Personally Identifiable Information

On June 28, 2018, the Governor of California signed AB 375, the California Consumer Privacy Act of 2018 (the “Act”). The Act introduces key privacy requirements for businesses, and was passed quickly by California lawmakers in an effort to remove a ballot initiative of the same name from the November 6, 2018, statewide ballot. We previously reported on the relevant ballot initiative. The Act will take effect January 1, 2020. Continue Reading California Consumer Privacy Act Signed, Introduces Key Privacy Requirements for Businesses

On June 21, 2018, California lawmakers introduced AB 375, the California Consumer Privacy Act of 2018 (the “Bill”). If enacted and signed by the Governor by June 28, 2018, the Bill would introduce key privacy requirements for businesses, but would also result in the removal of a ballot initiative of the same name from the November 6, 2018, statewide ballot. We previously reported on the relevant ballot initiative. Continue Reading California Assembly Bill Aims to Avert State Ballot Initiative Related to Privacy

On November 6, 2018, California voters will consider a ballot initiative called the California Consumer Privacy Act (“the Act”). The Act is designed to give California residents (i.e., “consumers”) the right to request from businesses (see “Applicability” below) the categories of personal information the business has sold or disclosed to third parties, with some exceptions. The Act would also require businesses to disclose in their privacy notices consumers’ rights under the Act, as well as how consumers may opt out of the sale of their personal information if the business sells consumer personal information. Continue Reading California Ballot Initiative to Establish Disclosure and Opt-Out Requirements for Consumers’ Personal Information

Recently, Colorado’s governor signed into law House Bill 18-1128 “concerning strengthening protections for consumer data privacy” (the “Bill”), which takes effect September 1, 2018. Among other provisions, the Bill (1) amends the state’s data breach notification law to require notice to affected Colorado residents and the Colorado Attorney General within 30 days of determining that a security breach occurred, imposes content requirements for the notice to residents and expands the definition of personal information; (2) establishes data security requirements applicable to businesses and their third-party service providers; and (3) amends the state’s law regarding disposal of personal identifying information. Continue Reading Colorado Amends Data Breach Notification Law and Enacts Data Security Requirements

Recently, Vermont enacted legislation (H.764) that regulates data brokers who buy and sell personal information. Vermont is the first state in the nation to enact this type of legislation.

  • Definition of Data Broker. The law defines a “data broker” broadly as “a business, or unit or units of a business, separately or together, that knowingly collects and sells or licenses to third parties the brokered personal information of a consumer with whom the business does not have a direct relationship.”
  • Definition of “Brokered Personal Information.” “Brokered personal information” is defined broadly to mean one or more of the following computerized data elements about a consumer, if categorized or organized for dissemination to third parties: (1) name, (2) address, (3) date of birth, (4) place of birth, (5) mother’s maiden name, (6) unique biometric data, including fingerprints, retina or iris images, or other unique physical or digital representations of biometric data, (7) name or address of a member of the consumer’s immediate family or household, (8) Social Security number or other government-issued identification number, or (9) other information that, alone or in combination with the other information sold or licensed, would allow a reasonable person to identify the consumer with reasonable security.
  • Registration Requirement. The law requires data brokers to register annually with the Vermont Attorney General and pay a $100 annual registration fee.
  • Disclosures to State Attorney General. Data brokers must disclose annually to the State Attorney General information regarding their practices related to the collection, storage or sale of consumers’ personal information. Data brokers also must disclose annually their practices, if any, for allowing consumers to opt out of the collection, storage or sale of their personal information. Further, the law requires data brokers to report annually the number of data breaches experienced during the prior year and, if known the total number of consumers affected by the breaches. There are additional disclosure requirements if the data broker knowingly possesses brokered personal information of minors, including a separate statement detailing the data broker’s practices for the collection, storage and sale of that information and applicable opt-out policies. Importantly, the law does not require data brokers to offer consumers the ability to opt out.
  • Information Security Program. The law requires data brokers to develop, implement and maintain a written, comprehensive information security program that contains appropriate physical, technical and administrative safeguards designed to protect consumers’ personal information.
  • Elimination of Fees for Security Freezes. The law eliminates fees associated with a consumer placing or lifting a security freeze. Previously, Vermont law allowed for fees of up to $10 to place, and up to $5 to lift temporarily or remove, a security freeze.
  • Enforcement. A violation of the law is considered an unfair and deceptive act in commerce in violation of Vermont’s consumer protection law.
  • Effective Date. The registration and data security obligations take effect January 1, 2019, while the other provisions of the law take effect immediately.

In a statement, Vermont Attorney General T.J. Donovan said, “This bill not only saves [Vermonters] money, but it gives them information and tools to help them keep their personal information secure.”

On September 29, 2017, Samanage USA, Inc. (“Samanage”), a North Carolina-based technology company that provided cloud-based IT support services as a subcontractor for Vermont’s health care exchange (“Vermont Health Connect”), agreed to a $264,000 settlement with the Vermont Attorney General in relation to a breach that exposed the Social Security numbers of 660 Vermont Health Connect users.

Continue Reading Samanage USA, Inc. Agrees to Pay to Settle Vermont AG’s Data Security Investigation

On August 21, 2017, the United States Court of Appeals for the Eighth Circuit affirmed the dismissal of a putative class action arising from the Scottrade data breach. Notably, however, the Eighth Circuit did not agree with the trial court’s ruling that the plaintiff lacked Article III standing, instead dismissing the case with prejudice for failure to state a claim.  Continue Reading Eighth Circuit Finds Article III Standing Yet Affirms Dismissal of Scottrade Breach Case

Recently, Nevada enacted an online privacy policy law which will require operators of websites and online services to post a notice on their website regarding their privacy practices. The Nevada law contains content requirements for online privacy notices, specifying that the notice must (1) identify the categories of personally identifiable information (“PII”) collected through the website and the categories of third parties with whom PII may be shared; (2) provide information about users’ ability to review and request changes to PII collected through the website; (3) disclose whether third parties may collect information about users’ online activities from the website; and (4) provide an effective date of the notice. Continue Reading Nevada Enacts Website Privacy Notice Law

On June 12, 2017, a putative class action was filed in the U.S. District Court for the Northern District of Georgia against Tempur Sealy International, Inc. and Aptos, Inc. Tempur Sealy is a mattress, bedding and pillow retailer based in Lexington, Kentucky. Aptos is headquartered in Atlanta, Georgia, and formerly hosted and maintained Tempur Sealy’s website and online payment system. The plaintiff alleges that the breach was discovered in November of 2016 and involved the exposure of payment card data and other PII of an undisclosed number of Tempur Sealy customers.    Continue Reading Tempur Sealy Data Breach: Putative Class Action Filed

On January 3, 2017, the Office of Management and Budget (“OMB”) issued a memorandum (the “Breach Memorandum”) advising federal agencies on how to prepare for and respond to a breach of personally identifiable information (“PII”). The Breach Memorandum, which is intended for each agency’s Senior Agency Official for Privacy (“SAOP”), updates OMB’s breach notification policies and guidelines in accordance with the Federal Information Security Modernization Act of 2014 (“FISMA”). Continue Reading OMB Publishes Memorandum on Responding to Data Breaches