Privacy

On July 9, 2024, the FTC and California Attorney General settled a case against NGL Labs (“NGL”) and two of its co-founders. NGL Labs’ app, “NGL: ask me anything,” allows users to receive anonymous messages from their friends and social media followers. The complaint alleged violations of the FTC Act, the Restore Online Shoppers’ Confidence

On June 18, 2024, Louisiana enacted HB 577, prohibiting “social media platforms” with more than 1 million users globally from displaying targeted advertising to Louisiana users that the platform has actual knowledge are under 18 years of age and from selling the sensitive personal data of such users. The law amends the effective date

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 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

In early March 2024, the EU lawmakers reached agreement on the European Health Data Space (EHDS).  For now, we only have a work-in-progress draft version of the text, but a number of interesting points can already be highlighted.  This article focusses on the obligations of data holders; for an overview of the EHDS generally, see our first post in this series.

We expect the final text of the EHDS to be adopted by the European Parliament in April 2024 and by the EU Member States shortly thereafter.

1: Health data holder

The term “health data holder” includes, among others, any natural or legal person developing products or services intended for health, developing or manufacturing wellness applications, or performing research in relation to healthcare, who:

  • in relation to personal electronic health data: in its capacity of a data controller has the right or obligation to process the health data, including for research and innovation purposes; or
  • in relation to non-personal electronic health data: has the ability to make the data available through control of the technical design of a product and related services.  These terms appear to be taken from the Data Act, but they are not defined under the EHDS.

In practice, this means that, for example, hospitals, as data controllers, are data holders of their electronic health records.  Similarly, pharmaceutical companies are data holders of clinical trial data and biobanks.  Medical device companies may be data holders of non-personal data generated by their devices, if they have access to that data and an ability to produce it.  However, medical device companies would not qualify as a data holder where they merely process personal electronic health data on behalf of a hospital.

Individual researchers and micro enterprises are not data holders, unless EU Member States decide differently for their territory.

2: Data sets covered by EHDS

The EHDS sets out a long list of covered electronic health data that should be made available for secondary use under the EHDS.  It includes, among others:

  • electronic health records;
  • human genetic data;
  • biobanks;
  • data from wellness applications;
  • clinical trial data – though according to the recitals, this only applies when the trial has ended;
  • medical device data;
  • data from registries; and
  • data from research cohorts and surveys, after the first publication of the results – a qualifier that does not seem to apply for clinical trial data.

Continue Reading EHDS Series – 2: The European Health Data Space from the Health Data Holder’s Perspective