Privacy
By Mike Hintze and Felicity Slater
On November 7, 2024, the Michigan legislature introduced Senate Bill 1082 / House Bill 6077, the Reproductive Data Privacy Act (the “RDPA” or the “act”). The act was introduced in the aftermath of the 2024 election cycle as Michigan Democrats brace to lose control of the House in 2025. At a hearing in the Senate Committee on Housing and Human Services, lawmakers backing the RDPA expressed a hope to pass the act before the year’s end.
Read MoreBy Emily Litka
In September 2024, California Governor Gavin Newsome signed a number of new generative AI (“genAI”) bills into law. These laws address risks associated with deepfakes, training dataset transparency, use of genAI in healthcare settings, privacy, and AI literacy in schools. California is the first US state to enact such sweeping genAI regulations.
Read MoreBy Cameron Cantrell and Sam Castic
This week the California Attorney General and Los Angeles City Attorney announced a proposed $500,000 settlement to a complaint against mobile app game developer and publisher Tilting Point Media LLC for alleged violations of the California Consumer Privacy Act (“CCPA”), unfair competition law, and federal Children’s Online Privacy Protection Act (“COPPA”). This post summarizes the alleged practices that led to the enforcement action, how it fits with regulatory enforcement priorities including on data sales via tracking technologies and children’s privacy, and steps for companies to consider to reduce risk.
Read MoreOn September 15, 2023, the California Legislature passed Senate Bill 362, known as the Delete Act, which amends the California data broker law. The bill now awaits a signature from the governor. If signed, certain aspects of the law will go into effect as soon as January 31, 2024.
Read MoreBy Leslie Veloz
Florida’s SB 262 was signed into law Tuesday, June 6, 2023, making it the 10th comprehensive state privacy law enacted in the United States. SB 262 consists of several parts.
Read MoreBy Mike Hintze
When it comes into effect, the Washington My Health My Data Act (MHMDA or the Act) will impose new privacy notice obligations on regulated entities. The Act requires specific privacy disclosures relating to data that meets the very broad definition of “consumer health data.” It appears to require regulated entities to draft, post, link to, and maintain a separate “Consumer Health Data Privacy Policy” that will be largely, but not entirely, redundant of their existing privacy statement(s).
Because the Consumer Health Data Privacy Policy will be publicly available and easily scrutinized by plaintiffs’ lawyers and the Washington Attorney General, mistakes implementing this obligation are likely to be a key source of costly and disruptive litigation. Regulated entities will therefore need to take great care in meeting the Act’s notice requirements which are, in some respects, unusual and unexpected.
Read MoreBy Mike Hintze & Jevan Hutson
Biometric data is among the broad range of “consumer health data” regulated by the Washington My Health My Data Act (MHMDA). In light of MHMDA’s broad definition of biometric data, GDPR-level consent requirements, new obligations, and private right of action, the Act dramatically changes and complicates the regulation of biometric data in Washington state and is poised to become the most disruptive change in U.S. biometric privacy law since Illinois’ BIPA.
Read MoreBy Mike Hintze
The Washington My Health My Data Act provides consumers with several rights, including a right of access, a right to delete, a right to withdraw consent, and a right to not be discriminated against for exercising their rights. While each of these rights can be found in other privacy laws and so, at a high level, do not seem particularly surprising here, the ways they are included in this Act are unique, create uncertainty, and in some cases go well beyond what exists in any other privacy law. As a result, regulated entities seeking to comply with them will face difficult, costly, and disruptive implementation challenges (and with respect to the deletion right, the potential for catch-22 situations where full legal compliance may be impossible). These challenges, along with the Act’s private right of action, set up a significant risk of expensive legal claims and litigation.
Read MoreBy Mike Hintze
When it comes into effect, the Washington My Health My Data Act will impose strict consent requirements on a wide range of common data collection and processing activities. In essence, the Act requires affirmative (opt-in) consent for any collection, use, disclosure, or other processing of consumer health data beyond what is necessary to provide a consumer-requested product or service. For anything that could be considered a data “sale,” the authorization requirements are so onerous and risky that they, in effect, create a prohibition.
Read MoreBy Mike Hintze
Yesterday the amended Senate version of the Washington My Health My Data Act was approved by the Washington State Legislature. Now that it is a near certainty the Act will become law in its current form, entities subject to the Act need to start preparing to comply. The key factor in determining deadlines for having compliance measures in place is the effective date of the Act. The Act purports to come into effect on March 31, 2024 (and for small businesses, three months later on June 30, 2024). However, contrary to stated legislative intent, and due to what one can only conclude is, at least in part, a drafting error, some of the key substantive provisions of the Act may come into effect much sooner than expected - as soon as July 2023.
Read MoreBy Mike Hintze
The Washington My Health My Data Act applies to “regulated entities” that collect or process “consumer health information” from “consumers.” Part two of this series addressed the definition of “consumer health data” and how that definition results in a scope of applicability that is far beyond what we might typically think of as sensitive health data. But the other two above-quoted defined terms – “regulated entity” and “consumer” also result in a very broad (and in some ways surprising) scope and impact.
Read MoreBy Mike Hintze
The substantive requirements of the Washington My Health My Data Act apply to collection, use, and disclosure of “consumer health data.” While there are a few important exclusions, the stunning breath of that term's definition, means that it will be difficult to safely conclude that any category of personal data is out of scope of the Act. As a result, it is inaccurate to refer to the Washington My Health My Data Act as a “health data privacy law.” On the contrary, it is, in effect, a generally-applicable privacy law.
Read MoreBy Mike Hintze
The Washington My Health My Data Act will become the most consequential privacy legislation enacted in 2023. The sweeping scope and extreme substantive obligations, combined with vague terms and with a full private right of action, make this Act extraordinarily challenging and risky for entities seeking to comply with its requirements.
Read MoreBy Alex Schlight and Leslie Veloz
Just a year after passing a comprehensive privacy law, Utah becomes the first state in the United States to pass a law that significantly regulates minors' access to, and use of, social media sites. The law is much broader than kids’ privacy laws like the federal Children’s Online Privacy Protection Act (COPPA), or California’s Age-Appropriate Design Code Act passed last year in that it significantly limits when and how minors under the age of 18 can use social media, gives parent’s broad rights to consent to and access accounts, and places extensive restrictions on social media company activities, including, prohibiting the display of ads to minors, targeting or suggesting groups, services, products, and posts and use of addictive design.
Read MoreSenate File 262, a comprehensive privacy law, was signed by the Governor of Iowa on March 28, 2023, thereby becoming law. As a result, Iowa has officially become the sixth state with a comprehensive privacy law, joining California, Colorado, Connecticut, Utah, and Virginia.
Read MoreBy Mike Hintze
In recent weeks, ChatGPT has been the subject of much discussion. A wide range of issues and concerns have been raised, and a number of those relate to privacy and data protection. Here are a few of my thoughts on what privacy and data protection professionals should consider when reviewing uses of ChatGPT (and similar generative AI services).
Read MoreOn November 10, 2022, a plaintiff filed a class action lawsuit against Apple, Inc., citing a recent Gizmodo article reporting that security researchers had found that Apple apps, such as the App Store, collected device and usage data from iPhones regardless of the privacy settings users enabled. The complaint alleges that Apple collects personal information and the content of communications in its apps, and tracks users across apps even when users disabled "Allow Apps to Request to Track" and "Share iPhone & Watch Analytics" settings in their phones.
Read MoreOn November 11, 2022, Google entered into a $391.5 million settlement with 40 state attorneys general—the largest ever attorney-general led consumer privacy settlement. The investigation, led by attorneys general in Oregon and Nevada, began after a 2018 Associated Press article reported that Google tracks consumers’ location, even when the settings, including on Google’s Android operating systems and certain Google iPhone apps, appear to prevent such tracking.
Read MoreBy Sheila Sokolowski and Charlotte Lunday
Following up on its warning that it would be cracking down on Education Technology companies, the Federal Trade Commission (FTC) issued a proposed order against Chegg Inc., an online tutoring and homework aid service for high school college students, for lax security practices. According to its complaint, the FTC alleged that Chegg violated Section 5 of the FTC Act by failing to implement reasonable security measures to protect student and employee data and deceptively claiming in its privacy notice that it engaged in commercially reasonable security measures to protect users’ personal data.
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