Privacy & Information Security Law Blog

Last week, Utah Governor Spencer J. Cox signed three privacy-related bills into law. The bills are focused on, respectively, protection of motor vehicle consumer data, regulations on social media companies with respect to minors, and access to protected health information by third parties. The Utah legislature appears to be focused on data-related legislation this session, as Governor Cox signed two other bills related to AI into law last week as well.

On May 18, 2023, the Federal Trade Commission announced it is seeking comment to proposed changes to the Health Breach Notification Rule (the “Rule”). The Rule requires  vendors of personal health records (“PHR”), PHR-related entities and service providers to these entities, to notify consumers and the FTC (and, in some cases, the media) in the event of a breach of unsecured identifiable health information, including cybersecurity intrusions and other instances of unauthorized access. By clarifying the Rule’s scope and applicability, and by modernizing allowable methods of notice, the proposed amendments seek to update the Rule to account for technological change since the Rule’s issuance, which includes the proliferation of health apps and connected devices, and the emergence of a widespread market for health data.

On December 1, 2022, the Office for Civil Rights at the U.S. Department of Health and Human Services (“HHS”) released a Bulletin on the obligations of HIPAA covered entities and business associates under the HIPAA Privacy, Security, and Breach Notification Rules when using online tracking technologies. 

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.  

On September 6, 2022, the California legislature presented Assembly Bill 2392 to Governor Gavin Newsom. AB-2392, which has not yet been signed by Governor Newsom, would allow Internet-connected device manufacturers to satisfy existing device labeling requirements by complying with National Institute of Standards and Technology (“NIST”) standards for consumer Internet of Things (“IoT”) products.

On June 29, 2022, the U.S. Department of Health and Human Services (“HHS”) issued two guidance documents to “help protect patients seeking reproductive health care, as well as their providers” following the Supreme Court’s decision in Dobbs vs. Jackson Women’s Health Organization. These guidance documents address the legal protections for individuals’ protected health information (“PHI”) relating to abortion and other reproductive health care, as well as how individuals can protect their medical information on personal devices, menstruation tracking apps and other health-related apps.

On June 3, 2022, the Federal Trade Commission announced it is seeking public comment on its 2013 guidance, “.com Disclosures: How to Make Effective Disclosures in Digital Advertising” (the “Guidance”). The FTC indicated that it is updating the Guidance to better protect consumers against online deceptive practices, particularly because some companies have interpreted the current version of Guidance to “justify practices that mislead consumers online.” For example, the FTC explains that companies have wrongfully claimed they can avoid FTC Act liability by placing required disclosures behind hyperlinks. The updated Guidance will address issues such as advertising on social media, in video games, in virtual reality environments, and on mobile devices and applications, as well as the use of dark patterns, manipulative user interface designs, multi-party selling arrangements, hyperlinks and online disclosures.

On April 8, 2022, the New York Bar issued an opinion to protect “confidential” client identity information stored on an attorney’s smartphone. In particular, the opinion prohibits an attorney who stores “confidential” (as defined under Rule 1.6 of the New York Rules of Professional Conduct) client identity information in the attorney’s “contacts” folder on the attorney’s smartphone from consenting to share their “contacts” with a smartphone app, unless certain criteria are met.

On February 18, 2022, the Texas Attorney General’s Office (the “Texas AG”) announced that it had issued two Civil Investigative Demands (“CIDs”) to TikTok Inc. The Texas AG’s investigation focuses on TikTok’s alleged violations of children’s privacy and facilitation of human trafficking, along with other potential unlawful conduct.

On January 21, 2022, the Federal Trade Commission published two new resources for complying with the Health Breach Notification Rule (the “Rule”). In September 2021, the FTC issued a Policy Statement clarifying that the Rule applies to makers of health apps, connected devices and similar products. As we previously blogged, the Rule requires vendors of personal health records (“PHR”), PHR-related entities and service providers to these entities, to notify consumers and the FTC (and, in some cases, the media) in the event of a breach of unsecured identifiable health information, including cybersecurity intrusions and other instances of unauthorized access.

On September 14, 2021, the Securities and Exchange Commission (“SEC”) announced that analytics firm, App Annie Inc., and its co-founder and former CEO and Chairman Bertrand Schmitt, agreed to pay approximately $10 million to settle securities fraud charges for engaging in deceptive practices and making material misrepresentations about “alternative data” sold by the company. Notably, this is the SEC’s first enforcement action charging an alternative data provider with securities fraud.

On September 15, 2021, the Federal Trade Commission issued a Policy Statement to clarify the scope of the FTC’s Health Breach Notification Rule (the “Rule”) as it relates to health apps and connected devices. In its Policy Statement, the FTC emphasized that the Rule was designed to ensure that entities not covered under HIPAA must still be held accountable in the event of a breach of consumers’ sensitive health information. The Rule requires vendors of personal health records (“PHR”), PHR related entities, and service providers to these entities, to notify consumers and the FTC (and, in some cases, the media) in the event of a breach of unsecured identifiable health information. Failure to provide such notice can result in civil penalties under the Rule. While the Rule was established more than a decade ago, in 2009, it has never been enforced by the FTC.

On September 1, 2021, the Federal Trade Commission banned Support King, LLC, the operator of SpyFone.com (“SpyFone”), and its CEO, Scott Zuckerman, from offering, promoting, selling or advertising any surveillance app, service or business. The FTC alleged SpyFone allowed purchasers to illegally surveil other individuals by surreptitiously monitoring a device user’s activity without the device user’s knowledge. The FTC also alleged that SpyFone failed to safeguard such illegally harvested personal information by failing to put in place basic security measures.

On July 22, 2021, the Dutch Data Protection Authority (“Dutch DPA”) announced that it had imposed a €750,000 fine on TikTok for violating the privacy of young children namely for the company’s alleged lack of transparency.

On June 3, 2021, Google informed app developers that beginning in late 2021, when Android 12 OS users opt out of personalized ads, the advertising ID provided by Google Play services (the Google Ad ID, or “GAID”) will not be made available to app developers for any purpose.

On May 6, 2021, Google announced that beginning in the second quarter of 2022, mobile app developers submitting new apps and app updates to the Google Play store will be required to disclose certain information regarding their apps’ data collection, use, sharing and security practices, as well as provide a privacy policy for their apps. This information will be displayed in a new “safety section” of Google Play.

On April 23, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the European Data Protection Board (“EDPB”) consultation on draft guidelines on virtual voice assistants (the “Guidelines”). The Guidelines were adopted on March 12, 2021 for public consultation.

On April 22, 2021, the Belgian Constitutional Court annulled (in French) the framework set forth by the Law of 29 May 2016 (the “Law”) requiring telecommunications providers to retain electronic communications data in bulk.

On April 20, 2021, Apple announced that its AppTracking Transparency Framework (“ATT Framework”) will go into effect starting April 26, 2021, along with the upcoming public release of iOS 14.5, iPadOS 14.5 and tvOS 14.5.

On March 12, 2021, the Cyberspace Administration of China released Provisions on the “Scope of Necessary Personal Information Required for Common Types of Mobile Internet Applications” (the “Provisions”) (available here in Chinese).

On March 12, 2021, the European Data Protection Board (“EDPB”) published its Guidelines 01/2021 on Virtual Voice Assistants for consultation (the “Guidelines”). Virtual voice assistants (“VVAs”) understand and execute voice commands or coordinate with other IT systems. These tools are available on most smartphones and other devices and collect significant amounts of personal data, such as through user commands. In addition, VVAs require a terminal device equipped with a microphone and transfer data to remote service. These activities raise compliance issues under both the General Data Protection Regulation (“GDPR”) and the e-Privacy Directive.

On January 13, 2021, Advocate General (“AG”) Michal Bobek of the Court of Justice of the European Union (“CJEU”) issued his Opinion in the Case C-645/19 of Facebook Ireland Limited, Facebook Inc., Facebook Belgium BVBA v. the Belgian Data Protection Authority (“Belgian DPA”).

On December 1, 2020, the Cyberspace Administration of China released draft rules on the “Scope of Necessary Personal Information Required for Common Types of Mobile Internet Applications” (the “Draft Rules”) (in Chinese).

On November 12, 2020, Chief Judge Nancy J. Rosenstengel of the U.S. District Court for the Southern District of Illinois rejected Apple Inc.’s (“Apple’s”) motion to dismiss a class action alleging its facial recognition software violates Illinois’ Biometric Information Privacy Act (“BIPA”). Judge Rosenstengel agreed with Apple, however, that the federal court lacks subject matter jurisdiction over portions of the complaint.

On September 18, 2020, the U.S. Department of Commerce (“Commerce”) announced detailed sanctions relating to the mobile applications WeChat and TikTok. These prohibitions were issued in accordance with President Trump’s Executive Orders issued on August 6, 2020, imposing economic sanctions against the platforms under the International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq.) and the National Emergencies Act (50 U.S.C. § 1601 et seq.). These orders, if they become fully effective, will (1) prohibit mobile app stores in the U.S. from permitting downloads or updates to the WeChat and TikTok mobile apps; (2) prohibit U.S. companies from providing Internet backbone services that enable the WeChat and TikTok mobile apps; and (3) prohibit U.S. companies from providing services through the WeChat mobile app for the purpose of transferring funds or processing payments to or from parties. The sanctions do not target individual or business use of the applications but are expected to degrade the ability of persons in the United States to use the apps for the purposes they were designed to serve.

Apple’s iOS 14, which was announced by Apple in June 2020 and is scheduled for official release later this year, will require that all apps receive affirmative (i.e., opt-in) user consent to (1) access an iPhone’s unique advertising identifier (Identifier for Advertisers, or “IDFA”) or (2) to "track" users.

On June 19, 2020, France’s Highest Administrative Court (the “Conseil d’Etat”) issued a decision partially annulling the guidelines of the French Data Protection Authority (the “CNIL”) on cookies and similar technologies (the “Guidelines”). The Conseil d’Etat annulled the provision of the Guidelines imposing a general and absolute ban on ‘cookie walls’ that prevent users who do not consent to the use of cookies from accessing a site or mobile app. However, the Conseil d’Etat upheld the main part of the Guidelines. On the day of the Conseil d’Etat’s decision, the CNIL published a statement (the “Statement”) announcing that they took note of the decision and will strictly comply with it.

On June 16, 2020, the European Data Protection Board (the “EDPB”) released a statement on the data protection impact of the interoperability of contact tracing apps within the EU (the “Statement”). The EDPB issued this Statement following the publication of “Interoperability guidelines for approved contact tracing mobile applications in the EU” by the eHealth Network on May 13, 2020. In its guidelines, the eHealth Network calls for an interoperable framework in the EU that would enable users to rely on a single contact tracing application regardless of the Member State or region in which they reside.

On April 13, 2020, the New York Department of Financial Services (“NYDFS”) issued guidance (“April guidance”) to all New York State entities covered under NYDFS’s cybersecurity regulation regarding assessing and addressing heightened cybersecurity risks due to the COVID-19 pandemic. In asking regulated entities to address risks “appropriately,” the April guidance references NYDFS’s earlier March 10, 2020 guidance calling on regulated institutions to submit to the agency (within 30 days of the guidance) plans “to address operational risks posed by the outbreak of a novel coronavirus,” including “assessment[s] of potential increased cyber-attacks and fraud.”

Elizabeth Denham, the UK Information Commissioner, has released an opinion in response to the joint effort announced by Apple Inc. (“Apple”) and Google LLC (“Google”) to enable the use of Bluetooth technology to help governments and health agencies reduce the spread of COVID-19 by building contact-tracing technology into iOS and Android smartphones. In the opinion, the Information Commissioner concludes that the "Contact Tracing Framework" (“CTF”) being developed supports data protection principles.

On April 14, 2020, the European Data Protection Board (“EDPB”) adopted a letter concerning the European Commission's (the “Commission”) draft Guidance on apps supporting the fight against the COVID-19 pandemic. This letter was written to the Commission following the Commission’s adoption of a recommendation to develop a common European approach to using mobile applications and mobile location data in response to the pandemic on April 8, 2020.

On April 8, 2020, the European Commission adopted a recommendation to develop a common European approach to using mobile applications and mobile location data in response to the coronavirus pandemic (the “Recommendation”).

On March 19, 2020, the European Data Protection Board (“EDPB”) published a new statement regarding processing personal data in the context of the COVID-19 outbreak. The EDPB said that emergency is a legal condition which may legitimize restrictions of individual freedoms, provided that these restrictions are proportionate and limited to the emergency period. Several considerations come into play in weighing the lawful processing of personal data in these circumstances.

On October 22, 2019, the Federal Trade Commission announced that, for the first time, it has brought a case against a developer of “Stalking” Apps. The agency alleges that Retina-X Studios, and its owner, James N. Johns, Jr., developed and marketed three apps that allowed purchasers to surreptitiously monitor the movements and online activities of users of devices on which the apps were installed without the knowledge or permission of the device’s user. The FTC also alleges that the app developer took steps to ensure that a device user would not be aware that the app had been installed, bypassing mobile device manufacturers’ security restrictions and leaving the device vulnerable to cybersecurity risks. The apps were marketed as tools for monitoring the behavior of employees and children. The FTC further alleges that the app developer issued policies that made inaccurate representations regarding the security of their online systems, which were recently found to have been hacked twice during earlier incidents.

On January 21, 2019, the French Data Protection Authority (the “CNIL”) imposed a fine of €50 million on Google LLC under the EU General Data Protection Regulation (the “GDPR”) for its alleged failure to (1) provide notice in an easily accessible form, using clear and plain language, when users configure their Android mobile device and create a Google account, and (2) obtain users’ valid consent to process their personal data for ad personalization purposes. The CNIL’s enforcement action was the result of collective actions filed by two not-for-profit associations. This fine against Google is the first fine imposed by the CNIL under the GDPR and the highest fine imposed by a supervisory authority within the EU under the GDPR to date.

On October 17, 2018, the French data protection authority (the “CNIL”) published a press release detailing the rules applicable to devices that compile aggregated and anonymous statistics from personal data—for example, mobile phone identifiers (i.e., media access control or “MAC” address) —for purposes such as measuring advertising audience in a given space and analyzing flow in shopping malls and other public areas. Read the press release (in French).

On July 19, 2018, the French Data Protection Authority (“CNIL”) announced that it served a formal notice to two advertising startups headquartered in France, FIDZUP and TEEMO. Both companies collect personal data from mobile phones via software development kit (“SDK”) tools integrated into the code of their partners’ mobile apps—even when the apps are not in use—and process the data to conduct marketing campaigns on mobile phones.

On June 22, 2018, the United States Supreme Court held in Carpenter v. United States that law enforcement agencies must obtain a warrant supported by probable cause to obtain historical cell-site location information (“CSLI”) from third-party providers. The government argued in Carpenter that it could access historical CSLI through a court order alone under the Stored Communications Act (the “SCA”). Under 18 U.S.C. § 2703(d), obtaining an SCA court order for stored records only requires the government to “offer specific and articulable facts showing that there are reasonable grounds.” However, in a split 5-4 decision, the Supreme Court held that the Fourth Amendment requires law enforcement agencies to obtain a warrant supported by probable cause to obtain historical CSLI.

Recently, the Personal Data Collection and Protection Ordinance (“the Ordinance”) was introduced to the Chicago City Council. The Ordinance would require businesses to (1) obtain prior opt-in consent from Chicago residents to use, disclose or sell their personal information; (2) notify affected Chicago residents and the City of Chicago in the event of a data breach; (3) register with the City of Chicago if they qualify as “data brokers”; (4) provide specific notification to mobile device users for location services; and (5) obtain prior express consent to use geolocation data from mobile applications.

On April 27, 2018, the Federal Trade Commission issued two warning letters to foreign marketers of geolocation tracking devices for violations of the U.S. Children’s Online Privacy Protection Act (“COPPA”). The first letter was directed to a Chinese company, Gator Group, Ltd., that sold the “Kids GPS Gator Watch” (marketed as a child’s first cellphone); the second was sent to a Swedish company, Tinitell, Inc., marketing a child-based app that works with a mobile phone worn like a watch. Both products collect a child’s precise geolocation data, and the Gator Watch includes geofencing “safe zones.”  

On April 30, 2018, the Federal Trade Commission announced that BLU Products, Inc. (“BLU”), a mobile phone manufacturer, agreed to settle charges that the company allowed ADUPS Technology Co. Ltd. (“ADUPS”), a third-party service provider based in China to collect consumers’ personal information without their knowledge or consent, notwithstanding the company’s promises that it would keep the relevant information secure and private. The relevant personal information allegedly included, among other information, text message content and real-time location information. On September 6, 2018, the FTC gave final approval to the settlement in a unanimous 5-0 vote.

On February 28, 2018, the Federal Trade Commission issued a report, titled Mobile Security Updates: Understanding the Issues (the “Report”), that analyzes the process by which mobile devices sold in the U.S. receive security updates and provides recommendations for improvement. The Report is based on information the FTC obtained from eight mobile device manufacturers, and from information the Federal Communications Commission collected from six wireless carriers.

On February 26, 2018, the United States Court of Appeals for the Ninth Circuit ruled in an en banc decision that the “common carrier” exception in the Federal Trade Commission Act is “activity-based,” and therefore applies only to the extent a common carrier is engaging in common carrier services. The decision has implications for FTC authority over Internet service providers, indicating that the FTC has authority to bring consumer protection actions against such providers to the extent they are engaging in non-common carrier activities. The Federal Communications Commission (“FCC”) has previously ruled that Internet access service is not a common carrier service subject to that agency’s jurisdiction.

On February 22, 2018, the Federal Trade Commission (“FTC”) published a blog post that provides tips on how consumers can use Virtual Private Network (“VPN”) apps to protect their information while in transit over public networks. The FTC notes that some consumers are finding VPN apps helpful in protecting their mobile device traffic over Wi-Fi networks at coffee shops, airports and other locations. Through a VPN app, a user can browse websites and use apps on their mobile devices, still shielding the traffic from prying eyes as it transmits via public networks.

On September 29, 2017, the Federal Trade Commission published the eleventh blog post in its “Stick with Security” series. As previously reported, the FTC will publish an entry every Friday for the next few months focusing on each of the 10 principles outlined in its Start with Security Guide for Businesses. This week’s post, entitled Stick with Security: Secure paper, physical media, and devices, highlights the importance of adopting a 360 degree approach to protecting confidential data. This strategy includes securing not only networks and information systems, but also paper, physical media and devices.

On April 4, 2017, the Massachusetts Attorney General’s office announced a settlement with Copley Advertising LLC (“Copley”) in a case involving geofencing.

Earlier this month, the Department of Health and Human Services’ Office for Civil Rights issued guidance (the “Guidance”) for HIPAA-covered entities that use cloud computing services involving electronic protected health information (“ePHI”).

On October 3, 2016, the Texas Attorney General announced a $30,000 settlement with mobile app developer Juxta Labs, Inc. (“Juxta”) stemming from allegations that the company violated Texas consumer protection law by engaging in false, deceptive or misleading acts or practices regarding the collection of personal information from children.

On June 28, 2016, the State Internet Information Office of the People’s Republic of China published the Administrative Provisions on Information Services for Mobile Internet Applications (the “App Administrative Provisions”). This is the first regulation that expressly regulates mobile apps in the People’s Republic of China. Before the App Administrative Provisions were published, the P.R.C. Ministry of Industry and Information Technology had published a draft of the Interim Provisions on the Preinstallation and Management of the Distribution of Mobile Intelligent Terminal Applications (“Interim Provisions”). The comment period for the Interim Provisions draft expired six months ago and i’s still uncertain when it will become effective. According to unofficial statistics, domestic app stores have more than 4 million apps in inventory presently, and the number is growing. Those apps will now become highly regulated products under the App Administrative Provisions.

On June 22, 2016, the Federal Trade Commission announced a settlement with Singaporean-based mobile advertising network, InMobi, resolving charges that the company deceptively tracked hundreds of millions of consumers’ locations, including children, without their knowledge or consent. Among other requirements, the settlement orders the company to pay $950,000 in civil penalties. 

On May 9, 2016, the Federal Trade Commission announced it had issued Orders to File a Special Report (“Orders”) to eight mobile device manufacturers requiring them to, for purposes of the FTC’s ongoing study of the mobile ecosystem, provide the FTC with “information about how [the companies] issue security updates to address vulnerabilities in smartphones, tablets, and other mobile devices.” The FTC’s authority to issue such Orders comes from Section 6(b) of the FTC Act.

On April 6, 2016, the Federal Trade Commission formally welcomed the updated Recommendation on Consumer Protection in E-commerce (the “Recommendation”) issued by the Organization for Economic Cooperation and Development (“OECD”) on March 24, 2016, endorsing the Recommendation’s broadened scope and increased consumer protections that “are designed to strengthen consumers’ trust in the expanding electronic marketplace.”

On March 22, 2016, the Ministry of Commerce of the People’s Republic of China published drafts of its proposed (1) Specifications for Business Services in Mobile E-commerce (“Mobile E-commerce Specifications”) and (2) Specifications for Business Services in Cross-border E-commerce (“Cross-border E-commerce Specifications”). A public comment period on these drafts is now open. Comments will be accepted until May 31, 2016.

Hunton & Williams welcomes Phyllis H. Marcus as counsel to the firm’s privacy and competition teams. Phyllis joins the firm from the Federal Trade Commission, where she held a number of leadership positions, most recently as Chief of Staff of the Division of Advertising Practices. Phyllis led the FTC’s children’s online privacy program, including bringing a number of enforcement actions and overhauling the Children’s Online Privacy Protection Act (“COPPA”) Rule. She offers the privacy team a keen understanding of the complexities of the revised regulations, as well as broader issues relating to student privacy, mobile applications and the Internet of Things.

On October 16, 2015, the German Parliament adopted a new data retention law requiring telecommunications operators and Internet service providers to retain customer Internet and phone usage data, including phone numbers, call times, IP addresses, and the international identifiers of mobile users (if applicable) for 10 weeks. The law requires user location data obtained in connection with mobile phone services to be retained for four weeks. Telecommunications and Internet service providers also are required to ensure that the retained data is stored within Germany.

On September 11, 2015, the Federal Communications Commission (“FCC”) announced that Lyft Inc. (“Lyft”) and First National Bank Corporation (“FNB”) violated the Telephone Consumer Protection Act (“TCPA”) by forcing their users to consent to receive automated text messages as a condition of using their services. The FCC warned that these violations could result in fines if they continue.

On September 2, 2015, the French Data Protection Authority (“CNIL”) published the results of an Internet sweep of 54 websites visited by children and teenagers. The sweep was conducted in May 2015 to assess whether websites that are directed toward, frequently used by or popular among children comply with French data protection law. As we previously reported, the sweep was coordinated by the Global Privacy Enforcement Network (“GPEN”), a global network of approximately 50 data protection authorities (“DPAs”). The CNIL and 28 other DPAs that are members of the GPEN participated in the coordinated online audit. A total of 1,494 websites and apps were audited around the world.

On July 27, 2015, Giovanni Buttarelli, the European Data Protection Supervisor (“EDPS”), published Opinion 3/2015 on the reform of Europe’s data protection laws, intended to “assist the participants in the trilogue in reaching the right consensus on time.” The Opinion sets out the EDPS’ vision for the regulation of data protection, re-stating the case for a framework that strengthens the rights of individuals and noting that “the time is now to safeguard individuals’ fundamental rights and freedoms in the data-driven society of the future.”

On May 19, 2015, China’s Ministry of Industry and Information Technology promulgated its Provisions on the Administration of Short Messaging Services (the “Provisions”), which will take effect on June 30, 2015.

On May 28, 2015, the German government adopted a draft law that would require telecommunications and Internet service providers to retain Internet and telephone usage data. The initiative comes more than a year after the European Court of Justice declared the EU Data Retention Directive invalid, which had been implemented previously by German law. The German law implementing the EU Data Protection Directive had been declared unconstitutional by the German Federal Constitutional Court five years ago.

On May 25, 2015, the French Data Protection Authority (“CNIL”) released its long-awaited annual inspection program for 2015. Under French data protection law, the CNIL may conduct four types of inspections: (1) on-site inspections (i.e., the CNIL may visit a company’s facilities and access anything that stores personal data); (2) document reviews (i.e., the CNIL may require an entity to send documents or files upon written request); (3) hearings (i.e., the CNIL may summon representatives of organizations to appear for questioning and provide other necessary information); and (4) since March 2014, online inspections.

On May 7, 2015, the Digital Advertising Alliance (“DAA”) announced that, as of September 1, 2015, the Council of Better Business Bureaus and the Direct Marketing Association will begin to enforce the DAA Self-Regulatory Principles for Online Behavioral Advertising and the Multi-Site Data Principles (collectively, the “Self-Regulatory Principles”) in the mobile environment.

On May 11, 2015, the French Data Protection Authority (“CNIL”) and the UK Information Commissioner’s Office (”ICO”) announced that they will participate in a coordinated online audit to assess whether websites and apps that are directed toward children, and those that are frequently used by or popular among children, comply with global privacy laws. The audit will be coordinated by the Global Privacy Enforcement Network (“GPEN”), a global network of approximately 50 data protection authorities (“DPAs”) from around the world.

On April 23, 2015, the Federal Trade Commission (“FTC”) announced that Nomi Technologies (“Nomi”) has agreed to settle charges stemming from allegations that the company misled consumers with respect to their ability to opt out of the company’s mobile device tracking service at retail locations. The settlement marks the FTC’s first Section 5 enforcement action against a company that provides tracking services at retailers.

On April 1, 2015, the Global Privacy Enforcement Network (“GPEN”) released its 2014 annual report (the “Report”). This Report marks the first time that GPEN has issued an annual report highlighting the network’s accomplishments throughout the year. GPEN is a network of approximately 50 privacy enforcement authorities from around the world, including the Federal Trade Commission and the Federal Communications Commission.

Hunton & Williams is pleased to announce the release of its newly designed and mobile-responsive Privacy and Information Security Law Blog, www.huntonprivacyblog.com.

“Our award-winning blog has served the entire privacy community — from companies and practitioners to international regulators,” said Lisa Sotto, who heads the firm’s global privacy and cybersecurity practice. “This new version of Hunton & Williams’ privacy blog offers our audience greater access to information in real time and more interactive features, which are critical in this fast-changing arena.”

On March 23, 2015, the Federal Trade Commission announced the formation of the Office of Technology Research and Investigation (“OTRI”), which the FTC describes as “an office designed to expand the FTC’s capacity to protect consumers in an age of rapid technological innovation.”

On November 16, 2015, the Federal Trade Commission will host a workshop in Washington, D.C., to examine the benefits and privacy risks associated with “cross-device tracking.” The workshop intends to highlight the types of cross-device tracking techniques and how businesses and consumers can benefit from these practices. The workshop also will address related privacy and security risks, and discuss whether self-regulatory programs apply to these practices.

On March 4, 2015, the U.S. Department of Commerce’s National Telecommunications and Information Administration (“NTIA”) announced a new multistakeholder process seeking comments on best practices concerning privacy, transparency and accountability issues related to the use of commercial and private unmanned aircraft systems (“UAS”), otherwise known as drones. The NTIA’s request was made in response to a Presidential Memorandum issued by the White House on February 15 which directed NTIA to facilitate discussion between private sector entities to develop standards for commercial UAS use.

On February 12, 2015, the Office of the Privacy Commissioner of Canada released a research report entitled Privacy and Cyber Security - Emphasizing privacy protection in cyber security activities (the “Report”). The Report explores the interconnected relationship among cybersecurity, privacy and data protection, including common interests and challenges.

On February 5, 2015, the Article 29 Working Party (the “Working Party”) published a letter that responds to a request of the European Commission to clarify the scope of the definition of health data in connection with lifestyle and wellbeing apps. In the annex to this letter, the Working Party identifies criteria to determine when personal data qualifies as “health data,” a special category of data receiving enhanced protection under the EU Data Protection Directive 95/46/EC (the “Directive”). The Working Party further discusses the current legal regime for the processing of such health data and provides its view on the requirements for further processing of health data for historical, statistical and scientific research under the Directive. The letter also includes the Working Party’s recommendations for the regime that should be provided in the proposed EU General Data Protection Regulation (the “Proposed Regulation”).

On January 6, 2015, Federal Trade Commission Chairwoman Edith Ramirez gave the opening remarks on “Privacy and the IoT: Navigating Policy Issues” at the 2015 International Consumer Electronics Show (“International CES”) in Las Vegas, Nevada. She addressed the key challenges the Internet of Things (“IoT”) poses to consumer privacy and how companies can find appropriate solutions that build consumer trust.

On January 12, 2015, President Obama announced at the Federal Trade Commission several new initiatives on data security and consumer privacy as part of a weeklong focus on privacy and cybersecurity. He noted that on January 13 at the Department of Homeland Security, he would address how to improve protections against cyber attacks, and on January 14, he would address how more Americans can have access to faster and cheaper broadband Internet. He stated that the announcements he is making this week are “sneak previews” of the proposals he will make in next week’s State of the Union address.

On December 22, 2014, the Federal Trade Commission announced that it notified China-based BabyBus (Fujian) Network Technology Co., Ltd., (“BabyBus”) that several of the company’s mobile applications (“apps”) appear to be in violation of the Children’s Online Privacy Protection Rule (the “COPPA Rule”). In a letter dated December 17, 2014, the FTC warned BabyBus of potential COPPA violations stemming from allegations that the company has failed to obtain verifiable parental consent prior to its apps collecting and disclosing the precise geolocation information of users under the age of 13.

On December 19, 2014, the Federal Trade Commission announced a settlement of at least $90 million with mobile phone carrier T-Mobile USA, Inc. (“T-Mobile”) stemming from allegations related to mobile cramming. This settlement amount will primarily be used to provide refunds to affected customers who were charged by T-Mobile for unauthorized third party charges. As part of the settlement, T-Mobile also will pay $18 million in fines and penalties to the attorneys general of all 50 states and the District of Columbia, and $4.5 million to the Federal Communications Commission.

On December 9, 2014, a coalition of 23 global privacy authorities sent a letter to the operators of mobile application (“app”) marketplaces urging them to require privacy policies for all apps that collect personal information. Although the letter was addressed to seven specific app marketplaces, the letter notes that it is intended to apply to all companies that operate app marketplaces.

On October 8, 2014, the United States District Court for the Northern District of Georgia granted Cartoon Network, Inc.’s (“Cartoon Network’s”) motion to dismiss a putative class action alleging that Cartoon Network’s mobile app impermissibly disclosed users’ personally identifiable information (“PII”) to a third party data analytics company under the Video Privacy Protection Act (“VPPA”).

On October 22, 2014, the Federal Trade Commission announced that several interrelated online marketing and advertising companies (“Stipulating Defendants”) agreed to pay nearly $10 million to settle allegations that they engaged in a pattern of text message spamming, robocalling and mobile cramming practices in violation of Section 5 of the FTC Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, and the Telemarketing Sales Rule.

On October 8, 2014, the Federal Trade Commission announced an $80 million settlement with mobile phone carrier AT&T Mobility, LLC (“AT&T”) stemming from allegations related to mobile cramming. The $80 million payment to the FTC is part of a larger $105 million settlement between AT&T and various federal and state regulators, including the Federal Communications Commission and the attorneys general of all 50 states and the District of Columbia. According to the FCC, “[t]he settlement is the largest enforcement action in FCC history.”

On October 1, 2014, the Food and Drug Administration (“FDA”) announced that it has issued final guidance regarding cybersecurity in medical devices, entitled Content of Premarket Submissions for Management of Cybersecurity in Medical Devices (the “Guidance”). The Guidance provides recommendations to device manufacturers for content “to include in FDA medical device premarket submissions for effective cybersecurity management.” The Guidance updates a draft guidance that was originally published in June 2013.

On September 17, 2014, the Federal Trade Commission announced that the online review site Yelp, Inc., and mobile app developer TinyCo, Inc., have agreed to settle separate charges that they collected personal information from children without parental consent, in violation of the Children’s Online Privacy Protection Rule (the “COPPA Rule”).

On September 10, 2014, the Global Privacy Enforcement Network (“GPEN”) published the results of an enforcement sweep carried out in May of this year to assess mobile app compliance with data protection laws. Twenty-six data protection authorities worldwide evaluated 1,211 mobile apps and found that a large majority of the apps are accessing personal data without providing adequate information to users.

On September 4, 2014, the Federal Trade Commission announced a proposed settlement with Google Inc. (“Google”) stemming from allegations that the company unfairly billed consumers for mobile app charges incurred by children. The FTC’s complaint alleges that since 2011, Google violated the FTC Act’s prohibition on unfair commercial practices by billing consumers for in-app charges made by children without the authorization of the account holder.

On August 1, 2014, the Federal Trade Commission released a new staff report examining the consumer protection implications of popular mobile device applications that provide shopping and in-store purchase services. The report, What’s the Deal? An FTC Study on Mobile Shopping Apps, details the findings from a recent FTC staff survey that studied consumer rights and data protection issues associated with some of the most popular mobile shopping apps on the market.

On July 10, 2014, the Federal Trade Commission announced that it filed a complaint against Amazon.com, Inc. (“Amazon”) for failing to obtain the consent of parents or other account holders prior to billing them for in-app charges incurred by children. According to the complaint, Amazon, which offers children’s apps through its Appstore, bills Amazon account holders in real money for virtual items that children obtain within an app (i.e., “in-app” charges).

On June 25, 2014, the United States Supreme Court issued a unanimous opinion in Riley v. California, holding 9-0 that law enforcement personnel cannot search detained suspects’ cell phones without a warrant. Writing for the Court, Chief Justice John Roberts found that the practice of searching cell phones implicates “substantially greater” individual privacy interests than other physical objects that may be found on an arrestee and deserves heightened protections. Roberts stated:

On June 4, 2014, the U.S. Government Accountability Office (“GAO”) testified before the U.S. Senate Judiciary Subcommittee on Privacy, Technology and the Law on GAO’s findings regarding (1) companies’ use and sharing of consumer location data, (2) privacy risks associated with the collection of location data, and (3) actions taken by certain companies and federal agencies to protect the privacy of location data. GAO’s testimony relates to its 2012 and 2013 reports that examined the collection of location data by certain mobile industry companies and in-car navigation providers.

On May 16, 2014, the Singapore Personal Data Protection Commission (the “Commission”) published advisory guidelines for the implementation of its Personal Data Protection Act (the “PDPA”) for two industry sectors. The guidelines were published on the same day on which the Commission held its well-attended Personal Data Protection Seminar focusing on international perspectives on data governance. The advisory guidelines generally have the following content:

On May 13, 2014, the French data protection authority (“CNIL”) decided to examine 100 mobile apps most commonly used in France.

On May 8, 2014, the Federal Trade Commission announced a proposed settlement with Snapchat, Inc. (“Snapchat”) stemming from allegations that the company’s privacy policy misrepresented its privacy and security practices, including how the Snapchat mobile app worked. Snapchat’s app supposedly allowed users to send and receive photo and video messages known as “snaps” that would “disappear forever” after a certain time period. The FTC alleged that, in fact, it was possible for recipients to save snaps indefinitely, regardless of the sender-designated expiration time.

On May 6, 2014, the Office of the Privacy Commissioner of Canada announced the Global Privacy Enforcement Network’s (“GPEN’s”) second annual enforcement sweep. The sweep will focus on mobile app privacy and how mobile apps collect and use personal data.

On April 24, 2014, the Belgian Data Protection Authority (the “Privacy Commission”) published a Draft Recommendation regarding cookie usage, inviting all stakeholders to provide their input on the text. The Draft Recommendation clarifies the Belgian legal framework for the use of cookies and similar technologies, examining in detail the different purposes for which cookies and similar technologies may be used (e.g., authentication, storage of preferences) and explaining the steps to be taken to ensure compliance for each type of cookie use.

On March 28, 2014, the 87th Conference of the German Data Protection Commissioners concluded in Hamburg. This biannual conference provides a private forum for the 17 German state data protection authorities (“DPAs”) and the Federal Commissioner for Data Protection and Freedom of Information, Andrea Voßhoff, to share their views on current issues, discuss relevant cases and adopt Resolutions aimed at harmonizing how data protection law is applied across Germany.

On March 28, 2014, the Federal Trade Commission announced proposed settlements with Fandango and Credit Karma stemming from allegations that the companies misrepresented the security of their mobile apps and failed to secure consumers’ sensitive personal information transmitted using their mobile apps.

Hunton & Williams Insurance Litigation & Counseling partner Lon Berk reports:

The recently publicized Secure Sockets Layer (“SSL”) bug affecting Apple Inc. products raises a question regarding insurance coverage that is likely to become increasingly relevant as “The Internet of Things” expands. Specifically, on certain devices, the code used to set SSL connections contains an extra line that causes the program to skip a critical verification step. Consequently, unless a security patch is downloaded, when these devices are used on shared wireless networks they are subject to so-called “man-in-the-middle” security attacks and other serious security risks. Assuming that sellers of such devices may be held liable for damages, there may be questions about insurance to cover the risks.

On January 15, 2014, the Federal Trade Commission announced a proposed settlement with Apple Inc. stemming from allegations that the company billed consumers for mobile app charges incurred by children without their parents’ consent. Specifically, the FTC’s complaint alleges that Apple violated the FTC Act by not informing account holders that, for a 15-minute window after entering their password to approve a single in-app purchase, their children could make unlimited purchases without further action by the parent.

In December 2013, the UK Information Commissioner’s Office (“ICO”) issued non-binding guidance aimed at app developers (the “Guidance”). The Guidance applies to all types of mobile devices, including smart TVs and video game consoles.

On December 2, 2013, the Federal Trade Commission announced that it will host a series of seminars to examine the privacy implications of three new areas of technology used to track, market to and analyze consumers: mobile device tracking, predictive scoring and consumer-generated health data. The seminars will address (1) businesses tracking consumers using signals from the consumers’ mobile devices, (2) the use of predictive scoring to determine consumers’ access to products and offers, and (3) consumer-generated information provided to non-HIPAA covered websites and apps. The FTC stated that the intention of the seminars is to bring attention to new trends in big data and their impact on consumer privacy.