We have heard the California Consumer Privacy Act of 2018 (CCPA) called many things since its enactment on June 28, 2018. Our experience to date has confirmed the compliance challenge ahead for organizations that engage with the residents of the world’s fifth-largest economy. We will explore the ramifications for businesses of this seminal legislation in this multi-part series, “The Challenge Ahead” authored by members of Hogan Lovells’ CCPA team. In this first installment, we describe recent activity to enact so-called “technical” amendments to the CCPA.
On July 24, members of the Hogan Lovells global privacy team presented a webinar on the new California Consumer Privacy Act, a ground-breaking new data privacy law that some are calling the United States’ answer to the European Union’s General Data Protection Regulation. In this post, we provide links to the recorded webinar and slide deck.
California continues to be a first mover in privacy in the United States, enacting the US’s toughest and most comprehensive privacy legislation on Thursday, June 28, 2018. Unlike existing state and federal privacy legislation that has generally focused on specific sectors or privacy issues, the California Consumer Privacy Act of 2018 (AB 375), applies broadly to businesses that collect personal information about California consumers and aims to create significant new consumer privacy rights. In doing so, it creates significant new obligations for businesses.
In a landmark 5-4 decision, the United States Supreme Court held that the government conducts a search under the Fourth Amendment and therefore, absent exigent circumstances, needs a warrant supported by probable cause when obtaining cell-site location information (i.e., records of the cell towers to which mobile devices connect). The majority reached that conclusion based on the determination that such location records are subject to a reasonable expectation of privacy that continues to apply even though the location records are disclosed to the cell phone user’s wireless carrier, a third party.
On June 22, California lawmakers announced Assembly Bill 375, a broad-based consumer privacy bill that is intended to serve as an alternative to the California Consumer Privacy Act, a far-reaching consumer privacy initiative that is on track to be on the California ballot this November. The chief sponsor of the CCPA, Alastair Mactaggart, has stated that he will withdraw the initiative from the ballot if AB 375 is passed this week.
The European Union’s General Data Protection Regulation is driving a regulatory wave to safeguard data against cyber attacks and privacy breaches, and the automobile industry will feel the impact. Autonomous and connected vehicles are essentially “rolling smart devices,” and as they enter the mainstream in the EU and United States, automakers are increasingly reliant on data for safe, efficient vehicle operations. But security and privacy concerns and penalties for regulatory noncompliance demand that manufacturers review their policies — and perspectives — on data storage and use. In this podcast, we will discuss how cybersecurity, data privacy, and ownership concerns are influencing the development of connected and autonomous vehicles.
Now that the dust has settled from the D.C. Circuit’s highly anticipated Telephone Consumer Protection Act decision in ACA International, et al, v. FCC, the Federal Communications Commission is going back to the drawing board in a new Public Notice that seeks comment on foundational TCPA issues.
The FTC has approved the first-ever petition to reopen and modify a privacy-related consent order. The petition, filed by Sears Holdings Management Corporation, sought to amend the terms of Sears’ 2009 consent order, which settled allegations that Sears did not adequately disclose the extent to which desktop software it distributed collected information from consumers. After reviewing Sears’ petition and public comments, the Commission agreed with Sears that, as a result of changes in the mobile application marketplace, the Order’s requirements as applied to Sears’ mobile apps were “burdensome and counterproductive, both for consumers and Sears.” Hogan Lovells Partner Michelle Kisloff, Senior Associate Paul Otto, and Associate Joe Vladeck represented Sears in its petition.
Nothing challenges the effectiveness of data protection law like technological innovation. You think you have cracked a technology neutral framework and then along comes the next evolutionary step in the chain to rock the boat. It happened with the cloud. It happened with social media, with mobile, with online behavioural targeting and with the Internet of Things. And from the combination of all of that, artificial intelligence is emerging as the new testing ground. 21st century artificial intelligence relies on machine learning, and machine learning relies on…? You guessed it: Data. Artificial intelligence is essentially about problem solving and for that we need data, as much data as possible. Against this background, data privacy and cybersecurity legal frameworks around the world are attempting to shape the use of that data in a way that achieves the best of all worlds: progress and protection for individuals. Is that realistically achievable?
In the same week that the automotive industry gathers in Washington, D.C. for the 2018 Washington Auto Show, a cross-section of automotive stakeholders, government officials, and consumer and privacy advocates came together at Hogan Lovells’ Washington office to discuss privacy issues facing connected vehicles. The half-day conference, co-hosted by Hogan Lovells and the Future of Privacy Forum, convened on January 23, with the theme of “Privacy and the Connected Vehicle: Navigating the Road Ahead.” Panels focused on the privacy landscape surrounding automobiles and connectivity generally, regulatory developments and areas of government interest, and the effect of emerging technologies on business models and privacy practices in the automotive space. With lively discussion throughout and a wide array of perspectives, several key themes emerged.
Growing evidence suggests that existing Telephone Consumer Protection Act compliance challenges, and the current TCPA litigation landscape, are increasingly a threat to many U.S. companies – particularly small businesses that have fewer resources and could face financial ruin if targeted by a class action lawsuit. To help address this issue and support the U.S. economy, Congress and the Federal Communications Commission should revise the current TCPA framework and facilitate reasonable, practical compliance approaches for companies attempting in good faith to communicate with customers.
Last week, the U.S. District Court for the Northern District of California dismissed three of six claims the Federal Trade Commission asserted against D-Link Systems related to its sale of routers and IP cameras and related software and services. The decision has implications for the pleading standards courts use to evaluate such claims at the motion to dismiss stage and for the FTC’s assertion of unfairness claims based on alleged likelihood of substantial consumer harm.
The six-year fight over the type of harm a plaintiff must allege to satisfy the “injury in fact” requirement for lawsuits alleging false reporting of credit information took its latest turn this week. On Tuesday, August 15, 2017, the U.S. Court of Appeals for the Ninth Circuit, on remand from the United States Supreme Court, issued its opinion- hyperlink to the opinion] in Spokeo, Inc. v. Robins, a highly-watched case challenging whether a plaintiff can satisfy Article III standing based solely on a technical violation of the Fair Credit Reporting Act. Plaintiff Thomas Robins brought a putative class action for willful violations of the FCRA against Spokeo, Inc., a company that generates profiles about people based on publicly available data. Among other things, Robins averred that Spokeo published an allegedly inaccurate profile about him on its website and therefore harmed his employment prospects at a time when he was out of work. The Ninth Circuit’s three-judge panel held that the publication of materially inaccurate information about Robins sufficed as concrete injury for purposes of Article III standing, even without specific allegations of tangible harm from that publication.
The Federal Trade Commission released an updated guidance document for complying with the Children’s Online Privacy Protection Act. The revised guidance, released on June 21, 2017, explicitly identifies connected toys and other Internet of Things devices as being covered under COPPA and adds clarity to web operators’ responsibility for the activities of third parties, such as ad networks and plug-ins, that collect personal information protected under COPPA. It also includes recently approved methods for obtaining verifiable parental consent.
In May, a Florida state court dismissed a plaintiff’s claim that the terms of service for popular mobile game Pokémon GO violated Florida’s Deceptive and Unfair Trade Practices Act. The case illustrates how establishing injury continues to be a key hurdle for plaintiffs in litigation involving online services, and shows that a well-framed choice of law provision can help protect providers of online services.
Earlier this month, the Government Accountability Office released a technology assessment of the Internet of Things for Congressional members of the IoT Caucus. The GAO report offers an introduction to IoT; reviews the many uses and their associated benefits that connected devices may bring to consumers, industry, and the public sector; and highlights the potential implications of the use of IoT, including information security challenges, privacy challenges, and government oversight. The report also identifies areas of apparent consensus among experts regarding the challenges posed by IoT, though the appropriate responses are disputed. Accordingly, the report may act as a foundation for future policymaker discussions about regulating IoT.
Join us for a discussion of hot topics in Federal Trade Commission (FTC) and state consumer protection enforcement. Partners Bret Cohen, Meghan Rissmiller, and Steven Steinborn will cover recent developments and enforcement trends in data privacy/security, advertising/endorsements, and claim substantiation in practice before the FTC and state authorities.
Major companies, health care organizations and government agencies are facing a wave of cyberattacks involving ransomware that takes control of computers and denies access until a ransom is paid. These attacks are occurring on a global scale and in some cases are having a significant impact on business and healthcare operations. The cyberattack has disrupted targets throughout the world from Britain’s National Health Service to US Fortune 500 companies, the Russian Foreign Ministry, and universities in China.
On 27 April 2017 the German Parliament passed an entirely new Federal Data Protection Act. The new BDSG replaces the old BDSG, which has been in force for the last 40 years. The new BDSG shall adapt the German law to the provisions of the EU General Data Protection Regulation. The new BDSG will now form the basis for the adaption of German acts to the GDPR. Further acts concerning special processing situations like social security data protection are likely to follow.
The Federal Trade Commission and National Highway Traffic Safety Administration are co-hosting a workshop on June 28, 2017, to explore the privacy and security issues raised by automated and connected vehicle technologies. The agencies are looking to explore the types of data such technologies collect, store, transmit, and share; the potential benefits and challenges posed by the technologies; the privacy and security practices of vehicle manufacturers; the roles that federal agencies should play in regulating privacy and security issues; and how self-regulatory standards apply to connected vehicle privacy and security issues. In advance of the workshop, the FTC and NHTSA are seeking public comment on privacy and security issues. Comments may be submitted through April 20, 2017.
As previously reported, on Thursday, March 9th, the Federal Trade Commission (FTC) hosted a forum on the consumer implications of recent developments in artificial intelligence (AI) and blockchain technologies. This is the second of two entries on the March 9th FinTech Forum and focuses on the discussions surrounding blockchain technologies, in which panelists reflected on the nascent stage of the technology, industry representatives expressed confusion over the applicability of current regulation, and regulators expressed a lack of clarity over jurisdictional questions.
On Thursday, March 9th, the Federal Trade Commission (FTC) hosted a forum on the consumer implications of recent developments in artificial intelligence (AI) and blockchain technologies. The FTC acknowledged the benefits of technological developments in AI and blockchain technologies, but stressed that advancements in these technologies must be coupled with an awareness of and active engagement in identifying and minimizing associated risks. This blog post focuses on the AI discussion, which addressed how the values of privacy, autonomy, and fairness are affected by the advent of AI systems as well as how to ensure safety and security in the development and deployment of individual and connected AI systems.
The Federal Communications Commission’s Media Relations Office has released a statement announcing Chairman Pai’s intention to stay a data security rule adopted by the Commission late last year in its Broadband Privacy Order. Absent a stay, the rule is set to go into effect on March 2.
On January 12, 2017, prior to the new administration taking power, the National Telecommunications and Information Administration within the Department of Commerce released a Green Paper on “Fostering the Advancement of the Internet of Things,” which assesses the technological and policy landscape of the Internet of Things. The Green Paper is expansive in scope, reflecting the broad range of issues raised in comments submitted by stakeholders in the private sector, academia, government, and civil society following NTIA’s April 2016 request for public comment. The Green Paper identifies key issues, and provides recommendations and assessments on the potential benefits and risks that IoT portends. The NTIA identifies cybersecurity, privacy and cross-border data flows as the most significant policy issues. It also proposes four principles for future policy engagement in which the Department would play a central role in creating conditions that would foster IoT growth. The agency also requested additional comments on the issues raised by the Green Paper.