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Gicel Tomimbang

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Summary

On December 27, 2024, the U.S. Department of Health and Human Services, Office for Civil Rights (“HHS”) published its Notice of Proposed Rulemaking (“NPRM”) titled HIPAA Security Rule to Strengthen the Cybersecurity of Electronic Protected Health Information. HHS seeks comments on proposed modifications to the Security Standards for the Protection of Electronic Protected Health Information comprising 45 C.F.R. Parts 160 and 164, Subpart C, commonly known as the “Security Rule”, to address modern breach and cybersecurity risks to electronic protected health information (“ePHI”)[1] and common deficiencies observed by HHS in Security Rule compliance investigations, and to incorporate current industry best practices[2] and court decisions affecting enforcement of the Security Rule[3].[4] As summarized below, the proposed modifications signal HHS’s commitment to aligning the Security Rule requirements with current cybersecurity standards and addressing areas of non-compliance with more prescriptive measures to enhance ePHI security in the face of evolving cyber threats and technological advancements. HHS invites interested parties to submit comments by March 7, 2025.Continue Reading HHS Publishes Notice of Proposed Rulemaking to Amend HIPAA Security Rule Requirements – Comments Due March 7, 2025

The California Privacy Protection Agency (CPPA) published a Notice of Extension of Public Comment Period and Additional Hearing Date on Friday, January 10, 2025, informing that the CPPA is extending the formal public comment period for the proposed updates to the California Consumer Privacy Act regulations regarding cybersecurity audits, risk assessments, automated decision-making technology (ADMT), and insurance companies to ensure all Californians, including those affected by the devastating wildfires in Southern California, have the opportunity to participate. More information regarding public comments and the new deadline can be found here.Continue Reading CPPA Extends Public Comment Period from January 14, 2025, to February 19, 2025; Public Hearings for Interested Parties to be Held January 14, 2025, and February 19, 2025

The Office of the Attorney General of Texas (“OAG”) announced a “first-of-its-kind healthcare generative AI” settlement with Pieces Technology, Inc. (“Pieces”). The settlement related to the Texas OAG allegations that Piece’s advertising and marketing claims about the accuracy of its generative artificial intelligence (GenAI) products in violation of the Texas Deceptive Trade Practices – Consumer Protection Act (“DTPA”), Tex. Bus. & Com. Code Ann. § 17.58. The Texas OAG states in its press release that the Piece’s investigation is a “First-of-its-Kind Healthcare Generative AI Investigation.”Continue Reading Texas Attorney General Settles with Healthcare AI Firm Over False Claims on Product Accuracy and Safety

Regulators in states without omnibus state privacy laws, like New York, are staking their claim over privacy regulation and enforcement. After months of investigating the deployment of tracking technologies and privacy controls on various websites, the New York State Attorney General (“NY AG”) published its guidance, Website Privacy Controls: A Guide for Business. The NY AG also published a companion guidance for consumers, A Consumer Guide to Web Tracking, which provides a high-level overview of how websites track consumers and what steps consumers can take to protect their privacy. Stay tuned for potential enforcement actions and big-figure settlements. Will New York follow Texas in this regard?

NY AG Investigation and Findings

Tracking technologies, like cookies and tags (i.e., pixels), are utilized by businesses to collect and assess information regarding how individuals interact with the business’ website or mobile app. While tracking technologies can provide valuable insights for businesses, they also raise privacy concerns regarding data collection, selling, sharing, creation of detailed profiles about individuals that are used for targeted advertising, cross-site tracking that leads to a comprehensive understanding of an individual’s interests and behavior without the individual’s knowledge or consent, and more.  The Federal Trade Commission (“FTC”) is attempting Section 5 Magnuson-Moss rulemaking on this, which they call surveillance capitalism.Continue Reading Businesses Beware: New York Eyeing Privacy Regulation and Enforcement Even Absent Omnibus State Privacy Law

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?

Hundreds of lawyers and several privacy regulators from California, Washington State, Oregon, Colorado, Connecticut, and the Federal Trade Commission gathered in Los Angeles last week for the second annual California Lawyers Association Privacy Summit (“Summit”). Among many engaging sessions on pressing topics, the panels with privacy regulators stood out discussions on enforcement priorities and administrative fines and injunctions, along with punchy and newsworthy statements – including that they are “plotting” and that considering the typical investigation presents “hundreds or thousands of violations,” potential fines are “significant.”

Perhaps even more newsworthy is that due to a California Court of Appeal order laid down as the Summit wound down on Friday, the stay in enforcement of the CCPA regulations was lifted. This happened as many companies were treating March 29, 2024, the end of the stay period, as the effective and enforcement date of regulations promulgated under the CPRA’s amendments by the California Privacy Protection Agency. The appeals order also nullifies the year delay in effectiveness of issued CCPA regulations that the trial court had required, making almost certain that CCPA regulations on risk assessments, cybersecurity assessments, and automated decision-making and profiling will be promulgated and in effect sometime this year, perhaps as early as Q2 or Q3.

Will 2024 be the year of privacy enforcement? In view of signaling from California regulators and those in other jurisdictions, and in view of several upcoming effective dates and regulatory deadlines, ongoing enforcement by regulators in California and beyond, and an impending uptick in privacy enforcement, it just might be. Stay tuned for future posts on these issues. Keep reading for more detailed takeaways regarding the Summit.Continue Reading Potential CCPA Fines “Significant”, California AG’s Office “Plotting” and Other Takeaways From Privacy Regulators during Privacy Summit in Los Angeles

On Friday, February 9, the Court of Appeal of the State of California sided with the California Privacy Protection Agency (“CPPA” or “Agency”), finding that a California Superior Court judge erred when he issued an order staying the Agency’s enforcement of the regulations promulgated pursuant to the CPRA’s amendments to the CCPA until March 29…

Most U.S. public companies are gearing up to prepare and file their annual reports (Forms 10-K) between February 29th and April 1st.  This year’s preparations will be busier because the Regulations on Cybersecurity Risk Management, Strategy, Governance, and Incident Disclosure (Cyber Risk Regulations) issued by the Securities and Exchange Commission’s (SEC) are now in force. Continue Reading FBI and DOJ Issue Guidance on SEC Incident Reporting Delay Requests

On Devil’s Night Day, two significant AI developments were announced. First, the White House’s Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence (“AI EO”).  Second, the Group of 7 (“G-7”) announced its International Guiding Principles on Artificial Intelligence (“G-7 Principles”) and companion Code of Conduct for AI Developers (“G-7 Code”). All are three broad strokes – the devil will be in the details. 

Following is a short summary of each but please check back soon for more analysis and key takeaways for businesses and their AI governance programs.Continue Reading Two Significant AI Announcements:  Spooky for AI Developers?

As many of our readers know, keeping up with new developments in the privacy landscape is sometimes like drinking from a firehose. With respect to privacy enforcement, particularly in California and Colorado, the hose was turned on June 30th and has been running all summer long. This barrage of information has left unanswered questions for many. What does the delay in enforcement of the California Consumer Privacy Act, as amended by the California Privacy Rights Act (CPRA) (together, CCPA) regulations really mean? What am I required to comply with as of today? What are regulators already focusing on in their privacy enforcement efforts this summer?Continue Reading Red Hot Enforcement Summer: No Vacation for California and Colorado Privacy Regulators