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The Privacy and Security Law Blog The Privacy and Security Law Blog

Daily analysis of data security and privacy issues.

Post Frequency: 1.1/day

Last Entry: April 22, 2014 at 16:11:34

Recent Entries: 233

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FTC Continues Its Pursuit of "Robocalling" Platforms

Posted on April 22, 2014
With its latest settlement, the Federal Trade Commission shows that its prior targeting of prerecorded voice dialing platforms, as opposed to those who use them to place 'robocalls,' was no one-off initiative, and that it has teeth.  On April 17 the FTC announced it settled a two-year long action against Joseph Turpel, a marketer who the FTC alleged assisted telemarking firms in conducting illegal prerecorded sales calls, concealing Caller ID information, and contacting numbers on the National Do Not Call Registry...


FCC Reinforces that Those Who Knowingly Release Cell Numbers Grant Permission to be Called Under the TCPA--But Companies May Still Be Required to be Sure They Get the Number Directly from the Person to be Called

Posted on April 18, 2014
By Ronald G. London We recently reported on two FCC declaratory rulings interpreting the Telephone Consumer Protection Act (TCPA), in the context of social-network text messages and package-delivery calls, that included broad, business-friendly statements that should help clarify TCPA rules for prior express consent to autodial, prerecorded-call and text cell phones...


Acquisitions Don't Nullify Prior Privacy Promises--FTC's Letter to Facebook & WhatsApp Gives Caution to All to Honor Privacy Protections in Mergers

Posted on April 17, 2014
Social networking site Facebook announced in February its plans to acquire WhatsApp—a 'rapidly growing cross-platform mobile messaging company'—for the princely sum of $19 billion. While Facebook and WhatsApp are looking forward to a bright future together, the Federal Trade Commission is keeping a watchful eye on both companies regarding the privacy protections that WhatsApp promised its users in the past...


Part III: Has Congress Spoken and Does It Really Matter? The Wyndham Worldwide Case and the Expanding Power of the FTC to Police Data Security

Posted on April 17, 2014
By Lance Koonce and Christin McMeley   In the first and second parts of this series, we provided a summary of the District Court of New Jersey's recent decision in FTC v. Wyndham Worldwide Corp. and then focused on whether the FTC has given 'fair notice' to companies of the data security standards to which they will be held accountable...


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New Advisory on Joint FTC/DOJ Statement Encouraging Private Sharing of Cybersecurity Information

Posted on April 16, 2014
Be sure to check out our new advisory examining the joint policy statement that the Federal Trade Commission and Department of Justice issued to facilitate companies' sharing of cybersecurity information.  The policy statement seeks to reduce uncertainty under antitrust laws for companies wishing to share strategies for preventing and combating cyber-attacks, by stating the agencies' analytical framework for such information sharing under their longstanding Antitrust Guidelines for Collaborations Among Competitors...


OCR Releases Information on What Phase 2 HIPAA Audits Will Look Like

Posted on April 11, 2014
By Adam H. Greene The new audits will look little like the old ones, with OCR conducting the audits itself and focusing on more high-risk areas, abandoning on-site visits, and potentially integrating audits into OCR's formal enforcement program.  To prepare, we suggest that covered entities and business associates consider the following steps:   CONTINUE READING ...


Part II: Fair Notice or No Notice? The Wyndham Worldwide Case and the Expanding Power of the FTC to Police Data Security

Posted on April 11, 2014
By Lance Koonce and Christin McMeley   In our first blog in this series, we provided a summary of the District Court of New Jersey's recent decision in FTC v. Wyndham Worldwide Corp., in which Judge Salas confirmed the FTC's authority to bring enforcement actions to redress deficient corporate data security practices, even in the absence of formal rules or regulations setting forth what practices are unreasonable...


EU High Court Overturns Telecom Data Retention Requirements

Posted on April 09, 2014
By Bob Stankey and Brad Guyton   The Court of Justice of the European Union, the highest court in the EU, declared the EU's 2006 Data Retention Directive invalid in a judgment issued on April 8, 2014. The directive, which has been implemented via national legislation by most EU member states, requires telecommunications and Internet providers to collect and retain traffic and location data regarding users' calls and Internet activity for up to two years in order to assist law enforcement in the prevention of 'serious crime' (such as organized crime and terrorism)...


Part I: The Elephant Emerges From the Mousehole: The Wyndham Worldwide Case and the Expanding Power of the FTC to Police Data Security

Posted on April 09, 2014
By Lance Koonce and Christin McMeley In support of its motion to dismiss the FTC's complaint alleging data security deficiencies in violation of Section 5 of the FTC Act, Wyndham Worldwide Corporation cited the Supreme Court's opinion in Whitman v. American Trucking Ass'ns, which cautioned against agencies utilizing vague statutory provisions to alter 'fundamental details of a regulatory scheme', and colorfully stating that '[Congress] does not, one might say, hide elephants in mouseholes...


Social Networking for Jerks: FTC Goes After Site for Scraping Facebook Content

Posted on April 07, 2014
By Lance Koonce   In the 1979 Carl Reiner film The Jerk, a new phonebook is delivered and Steve Martin, playing the title character, rejoices that 'I'm somebody now! Millions of people look at this book every day! This is the kind of spontaneous publicity - your name in print - that makes people...


Updated Location Privacy Protection Act Introduced

Posted on April 03, 2014
By Bradley W. Guyton   On March 27, 2014, Senator Al Franken (D.-Minn.) introduced the Location Privacy Protection Act of 2014, a bill that addresses so-called 'stalking apps.' While Senator Franken's intent is to target those apps designed to maliciously track individuals without their knowledge, the legislation (an updated version of a bill we discussed three years ago) would require all companies to get users' permission before collecting and sharing location data from smartphones, tablets, and in-car navigation devices...


Google "Street View" case may be headed for SCOTUS Review

Posted on April 02, 2014
By John D. Seiver Google held true to its promise to seek SCOTUS review of the Ninth Circuit's interpretation of the term 'radio communications' in the Wiretap Act when it filed its Petition for Certiorari last week. Google had argued in the Ninth Circuit that intercepting unencrypted Wi-Fi transmissions is within a specific exemption, but the Ninth Circuit (initially and on rehearing) held instead that unencrypted Wi-Fi is protected from interception by the Wiretap Act...


Caution: Your Company's Biggest Privacy Threat is...the FTC

Posted on April 01, 2014
By Sanjay Nangia Technology companies—from startups to megacorporations—should not overlook an old privacy foe: the Federal Trade Commission (FTC). Since its inception in 2002, the FTC's data security program has significantly picked up steam...


New Advisory on FCC TCPA Declaratory Rulings

Posted on March 31, 2014
Be sure to check out our recent advisory discussing two new Federal Communications Commission (FCC) declaratory rulings that involve communicating with cell phones via autodialed calls and texts, and by prerecorded call.  The rulings respectively allow the consent necessary for such calls to come from intermediaries for text-based social networks, and for package-delivery services to rely on assurances by package sender that addressees consent to autodialed/prerecorded calls/texts with delivery information...


Eleventh Circuit Adopts Seventh Circuit Jurisprudence Imposing Strict TCPA Liability on Autodialed and Prerecorded Calls and Texts

Posted on March 31, 2014
By Ronald G. London The United States Court of Appeals for the Eleventh Circuit issued a decision in Osorio v. State Farm Bank aligning that court with the Seventh Circuit on how Telephone Consumer Protection Act (TCPA) restrictions on automated and/or prerecorded calls and texts to cell phones can effectively impose strict liability, even if a calling party believed it had consent for the calls...


Thank You Commissioner O'Rielly - FCC Acknowledgment of TCPA Confusion is Long Overdue

Posted on March 27, 2014
But One Vote is Not Enough for Action, Nor Does Action Assure a Favorable Outcome FCC Commissioner Michael O'Rielly recently blogged that 'It is Time to Provide Clarity' on issues swirling around application of the Telephone Consumer Protection Act (TCPA)...


No Harm, Still Foul? Florida Court Approves Data-Breach Class Action Settlement

Posted on March 19, 2014
By Daniel P. Reing   Data-breach class action suits may have just gained significant traction. On Feb. 28, 2014, the U.S. District Court for the Southern District of Florida approved a first of its kind class action data breach settlement that will pay plaintiffs regardless of whether they were damaged by the breach...


California AG Weighs in on Cybersecurity

Posted on March 13, 2014
By Paul Glist and Leslie Moylan Just as NIST completes its version 1.0 national Framework for Improving Critical Infrastructure Cybersecurity, California Attorney General Kamala Harris has made clear she intends a leadership role for California. With a guide called 'Cybersecurity in the Golden State: How California Businesses Can Protect Against and Respond to Malware, Data Breaches and Other Cyberincidents,' the AG offers a simplified, brief, and plain English version of cybersecurity protections directed toward small and medium size California businesses that likely lack the resources to hire full-time cybersecurity personnel...


California Bill Would Create Cyber Security Commission

Posted on March 13, 2014
By Christin McMeley and Jane Whang In recognition of the increasing threat that cyber-attacks pose to the state's infrastructure and the considerable costs that government and private sectors are estimated to spend on cyber security (more than $70 billion estimated to be spent in 2014 nationally), Assembly Speaker John Perez has introduced a bill to establish a "Cyber Security Commission...


New Guidance for Employers Conducting Background Checks

Posted on March 10, 2014
By Angela Galloway Employers who investigate workers' criminal or credit backgrounds may want to review federal guidelines released March 10. The joint publication of the Federal Trade Commission and the Equal Employment Opportunity Commission provides detailed guidance for employers who check into the criminal or credit histories of applicants or employees...


San Francisco Enacts Employee Privacy Ordinance

Posted on March 05, 2014
By Angela Galloway A new San Francisco ordinance will prohibit employers and city contractors from asking job applicants about their criminal histories until after they conduct a live interview or make a conditional offer of employment. When the ordinance takes effect in August, San Francisco will join the ranks of 10 states and more than 50 cities to restrict employers' inquiries into applicants' criminal backgrounds...


New Cellphone Promises Array of Built-in Privacy Features

Posted on March 03, 2014
By Angela Galloway Consumers will soon have access to a smartphone that automatically encrypts calls and texts, and provides anonymous web browsing, according to reports about the "Blackphone." Forbes reports that the phone, set for a spring release, caters to phone users who want built-in privacy protections -- and to avoid the hassle of manually changing privacy settings and adding protective features...


New Advisory Examining HHS's HIPAA Guidance on Mental Health Information

Posted on February 27, 2014
By Rebecca L. Williams and Amy L. Kauppila Be sure to check out at our recent advisory discussing the latest HIPAA guidance on mental health information. It discusses how the Department of Health and Human Services addresses frequently asked questions about when it is appropriate for providers to share protected health information of a patient who is being treated for a mental health condition with family, friends, or others involved in the patient's care...


FTC: No Need to Approve iVeriFly's Proposed Alternative COPPA Consent Method - Proposal is Merely a Variation on Methods COPPA Rule Already Recognizes

Posted on February 26, 2014
By Ronald G. London Under the provisions of the Children's Online Privacy Protection Act (COPPA) Rule that invite proposals for new mechanisms for obtaining the verifiable parental consent required to collect, use and disclose personal information from children under 13, the Federal Trade Commission (FTC) has announced that it concluded its proceeding on iVeriFly's proposal by declining to issue an approval, as the FTC found the method to be simply a variation on those already recognized under the Rule, rendering further FTC action unnecessary...


New Advisory Posted on NIST Cybersecurity Framework 1.0 and Growing Federal Concern Over Data Security and Cyber Crime

Posted on February 20, 2014
By Bob Scott Check out our recent advisory analyzing the National Institute of Standards and Technologies' newly-finished Cybersecurity Framework, which is intended to reduce cyber risks to critical infrastructure – including to banks, communications companies, utilities, and healthcare providers...


As Facial Regulation Technology is Poised to Enter Everyday Life, Regulators Express Concern

Posted on February 10, 2014
By Camille Calman   Recent news stories have highlighted the negative privacy implications of facial recognition technology. For example, a new app for Google Glass will pair facial recognition with data from social media and dating sites, allowing users to instantly see personal information about strangers they pass on the street...


As Facial Recognition Technology is Poised to Enter Everyday Life, Regulators Express Concern

Posted on February 10, 2014
By Camille Calman   Recent news stories have highlighted the negative privacy implications of facial recognition technology. For example, a new app for Google Glass will pair facial recognition with data from social media and dating sites, allowing users to instantly see personal information about strangers they pass on the street...


FCC Seeks Comment on Petitions Seeking Clarity for Opt-Out Notices on Fax Ads Sent with the Recipient Consent

Posted on February 04, 2014
By Ronald G. London The FCC issued a Public Notice seeking comments on nine petitions that request clarification of the agency's rule governing opt-out notices on fax advertisement – and in particular, those where sender previously obtained the recipient's consent...


FTC's 50th Data Security Settlement Sends a Message: Be Careful with Overseas Contractors

Posted on February 04, 2014
By Adam H. Greene, Rebecca L. Williams, and Sarah S. Fallows   The Federal Trade Commission (FTC) sent a message about the importance of imposing appropriate security measures on—and monitoring—vendors with access to confidential consumer information...


FFIEC Finalizes and Clarifies Its Social Media Policy

Posted on January 28, 2014
By Karen Ross The Federal Financial Institutions Examination Council (FFIEC) recently released its final supervisory guidance on social media use.  In January 2013, we wrote about the FFIEC's proposed guidance in connection with the applicability of existing laws and policies to the social media activities of financial institutions...


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