Website analytics and advertising tools, such as pixels, are regularly targeted in lawsuits brought under various wiretap laws, including the federal Wiretap Act and the California Invasion of Privacy Act (“CIPA”). We cover significant developments and trends in website wiretapping lawsuits on Inside Class Actions. Over the last several
Continue Reading Website Wiretapping Litigation: Recent Decisions and Developments
State Attorneys General Issue Guidance On Privacy & Artificial Intelligence
Attorneys General in Oregon and Connecticut issued guidance over the holiday interpreting their authority under their state comprehensive privacy statutes and related authorities. Specifically, the Oregon Attorney General’s guidance focuses on laws relevant for artificial intelligence (“AI”), and the Connecticut Attorney General’s guidance focuses on opt-out preference signals that go
Continue Reading State Attorneys General Issue Guidance On Privacy & Artificial IntelligenceHealth Privacy Developments to Watch in 2025
2024 was an incredibly busy year for health privacy. As the year draws to a close and we look ahead to 2025, we share several areas that we are watching in the coming year, which we expect to be similarly busy with federal- and state-level activity:
- Proposed Updates to the
California Enacts Health AI Bill and Protections for Neural Data
On September 28, California’s governor signed a number of bills into law, including to regulate health care facilities’ use of artificial intelligence (“AI”). This included AB 3030, which regulates certain California-licensed health care facilities’ use of AI and SB 1223, which amends the California Consumer Privacy Act (CCPA)
Continue Reading California Enacts Health AI Bill and Protections for Neural DataIllinois Federal Court Dismisses BIPA Suit Against X, Holding “Biometric Identifiers” Must Identify Individuals
An Illinois federal court has dismissed a proposed class action alleging X Corp. violated the state’s Biometric Information Privacy Act (“BIPA”) through its use of PhotoDNA software to create “hashes” of images to scan for nudity and related content. The court held that Plaintiff failed to allege that the hashes identified photo subjects and therefore failed to allege that the hashes constituted biometric identifiers. Martell v. X Corp., 2024 WL 3011353, at *4 (N.D. Ill. June 13, 2024).
BIPA prohibits private entities from collecting or capturing “a person’s or a customer’s biometric identifier or biometric information” without first obtaining the subject’s informed consent, among other requirements. 740 ILCS 14/15(b). BIPA defines “biometric identifier” as “a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry” and defines “biometric information” as any information “based on an individual’s biometric identifier used to identify an individual.” 740 ILCS 14/10.
In dismissing the complaint, the court agreed with X’s arguments that Plaintiff failed to plausibly allege (1) that the PhotoDNA software collects scans of facial geometry and (2) that the hashes identified photo subjects. First, the court rejected Plaintiff’s “conclusory” assertion that the creation of a hash from a photo that includes a person’s face “necessitates” creating a scan of facial geometry, saying, “The fact that PhotoDNA creates a unique hash for each photo does not necessarily imply that it is scanning for an individual’s facial geometry when creating the hash.” Id. at *2. The court distinguished Plaintiff’s allegation from those that withstood dismissal in a different case in which the plaintiff alleged that scans of photos “located her face and zeroed in on its unique contours to create a ‘template’ that maps and records her distinct facial measurements.” Id. at 3 (quoting Rivera v. Google Inc., 238 F. Supp. 3d 1088, 1091 (N.D. Ill. 2017)).Continue Reading Illinois Federal Court Dismisses BIPA Suit Against X, Holding “Biometric Identifiers” Must Identify Individuals
Texas Attorney General Opens Investigation into Car Manufacturers’ Collection and Sale of Drivers’ Data
On June 6, the Texas Attorney General published a news release announcing that the Attorney General has opened an investigation into several car manufacturers. The news release states that the investigation was opened “after widespread reporting that [car manufacturers] have secretly been collecting mass amounts of data about drivers directly
Continue Reading Texas Attorney General Opens Investigation into Car Manufacturers’ Collection and Sale of Drivers’ DataSEC Adopts Amendments to Regulation S-P
On May 16, the U.S. Securities and Exchange Commission (“SEC”) adopted amendments to Regulation S-P, which implements the Gramm-Leach Bliley Act (“GLBA”) for SEC-regulated entities such as broker-dealers, investment companies, registered investment advisers, and transfer agents.
Among other requirements, the amendments require SEC-regulated entities to adopt written policies and procedures
Continue Reading SEC Adopts Amendments to Regulation S-PHHS Modifies Privacy Rule to Support Reproductive Health Care Privacy
On April 26, 2024, the Office for Civil Rights (“OCR”) at the U.S. Department of Health & Human Services (“HHS”) published a final rule that modifies the Standards for Privacy of Individually Identifiable Health Information (“Privacy Rule”) under the Health Insurance Portability and Accountability Act (“HIPAA”) regarding protected health information (“PHI”) concerning reproductive health. We previously covered the proposed rule (hereinafter, “the NPRM”), which was published on April 17, 2023. The final rule aligns closely with the NPRM.
OCR noted that the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization (holding that there is no constitutional right to abortion) created a legal landscape that “increase[s] the potential that use and disclosure of PHI about an individual’s reproductive health will undermine access to and the quality of health care generally.” According to OCR, the final rule aims to “continue to protect privacy in a manner that promotes trust between individuals and health care providers and advances access to, and improves the quality of, health care” by “limit[ing] the circumstances in which provisions of the Privacy Rule permit the use or disclosure of an individual’s PHI about reproductive health care for certain non-health care purposes.”
The final rule prohibits a regulated entity from using or disclosing an individual’s PHI:
- to conduct a criminal, civil, or administrative investigation into or impose criminal, civil, or administrative liability on any person for the mere act of seeking, obtaining, providing, or facilitating reproductive health care that is lawful under the circumstances in which it is provided; and
- to identify an individual, health care provider, or other person to initiate an investigation or proceeding against that person in connection with seeking, obtaining, providing, or facilitating reproductive health care that is lawful under the circumstances in which it is provided.
“Lawful under the circumstances in which it is provided” means that the reproductive health care is either:
- lawful under the circumstances in which the health care is provided and in the state in which it is provided; or
- protected, required, or authorized by Federal law, including the United States Constitution, regardless of the state in which such health care is provided.
Continue Reading HHS Modifies Privacy Rule to Support Reproductive Health Care Privacy
FTC Issues Final Rule to Expand Scope of the Health Breach Notification Rule
On Friday, April 26, 2024, the Federal Trade Commission (“FTC”) voted 3-2 to issue a final rule (the “final rule”) that expands the scope of the Health Breach Notification Rule (“HBNR”) to apply to health apps and similar technologies and broadens what constitutes a breach of security, among other updates. We previously covered the proposed rule, which was issued on May 18, 2023.
In the FTC’s announcement of the final rule, the FTC emphasized that “protecting consumers’ sensitive health data is a high priority for the FTC” and that the “updated HBNR will ensure [the HBNR] keeps pace with changes in the health marketplace.” Key provisions of the final rule include:
- Revised definitions: The final rule includes changes to current definitions in the HBNR that codify the FTC’s recent position on the expansiveness of the HBNR. Specifically, among other definition changes, the HBNR contains key updates to the definitions of:
- “Personal health records (‘PHR’) identifiable information.” In the final rule, the FTC adopts changes to the definition of PHR identifiable information that were included in the proposed rule to clarify that the HBNR applies to health apps and other similar technologies not covered by the Health Insurance Portability and Accountability Act, as amended, and its implementing regulations (collectively, “HIPAA”). In the final rule, the FTC discusses the scope of the definition, noting that “unique, persistent identifiers (such as unique device and mobile advertising identifiers), when combined with health information constitute ‘PHR identifiable health information’ if these identifiers can be used to identify or re-identify an individual.”
- “Covered health care provider.” In the proposed rule, the FTC proposed adding a definition of “health care provider” to include providers of medical or other health services, or any other entity furnishing “health care services or supplies” (i.e., websites, apps, and Internet-connected devices that provide mechanisms to track health conditions, medications, fitness, sleep, etc.). The final rule does not make substantive changes to this proposed definition but does contain a slight terminology change to “covered health care provider” to distinguish that term from the definition of “health care provider” in other regulations.
Continue Reading FTC Issues Final Rule to Expand Scope of the Health Breach Notification Rule
Nebraska Enacts Nebraska Data Privacy Act
On April 17, the Nebraska governor signed the Nebraska Data Privacy Act (the “NDPA”) into law. Nebraska is the latest state to enact comprehensive privacy legislation, joining California, Virginia, Colorado, Connecticut, Utah, Iowa, Indiana, Tennessee, Montana, Oregon, Texas, Florida, Delaware
Continue Reading Nebraska Enacts Nebraska Data Privacy Act