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After a busy year of legislative activity that brought forth many proposed amendments to the California Consumer Privacy Act (CCPA), Governor Gavin Newsom will be presented with six bills that will alter and/or clarify the scope of the CCPA. He is expected to sign all of them into law in October.

Employee Data:  The original version of the CCPA did not contain an exemption for employees’ personal information. Assembly Bill 25 brings needed clarity to the question of whether employee data will fall under the CCPA. This is a critical issue, given that certain personal information is necessarily used on a daily basis for business. Under AB 25, employees and prospective employees are excluded from most of the CCPA’s protections, which include: the right to request deletion of personal information; the right to inquire about what personal information is collected; the right to inquire about the sources of personal information; the right to inquire about the purpose for collecting or selling personal information; and the right to inquire about the categories of third parties with whom the employer or prospective employer shares their personal information. 
Continue Reading California Legislative Sessions Closes and Brings Finality to CCPA Amendments for Now

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On August 22, 2019, the Substance Abuse and Mental Health Services Administration of the United States Department of Health and Human Services (“SAMHSA”) issued a proposed rule amending the Confidentiality of Substance Use Disorder Patient Records regulations set forth at 24 CFR Part 2.  These regulations were initially implemented to provide heightened protection of patient records covering the treatment of substance use disorder (“SUD”) provided by certain federally funded programs (“Part 2 programs”).

The proposed regulations do not modify the general requirements for the confidentiality of SUD patient records created by Part 2 programs.  Part 2 continues to prohibit the disclosure of SUD records without patient consent except as specifically permitted in situations such as in the case of a bona fide medical emergency, for purposes of scientific research, audit or program evaluation, or with an appropriate court order after showing good cause. 
Continue Reading DHHS Issues Proposed Rule Amending 42 CFR Part 2

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Following a security incident involving its website’s chat function, Delta filed suit in the Southern District of New York against its tech vendor, [24]7.ai. Delta alleged fraud, negligence and breach of contract. A consumer class action lawsuit had already been filed against Delta in the Northern District of Georgia, related to the same incident.

According to the Complaint, on March 28, 2018, Delta was notified by [24]7.ai that a security incident had potentially compromised personally identifying information and payment card data of up to 825,000 of Delta’s customers. Delta alleges that “at least one third-party attacker gained access to Defendants’ computer networks and modified the source code of Defendants’ chat services software to enable the attacker to ‘scrape’ PII and payment card data from individuals using websites of Defendants’ clients, including Delta’s website…” Delta engaged a forensics team and began working with federal law enforcement upon receiving notice from [24]7.ai. Delta then publicly announced the breach, notified its customers, launched free credit monitoring services, and filed a lawsuit against [24]7.ai. Delta is seeking reimbursement of all breach-related costs. 
Continue Reading Delta Airlines Sues Vendor for Data Breach

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This blog post is the third in a series of Q&A posts following Dykema’s February 27, 2019 webinar on the California Consumer Privacy Act (“CCPA”). The statute takes effect on January 1, 2020–which is less than six months away. Please feel free to reach out to us if you have a unique question or would like to discuss in detail how the CCPA may apply to you.

You may see our first and second posts here and here.

Thanks for reading!Continue Reading February 27, 2019, CCPA Webinar Q&As: Private Claims Under the CCPA

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Over the last few months, we have been presenting and reporting on the California Consumer Privacy Act (CCPA), the county’s first comprehensive state law designed to give consumers significant control over the personal data that companies collect. Not to be outdone, New York is working on data privacy legislation that imposes even heavier burdens on companies that collect consumer information.

The proposed New York Privacy Act (NYPA), Senate Bill S5642, sponsored by Democrat Kevin Thomas, has not yet been passed. If it passes in its current form, however, it would impose the strictest requirements in the country relating to companies’ collection, maintenance, use, and disclosure of consumer information. 
Continue Reading New York Data-Privacy Proposal More Stringent than California’s CCPA

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April was another busy month for legislative activity on the California Consumer Privacy Act (CCPA), following a very busy February [see our prior post here]. A proposed sweeping revision to the CCPA, AB 1760, was withdrawn, while three key amendments, AB 25, AB 873, and AB 874, are up for a floor vote. Meanwhile, SB 561, which greatly expands the private right of action under the CCPA, is now in the Senate Appropriations Committee’s Suspense File awaiting a May 17, 2019 deadline for a vote as to whether it makes it out of the Suspense File. 
Continue Reading CCPA Watch: Proposed Sweeping Overhaul Withdrawn, Three Amendments Providing Key Clarifications Remain Pending

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After the Illinois Supreme Court’s decision in January holding that a plaintiff need not show actual harm to be an “aggrieved person” under the Illinois Biometric Information Privacy Act (“BIPA”), parties litigating under BIPA have been testing other defenses. One of those defenses is whether BIPA matters can be compelled to arbitration pursuant to an arbitration provision set forth in the parties’ agreement.

On Tuesday, April 9, the First District Appellate Court of Illinois issued its decision in Liu v. Four Seasons Hotel, Ltd., 2019 IL App (1st) 182645, holding that a BIPA claim could not be compelled to arbitration based on the language of the employment agreement at issue. Specifically, the employment agreement provided that a dispute was subject to mandatory, binding arbitration if it “is based on one of the following types of claims as defined by law:  (a) employment discrimination; (b) harassment as it relates to my employment; (c) a wage or hour violation; (d) or termination of my employment from the Hotel.” Defendant argued that plaintiffs’ BIPA claim was a “wage or hour” dispute because the scans of plaintiffs’ fingerprints were used to track the hours the plaintiffs worked and therefore, it was an “hour” violation claim. The appellate court disagreed. 
Continue Reading Arbitration Clauses & BIPA: The Broader the Better

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This blog post is the second in a series of Q&A posts following Dykema’s February 27, 2019 webinar on the California Consumer Privacy Act (“CCPA”).  We received questions both before and during the webinar, and over the coming weeks we will be posting our responses. We will answer the most commonly-asked questions first, so please stay tuned if you don’t see your question in our first few posts. And, of course, please feel free to reach out to us if you have a unique question or would like to discuss in detail how the CCPA may apply to you.

You may see our first post here.

Thanks for reading!Continue Reading February 27, 2019 CCPA Webinar Q&As: Third-Parties & Due Diligence

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Data privacy litigation is not a new frontier. The Illinois Biometric Information Privacy Act (“BIPA”) has provided a private right of action for the improper collection of biometric information from Illinois citizens without consent since 2008. Even so, employers and businesses alike were caught off-guard when plaintiffs began filing class actions complaints alleging BIPA violations in 2015. Defendants scored early victories in these cases, as evidenced in the Second District Appellate Court opinion finding that actual harm, and not merely a procedural violation, must be alleged to state a claim under the Act. That ruling placed the viability of private suits under BIPA in serious doubt—because actual harm from an improper collection of biometric information is not easily pled. But then in January 2019, the Illinois Supreme Court reversed the defendant-friendly intermediate appellate ruling and held that mere procedural violations of BIPA standing alone were sufficient to withstand a motion to dismiss. That ruling breathed new life into this pattern litigation, as recent docket filings show. 
Continue Reading Is the Illinois Legislature Rethinking BIPA?

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This blog post is the first in a series of Q&A posts following Dykema’s February 27, 2019 webinar on the California Consumer Privacy Act (“CCPA”). We received questions both before and during the webinar, and over the coming weeks we will be posting our responses. We will answer the most commonly-asked questions first, so please stay tuned if you don’t see your question in the first one or two posts. And, of course, please feel free to reach out to us if you have a unique question or would like to discuss in detail how the CCPA may apply to you.

Thanks for reading! 
Continue Reading February 27, 2019 CCPA Webinar Q&As: Out-of-State, B2B, and GLBA-Covered Businesses