Privacy & Information Security Law Blog

On June 7, 2024, the New York legislature passed a bill (S.B. S7694A), the Stop Addictive Feeds Exploitation (SAFE) for Kids Act, addressing children’s use of social media platforms. The bill is pending Governor Kathy Hochul’s signature.

On May 17, 2024, Colorado became the first U.S. state to enact comprehensive artificial intelligence legislation. This blog entry provides highlights of the key requirements.

The Maryland legislature recently passed the Maryland Online Data Privacy Act of 2024 (“MODPA”), which was delivered to Governor Wes Moore for signature and, if enacted, will impose robust requirements with respect to data minimization, the protection of sensitive data, and the processing and sale of minors’ data.

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.

On March 27, 2024, the Kentucky legislature passed a comprehensive data privacy bill, which was delivered to the Governor for signature.  If H.B. 15 is enacted, Kentucky will join the growing list of states with comprehensive data privacy laws. 

On March 19, 2024, Utah’s Governor Spencer J. Cox signed Senate Bill (SB) 98 (the “Bill”), Online Data Security and Privacy Amendments, into law. The Bill amends the Protection of Personal Information Act (§13-44-101 et seq) and the Utah Technology Governance Act in the Utah Government Operations Code (§63A-16-1101 et seq). The Utah Technology Governance Act had previously established the Utah Cyber Center, a state initiative to coordinate efforts between local, state and federal resources by sharing threat intelligence and best practices.

On March 6, 2024, Governor Chris Sununu signed into law SB 255, making New Hampshire the 15th state with a comprehensive privacy law.

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. 

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.

As we previously reported, the U.S. Securities and Exchange Commission’s (“SEC”) new Form 8-K rules for reporting material cybersecurity incidents take effect today, December 18, for filers other than smaller reporting companies. The new rules require reporting to the SEC within four business days from the determination of materiality.

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.

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

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.

On August 31, 2023, NetChoice, a national trade association of large online businesses, filed supplemental briefing in its challenge to the California Age-Appropriate Design Code (“CA AADC”). The success or failure of NetChoice’s lawsuit will determine whether companies need to be CA AADC-compliant on July 1, 2024 when the law is anticipated to take effect.

On September 5, 2023, all 50 state attorneys general and four attorneys general from U.S. territories urged Congress to take action on the use of artificial intelligence (“AI”) to exploit children. In their letter to Congress, the AGs address how AI can be used to exploit children, including tracking children’s location, mimicking them and generating child sexual abuse materials such as deepfakes. Based on these concerns, the AGs collectively request that Congress establish an expert commission to study the means and methods of how AI can be used to exploit children. The AGs ...

On July 10, 2023, California Governor Newsom signed into law A.B. 127, which places the working group for the California Age-Appropriate Design Code Act (the “Act”) under the California Office of the Attorney General. The Act creates a working group, formally named the California Children’s Data Protection Working Group, to produce a report on recommendations for best practices concerning children’s access to online services. Under A.B. 127, the deadline for the first report from the working group will be pushed back from January 1, 2024, to July 1, 2024, and the working group will be required to consist of only nine members, instead of the original 10-member requirement.

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.

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.

On April 27, 2023, Washington adopted the My Health My Data Act (“WMHMDA”). Most of the law’s provisions are not effective until March 31, 2024 (or June 30, 2024 for small businesses). The law’s geofencing prohibition, however, is set to take effect on July 23, 2023. The prohibition is part of stringent requirements that Washington added when it became the first state to enact a comprehensive consumer health information privacy law in the United States.

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.

On May 3, 2023, New York Governor Kathy Hochul signed into law fiscal bill A.3007C/S.4007, which contains provisions prohibiting the establishment of a geofence around health care facilities.

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.

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.

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.

On April 27, 2023, Washington State Governor Jay Inslee signed the My Health My Data Act into law, making Washington the first state to establish a comprehensive health data privacy law in the United States.

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.

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.

On Monday, March 27, 2023, the Centre for Information Policy Leadership (CIPL) at Hunton Andrews Kurth submitted a response to the California Privacy Protection Agency (CPPA)’s Invitation for Preliminary Comments on Proposed Rulemaking for cybersecurity audits, risk assessments and automated decisionmaking.

On March 27, 2023, New York Attorney General Letitia James announced that a New York-based law firm (Heidell, Pittoni, Murphy & Bach LLP) had agreed to pay $200,000 in penalties and enhance its cybersecurity practices to settle charges stemming from a 2021 data breach. 

On March 15, 2023, the Colorado Attorney General’s Office finalized rules implementing the Colorado Privacy Act (“CPA”). The finalized rules were released with an official redline that reflects prior revisions of the rules dated December 21, 2022, January 27, 2023, and February 23, 2023. The rules will be published in the Colorado Register later this month and will go into effect on July 1, 2023, when the CPA takes effect.

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.

On February 28, 2023, the Colorado Office of the Attorney General announced that revised draft Colorado Privacy Act (“CPA”) rules were adopted for review by the Colorado Attorney General prior to finalization and publication in the Colorado Register.

On February 6, 2023, Texas State Representative Giovanni Capriglione submitted H.B. 1844, a comprehensive privacy bill modeled after the Virginia Consumer Data Protection Act (“VCDPA”). The bill could make Texas the sixth U.S. state to enact major privacy legislation, following California, Virginia, Colorado, Utah, and Connecticut. Although the bill closely follows the VCDPA, it departs from the Virginia law in several key areas, most notably in the definition of “personal data” and its applicability.

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”).

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.

On November 14, 2022, Google LLC (“Google”) agreed to a $391.5 million settlement with the attorneys general of 40 U.S. states over the company’s location tracking controls available in its user account settings.   

The investigation by the state attorneys general found that, between 2014 and 2020, Google misled users by failing to disclose that toggling the “Location History” setting to off did not disable all tracking activities. The settlement noted that Google retained the ability to track users’ location via the “Web & App Activity” setting, and used the information for targeted advertising purposes.

On October 28-29, 2022, the California Privacy Protection Agency (“CPPA”) held a Board Meeting to discuss the modified proposed regulations promulgated for compliance with the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 (“CCPA/CPRA”), as well as the remainder of the rulemaking process. The CPPA previously released the modified proposed regulations on October 17, 2022.  

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.

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.

On October 20, 2022, Texas Attorney General Ken Paxton brought suit against Google alleging various violations of Texas’s biometric privacy law, including that the company unlawfully collected and used the biometric data of millions of Texans without obtaining proper consent. The lawsuit alleges that, since 2015, Google has collected millions of biometric identifiers of Texas consumers, such as voiceprints and records of face geometry, through Google’s various products, including Google Photos, Google Assistant and Nest Hub Max, in violation of Texas’s biometric privacy law. Texas’s biometric privacy law prohibits the collection of biometric identifiers for a commercial purpose unless the individual whose biometric identifiers are collected is informed of the collection and provides consent. The law also requires companies to destroy biometric identifiers within a reasonable time, but not later than the first anniversary of the date the purpose for collecting the biometric identifier expires (except in limited circumstances).

On October 12, 2022, New York Attorney General Letitia James announced that her office had secured a $1.9 million penalty from e-commerce retailer Zoetop, owner of SHEIN and ROMWE, following an improperly handled data breach. The Office of the Attorney General of the State of New York (“NYAG”) alleged in its Assurance of Discontinuance that Zoetop failed to properly handle the breach and lied about its scope to consumers.

On September 15, 2022, California Governor Gavin Newsom signed into law the California Age-Appropriate Design Code Act (the “Act”). The Act, which takes effect July 1, 2024, places new legal obligations on companies with respect to online products and services that are “likely to be accessed by children” under the age of 18.

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. 

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.

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.

On July 22, 2022, companies are required to notify the Arizona Department of Homeland Security when they experience a data breach impacting more than 1,000 Arizona residents. This notification requirement is in addition to obligations to notify affected individuals, the Arizona state attorney general and the three largest national consumer reporting agencies. The notification to the Arizona Department of Homeland Security must be made within “45 days after a determination that there has been unauthorized acquisition and access that materially compromises the security or ...

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:

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.

On June 21, 2022, the Colorado Attorney General’s Office announced it is seeking informal input from the public on its rulemaking related to the Colorado Privacy Act (“CPA”). Before starting its formal rulemaking process, the Office has indicated it wants to better “understand the community’s thoughts and concerns about data privacy.”

On June 23, 2022, the U.S. House of Representatives Subcommittee on Consumer Protection and Commerce passed by voice vote H.R. 8152, the American Data Privacy and Protection Act (“ADPPA”). This bipartisan legislation, sponsored by House Energy and Commerce Committee Chairman Frank Pallone (D-NJ), committee Ranking Republican Cathy McMorris Rodgers (R-WA), subcommittee Chairman Jan Schakowsky (D-IL) and subcommittee Ranking Republican Gus Bilirakis (R-FL), is based on the bipartisan, bicameral “Three Corners” draft bill released on June 2, 2022 with the support of Pallone, Rodgers and Senate Commerce Committee Ranking Republican Roger Wicker (R-MS). 

On May 27, 2022, Vermont Governor Phil Scott signed H.515, making Vermont the twenty-first state to enact legislation based on the National Association of Insurance Commissioners Insurance Data Security Model Law (“MDL-668”). The Vermont Insurance Data Security Law applies to “licensees”—those licensed, authorized to operate or registered, and those required to be licensed, authorized or registered, under Vermont insurance law, with few exceptions. The new law generally follows MDL-668’s provisions, adopting the model law’s broad definition of nonpublic information and requiring licensees to, in part, maintain a written information security program (“WISP”) and investigate cybersecurity incidents. Unlike other state laws based on MDL-668, however, the Vermont Insurance Data Security Law declines to establish separate cybersecurity event notification requirements for licensees.

On May 4-6, 2022, the California Privacy Protection Agency (“CPPA”) held via video conference several public pre-rulemaking stakeholder sessions regarding the California Privacy Rights Act (“CPRA”). During the sessions, stakeholders ranging from privacy and cybersecurity experts to trade associations and California small business owners provided verbal comments, insights and suggestions to the CPPA as it develops the forthcoming CPRA regulations. The sessions focused on a number of issues, including automated decision-making, data minimization and purpose limitation, dark patterns, consumers’ rights (e.g., opt-out rights, limitation on the use of sensitive personal information), and cybersecurity audits and risk assessments. Comments and positions taken amongst the stakeholders varied. Some of the positions taken by stakeholders are summarized below:

On April 12, 2022, Colorado Attorney General Phil Weiser made remarks at the International Association of Privacy Professionals Global Privacy Summit in Washington, D.C., where he invited stakeholders to provide informal public comments on the Colorado Privacy Act (“CPA”) rulemaking.

On March 29 and March 30, 2022, the California Privacy Protection Agency (“CPPA”) held via video conference two public pre-rulemaking informational sessions regarding the California Privacy Rights Act (“CPRA”). During the sessions, members of the California Attorney General’s Office and various privacy and cybersecurity experts led discussions on topics such as the sale and sharing of personal information, dark patterns, data privacy impact assessments, cybersecurity audits and automated decision-making. The CPPA Board has not at this time responded to the views expressed by the experts at the meetings.

On March 2, 2022, eight states announced a bipartisan, nationwide investigation into whether TikTok operates in a way that causes or exacerbates harm to the physical and mental health of children, teens and young adults. The probe will further consider whether the company violated state consumer protection laws and put the public at risk.

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 February 14, 2022, Noom Inc., a popular weight loss and fitness app, agreed to pay $56 million, and provide an additional $6 million in subscription credits to settle a putative class action in New York federal court. The class is seeking conditional certification and has urged the court to preliminarily approve the settlement.

On February 14, 2022, Texas Attorney General Ken Paxton brought suit against Meta, the parent company of Facebook and Instagram, over the company’s collection and use of biometric data. The suit alleges that Meta collected and used Texans’ facial geometry data in violation of the Texas Capture or Use of Biometric Identifier Act (“CUBI”) and the Texas Deceptive Trade Practices Act (“DTPA”). The lawsuit is significant because it represents the first time the Texas Attorney General’s Office has brought suit under CUBI.

On January 24, 2022, a group of state attorneys general (Indiana, Texas, D.C. and Washington) (the “State AGs”) announced their commitment to ramp up enforcement work on “dark patterns” that are used to ascertain consumers’ location data. The State AGs created a plan to initiate lawsuits alleging that consumers of certain online services are falsely led to believe that they can prevent the collection of their location data by changing their account and device settings, when the online services do not, in fact, honor such settings. The State AGs have alleged that this practice constitutes a deceptive and unlawful trade practice under applicable state consumer protection law. The State AGs’ announcement highlights the underlying concern that consumers may be provided with a choice to opt out of location tracking but still have their location data made accessible to certain online service providers.

On January 28, 2022, in celebration of Data Privacy Day, the Colorado Attorney General’s Office issued prepared remarks from Colorado Attorney General Phil Weiser and published guidance on data security best practices. In his remarks, Attorney General Weiser highlighted the importance of protecting data security and outlined his office’s plans for implementing the Colorado Privacy Act (“CPA”), which takes effect July 1, 2023.

On January 28, 2022, California Attorney General Rob Bonta published a statement regarding recent investigations conducted by the California Office of Attorney General (“AG”) with respect to businesses operating loyalty programs and their compliance with the California Consumer Privacy Act’s (“CCPA’s”) financial incentive requirements. As a result of the investigations, the AG’s Office sent non-compliance notices to major corporations across multiple sectors, including retail, food services, travel and home improvement. The businesses have 30 days to cure the alleged CCPA violations and bring their loyalty programs into compliance with the CCPA. Otherwise, enforcement action can be initiated.

On January 5, 2022, the New York Office of the Attorney General (“NY AG”) announced the results of an investigation into “credential stuffing,” which uncovered 1.1 million compromised accounts from cyberattacks on 17 well-known companies. The announcement included a “Business Guide for Credential Stuffing Attacks,” (the “Guide”) detailing the attacks and providing tips for businesses to protect themselves.

On August 25, 2021, New Mexico Attorney General (“AG”) Hector Balderas sued Rovio Entertainment (“Rovio” or the “Company”), the developer of the popular Angry Birds mobile app games, alleging that the Company violated the federal Children’s Online Privacy Protection Act (“COPPA”) by knowingly collecting data from players under age 13 and sharing it with advertisers. Under COPPA, developers of child-directed apps are required to provide notice to parents of their data collection practices and obtain verifiable parental consent to collect personal information from children under 13.

The California Attorney General (“AG”) recently released a summary of enforcement actions the agency brought against companies in violation of the CCPA since enforcement of the Act began on July 1, 2020. The summary provides 27 illustrative examples of instances in which the AG sent notices of alleged noncompliance with the CCPA and how each company cured the alleged noncompliance.

On June 14, 2021, Texas Governor Greg Abbott signed HB 3746, a bill amending Texas’s data breach notification law. Texas’s breach notification law requires notice to affected residents in the event of a data breach affecting certain sensitive personal data, including Social Security numbers, driver’s license or other government-issued ID numbers, account numbers or payment card numbers in combination with any required security code, access code or password, or certain information about an individual’s health or medical condition or treatment. The law also requires businesses to notify the Texas Attorney General of any data breach affecting at least 250 Texas residents.

On June 2, 2021, Nevada’s governor approved SB 260 (the “Amendment Bill”), which expands on the previously amended Nevada Privacy of Information Collected on the Internet from Consumers Act (the “Act”). Specifically, the Amendment Bill broadens the definition of key terms along with providing several new exemptions.

On May 18, 2021, New York Attorney General (“AG”) Letitia James announced a settlement agreement with Filters Fast LLC (“Filters Fast”) over a data breach that compromised personal information of approximately 324,000 consumers nationwide, including over 16,500 New York state residents. The breach affected purchases made on Filters Fast website for almost a year – from July 16, 2019 to July 10, 2020.

As we previously reported, significant data privacy bills, titled the Consumer Data Protection Act, are working their way through the Virginia legislature. If enacted, Virginia would be the second state to enact major data privacy legislation of general applicability.

On February 5, 2021, the state Senate of Virginia voted unanimously to approve Senate Bill 1392, titled the Consumer Data Protection Act, after the House of Delegates approved an identical House bill by an 89-9 vote. Each bill likely will be heard in committee next week by the opposite chamber, which provides additional opportunities to make amendments. Minor, clarifying amendments will likely be added in committee, but they are not expected to alter the main components of the bill. Virginia’s General Assembly will adjourn Sine Die on March 1, and legislators have until then to finalize the details of the legislation. Virginia’s Governor Ralph Northam would be in a position to sign the bill later in March. Notably, the Governor has line item veto authority, so the bill could also possibly be amended after it passes the General Assembly.

On November 24, 2020, a multistate coalition of Attorneys General announced that The Home Depot, Inc. (“Home Depot”) agreed to pay $17.5 million and implement a series of data security practices in response to a data breach the company experienced in 2014. The $17.5 million payment will be divided among the 46 participating states and the District of Colombia. We previously reported on a settlement Home Depot reached in 2017 to resolve a putative class action brought by financial institutions impacted by the 2014 data breach.

On September 30, 2020, Anthem, Inc. (“Anthem”) entered into an assurance of voluntary compliance (the “Agreement”) with the attorneys general of 42 states and the District of Columbia to settle claims under state and federal law relating to Anthem’s 2015 data breach (the “Breach”).

The Centre for Information Policy Leadership at Hunton Andrews Kurth (“CIPL”) recently published a concept paper titled Why We Need Interstate Privacy Rules for the U.S.

The paper acknowledges the possibility that the U.S. may not implement a comprehensive federal privacy law in the near future, and that instead a growing patchwork of state laws will emerge. It proposes an interstate privacy interoperability code of conduct or certification as a solution to the possibility of inconsistent and disparate privacy requirements across the U.S. The paper outlines the benefits and key features of the code, as well as potential models and sources for its structure and substantive rules, such as the Asia-Pacific Economic Cooperation Cross-Border Privacy Rules (“APEC CBPR”), ISO standards, existing state privacy laws, the EU General Data Protection Regulation (“GDPR”) and key federal privacy proposals. It also discusses the process that could be used to develop the code.

On August 4, 2020, Senators Jeff Merkley (OR) and Bernie Sanders (VT) introduced the National Biometric Information Privacy Act of 2020 (the “bill”). The bill would require companies to obtain individuals’ consent before collecting biometric data. Specifically, the bill would prohibit private companies from collecting biometric data—including eye scans, voiceprints, faceprints and fingerprints—without individuals’ written consent, and from profiting off of biometric data. The bill provides individuals and state attorneys general the ability to institute legal proceedings against entities for alleged violations of the act.

Texas Attorney General Ken Paxton is investigating Facebook Inc. (“Facebook”) for alleged violations of the Texas Business and Commercial Code, which contains provisions governing the collection, retention and disclosure of biometric data. As we previously reported, Facebook recently reached a $650 million settlement for alleged violations of Illinois’ Biometric Information Privacy Act for their use of facial recognition software without permission from affected users.

On June 24, 2020, the Washington State Attorney General (“Washington AG”) announced that it had settled an enforcement action against the owners of the “We Heart It” social media platform for alleged violations of the Children’s Online Privacy Protection Act (“COPPA”) and the Washington State Consumer Protection Act. Under the consent decree, the defendants must pay $100,000, with an additional $400,000 suspended contingent upon compliance with the consent decree.

On July 1, 2020, the California Consumer Privacy Act of 2018 (“CCPA”) became enforceable by the California Attorney General. Under the statute, businesses are granted 30 days to cure any alleged violations of the law after being notified of alleged noncompliance. If a business fails to cure the alleged violation, it may be subject to an injunction and liable for a civil penalty of up to $2,500 for each violation or $7,500 for each intentional violation.

On June 1, 2020, the Office of the California Attorney General submitted the final California Consumer Privacy Act (“CCPA”) proposed regulations to the California Office of Administrative Law (“OAL”). Notably, the final proposed regulations are the same as the draft issued in March. The OAL must review the rulemaking package for procedural compliance with California’s Administrative Procedure Act. The OAL’s typical 30-day review period has been extended by 60 calendar days under an executive order related to the COVID-19 pandemic. Assuming OAL approves the regulations, the final text will be filed with the Secretary of State.

California Attorney General (“AG”) Xavier Becerra recently issued an alert emphasizing the rights of California consumers under the California Consumer Privacy Act (“CCPA”) during the COVID-19 pandemic. The alert follows media reports that the AG’s office is “committed to enforcing the law upon finalizing the rules or [by] July 1, whichever comes first,” even with the “new reality created by COVID-19.”

On April 14, 2020, the Indiana Attorney General’s office announced that the state had reached a settlement agreement with Equifax in connection with Equifax’s 2017 data breach. Under the terms of the settlement, Equifax will pay a $19.5 million penalty. Indiana previously elected not to participate in a July 2019 multistate and Federal Trade Commission settlement with Equifax regarding the same data breach.

On April 2, 2020, Hunton Andrews Kurth LLP will host a webinar on the California Consumer Privacy Act (“CCPA”): The CCPA Is Here—Are You Litigation-Ready? Most companies have now developed a framework for compliance with the CCPA. Having a compliance program in place is critical, and that includes preparing for the inevitable onslaught of class action litigation that is coming.

On November 29, 2019, Senator Roger Wicker (MS), Chairman of the Senate Commerce Committee, circulated a draft of a comprehensive federal privacy bill entitled the United States Consumer Data Privacy Act of 2019 (“the Bill”).

On November 26, 2019, Senate Commerce Committee Ranking Member Maria Cantwell (WA), alongside Senators Brian Schatz (HI), Amy Klobuchar (MN) and Ed Markey (MA), unveiled a new comprehensive federal privacy bill entitled the Consumer Online Privacy Rights Act (“COPRA”).

The bill would create a new bureau within the Federal Trade Commission  focusing on privacy and data security to enforce the law and promulgate new rules and regulations in the space. It also would provide enforcement authority for state attorneys general as well as a private right of action. It would preempt only state laws that “directly conflict with the provisions of the Act,” and specifically notes that state laws that afford a “greater level of protection to individuals” would not be considered in direct conflict.

On November 18, 2019, the ranking members from four Senate Committees (Senator Maria Cantwell (WA) from Commerce, Senator Dianne Feinstein (CA) from Judiciary, Senator Sherrod Brown (OH), and Senator Patty Murray (WA) from Health, Education, Labor and Pensions) released a set of “core principles” for federal privacy legislation.

On November 5, 2019, Representatives Anna G. Eshoo (CA) and Zoe Lofgren (CA) introduced the Online Privacy Act (the “Act”), which proposes sweeping legislation that would create federal privacy rights for individuals, require companies to adhere to data minimization and establish a federal Digital Privacy Agency (“DPA”).

On October 11, 2019, California Governor Gavin Newsom signed into law AB 1130, which expands the types of personal information covered by California’s breach notification law to include, when compromised in combination with an individual’s name: (1) additional government identifiers, such as tax identification number, passport number, military identification number, or other unique identification number issued on a government document commonly used to verify the identity of a specific individual; and (2) biometric data generated from measurements or technical analysis of human body characteristics (e.g., fingerprint, retina, or iris image) used to authenticate a specific individual. Biometric data does not include a physical or digital photograph unless used or stored for facial recognition purposes.

On October 11, 2019, California Governor Gavin Newsom announced that he signed all five of the California Legislature’s September 2019 amendments to the California Consumer Privacy Act of 2018 (“CCPA”) into law: AB-25, AB-874, AB-1146, AB-1355 and AB-1564. The Governor had until October 13, 2019, to sign or veto the amendments, which were passed at the end of the Legislature’s 2019 legislative session. This news came just a day after California Attorney General Xavier Becerra released proposed regulations implementing the CCPA.

On October 10, 2019, the California Attorney General (“AG”) announced Proposed Regulations implementing the California Consumer Privacy Act of 2018 (“CCPA”). Along with a Notice of Proposed Rulemaking Action and the Text of Proposed Regulations, the AG issued an Initial Statement of Reasons elaborating on the purposes of the proposed regulations.

On July 25, 2019, New York Governor Andrew Cuomo signed into law Senate Bill S5575B (the “Bill”), an amendment to New York’s breach notification law (the “Act”). The Bill expands the Act’s definition of “breach of the security of the system” and the types of information (i.e., “private information”) covered by the Act, and makes certain changes to the Act’s requirements for breach notification.

On July 11, 2019, Washington Attorney General Bob Ferguson announced that his office had entered into a consent decree and $10 million settlement with Premera Blue Cross (“Premera”) that stems from a 2014-2015 breach that affected more than 11 million individuals. The settlement, which includes a payment of roughly $5.4 million to Washington state and $4.6 million to a coalition of 29 other state Attorneys General (the “Multistate AGs”), is one of the largest ever for a breach involving protected health information (“PHI”) and comes just one month after another notable HIPAA settlement involving a similar coalition of state AGs.

Today marks one year since the California Consumer Privacy Act of 2018 (“CCPA”) was passed and signed into law. The CCPA signals a dramatic shift in the data privacy regime in the United States, imposing on covered businesses the most prescriptive general privacy rules in the nation. In addition, the past year has seen a legislative explosion in the form of similar proposed state laws and potential federal data privacy legislation.

Texas Governor Greg Abbott recently signed into law HB 4390 (the “Bill”), which amends the state’s data breach notification law and creates an advisory council tasked with studying and developing recommendations regarding data privacy legislation.

Arizona Attorney General Mark Brnovich recently announced a settlement with healthcare software provider Medical Informatics Engineering Inc. (“MIE”) and its wholly owned subsidiary NoMoreClipboard, LLC. The settlement resolves a multistate litigation arising out of a May 2015 data breach in which hackers infiltrated WebChart, a web application run by MIE, and stole the electronic Protected Health Information (“ePHI”) of over 3.9 million individuals. Arizona and 15 other states (the “Multistate AGs”) filed the suit in December 2018, asserting claims under the federal Health Insurance Portability and Accountability (“HIPAA”) as well as various applicable state data protection laws. Notably, the lawsuit was the first-ever multistate litigation alleging claims under HIPAA.

Maryland Governor Larry Hogan recently signed into law House Bill 1154 (the “Bill”), which amends the state’s data breach notification law. Among other obligations, the amendments expand the required actions a business must take after becoming aware of a data security breach.

On May 24, 2019, Oregon Governor Kate Brown signed Senate Bill 684 (the “Bill”) into law. The Bill, which takes effect January 1, 2020, amends the Oregon Consumer Identity Theft Protection Act (“OCITPA”) by enhancing the breach notification requirements applicable to third-party vendors.

On May 27, 2019, the Illinois General Assembly voted 79-32 to approve Senate Bill 1624, an amendment to the Personal Information Protection Act (“PIPA”). The bill’s sponsor, Senator Suzy Glowiak (D), expects Illinois Governor J.B. Pritzker (D) to sign the bill into law in short order. The amendment had already unanimously passed the state Senate last month.

On May 29, 2019, Nevada’s governor approved SB 220 (the “Amendment Bill”), which provides amendments to an existing law that requires operators of websites and online services (“Operators”) to post a notice on their website regarding their privacy practices. The Amendment Bill will require Operators to establish a designated request address through which a consumer may submit a verified request directing the Operator not to make any “sale” of covered information collected about the consumer. Pursuant to the Amendment Bill, Operators must respond to a verified opt-out request within 60 days of receipt.