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Category Archives: Consumer Privacy

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Posted in Consumer Privacy

What Will be the Impact of the New EU Data Protection Regulation on the UK’s Freedom of Information Act?

Undoubtedly one of the more mind-bending exemptions to apply under the Freedom of Information Act 2000 (FOIA) is the exemption for personal information (s.40) (although sections 30 and 36 are also up there!). This is partly due to s. 40’s close link with the Data Protection Act 1998 (DPA). Not one to hog the limelight, the DPA has typically been cited in past litigation as a secondary or even tertiary issue to the main action when there is a claim for breach of confidence or breach of privacy. This led to a scarcity of judicial rulings on the DPA prior to the FOIA. However, in the Tribunal and higher court decisions flowing from the FOIA, certain aspects of the DPA have frequently been examined when public authorities seek to rely on the s. 40 exemption. Consequently there have been a number of rulings on the scope of personal data and on the ‘legitimate interests’ ground as a legal basis for disclosing such information. These rulings have been based on the DPA which itself implements the EU Data Protection Directive 95/46/EC. But the Directive is due to be replaced by an EU Regulation in the next few years. What will this mean for how the s. 40 exemption under FOIA is interpreted?

Posted in Consumer Privacy

Privacy in the Machine World

In 2014, the Internet of Things and big data were two of the hottest buzz words among privacy professionals. This year, “robotics” may be one of our oft-spoken words. In this post, we look at two of the challenges that robotics brings. One challenge facing privacy professionals is how to address potential privacy issues as autonomous robots powered by big data and network connectivity are brought into our personal spaces. Another, often equally challenging issue, is how to implement robotics in a legal and regulatory landscape that was designed, in many cases, for the relatively slow-paced technologies of the Internet where the chirps of dial-up modems broadcast our connections.

Posted in Consumer Privacy

White House Releases Memorandum on Safeguarding Privacy, Civil Rights, and Civil Liberties in the Domestic Use of Unmanned Aircraft Systems

On February 15, the White House issued a Presidential Memorandum on safeguarding privacy, civil rights, and civil liberties in the domestic use of Unmanned Aircraft Systems. The memorandum launches a multi-stakeholder process to establish voluntary baseline privacy standards for commercial use of UAS and establishes principles that will govern the federal government’s use of UAS.

Posted in Consumer Privacy, International/EU Privacy

Sweep Reveals Scale of Cookie Consent Non-Compliance

The results of an international investigation into the cookie consent practices of 478 websites frequently visited by European citizens have now been published. The outcome is perhaps unsurprising: cookies are used en masse by websites operating in Europe, their expiry dates are often excessive, and crucially, not enough is being done to provide notice and obtain valid consent for the use of cookies and other device identifying technologies. The specific websites that were investigated are not identified (as yet), however those selected were amongst the 250 most frequently visited by individuals within each member state taking part in the investigation (as ranked by Alexa.com). Sites in the media, e-commerce and public sectors were targeted in particular because they are perceived by the EU data protection regulators to present the greatest data protection and privacy risks to EU citizens.

Posted in Consumer Privacy

China Clarifies Requirements for Companies Regarding Consumers’ Personal Information

A new law in China taking affect in March of this year will provide businesses with a clearer understanding of what types of information are protected as consumer personal information in China. This new definition will clarify companies’ obligations with respect to the use and processing of that information under other Chinese laws and regulations. A failure by businesses to recognise these new requirements can lead to onerous penalties including fines.

Posted in Consumer Privacy

FTC Denies Proposed Verifiable Consent Method Under COPPA

The FTC denied AgeCheq’s application for approval of a proposed verifiable parental consent (VPC) method under COPPA. Under COPPA, operators of online services that are directed to children are required, except for limited situations, to obtain VPC prior to collecting personal information from children. Specifically, COPPA requires operators to obtain verifiable parental consent, taking into consideration available technology and any method must be reasonable calculated in light of available technology, to ensure that the person providing consent is the child’s parent. COPPA further provides a non-exhaustive list of acceptable methods that include (i) obtaining a form signed by a parent; (ii) receiving a credit/debit card or certain other online payment mechanisms if associated with a monetary transaction; (iii) a parent calling a toll-free number; (iv) parental consent by videoconference; (v) verifying parental identity against a form of government-issued identification; and (vi) traditional “email plus” where children’s personal information will be used for internal purposes only.

Posted in Consumer Privacy

White House Releases Report on “Big Data and Differential Pricing”

Today, the White House released a report titled, “Big Data and Differential Pricing.” The report examines the concern that companies will use the consumer information they collect to more effectively charge different prices to different customers. While it finds that there are substantive concerns about differential pricing in the era of Big Data, it concludes that “many of [these concerns] can be addressed by enforcing existing antidiscrimination, privacy, and consumer protection laws.” The report also calls for increased transparency into how companies use and trade their data as a way to promote competition and better inform consumer choice.

Posted in Consumer Privacy

Internet of Things Report Released by the FTC

The Federal Trade Commission yesterday released its staff report on the Internet of Things. The report summarizes the FTC’s November 2013 workshop, “The Internet of Things: Privacy and Security in a Connected World,” and provides FTC staff recommendations in this area. Notably, the report also describes best practices for data security and data minimization, and reaffirms the FTC’s commitment to notice and choice principles. We provide below an overview of the staff’s recommendations and the concurring and dissenting views of Commissioners Ohlhausen and Wright.

Posted in Consumer Privacy

The 2015 State of the Union Addresses Cybersecurity, Data Security, and Privacy

Tonight, the President’s State of the Union address covered, as he put it, “the tasks that lie ahead.” Among the policy initiatives that he proposed, he “urge[d]…Congress to finally pass the legislation we need to better meet the evolving threat of cyber-attacks, combat identity theft, and protect our children’s information.” What he was referring to is a set of cybersecurity and info sharing initiatives and privacy and data security proposals that the White House started rolling out last week. The President also alluded to a report to be released next month that will address the Administration’s actions to curtail domestic surveillance programs. We provide here excerpts of the President’s address that discuss cybersecurity, data security, and privacy.

Posted in Consumer Privacy, Cybersecurity & Data Breaches

The White House Announces a Cybersecurity Summit and Information Sharing Proposals

President Obama today addressed cybersecurity for the second time in as many days in a speech at the Department of Homeland Security’s National Cybersecurity and Communications Integration Center (NCCIC). Early this morning, the White House announced a February 13 Summit on Cybersecurity and Consumer Protection and released further details on several initiatives to promote cybersecurity information sharing between the private sector and government. The President then convened a meeting with congressional leaders in which he discussed cybersecurity issues. Speaking about his cooperation with House Speaker John Boehner (R-OH) and Senate Majority Leader Mitch McConnell (R-KY), the President noted “I think we agreed that this is an area where we can work hard together, get some legislation done and make sure that we are much more effective in protecting the American people from these kinds of cyber attacks.” Today’s developments follow the President’s address to the Federal Trade Commission (FTC) yesterday, in which he announced a legislative proposal on national data breach reporting and emphasized the importance of student and consumer privacy. Together, these events provide a preview of initiatives that the President is expected to highlight during his State of the Union address on January 20.

Posted in Consumer Privacy, Cybersecurity & Data Breaches

The White House Pushes Privacy and Data Security in Advance of the State of the Union

Today, the President spoke at the Federal Trade Commission on the importance of preventing identity theft and improving consumer and student privacy. Today’s speech has been billed as a first look at a broader White House policy initiative on cybersecurity, identity theft, and privacy that will continue this week and will be included in the President’s State of the Union address to Congress on January 20th. Tomorrow, the President will highlight the work of the Department of Homeland Security and the importance of public-private collaboration on cyber threats and is expected to release policy proposals over the coming weeks.

Posted in Consumer Privacy

FTC Complaint Offers Lessons for Data Broker Industry

Two weeks ago, the FTC filed a district court complaint in Arizona against an operation that included three corporations and one individual. While touted as a case against data brokers (“FTC Charges Data Broker with Facilitating the Theft of Millions of Dollars from Consumers’ Accounts”), the single count unfair trade practices action really involves fraudulent and egregious conduct that took advantage of a particularly vulnerable population, but it nevertheless provides a few lessons for the data broker industry generally.

Posted in Consumer Privacy

FTC Settles Claims Against Medical Billing Provider for Inadequate Data Collection Disclosures

On December 3, 2014, the Federal Trade Commission announced two administrative settlements with a medical Billing Provider, PaymentsMD, LLC, and its former CEO, Michael Hughes, for allegedly misleading thousands of consumers who signed up for an online billing portal by failing to adequately disclose that the company would seek detailed medical information from pharmacies, medical labs, and insurance companies. The FTC’s enforcement of Section 5 does not extend to businesses or organizations covered by the Health Insurance Portability and Accountability Act.

Posted in Consumer Privacy

Automakers Come Together to Adopt Privacy Commitments for Connected Cars with Hogan Lovells’ Assistance

The Alliance of Automobile Manufacturers and the Association of Global Automakers, the two leading trade associations for vehicle manufacturers, today unveiled a set of baseline protections for consumer’s personal information in the era of connected cars. The Privacy Principles for Vehicle Technologies and Services commit participating automakers to take important steps to protect the personal information retrieved from vehicles. Hogan Lovells was engaged by the Alliance to lead drafting of the Principles and a team led by Chris Wolf and including Tim Tobin and James Denvil worked on the project.

Posted in Consumer Privacy

FTC Sends Dozens of Warning Letters to Companies Over Advertising Disclosures

It should be standard practice for companies to review the transparency of material disclaimers and disclosures in their advertising before every ad campaign. However, some companies tend to pack material disclosures into fine print or otherwise minimize their significance. The Federal Trade Commission recently signaled to companies that it is paying attention to print and television ad disclosures. This follows the FTC’s renewed attention to online advertising as addressed last year in its updated .com Disclosures guidance for digital advertising

Posted in Consumer Privacy

FCC Announces $10 Million Proposed Forfeiture Over Data Security Practices

The Federal Communications Commission recently issued a Notice of Apparent Liability for Forfeiture proposing a $10 million penalty against TerraCom, Inc. and YourTel America, Inc. (collectively, the “companies”) for allegedly violating laws protecting consumers’ personal information. Specifically, the FCC alleged that the companies placed the personal data of up to 300,000 consumers at risk by storing Social Security numbers, names, addresses, driver’s licenses, and other proprietary information on unprotected Internet servers that “anyone in the world could access.” The decision is the FCC’s first case involving data security. It is also informative as to the FCC’s current and evolving expectations with regard to carriers’ duties to protect sensitive consumer information, and it underscores the need for organizations in the communications sector to keep a close eye on both FCC and Federal Trade Commission data privacy and security enforcement activity.

Posted in Consumer Privacy

FTC Reminds Broadband Providers of their Data Privacy and Security Obligations

The Federal Trade Commission recently submitted comments to the Federal Communications Commission in which it reminded broadband Internet service providers that they are subject to several data privacy and security laws enforced by the FTC. The FTC’s comments underscore why broadband providers – as well as their vendors and business partners – must keep a close watch on both FCC and FTC developments in the privacy and security space.

Posted in Consumer Privacy

Hogan Lovells Article Anticipates Busy FTC Enforcement Season

Writing for Expert Guide: Competition and Antitrust Law, Hogan Lovells attorneys Dean Hansell and Charles Dickinson discuss the FTC’s current consumer protection initiatives and identify emerging areas of focus of the agency’s regulatory initiatives. Hansell and Dickinson also expect that the FTC may be “more willing to push enforcement initiatives” with its current roster of Commissioners and offer that “companies of all sizes would be well-served to understand how their businesses might fall under the FTC’s radar.”

Posted in Consumer Privacy

Destroy Securely: Delaware Adopts New Data Destruction Law

Delaware recently adopted a new law that will add requirements related to the destruction of records containing “personal identifying information.” With that law, Delaware joined a number of other states that place restrictions on the ways in which entities destroy or dispose of personal information. The Delaware law will become effective January 1, 2015.

Posted in Consumer Privacy

Hogan Lovells Partner Engages in NY Times on Big Data and Inequality

Writing for the New York Times “Room for Debate,” Christopher Wolf, Hogan Lovells partner and co-director of the firm’s global Privacy and Information Management group, focuses on the potential positive uses for Big Data, observing that “Big Data can also advance the interests of minorities and actually fight discrimination.” Wolf cites examples such as Entelo Diversity, an employee recruiting platform that promises to diversify workplaces by using powerful algorithms to analyze public data and find qualified candidates who are also members of underrepresented classes.

Posted in Consumer Privacy

The Hidden Mini-Dissents in the Data Broker Report of Federal Trade Commissioner Wright

On May 27, the Federal Trade Commission issued a report on the data broker industry that found data brokers operate with a ”fundamental lack of transparency.” The commission unanimously recommended that Congress consider enacting legislation to make data broker practices more visible to consumers and to give consumers greater control over the immense amounts of personal information about them that are collected and shared by data brokers. Not well-recognized at the time were a number of concerns, mini-dissents if you will, expressed by Federal Trade Commissioner Josh Wright. I recently asked Commissioner Wright some questions about his “dissent by footnotes.”