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Libbie Canter

Libbie Canter represents a wide variety of multinational companies on privacy, cyber security, and technology transaction issues, including helping clients with their most complex privacy challenges and the development of governance frameworks and processes to comply with global privacy laws. She routinely supports clients on their efforts to launch new products and services involving emerging technologies, and she has assisted dozens of clients with their efforts to prepare for and comply with federal and state privacy laws, including the California Consumer Privacy Act and California Privacy Rights Act.

Libbie represents clients across industries, but she also has deep expertise in advising clients in highly-regulated sectors, including financial services and digital health companies. She counsels these companies — and their technology and advertising partners — on how to address legacy regulatory issues and the cutting edge issues that have emerged with industry innovations and data collaborations.

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

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 from their vehicles and then

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 for an incident response program

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

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

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 CaliforniaVirginiaColoradoConnecticutUtahIowaIndiana, Tennessee, Montana, OregonTexasFloridaDelawareNew Jersey,  New

On April 2, the Enforcement Division of the California Privacy Protection Agency issued its first Enforcement Advisory, titled “Applying Data Minimization to Consumer Requests.”  The Advisory highlights certain provisions of and regulations promulgated under the California Consumer Privacy Act (“CCPA”) that “reflect the concept of data minimization” and provides two examples that illustrate how

A new post on the Covington Inside Privacy blog discusses remarks by California Privacy Protection Agency (CPPA) Executive Director Ashkan Soltani at the International Association of Privacy Professionals’ global privacy conference last week.  The remarks covered the CPPA’s priorities for rulemaking and administrative enforcement of the California Consumer Privacy Act, including with respect to connected

On February 9, the Third Appellate District of California vacated a trial court’s decision that held that enforcement of the California Privacy Protection Agency’s (“CPPA”) regulations could not commence until one year after the finalized date of the regulations.  As we previously explained, the Superior Court’s order prevented the CPPA from enforcing the regulations

New Jersey and New Hampshire are the latest states to pass comprehensive privacy legislation, joining CaliforniaVirginiaColoradoConnecticutUtahIowaIndiana, Tennessee, Montana, OregonTexasFlorida, and Delaware.  Below is a summary of key takeaways. 

New Jersey

On January 8, 2024, the New Jersey state senate passed S.B. 332 (“the Act”), which was signed into law on January 16, 2024.  The Act, which takes effect 365 days after enactment, resembles the comprehensive privacy statutes in Connecticut, Colorado, Montana, and Oregon, though there are some notable distinctions. 

  • Scope and Applicability:  The Act will apply to controllers that conduct business or produce products or services in New Jersey, and, during a calendar year, control or process either (1) the personal data of at least 100,000 consumers, excluding personal data processed for the sole purpose of completing a transaction; or (2) the personal data of at least 25,000 consumers where the business derives revenue, or receives a discount on the price of any goods or services, from the sale of personal data. The Act omits several exemptions present in other state comprehensive privacy laws, including exemptions for nonprofit organizations and information covered by the Family Educational Rights and Privacy Act.
  • Consumer Rights:  Consumers will have the rights of access, deletion, portability, and correction under the Act.  Moreover, the Act will provide consumers with the right to opt out of targeted advertising, the sale of personal data, and profiling in furtherance of decisions that produce legal or similarly significant effects concerning the consumer.  The Act will require controllers to develop a universal opt out mechanism by which consumers can exercise these opt out rights within six months of the Act’s effective date.
  • Sensitive Data:  The Act will require consent prior to the collection of sensitive data. “Sensitive data” is defined to include, among other things, racial or ethnic origin, religious beliefs, mental or physical health condition, sex life or sexual orientation, citizenship or immigration status, status as transgender or non-binary, and genetic or biometric data.  Notably, the Act is the first comprehensive privacy statute other than the California Consumer Privacy Act to include financial information in its definition of sensitive data.  The Act defines financial information as an “account number, account log-in, financial account, or credit or debit card number, in combination with any required security code, access code, or password that would permit access to a consumer’s financial account.”
  • Opt-In Consent for Certain Processing of Personal Data Concerning Teens:  Unless a controller obtains a consumer’s consent, the Act will prohibit the controller from processing personal data for targeted adverting, sale, or profiling where the controller has actual knowledge, or willfully disregards, that the consumer is between the ages of 13 and 16 years old.
  • Enforcement and Rulemaking:  The Act grants the New Jersey Attorney General enforcement authority.  The Act also provides controllers with a 30-day right to cure for certain violations, which will sunset eighteen months after the Act’s effective date.  Like the comprehensive privacy laws in California and Colorado, the Act authorizes rulemaking under the state Administrative Procedure Act.  Specifically, the Act requires the Director of the Division of Consumer Affairs in the Department of Law and Public Safety to promulgate rules and regulations pursuant to the Administrative Procedure Act that are necessary to effectuate the Act’s provisions.  

Continue Reading New Jersey and New Hampshire Pass Comprehensive Privacy Legislation