Privacy

Keypoint: If passed, the bill would create a regulatory structure around the use of contact-tracing apps, including requiring operators of such services to obtain affirmative express consent, provide privacy disclosures, not transfer the data unless under certain circumstances, and delete the data on demand or within thirty days.

According to multiple sources, a bipartisan group of Senators plan to introduce a bill to regulate the use of contact-tracing and exposure notification apps. The bill, entitled the “Exposure Notification Privacy Act” is the latest in a series of bills that seek to regulate these new apps. Previous competing bills were submitted by Republican and Democrat Senators. The new bipartisan bill raises hopes that federal privacy legislation (albeit on a limited issue) may finally pass.

Below is a discussion of the Act’s relevant provisions.

Resulting in Zoom Promising to Implement an Information Security Program, Resembling the SHIELD Act

Key point: The Letter of Agreement between the New York Attorney General and Zoom Video Communications, Inc. provides insight into what the Attorney General may consider satisfying the Reasonable Safeguards requirement under the SHIELD Act.

On May 7, 2020 Zoom Video Communications, Inc. (Zoom) became the first company to experience one of the new enforcement tools available to the New York Attorney General’s Office (NYAG) under the Stop Hacks and Improve Electronic Data Security Act (SHIELD Act).

The SHIELD Act took effect on March 21, 2020, and requires any person or business owning or licensing computerized data containing the private information of a New York resident “to develop, implement and maintain reasonable safeguards to protect the security, confidentiality and integrity of that private information.” GBL § 899-BB(2).

Keypoint: Although it is unclear whether the forthcoming bill has any chance of becoming law, it is further evidence that companies need to consider the significant privacy issues and risks associated with implementing COVID-19-related technology.

On April 30, 2020, a group of four Republican Senators announced their plan to introduce federal privacy legislation that would regulate the collection and use of personal information relating to the fight against the Coronavirus pandemic. The four Senators are U.S. Sens. John Thune (R-S.D), chairman of the Subcommittee on Communications, Technology, Innovation, and the Internet; Roger Wicker (R-Miss.), chairman of the Senate Committee on Commerce, Science, and Transportation; Jerry Moran (R-Kan.), chairman of the Subcommittee on Consumer Protection, Product Safety, Insurance and Data Security; and Marsha Blackburn (R-Tenn.).

Keypoint: The use of no-contact temperature taking devices can be an important part of a company’s return-to-work program, but companies should fully vet these devices to ensure that they are not unintentionally violating privacy laws or exposing themselves to potential liabilities.

As U.S. companies start planning and implementing return-to-work plans, many are considering whether to use no-contact temperature taking devices.

The federal government has recognized that taking temperatures is a step that companies can take to mitigate the risk of spreading coronavirus. For example, the CDC interim guidance for critical infrastructure workers recommends that employers “measure the employee’s temperature and assess symptoms prior to them starting work.” EEOC return-to-work guidance also recognizes that employee screening “may include continuing to take temperatures . . . of all those entering the workplace.”

States and cities also have recommended taking temperatures. For example, in Colorado, the Governor’s office has encouraged large workplaces to implement symptom and temperature checks as part of the state’s gradual return-to-work strategy. New York Mayor Bill de Blasio has stated that temperature checks will be part of the City’s return-to-work program. New Jersey Governor Phil Murphy suggested that restaurants could check temperatures before allowing customers to enter.

However, the taking of temperatures creates logistical issues such as who should take the temperatures, what precautions should be in place, and when and where the temperatures should be taken. As with many other facets of this pandemic, companies have looked to technology to answer some of these questions, and there are many solutions – some old, some new – in the marketplace.

Depending on the type of device, the use of no-contact temperature taking devices can raise numerous privacy issues. As companies begin to vet and implement these devices, they will need to ensure that they do not unintentionally violate privacy laws or assume potential liabilities.

Keypoint: If properly deployed, the use of COVID-19 contact-tracing apps by employers, in combination with other measures, could be an effective way to return employees to the workforce. However, before deploying these apps, employers should take caution to fully vet the technologies being used to ensure that employee privacy is respected.

As the United States and Europe have started the process of returning to work, the development, deployment, and use of COVID-19 contact-tracing apps has become a focal point for how governments intend to mitigate risk. China, Singapore, and South Korea have already implemented national contact-tracing apps. European countries and Australia have been rapidly working towards their deployment.

In connection with the rapid development of governmental contact-tracing apps, tech companies have started to develop similar apps for employers. A handful of employer-focused contact-tracing apps are already on the market and many more are in development. Some employers are already planning to deploy these apps. For example, Ferrari recently announced that it will utilize a contact-tracing app as part of its “Back on Track” plan.

The use of these apps raises numerous privacy concerns for U.S. employers. As employers begin to vet these apps, they will need to ensure that they do not unintentionally violate privacy laws or assume liabilities by deploying them with their workforce.

Keypoint: After an active winter of proposed state privacy laws, it appears that all eyes will once again be on California for the remainder of the year as we wait for final CCPA regulations, the fate of the CCPA 2.0 ballot measure, and other privacy bills being considered by the California legislature.

Over the past few months, there has not been a lack of things to talk about as it relates to U.S. privacy law developments. Between the CCPA, Washington Privacy Act, CCPA 2.0, and numerous privacy bills proposed in state legislatures, practically every day brought a new story.  However, a lot has changed in a short period of time.

First, the Washington Privacy Act failed to pass (although Washington did enact a facial recognition bill). Then, the world changed with the Coronavirus pandemic.

Yet, there are still developments in U.S. privacy law. Below is an overview of the ones that we have been tracking over the past few weeks.

On Monday, the Chair of the European Data Protection Board (EDPB) issued a statement on the processing of personal data in the context of the COVID-19 outbreak. In that statement, the Chair acknowledged that although the EU General Data Protection Regulation (GDPR) provides broad and comprehensive privacy rights to individuals, it does have mechanisms in…

Map of Wisconsin State in USA

Keypoint: The Wisconsin Data Privacy Act would create CCPA and GDPR-like rights for Wisconsin residents and would strengthen Wisconsin’s data security and breach notification requirements.

Lawmakers in Wisconsin have proposed three bills that, if enacted, would create privacy rights for Wisconsin residents and compliance burdens for entities that process or control consumer data. All three bills were introduced on February 10, 2020 and an initial public hearing was held on February 12, 2020.

Conceptual image about how a laptop computer with internet open a virtual door to worldwide information sharing.Keypoint: Maryland lawmakers have introduced a bill that would allow Maryland residents to opt-out of certain types of personal information transfers but that would stop far short of creating CCPA-like rights for Maryland residents.

On January 17, 2020, Maryland House Delegates Courtney Watson and Ned Carey introduced HB0249. If enacted in its current form, the bill would allow Maryland residents to opt-out of certain types of transfers of their personal information to third parties. However, it would not create other CCPA-like privacy rights such as the right to deletion and would not require businesses to make disclosures regarding their privacy practices.

Maryland joins a growing list of states considering consumer privacy legislation, including Florida, Illinois, Virginia, Washington state, Nebraska, New Jersey, New Hampshire, and Hawaii. Members of Husch Blackwell’s privacy and data security practice group will be hosting a webinar on February 4 at noon CST to discuss these proposed laws and to provide an update on the CCPA. To register, click here.

Below is our analysis of the Maryland legislation (as introduced).

Conceptual image about how a laptop computer with internet open a virtual door to worldwide information sharing.Keypoint: The Virginia Privacy Act would create CCPA-like rights for Virginia residents while the Sale of Personal Data Act would create rights vis-à-vis “data sellers.”

Lawmakers in Virginia have proposed two bills that, if enacted, would create a number of privacy rights for Virginia residents and compliance burdens for covered entities.

The first bill – the Virginia Privacy Act (HB 473) – was prefiled on January 3, 2020, and offered on January 8, 2020. It would create CCPA-like rights for Virginia residents and new obligations on businesses such as a requirement to conduct risk assessments.

The second bill – which is unnamed but for our purposes will be referred to as the Sale of Personal Data Act (SB 641) – was prefiled on January 7, 2020, and offered on January 8, 2020. Among other things, it would require data sellers to implement reasonable security measures to protect personal data, respond to certain types of privacy requests, and notify Virginia residents of data breaches.

In addition to Virginia, lawmakers have proposed consumer privacy legislation in Florida, Illinois, Washington state, Nebraska, New Jersey, New Hampshire, and Hawaii. Members of Husch Blackwell’s privacy and data security practice group will be hosting a webinar on February 4 at noon CST to discuss these proposed laws and to provide an update on the CCPA. To register, click here.

Below is our analysis of Virginia’s proposed legislation (as introduced). We will first analyze the Virginia Privacy Act and then separately analyze the Sale of Personal Data Act.