Back in 2008, Illinois became the first state to pass legislation specifically protecting individuals’ biometric data. Following years of legal challenges, some of the major questions about the law are about to be resolved (hopefully). Two major legal challenges, one now at the Illinois Supreme Court and another with the Court of Appeals for the Ninth Circuit, seek to clarify the foundational issues that have been a battleground for privacy litigation — standing and injury. To understand the stakes, Illinois’ Biometric Information Privacy Act requires companies who obtain a person’s biometric information to: (1) obtain a written release prior to their information being stored and collected; (2) provide notice that their information is being stored and collected; (3) state how long the information will be stored and used; and (4) disclose the specific purpose for its storage and use. The law further provides individuals with a private right of action. However, in order to trigger that private right, an individual must be “aggrieved.” Continue Reading Biometric Data Risks on the Rise

After eleven years of litigation, including two decisions by the Connecticut Supreme Court, Byrne v. Avery Center for Obstetrics and Gynecology, P.C. has finally reached a verdict. Last month, the jury awarded the plaintiff $853,000 in damages in connection with her physician practice’s 2005 release of medical records in response to a non-HIPAA compliant subpoena. The subpoena was issued in connection with a paternity suit brought by the plaintiff’s former boyfriend, a man whom the plaintiff had specifically requested her physician practice not share her medical information with.

Without speculating too much about its judicial progeny, Byrne nevertheless highlights several areas of HIPAA compliance that should be areas of heightened review for physicians and medical providers now. Please click here for a detailed analysis of this verdict and its implications for providers.

On December 12, 2018, the U.S. Department of Health and Human Services Office for Civil Rights (“OCR”) released a Request for Information (“RFI”) “to assist OCR in identifying provisions of the Health Insurance Portability and Accountability Act (“HIPAA”) privacy and security regulations that may impede the transformation to value-based health care or that limit or discourage coordinated care among individuals and covered entities (including hospitals, physicians, and other providers, payors, and insurers), without meaningfully contributing to the protection of the privacy or security of individuals’ protected health information.” Through this RFI, OCR seeks public comment regarding whether and how the HIPAA Privacy and Security Rules could be revised to promote value-based care and care coordination without jeopardizing individuals’ rights to privacy. OCR will accept comments through February 12, 2019.

Specifically, OCR has requested comments regarding the following four topics: Continue Reading OCR Seeks Public Comment on HIPAA Reform

The Upper San Juan Health Service District d/b/a Pagosa Springs Medical Center (“PSMC”), a critical access hospital in Colorado, has agreed to a $111,400 settlement with the U.S. Department of Health and Human Services Office for Civil Rights (“OCR”) to resolve a complaint alleging that a former PSMC employee continued to have remote access to PSMC’s web-based scheduling calendar because PSMC failed to deactivate the former employee’s username and password following termination of employment. OCR investigated the complaint and discovered that PSMC impermissibly disclosed the protected health information (“PHI”) of 557 patients to the former employee. Moreover, OCR determined that PSMC did not have a Business Associate agreement in place with the vendor of the web-based scheduling calendar.

The Resolution Agreement also includes a two-year Corrective Action Plan. Under the Corrective Action Plan, PSMC must: (i) revise its policies and procedures relating to Business Associates and uses and disclosures of PHI; (ii) submit proposed training materials on the revised policies and procedures for OCR’s review and train workforce members in accordance with the approved training materials; (iii) develop a current Risk Analysis and submit such analysis to OCR for review; and (iv) upon OCR’s approval of the Risk Analysis, provide OCR with a risk management plan that addresses and mitigates the security risks and vulnerabilities identified in the Risk Analysis and documentation that the risk management plan is being implemented.

The Resolution Agreement and Corrective Action Plan are available here.

Our take:

HIPAA requires covered entities and business associates to terminate a workforce member’s access to all systems and databases containing PHI upon the date the workforce member’s employment, or other arrangement with the entity, ends. The PSMC settlement serves as a reminder that the electronic health record is not the only database for which access must be terminated. HIPAA entities should develop a checklist that identifies all systems and databases containing PHI to ensure all access to PHI is terminated upon a workforce member’s separation from the entity.

On December 4, 2018, New York Attorney General Barbara D. Underwood announced a $4.95 million settlement with Oath, Inc. (f/k/a AOL Inc.), a wholly-owned subsidiary of Verizon Communications, Inc., for alleged violations of the Children’s Online Privacy Protection Act (“COPPA”) as a result of its involvement with online behavioral advertising auctions. This settlement represents the largest penalty ever in a COPPA enforcement matter in U.S. history.

Through its investigation, the New York Attorney General’s Office discovered that AOL collected, used, and disclosed personal information of website users under the age of 13 without parental consent in violation of COPPA. Specifically, the company was charged with having “conducted billions of auctions for ad space on hundreds of websites the company knew were directed to children under the age of 13.” The New York Attorney General found that AOL operated several ad exchanges and permitted clients to use its display ad exchange to sell ad space on COPPA-covered websites, despite the fact that the exchange was not capable of conducting a COPPA-compliant auction that involved third-party bidders. AOL was charged with having knowledge that these websites were subject to COPPA because evidence demonstrated that: (i) several AOL clients had provided AOL with notice that their websites were subject to COPPA and (ii) AOL had conducted a review of the content and privacy policies of client websites and had designated certain websites as being child-directed. Additionally, the New York Attorney General charged AOL with having placed ads through other exchanges in violation of COPPA.   Specifically, whenever AOL participated and won an auction for ad space on a COPPA-covered website, AOL ignored any information it received from an ad exchange indicating that the ad space was subject to COPPA and collected information about the website users to serve a targeted advertisement to the users. Continue Reading Oath (f/k/a AOL) Agrees to Record $5 Million COPPA Settlement

A little more than six months after that day in May when privacy policy updates flooded our inboxes and the GDPR came into force, a new study of small business owners in the UK has found that many people and businesses remain essentially “clueless” about the law and its requirements. Commissioned by Aon, the study found that nearly half of the 1,000 small business owners polled are confused about the privacy and security requirements of the law, which could lead many businesses to be in breach of the GDPR without even realizing it. Some examples of potential violations reported by the businesses included paper visitor books logging all visitors to the business and viewable to subsequent visitors, training materials featuring full details of real-life case studies, the use of personal devices by employees for work purposes, and inadequate storage and disposal of paper records. The study also found that business owners were not clear on what constitutes a data breach – thinking the term did not apply to paper records or personal data that was mistakenly posted or sent to the wrong person by email or fax – nor were they clear on the notification requirements, either to the UK’s data protection authority, the Information Commissioner’s Office (“ICO”), or to affected individuals. These small business owners should avail themselves of the ICO’s recent insight into its GDPR enforcement approach from earlier this month, which indicates that ignorant non-compliance likely won’t be looked at favorably. Continue Reading GDPR Guidance and Other Goings-On

When a data breach occurs at a company, not only is customer data vulnerable but so is employee information. But what obligations do employers owe their employees?

This issue was recently decided in part, at least with respect to Pennsylvania employers, in Dittman v. UPMC, 43 WAP 2017, 2018 WL 6072199, at *14 (Pa. Nov. 21, 2018).  In Dittman, a group of employees sued their employer, the University of Pittsburg Medical Center, for failure to take reasonable care to protect their personal private information.  On appeal, the Supreme Court of Pennsylvania overturned the decision of the lower court and held that an employer owes a common law duty of care to its employees to use reasonable care to safeguard their sensitive data as stored on the employer’s internet-accessible computer system. Notably, the employees’ position was not that the employer engaged in any misfeasance, but nonfeasance for failure to prevent the harm from occurring. The Supreme Court found that the mere fact that third parties committed the wrongdoing – the data breach – did not negate the duty of the employer to safeguard the employees’ sensitive information that they were required to provide the employer as a condition of employment.

The Dittman case is certainly not the first time a group of employees sued an employer based upon a data breach of the employer’s computer system that resulted in the disclosure of the employees’ personally identifiable information. In Sackin v. TransPerfect Global, Inc., 278 F. Supp. 739 (S.D.N.Y. 2017), the employer moved to dismiss a class action filed by the employees, which motion was denied, in part. Among other things, the district court found that the complaint sufficiently stated a cause of action for breach of common law duty of care and that the employer violated its duty to take reasonable steps to protect the employees’ data. The court also found that a viable cause of action existed for breach of the implied contract between the employer and employees, but not for breach of the terms of the employment contract. With respect to the former, the conduct and course of dealing between the parties was deemed to rise to the level of an implied contract because, as a prerequisite of employment, the employees were required to provide the employer with certain sensitive data, and given how commonplace data and identity theft are in the current day and age, the court found an implied assent by the recipient to protect that data. Continue Reading Employers Beware and Take Reasonable Care

The Commerce Department’s Bureau of Industry and Security (“BIS”) recently published an advanced notice of proposed rulemaking asking for public comment on criteria to identify “emerging technologies that are essential to U.S. national security,” for example because they have potential intelligence collection applications or could provide the United States with a qualitative intelligence advantage.

BIS is the federal agency that primarily oversees commercial exports. Over the summer, Congress passed the Export Control Reform Act of 2018 and authorized BIS to establish appropriate controls on the export of emerging and foundational technologies. Although by no means exclusive or final, BIS has proposed an initial list of areas that may become “emerging technologies,” including artificial intelligence/machine learning technology, brain-computer interfaces, and advanced surveillance technology, such as faceprint and voiceprint technologies. If BIS ultimately determines a technology will be subject to export controls, it will likely receive a newly-created Export Control Classification Number on BIS’s Commerce Control List and would require a license before export to any country subject to a U.S. embargo, including arms embargos (e.g., China). Continue Reading Is Your Technology an “Emerging Technology?”

A few months ago we posted an update on the California Consumer Privacy Act, a mini-GDPR that contains serious privacy ramifications for the U.S. privacy landscape. Likely in response to the upcoming 2020 go-live for the California law, various groups have noticed an uptick in lobbying directed at the passage of a federal privacy law that would pre-empt the California law and help harmonize the various state laws. Pushing to the front of that effort is a new draft federal privacy law proposed by Intel.

The Intel law looks to be written specifically to pre-empt the California law, as it contains language that would pre-empt any State law with civil provisions designed to reduce privacy risk through the regulation of personal data. This pre-emption contains limited exceptions for state-data-breach, contract, consumer protection, and various other laws, but it would drive a hole through California’s law. Furthermore, Intel’s proposed law could pre-empt various specific laws such as Illinois biometric data protection law, and because it does not include any notice provision — it would be reliant on the state-breach-notification statutes to find violations in the first place.

Beyond frustrating state attempts at personal information regulation, the law creates penalty caps that result in disproportionate punishments for smaller and mid-size security incidents and allow larger incidents, typical of a larger company, to operate on an eat-the-fine basis. For example: The Equifax breach from earlier this year affected 143 million Americans. If regulators chose to bring an action, the maximum penalties for the action could be up to $16,500 per violation — that means a maximum penalty of 2.3 trillion dollars. The penalty cap however was set at 1 billion dollars, meaning the largest data breaches will face the lowest penalty-per-impacted individual.

Our take

This proposed national privacy law would primarily serve the interests of the largest players in the tech and data industry, while providing harsher relative penalties to smaller and mid-size players. This law or something similar is likely to see serious political debate in the next few years as lobbying efforts intensify. Expect the heat to turn up as we near January 1, 2020.

As the number of data breaches increases, so do the number of data breach-related lawsuits, whether styled as class actions or individual lawsuits. To the extent these lawsuits are commenced in the federal courts, it gives rise to the question of what satisfies Article III standing. Merely because a data breach may have occurred and personally identifiable information may have been exposed, or is at risk of being exposed, does not necessarily confer standing of the party whose information has been compromised in the absence of actual harm. As with most litigations, the answer also depends, at least in part, in what jurisdiction the lawsuit is commenced.

In Gilot v. Equivity, 18-CV-3492 (WFK), 2018 WL 3653150, at *1 (E.D.N.Y. July 31, 2018), the district court reinforced the Second Circuit’s position on what is required for a plaintiff to have Article III standing. In Gilot, an action commenced by an individual was dismissed for lack of standing where it was only alleged that the unauthorized release of her personally identifiable information to a third party without her consent could lead to potential identity theft. The words “could” and “potential” are important because in the Second Circuit, as in the First, Third and Eighth Circuits, having been put at risk, without actual harm, is insufficient to confer Article III standing upon a plaintiff.

The Eleventh Circuit generally follows the First, Second, Third, and Eighth Circuits; however, the threshold for damages to confer standing is lower. In Muransky v. Godiva Chocolatier, Inc., 905 F.3d 1200 (11th Cir. 2018), the plaintiff alleged that the merchant violated the Fair and Accurate Credit Transactions Act (FACTA) by printing an untruncated receipt with more than five digits of the customer’s credit card number. This statutory violation was sufficient to withstand a motion to dismiss for lack of standing since it constituted damages in the form of the plaintiff needing to bear the cost of safely keeping or disposing of the receipt to avoid someone obtaining the credit card number. Continue Reading Standing Considerations in Federal Data Breach Litigation