Privacy and Information Security

Coronavirus testing and screening procedures are central to many companies’ return-to-work plans.  Because testing and screening data is often sensitive and may help to determine whether individuals are allowed to work, companies need to be aware of the privacy and security risks of collecting this data and protect it appropriately.  Failing to do so may

Ad Law Access PodcastAs covered in this blog post, on June 24, 2020, the Secretary of State of California announced that the California Privacy Rights Act (CPRA), had enough votes to be eligible for the November 2020 general election ballot. CPRA is a ballot initiative, which, if adopted, would amend and augment the California Consumer Privacy

On the same day that the FCC set a call blocking declaratory ruling for vote at its July 2020 Open Meeting, the FCC’s Consumer and Governmental Affairs Bureau issued rulings in two long-pending petitions for clarification of the requirements of the Telephone Consumer Protection Act (“TCPA”). Although these clarifications do not address the

Earlier this month, we offered our analysis and takeaways from a Magistrate Judge’s decision that defendant Capital One was required to produce a third-party data breach assessment report as part of ongoing consumer litigation.  Available here.  Not surprisingly, Capital One appealed that order.  On June 25, 2020, District Court Judge Anthony Trenga affirmed the

The California Consumer Privacy Act (CCPA) right to non-discrimination explainedOn June 24, 2020, the Secretary of State of California announced that the California Privacy Rights Act (CPRA), had enough votes to be eligible for the November 2020 general election ballot. CPRA is a ballot initiative, which, if adopted, would amend and augment the California Consumer Privacy Act (CCPA) to increase and clarify the privacy

Following a data breach, companies generally launch an investigation to determine the source and scope of the breach. These efforts are often led by in-house privacy, compliance, and/or litigation counsel with an eye firmly planted on the legal claims that might be asserted, or need to be defended, as a result of that breach. Often key to any data breach investigation is an incident response consultant that helps determine the scope and analyzes the causes of a potential breach. Many companies expect that any reports by, or communications with, the consultant would be protected by the attorney-client privilege and/or work product doctrine, which would shield relevant materials from production during any governmental investigations or third-party litigation that arise from the event. Recently, however, a federal court compelled production of just such a breach report and related documents, calling into question the scope of that protection for data breaches and possibly other corporate investigations.

This post discusses the background and rationale that led to the Court’s finding and offers our advice concerning steps that should be taken to maximize the potential scope of protection for consultant reports in data breach investigations and other corporate investigations.
Continue Reading Lessons Learned for Maintaining Attorney-Client Privileged Data Breach Investigation (and other Consultant) Reports

The FTC’s most recent COPPA enforcement action, announced on June 4 with app developer HyperBeard, provides evidence of an ongoing debate within the Commission about privacy harm and the role of monetary relief in the agency’s privacy enforcement program.  Specifically, Commissioner Noah Phillips voted against the settlement with app developer HyperBeard and two corporate officers,

On June 2, California Attorney General Xavier Becerra announced that he had submitted final CCPA regulations to the Office of Administrative Law (OAL) for review. The final regulations are substantively identical to the second set of modified proposed regulations, which the AG released in March. In addition, the AG issued a Final Statement of Reasons that (1) explains the changes between the first draft and final regulations, and (2) is accompanied by Appendices that respond to each public comment received throughout the rulemaking process – including written comments submitted in response to each draft of proposed regulations and those provided at the four public hearings held in December 2019.

We have described below some of the key provisions of the final regulations, which will impose additional requirements on businesses, service providers, and third parties and data brokers, and likely require the design and implementation of new processes. Whatever hardship the regulations may cause, it is clear that the AG is prioritizing consumer privacy, explaining that the office “has made every effort to limit the burden of the regulations while implementing the CCPA” and does not believe the regulations are “overly onerous or impractical to implement, or that compliance would be overly burdensome or would stifle businesses or innovation.”
Continue Reading CCPA Update: Final Regulations Submitted but No Changes from Prior Draft

A recent Marketplace Tech podcast episode on the spike in demand for mental health apps caught our attention.  As shocking headlines and stay-at-home orders rolled across the country, demand for mental health apps increased almost 30% since the pandemic began, according to CNBC.  And there is a wide variety of options to choose from,

Ad Law Access Podcast - Operationalizing CCPACCPA compliance is a cross-functional exercise that requires active participation and buy-in from business units across the organization to tackle data mapping, work flows and employee training. On the latest episode of the Ad Law Access Podcast, special counsel Tara Marciano and associates Carmen Hinebaugh and Alexander Schneider discuss the ongoing challenges of operationalizing CCPA