Privacy & Cybersecurity

Welcome to Fall 2021!   We’re trying to curate some of the week’s privacy and cybersecurity news to keep you up-to-date.

The California Privacy Protection Agency Board (“CPPA Board”), has issued an invitation for preliminary comments from the public related to a wide swath of areas over which the CPPA Board has rulemaking authority. According to the invitation, comments may be used in developing new regulations under the CPRA, and determining whether changes to the existing regulations are needed to implement the CPRA.

When it comes to the privacy of health information, California belongs to the select group of states that have implemented broad consumer privacy protections above and beyond those provided by the federal Health Insurance Portability and Accountability Act (HIPAA) and the Federal Trade Commission Act (FTCA). This year, the state’s ongoing legislative efforts to protect the health information of its residents included: Assembly Bill 1436 (AB 1436) which if enacted would have revised California’s existing Confidentiality of Medical Information Act (CMIA), and Senate Bill 41 (SB 41), which if enacted will create the new Genetic Information Privacy Act (GIPA). As further discussed below, only SB 41 is moving forward, and if signed by Governor Newsom GIPA will go into effect on January 1, 2022.

On September 15, 2021, in response to the “proliferation of apps and connected devices that capture sensitive health data” the Federal Trade Commission (FTC) issued a Policy Statement ( the Statement) offering guidance on the scope of the FTC’s Health Breach Notification Rule (Breach Rule). According to the Statement, the Breach Rule applies outside of the traditional health care context (e.g. health care involving diagnosis and treatment by a licensed health care provider) and the FTC intends to bring enforcement actions for noncompliance involving up to $43,792 in civil penalties per violation, per day.

Organizations that use the European Union’s Standard Contractual Clauses (SCCs) to govern their transfers of personal data from the European Economic Area (EEA) to other countries should have September 27, 2021 circled in red in their calendars (or the virtual equivalent).

Long holiday weekends make for ransomware attacks and data breaches. It is well-known that malicious actors take advantage of understaffed IT resources on holidays. In fact, it’s become such a common occurrence, that the FBI and the Cybersecurity and Infrastructure Security Agency of the Department of Homeland Security have issued a joint advisory warning organizations to be on high alert as Labor Day weekend approaches.

The United Kingdom has been busy in the past couple of weeks starting to chart its independent course on data protection and privacy matters. Here’s a quick round-up of the some interesting and important developments.

There is a glut of information out there regarding privacy and cybersecurity these days. Our new feature “What We’re Reading” provides a curated list of articles, blogs, newsletters, and books that you may find interesting and helpful.

There is a glut of information out there regarding privacy and cybersecurity these days.  Our new feature “What We’re Reading” provides a curated list of articles, blogs, newsletters, and books that you may find interesting and helpful.

Another district court just ordered the defendant in a data breach class action to turn over the forensic report it believed was entirely protected from disclosure by the attorney-client privilege and work product doctrine. See In re Rutter’s Inc. Data Security Breach Litigation, Case No. 1:20-CV-382 (N.D. Penn. July 22, 2021). The court granted the motion to compel Rutter’s to produce its investigative report (the “Kroll Report”), which was created after the defendant was notified of a potential breach.

There is a glut of information out there regarding privacy and cybersecurity these days.  Our new feature “What We’re Reading” provides a curated list of articles, blogs, newsletters, and books that you may find interesting and helpful.

To note the one year anniversary of the California Consumer Privacy Act (CCPA) enforcement date, California Attorney General Rob Banta held a press conference on July 19, 2021 to share key information about enforcement efforts and announce a new consumer privacy tool. He also praised businesses for their prompt compliance efforts and urged consumers to be proactive about their privacy rights.

Colorado has now joined California and Virginia to become the third US state to pass a comprehensive data privacy legislation when Governor Jared Polis signed the Colorado Privacy Act (the “CPA”) into law on July 8, 2021. The new law is set to take effect on July 1, 2023. The CPA borrows in part from the European Union’s General Data Protection Regulation (“GDPR”), but more significantly from both the California Consumer Privacy Act (“CCPA”, including as amended by the California Privacy Rights Act (“CPRA”)), and the Virginia Consumer Data Protection Act (“VCDPA”). Below, we highlight some of the CPA’s key elements and explore how the law compares to the CCPA and VCDPA.

As we’ve written, New York City’s Biometric Identifier Information Law (the “NYC Law”) is now in force, effective Friday, July 9th.  The NYC Law requires that places of entertainment, retail stores and food and drink establishments that collect biometric identifying information, including from customers and employees, post a “clear and conspicuous” notice to that effect near customer entrances.

As previewed in Mintz’s earlier post, New York City’s Biometric Identifier Information Law the “NYC Law”) is now in force, effective Friday, July 9th.  The NYC Law requires that places of entertainment, retail stores and food and drink establishments that collect biometric identifying information, including from customers and employees, post a “clear and conspicuous” notice to that effect near customer entrances. 

There is a glut of information out there regarding privacy and cybersecurity these days.  Our new feature “What We’re Reading” provides a curated list of articles, blogs, newsletters, and books that you may find interesting and helpful.

If your business is subject to the California Consumer Privacy Act (CCPA), and your business handles (in any manner set forth in the CCPA) the personal information of 10,000,000 or more California residents in a calendar year, you are required to report on consumer request metrics annually.  The first reporting period under the CCPA begins on Thursday, July 1, 2021.

On Friday, a sharply divided U.S. Supreme Court issued a ruling, which significantly impacts the plaintiffs’ ability to pursue privacy and data breach class actions in federal courts. In TransUnion LLC v. Ramirez, Case No. 20-297, the Court opined that most of the plaintiffs failed to show a “concrete” injury and thus had no standing to pursue their claims because they did not suffer real, personal harm.

At the close of Connecticut’s 2021 legislative session, a pair of data protection/cybersecurity related bills made their way to Governor Ned Lamont’s desk, while a CCPA-like omnibus privacy law falling one floor vote short. Oddly, the last-minute proposal (after other proposals in the House and Senate) were found in a 122-page budget bill and ended up being stripped away.