This week, House Committee on Energy and Commerce Chair Cathy McMorris Rodgers (R-WA) and Senate Committee on Commerce, Science and Transportation Chair Maria Cantwell (D-WA) unveiled their bipartisan, bicameral discussion draft of the American Privacy Rights Act (APRA draft).[1] Chair Rodgers’ and Chair Cantwell’s announcement of the APRA draft surprised many congressional observers after comprehensive privacy legislation stalled in 2022.

Continue Reading April’s APRA: Could Draft Privacy Legislation Blossom into Law in 2024?

Please join us in New York, NY (or virtually) for the Association of National Advertisers (ANA) Law 1-Day Conference on June 26th. Team SPB will cover a variety of privacy topics affecting the advertising and marketing industry, including consumer privacy compliance, data assessments and advertising enforcement actions and class actions. Register soon because in-person space is limited.   

Team SPB panelists are Alan Friel, Julia Jacobson, Marisol Mork, Kristin Bryan, Stacy Swanson, Kyle Dull, and Sasha Kiosse, joined by industry leaders from Ankura Consulting Group, BECU, Curacity, and TikTok.

Use the code LAWCODE24 to receive complimentary registration  
WHENWHERE
June 26, 2024
11:30am – 3:45pm EST
Networking reception to follow, co-sponsored by Squire Patton Boggs and Ankura!
ANA Headquarters
155 E 44th Street, 8th Floor
New York, NY 10017
-or-
Virtual
Continue Reading ANA Law One-day Conference – Join Us June 26 in New York City

Since its inception in 1998, the Children’s Online Privacy Protection Act (COPPA) has been the cornerstone of protecting the personal data of minors under the age of 13 in the United States. COPPA imposes various requirements, including parental consent, notice and transparency, and data minimization, among other things, on online services that are “directed to children [under 13]” and “mixed audience” online services, or those that have actual knowledge that they have collected personal data from a child [under 13] online.

Many organizations that previously did not have to worry about COPPA or COPPA-based standards as applied to state consumer privacy laws should be aware of the trend in state privacy legislation to expand restrictions and obligations beyond COPPA’s under age 13 standard, to minors that are at least 13 and under the age of 18 (“Teens”). This trend began in 2020 with the California Consumer Privacy Act (CCPA) requiring consent for “sale” of personal information of consumers at least age 13 but younger than 16 years of age  (the California Privacy Rights Act expanded that requirement to “sharing” as well). Consent must be given by the Teen or, if the consumer is under age 13, by the parent, using COPPA verification standards. Other relevant aspects regarding this trend, of which organizations should be aware, include:

Continue Reading Trending: Teens’ Data Subject to Heightened Restrictions Under Ten (and Counting?) State Privacy Laws

State legislatures across the country were busy in 2023 and so far this year passing comprehensive consumer privacy laws and creating a vexing patchwork of compliance obligations.

Legislatures in Iowa, Indiana, Tennessee, Montana, Florida, Texas, Oregon, Delaware, New Jersey, New Hampshire, Kentucky, Maryland, Nebraska and Minnesota all enacted consumer privacy laws of their own with an additional consumer privacy law in Vermont awaiting action by the Governor. The fifteen laws passed in 2023 and 2024 join laws in California, Virginia, Colorado, Utah, and Connecticut which already are in effect. A chart at the end of this blog post notes each law’s effective date, three of which are effective at the end of this month.

While inspired by the EU General Data Protection Regulation and the California Consumer Privacy Act (“CCPA”), the new state consumer privacy laws take materially different approaches in many ways. States also have passed more targeted privacy laws pertaining specifically to consumer health data (beyond treating it as a category of sensitive personal data), the protection of children (beyond limiting the use of personal data), AI-specific laws (not part of a comprehensive consumer data regime) and laws regulating data brokers (typically controllers that sell personal data they do not directly collect from consumers). Congress continues to consider a federal law that would mostly preempt the state consumer privacy laws, as well as other laws specific to children’s online safety with partial preemption. In the meantime, data controllers (and to a lesser degree processors) face the challenge of determining which state consumer privacy laws apply and whether to apply applicable laws based on consumer residency or to apply a national highest standard to all consumers.

The SPB privacy team has developed a comprehensive guide on state consumer privacy laws, including comparison charts on key issues to help determine which laws apply and tips for enhancing information governance. Most of the new state consumer privacy laws require controllers to conduct and retain documentation of data privacy impact or risk assessments. Minnesota’s new consumer privacy law also requires a documented privacy compliance program reasonably designed to ensure compliance and data inventories. The most recent draft of the federal privacy law mandates privacy-by-design.

Following are some highlights of the emerging ‘high water mark’ (strictest requirement) for key aspects of consumer privacy in the United States:

Continue Reading State Privacy Law Patchwork Presents Challenges

In case you missed it, below are recent posts from Privacy World covering the latest developments on data privacy, security and innovation. Please reach out to the authors if you are interested in additional information.

Congress Could Disrupt Prevailing State Law Approach to Online Ads | Privacy World

Squire Patton Boggs Lawyers to Present on Several Upcoming Webinars and Events | Privacy World

California Privacy Regulator Holds Townhall Sessions On Draft Rules | Privacy World

When the EDPB is Weaponized, It Is Our Privacy That Is at Risk | Privacy World

Relying on CAFA’s Discretionary “Home-State” Exception, Federal Court Punts Data Breach Class Action Back to State Court | Privacy World

Singapore Progresses Towards Amended Cybersecurity Law | Privacy World

Heavyweight Fight, Did the US or EU KO the AI Treaty? | Privacy World

Are you Ready for Washington and Nevada’s Consumer Health Data Laws? | Privacy World

April’s APRA: Could Draft Privacy Legislation Blossom into Law in 2024? | Privacy World

The Italian DPA Has Its Eyes on Biometric IDs – Another Fight on Tech or a Win for Privacy? | Privacy World

The recently released discussion draft of the American Privacy Rights Act rejects the opt-out approach to targeted advertising in 17 state consumer privacy laws, and instead requires express affirmative opt-in consent for tailoring online ads based on a specific viewer’s interests and activities, akin to the prevailing European approach.  In a guest post published earlier this week by Bloomberg Law, Privacy World’s Alan Friel and Kyle Fath explain why this would do more harm than good to consumers, threaten the ad-supported online content business model that supports a free and open Internet, and increase the economic digital divide.  Read more here.

In case you missed it, below are recent posts from Privacy World covering the latest developments on data privacy, security and innovation. Please reach out to the authors if you are interested in additional information.

California Privacy Regulator Holds Townhall Sessions On Draft Rules | Privacy World

When the EDPB is Weaponized, It Is Our Privacy That Is at Risk | Privacy World

Relying on CAFA’s Discretionary “Home-State” Exception, Federal Court Punts Data Breach Class Action Back to State Court | Privacy World

Singapore Progresses Towards Amended Cybersecurity Law | Privacy World

Heavyweight Fight, Did the US or EU KO the AI Treaty? | Privacy World

Are you Ready for Washington and Nevada’s Consumer Health Data Laws? | Privacy World

April’s APRA: Could Draft Privacy Legislation Blossom into Law in 2024? | Privacy World

The Italian DPA Has Its Eyes on Biometric IDs – Another Fight on Tech or a Win for Privacy? | Privacy World

In case you missed it, below are recent posts from Privacy World covering the latest developments on data privacy, security and innovation. Please reach out to the authors if you are interested in additional information.

Singapore Progresses Towards Amended Cybersecurity Law | Privacy World

Heavyweight Fight, Did the US or EU KO the AI Treaty? | Privacy World

Are you Ready for Washington and Nevada’s Consumer Health Data Laws? | Privacy World

April’s APRA: Could Draft Privacy Legislation Blossom into Law in 2024? | Privacy World

The Italian DPA Has Its Eyes on Biometric IDs – Another Fight on Tech or a Win for Privacy? | Privacy World

Washington’s My Health My Data Act (“MHMDA”) and Nevada’s SB 370 (“NV CHD Law”) (collectively, “CHD Laws”) went into effect at the end of last month, on March 31, 2024 (as many know, MHMDA’s geofencing prohibition went into effect last summer). Unlike the Health Insurance Portability and Accountability Act (“HIPAA”), a federal law which governs privacy and security in traditional healthcare settings, CHD Laws regulate “consumer health data” or “CHD”– a very broadly defined term as we discuss below and in a prior post – collected by companies in a broad swath of health and non-health related industries alike. Even ancillary purposes like providing accessibility accommodations and defending personal injury claims are enough to trigger the laws. CHD Laws impose restrictions and obligations on regulated entities far more burdensome than state consumer privacy laws, many of which already regulate some of the same health data, and unlike those general consumer privacy laws are not proposed to be preempted by the potential federal America Privacy Rights Act.

As such, compliance programs that businesses may have developed to comply with state consumer privacy laws, such as the California Privacy Protection Act (“CCPA”), will not be sufficient to address the requirements of the CHD Laws, though they can be leveraged such as for consumer rights request and processor management. There are some material differences beyond the scope of the data regulated. For example, businesses must add another website footer link (and potentially elsewhere, such as in mobile apps) and post a separate privacy policy applicable to the processing of CHD. The facilitation of consumer rights must be CHD-specific, for example providing the right to delete just CHD, rather than all personal information. Moreover, businesses that have CHD use cases not within narrow exceptions (e.g., as necessary to provide a requested product or service), which differ somewhat as between the two laws, will have to grapple with the foreboding consent and authorization requirements which, in some cases, could result in subjecting visitors or customers to a litany of notices and pop-ups in an environment already plagued by what some dub as “consent fatigue.”

Continue Reading Are you Ready for Washington and Nevada’s Consumer Health Data Laws?

In case you missed it, below are recent posts from Privacy World covering the latest developments on data privacy, security and innovation. Please reach out to the authors if you are interested in additional information.

April’s APRA: Could Draft Privacy Legislation Blossom into Law in 2024? | Privacy World

Singapore Issues Privacy Guidelines for Children’s Online Safety | Privacy World

China Finalizes New Regulations to Relax Personal Data Exports from China | Privacy World

Squire Patton Boggs Lawyers to Present on Several Upcoming Webinars and Events | Privacy World