 21, 2022, the Federal Communications Commission (“FCC”) announced a proposed combined fine of $3.4 million against Sinclair Broadcast Group, Nexstar Media Group and 19 other broadcast television licensees for violations of rules limiting commercial matter in children's television programming.

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On September 26, 2022, the UK Information Commissioner’s Office (“ICO”) confirmed in a statement that it issued TikTok Inc. and TikTok Information Technologies UK Limited (together, “TikTok”) a notice of intent to potentially impose a £27 million fine for failing to protect children’s privacy. This notice of intent follows an investigation by the ICO finding that TikTok may have breached UK data protection law between May 2018 and July 2020 by failing to protect children’s privacy when using the TikTok platform.

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On September 7, 2022, the Children’s Advertising Review Unit (“CARU”) of BBB National Programs announced its finding that Tilting Point Media, LLC (“Tilting Point”), owner and operator of the SpongeBob: Krusty Cook-Off app (the “App”), violated the Children’s Online Privacy Protection Act (“COPPA”) and CARU’s Self-Regulatory Guidelines for Advertising and for Children’s Online Privacy Protection (“CARU’s Guidelines”). CARU has recommended a variety of corrective actions with respect to Tilting Point’s advertising and privacy practices.

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On August 29, 2022, the Federal Trade Commission announced a civil action against digital marketing data broker Kochava Inc. for “selling geolocation data from hundreds of millions of mobile devices that can be used to trace the movements of individuals to and from sensitive locations.” The lawsuit seeks a permanent injunction to stop Kochava’s sale of geolocation data and to require the company to delete the geolocation data it has collected.  

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On July 26, 2022, the attorneys general of New Jersey, Pennsylvania, Delaware, Maryland, Virginia, Florida and Washington D.C. announced an $8 million multistate settlement with Wawa Inc. that resolves the states’ investigation into a 2019 data breach that compromised approximately 34 million payment cards used by consumers at Wawa stores and fueling locations. 

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On August 24, 2022, the California Office of the Attorney General (“OAG”) announced a new wave of enforcement efforts targeted at business’ recognition of the Global Privacy Control (“GPC”), and issued an updated summary of recent CCPA enforcement efforts.

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On August 24, 2022, California Attorney General Rob Bonta announced the Office of the Attorney General’s (“OAG’s”) first settlement of a California Consumer Privacy Act (“CCPA”) enforcement action, against Sephora, Inc.

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On August 25, 2022, the FTC issued its Federal Trade Commission Report to Congress on COPPA Staffing, Enforcement and Remedies. The document was prepared in response to the joint explanatory statement accompanying the Consolidated Appropriations Act of 2022, which directed the FTC to provide a report detailing (1) the current amount of resources and personnel focused on enforcing the COPPA Rule; (2) the number of investigations into violations of the COPPA Rule in the past five years; and (3) the types of relief obtained, if any, for completed COPPA investigations.

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On August 10, 2022, the Consumer Financial Protection Bureau (“CFPB”) issued a new interpretive rule clarifying when digital marketing providers must comply with federal consumer financial protection law. Under the new rule, Big Tech companies that use behavioral advertising techniques to market financial products will be subject to the Consumer Financial Protection Act of 2010 (“CFPA”).

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On July 28, 2022, a federal judge approved TikTok’s $92 million class action settlement of various privacy claims made under state and federal law. The agreement will resolve litigation that began in 2019 and involved claims that TikTok, owned by the Chinese company ByteDance, violated the Illinois Biometric Information Privacy Act (“BIPA”) and the federal Video Privacy Protection Act (“VPPA”) by improperly harvesting users’ personal data. U.S. District Court Judge John Lee of the Northern District of Illinois also awarded approximately $29 million in fees to class counsel.

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On July 20, 2022, the U.S. House of Representatives Committee on Energy and Commerce (the “Committee”) passed H.R. 8152, the American Data Privacy and Protection Act (“ADPPA”) (as amended), by a vote of 53-2. The ADPPA next will be put before the full House for a vote.

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On July 1, 2022, the California Privacy Protection Agency (“CPPA”) sent U.S. House of Representatives Speaker Nancy Pelosi a memo outlining how H.R. 8152, the bipartisan American Data Privacy and Protection Act (“ADPPA” or the “Act”), would lessen privacy protections for Californians, and California Democrats have joined the cause.

The CPPA’s memo asserts that the ADPPA, by preempting the California Privacy Rights Act (“CPRA”) and other state privacy laws, proposes to eliminate:

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On June 30, 2022, the New York Office of the Attorney General (“NYOAG”) announced a $400,000 agreement with Wegmans Food Markets, Inc. (“Wegmans”) in connection with a cloud storage security issue. The NYOAG alleges that Wegmans exposed the personal information of three million consumers by storing the data in misconfigured cloud storage containers.

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On July 8, 2022, President Biden issued an Executive Order titled, “Protecting Access to Reproductive Health Care Services,” in response to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization that overturned Roe v. Wade. The Executive Order aims, in part, to “ [p]rotect[] the privacy of patients and their access to accurate information” regarding reproductive health care services. It directs the Department of Health and Human Services (“HHS”) and the Federal Trade Commission to take certain steps to address the potential threat to patient privacy caused by the transfer and sale of sensitive health-related data, and by digital surveillance related to reproductive health care services from fraudulent schemes or deceptive practices.

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