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Category Archives: Privacy

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Preparing for the EU General Data Protection Regulation: A Checklist for Businesses

By Keller and Heckman on Posted in Data Security, Privacy
The new European Union General Data Protection Regulation (GDPR) (Regulation 2016/679, Apr. 27, 2016) will replace the Data Protection Directive (Directive 95/46/EC) effective May 25, 2018.  The GDPR has been a long time coming, and introduces a host of new requirements for companies that use or process data in the EU, or simply use or… Continue Reading

Supreme Court Requires Plaintiffs to Show Harm or Risk of Harm, Not Bare Procedural Violation, to Get Statutory Damages

By Sheila Millar, Douglas Behr and Tracy Marshall on Posted in Cybersecurity, Data Security, Litigation, Privacy
Joe Ravi | CC-BY-SA 3.0 Last year, we noted that the Supreme Court had granted certiorari in a case that could limit the ability of plaintiffs to sue defendants over bare statutory violations without the showing of actual injury. The case implicates a wide variety of statutes that grant monetary awards to successful plaintiffs on… Continue Reading

GDPR Publication Starts Countdown to May 2018 Compliance Date for New Privacy Rules

By Sheila Millar and Tracy Marshall on Posted in Legislation, Privacy, Regulations
The new General Data Protection Regulation (GDPR) (Regulation 2016/69, Apr. 27, 2016), approved by the European Parliament and the Council of the European Union, was formally published in the Official Journal of the European Union on May 4, 2016, and will replace the Data Protection Directive (Directive 95/46/EC) effective May 28, 2018. This new set… Continue Reading

Millar to Lead Toy Marketing Panel at CARU

By Keller and Heckman on Posted in Events, Privacy
Even as advertising to kids gets more complicated, the basic principles remain the same. This week, Children’s Advertising Review Unit (CARU), an independent self-regulatory organization within the Council of Better Business Bureaus (CBBB) which monitors children’s advertising and helps marketers vet ads and campaigns, is hosting its annual conference, “Reimagining Children’s Advertising: Getting it Right… Continue Reading

NTIA Steps into IoT Debate

By Sheila Millar and Tracy Marshall on Posted in Cybersecurity, Privacy
Continuing its tradition of active involvement in digital economy questions, the Department of Commerce’s (DOC) National Telecommunications and Information Administration (NTIA) issued a request for public comment on questions posed by the growth of the Internet of Things (IoT). The explosive growth of connected products, anticipated to reach 25 billion by 2020, is one reason… Continue Reading

Appeals Court Agrees That Health Solutions Provider’s Insurance Requires Defense in Data Disclosure Class Action

By Douglas Behr and Sheila Millar on Posted in Data Security, Litigation, Privacy
Availability of insurance is often among the first questions that arises when a company encounters a data breach or other Internet-related problem involving company records, even where the company lacks a cyberinsurance policy. The federal Fourth Circuit Court of Appeals recently affirmed a ruling by a District Court that required insurance coverage for an inadvertent… Continue Reading

FCC Adopts Broadband Privacy NPRM

By Sheila Millar and Tracy Marshall on Posted in Privacy, Regulations
At its Open Meeting yesterday, the Federal Communications Commission (FCC) adopted a Notice of Proposed Rulemaking (NPRM) that would apply the privacy protections in Section 222 of the Communications Act to broadband Internet Service Providers (ISPs). The text of the NPRM, which reportedly seeks public comment on more than 500 questions relating to privacy and… Continue Reading

The FCC Continues Privacy Push with Draft Proposal Regulating ISP Customers’ Data

By Sheila Millar and Tracy Marshall on Posted in Data Security, Privacy, Regulations
On the heels of the Open Internet Order adopted by the Federal Communications Commission (FCC) last year, FCC Chairman Tom Wheeler has circulated a Notice of Proposed Rulemaking (NPRM) to fellow Commissioners that would apply the privacy protections of the Communications Act to broadband Internet access services. Wheeler’s proposal will be voted on at the… Continue Reading

FCC Settles Probe into Verizon’s Use of “Supercookies”

By Sheila Millar and Tracy Marshall on Posted in Privacy, Regulations
On March 7, 2016, the Enforcement Bureau of the Federal Communications Commission (FCC) entered into a Consent Decree with Verizon Wireless relating to the company’s use of Unique Identifier Headers (UIDH) for targeted advertising purposes.  UIDH are commonly referred to as “supercookies” because they cannot be deleted.  This concludes the FCC’s investigation into whether Verizon… Continue Reading

European Commission Releases Draft Text of Adequacy Decision on EU-U.S. Privacy Shield

By Sheila Millar and Tracy Marshall on Posted in Data Security, Privacy
On February 29, 2016, the European Commission’s (EC) released a much anticipated draft adequacy decision on the EU–U.S. Privacy Shield.  With this and enactment of the Judicial Redress Act last week (see our post here), the European Union came yet another step closer to finalizing the agreement between the EU and the U.S. to enable… Continue Reading

Obama Signs Judicial Redress Act—Will It Move EU–U.S. Privacy Shield Forward?

By Sheila Millar and Tracy Marshall on Posted in Legislation, Privacy
President Barack Obama signed the Judicial Redress Act on Wednesday, February 24, 2016, which will eventually enable European Union citizens to seek remedies for alleged privacy violations by the federal government in U.S. courts.  The Act gives the U.S. Department of Justice (DOJ) authority to designate countries or international organizations that (1) have appropriate privacy… Continue Reading

Two App Developers Agree on COPPA Settlement with FTC

By Sheila Millar and Tracy Marshall on Posted in Advertising, Privacy
Two app developers have settled complaints from the Federal Trade Commission (FTC) that they allowed third parties to collect information, including persistent identifiers, through their apps, and allowed third parties to serve advertising to children, in violation of the Children’s Online Privacy Protection Act (COPPA). The FTC’s announcement was released the same day it announced… Continue Reading

Agreement Reached on Landmark EU Data Protection Reform

By Sheila Millar and Tracy Marshall on Posted in Data Security, Privacy
On December 15, 2015, the European Commission announced that an agreement has been reached with the European Parliament and the Council (the “trilogue” meetings) regarding the Commission’s sweeping 2012 EU Data Protection Reform proposal.  The reform package, which consists of a General Data Protection Regulation and a Data Protection Directive for Police and Criminal Justice… Continue Reading

False Advertising Contempt Suit Costs LifeLock $100 Million

By Sheila Millar and Tracy Marshall on Posted in Data Security, Litigation, Privacy
On December 17, 2015, the Federal Trade Commission (FTC) announced that Lifelock, Inc. (LifeLock), agreed to pay a record-breaking $100 million to settle charges that it violated an earlier consent agreement related to flawed data security practices issued in March 2010. The LifeLock settlements implicate both the “fairness” of the company’s data security practices and… Continue Reading

Life After the U.S.–EU Safe Harbor

By Sheila Millar and Tracy Marshall on Posted in Data Security, Privacy
We’ve written about the ground-breaking and panic-inducing ruling of the European Court of Justice (ECJ) invalidating the U.S.–EU Safe Harbor framework as an adequate data transfer mechanism, and ruling that national authorities are not bound by Commission approvals. Click here for our September 23, 2015 blog post, and here for a related October 16, 2015… Continue Reading

Article 29 WP Says Safe Harbor Transfers Illegal; Model Clauses and BCRs Under Review

By Sheila Millar and Tracy Marshall on Posted in Data Security, Litigation, Privacy
The Article 29 Working Party (WP) issued a press release on October 16, 2015 announcing the outcome of the meeting to discuss coordinated action after the Court of Justice of the European Union (ECJ) decision in the matter of Schrems v. Data Protection Commissioner (C-362-14), which invalidated the U.S.-EU Safe Harbor Agreement. While calling for… Continue Reading

EU Official Calls for Invalidation of EU–U.S. Safe Harbor Pact

By Sheila Millar and Tracy Marshall on Posted in Data Security, Privacy
A European Court of Justice (ECJ) advocate general, Yves Bot, has called for the European Union–U.S. Safe Harbor Agreement to be invalidated due to concerns over U.S. surveillance practices (press release here, opinion here). The ECJ has discretion to reject the recommendation, but such opinions are generally followed. A final decision on the issue is… Continue Reading

In Commission Win, Appeals Court Agrees that FTC Can Regulate Business Data Security Practices Under Unfairness Authority

By Sheila Millar and Tracy Marshall on Posted in Cybersecurity, Data Security, Privacy
In a closely watched case where the Federal Trade Commission (FTC) pursued Wyndham Worldwide Corporation for several data breaches that led to millions of dollars in fraudulent charges on customers’ payment cards, the U.S. Court of Appeals for the Third Circuit on Monday agreed with the Commission’s broad interpretation of its “unfairness” authority (opinion here).… Continue Reading

Unlucky 13: FTC Settles Charges under International Safe Harbor Framework

By Sheila Millar and Tracy Marshall on Posted in Privacy
Thirteen companies have agreed to settle with the Federal Trade Commission (FTC) charges relating to their participation in the U.S.–EU and U.S.–Swiss Safe Harbor Frameworks. Seven companies allegedly failed to renew their Safe Harbor self-certifications, including a sports marketing firm, two software developers, a research organization, a business information firm, a security consulting firm, and… Continue Reading

New York Appellate Court Rules That Facebook Cannot Bring a Pre-Execution Challenge to a Search Warrant for Its Customers’ Records

By Douglas Behr on Posted in Litigation, Privacy
On July 21, 2015, the First Department of the New York Supreme Court, Appellate Division, ruled that Facebook could not bring a pre-execution challenge judicially issued search warrants for records associated with customer Facebook accounts on behalf of its customers.  In In Re 381 Search Warrants Directed to Facebook Inc., 2015 NY Slip Op 06201,… Continue Reading

The Dark Side of Loyalty Programs

By Douglas Behr on Posted in Litigation, Privacy
Loyalty programs operated by retailers allow the retailer to track the purchases made by customers and offer customers tailored information about products and sales. However, there is a dark side to such programs. The tracking may also provide plaintiffs’ lawyers a method of identifying potential class members thereby providing a basis for such litigation to… Continue Reading

Tips for Writing Social Media Policies

By Sheila Millar and Tracy Marshall on Posted in Advertising, Data Security, Privacy, Regulations, Sweepstakes & Promotions
As many marketers spend a large and growing share of the ad spend on social media, basic principles of truthful advertising must be kept in mind and applied in the new and varied media.  After all, the platforms may change, but the underlying requirements do not.  Thus, for responsible marketers, a robust social media policy… Continue Reading

FCC Releases Much-Anticipated TCPA Declaratory Ruling and Order

By Tracy Marshall on Posted in Advertising, Data Security, Privacy
As we previously reported, the Federal Communications Commission (“FCC” or “Commission”) adopted a significant Declaratory Ruling and Order on June 18, 2015 to clarify aspects of the Telephone Consumer Protection Act (“TCPA”), namely, the use of “automatic telephone dialing systems” and/or artificial or prerecorded voice messages to send telemarketing and informational calls and texts to… Continue Reading

Businesses Beware: FCC Adopts Significant TCPA Declaratory Ruling and Order

By Tracy Marshall and Sheila Millar on Posted in Advertising, Data Security, Privacy
At its Open Meeting on June 18, 2015, the Federal Communications Commission (“FCC”) adopted a significant Declaratory Ruling and Order to clarify aspects of the Telephone Consumer Protection Act (“TCPA”), namely, the use of automatic dialing systems and/or artificial or prerecorded voice messages to send telemarketing and informational calls and texts to consumers (“robocalls”). The… Continue Reading
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