Massachusetts’ Highest Court Signals Willingness to Scrutinize State Wiretapping Laws and Knock Out Claims at the Pleading Stage
For the past few years, hundreds of companies have been caught in a wave of privacy class actions relying on decades-old wiretapping laws to attack modern website technologies and business tools. Last week, Massachusetts’s highest court engaged in a thorough assessment of that state’s wiretap law and rejected plaintiff’s argument that commonly used website advertising and analytical tools intercepted “communications” in violation of the law. The basis for the suit is not novel — hundreds of similar cases have been filed in the past few years. But the Supreme Judicial Court’s willingness to engage in a deep analysis of the wiretapping law early in the case is noteworthy.
Second Circuit Offers Guidance on Meaning of “Consumer” Under the U.S. Video Privacy Protection Act
Yesterday, in Salazar v. National Basketball Association, the Second Circuit Court of Appeals reversed a district court’s dismissal of a putative class action under the Video Privacy Protection Act (VPPA), offering an interpretation of the VPPA’s definition of “consumer” that differs from how the majority of courts have used that term.
New York Attorney General Publishes Guide to Avoid “Key Mistakes” Regarding Online Tracking Technologies
On July 30, 2024, New York Attorney General Letitia James announced website privacy guides for New York consumers and businesses. The guides, a business-focused Business Guide to Website Privacy Controls and a consumer-focused Consumer Guide to Tracking on the Web, are available on the Office of the New York State Attorney General’s (the “OAG’s”) website. The Business Guide to Website Privacy Controls is instructive for businesses operating websites available in the state. The OAG’s announcement is made amid increasing regulatory scrutiny, including by the FTC, as well as increased litigation centered on the use of online tracking technologies.
New Hampshire’s Comprehensive Data Privacy Legislation
As the state boasting the headquarters of the International Association of Privacy Professionals, many have been watching the development of the New Hampshire comprehensive consumer data privacy law with great interest, wondering if it may be a practical model for the nation. On March 6, 2024, Governor Chris Sununu signed SB 255-FN (“the Act”) into law. In some respects, New Hampshire’s privacy law is comparatively more moderate than some other state laws. For instance, the New Hampshire Secretary of State’s rulemaking authority under the Act is currently limited to establishing requirements for privacy notices. This narrow extension of rulemaking authority is a divergence from the broad rulemaking authority granted by California, Colorado, and other states. The New Hampshire law does not allow for a private right of action. There is a right to cure alleged violations through the first year the law is in force; afterwards, the opportunity to cure is left to the Attorney General’s discretion. The legislation will take effect on January 1, 2025.
FTC Proposes Significant and Sweeping Changes to COPPA and Requests Public Comment
On January 11, 2024, the Federal Trade Commission (“FTC”) published its Notice of Proposed Rule Making (“NPRM”) seeking to update the FTC’s Children’s Online Privacy Protection Act (“COPPA”) Rule in the Federal Register. Among other things, the proposed changes would require more granular privacy notices, require fairly detailed identification of, and parental consent to, third-party data sharing (including targeted advertising), expand the scope of personal information subject to COPPA, make it easier for parents to provide consent via text message, clarify various requirements around EdTech, including school authorization for parental consent, and impose significant new programmatic information security and data retention requirements.
EU-U.S. Adequacy Once Again
On July 10, 2023, the European Commission issued its Final Implementing Decision granting the U.S. adequacy (“Adequacy Decision”) with respect to companies that subscribe to the EU-U.S. Data Privacy Framework (“DPF”).
Washington State Enacts My Health My Data Act, Broadly Regulating Health-Related Data With a Private Right of Action
On April 27, 2023, Washington Gov. Jay Inslee, a Democrat, signed into law the state’s My Health My Data Act (the Act), which will become effective on March 31, 2024 (June 30, 2024, for small businesses). Despite its name, this is a comprehensive privacy bill that will affect many entities, including those outside of the traditional “health” context. The rights and obligations may apply to individuals other than Washington residents, as the law defines consumers as including persons whose data is merely collected or otherwise processed in the state.
FemTech Has Been Warned: UK’s ICO Indicates Closer Scrutinization of FemTech Apps
On 4 April 2023, John Edwards, the UK’s Information Commissioner, stated that the UK’s Information Commissioner’s Office (ICO) would be “going after providers of women’s health apps and auditing them, and getting them to change any practices that are non-compliant.” Speaking at the IAPP Global Privacy Summit in Washington DC, the Information Commissioner indicated that this proposed strategy forms part of the ICO’s new “agile” initiative, which will focus on “areas of vulnerability, targeting…intervention [where] that has the greatest impact”.
UK’s OfCom to Publish Guidance on Illegal Content Risk Assessments in Light of Online Safety Bill
The UK’s Online Safety Bill (“Bill”), once legislated, will impose duties of care on providers of digital services, social media platforms and other online services to make them responsible for content generated and shared by their users and to mitigate the risk of harm arising from illegal content, and if services are deemed accessible by children, a duty to protect children from harm. As currently drafted, the Bill applies to any service or site that has users in the UK, or targets the UK as a market, even if it is not based in the country. The Bill is currently at the Committee Stage of the legislative process. Although the Bill is expected to receive Royal Assent during 2023, the timeline as to when the provisions will come into force is still unclear.
Digital Health Transformation: A Practical Guide for Life Sciences Companies
In 2022, many if not most pharmaceutical, medical device, and other life sciences companies established strategies to innovate digital health technology complementary to their existing strategic focus. The digital transformation of the life sciences industry is still widely unfolding across the marketplace. In 2023 and beyond, the race is on to launch the next generation of digital health technologies to innovate the delivery of therapies to patients.
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