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Marci Kawski

Marci represents installment lenders, auto finance companies, payday and short-term lenders, online lenders, credit unions, and banks when faced with regulatory issues. She provides practical advice to clients to ensure they comply with the myriad laws governing their businesses. Marci’s skills extend to all aspects of consumer finance litigation: discovery, dispositive motion practice, mediation, negotiation of settlement agreements, trial and appeal. Her litigation experience informs her counsel to clients hoping to avoid regulatory issues. Credit unions and other financial institutions also turn to Marci to prepare and review third-party and vendor contracts.

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Federal Trade Commission

Key Point: The Federal Trade Commission (FTC) has amended the Safeguards Rule to require non-banking financial institutions to inform the FTC within 30 days of discovering any unauthorized acquisition of unencrypted customer information that affects 500+ customers.

The Federal Trade Commission (FTC) has announced a significant amendment to the Safeguards Rule, that directs all financial institutions, including non-banking entities, to report certain data breaches and security events to the FTC within 30 days.

The Safeguards Rule, which is predicated on the Gramm-Leach-Bliley Act (GLBA), now requires all financial institutions to report to report “notification events” to the FTC. The FTC is defining a notification event as “the unauthorized acquisition of unencrypted customer information, involving at least 500 customers.” The amendment goes into effect in April 2024. See pending additions at 16 C.F.R. § 314.2(m) and § 314.5.

Keypoint: As leadership at the CFPB shifts, responses to the CFPB’s Notice of Proposed Rulemaking to implement Section 1033 of the Dodd Frank Act looms.

More than a decade ago, the Dodd Frank Act created the Consumer Financial Protection Bureau (CFPB) and gave it authority to promulgate rules implementing Section 1033 of the Act. Under Section 1033, upon request, a financial services provider “shall make available to a consumer information in its control or possession concerning the product or service that the consumer has obtained, including information relating to any transaction, series of transactions, or to the account including costs, charges and usage data. The information shall be made available in an electronic form usable by consumers.”

On January 28, 2021, privacy professionals around the world will celebrate Data Privacy Day. This year, we decided to mark the occasion by gathering our team’s thoughts and expectations on what we expect to be the biggest privacy law stories in 2021 and beyond.

Last year we wrote a similar article, attempting to predict how the privacy landscape would unfold in 2020. We got some things right (e.g., the emergence of CCPA 2.0). But, let’s be honest, in March everything changed, including privacy law. As spring turned into summer our writing focused on the privacy law implications of COVID-19, including contact tracing, no contact temperature taking, and the unanticipated collection of heath information, among other unexpected topics. We also took note of developments overseas, including the Court of Justice of the European Union’s Schrems II decision and the emergence of Brazil’s federal privacy law, LGPD.

If there was one takeaway from 2020 from a privacy law perspective it was this – while it is impossible to predict its path, privacy law is rapidly growing and evolving, almost on a daily basis, and in nearly every corner of the world. With that, we turn to our 2021 predictions.

Keypoint: The long-awaited proposed AG regulations are here, and while they provide some much-needed clarity, they will leave businesses wanting more.

On October 10, 2019, the California Attorney General’s office published its long-awaited proposed CCPA regulations. The AG’s office also announced that it will hold public hearings on the regulations on December 2, 3, 4 and 5, 2019, and that the written comment period will end on December 6, 2019, at 5:00 p.m.

In the following blog post, we will analyze and discuss many of these proposed regulations. In addition, members of Husch Blackwell’s privacy and data security practice group will host a webinar on Tuesday, October 15, from 12:00-1:30 p.m. CT, to analyze the proposed regulations.  Click here to register.

Those who have spent time critically thinking about the California Consumer Privacy Act (CCPA), can undoubtedly identify a number of ambiguities and uncertainties. Some of those may be resolved through the current legislative amendment process or the forthcoming Attorney General interpretive regulations. However, notwithstanding those efforts, there likely will be many unresolved issues when the CCPA becomes effective.

One of the myriad of issues arising from the California Consumer Privacy Act (CCPA) is the extent to which financial institutions subject to the Gramm-Leach-Bliley Act (GLBA) must comply with the CCPA’s requirements in light of Section 1798.145(e), which provides that the CCPA “shall not apply to personal information collected, processed, sold, or disclosed pursuant to [the GLBA], and implementing regulations.” Because the CCPA’s definition of “personal information” is broader than the GLBA’s definition of “nonpublic personal information,” financial institutions have been faced with the daunting task of not only data mapping but also classifying that data based on whether it is subject to the GLBA. 

Generally, one hears the term “big data” and, in the next breath, about the host of privacy issues implicated by that big data. Indeed, a quick google search confirms that in many of the top links appearing in a google search of “big data” include the word “privacy.”

There is a reason for this, of course: big data often contains a lot of information aggregated from different sources about individuals. Many times, consumer do not know in the first place that different pieces of information about them have been collected (or, if they know it has been collected, they do not know the information has been retained); they do not know that such information has been aggregated; and they do not know the aggregated information has been (and is being) further disseminated. Single pieces of information on their own pose a privacy risk. The aggregation of the information, which is then disseminated, poses a greater and different privacy risk.