Privacy & Information Security Law Blog

Last month, Texas Governor Rick Perry signed a health privacy bill into law that imposes new obligations exceeding the requirements in the HIPAA Privacy Rule.  The law, which will become effective on September 1, 2012, incorporates the expanded definition of the term “covered entity” in Texas’s existing health privacy law and could have a broad impact on many non-HIPAA covered entities.

On June 13, 2011, Representative Mary Bono Mack (R-CA) released a discussion draft of the Secure and Fortify Data Act (the “SAFE Data Act”), which is designed to “protect consumers by requiring reasonable security policies and procedures to protect data containing personal information, and to provide for nationwide notice in the event of a security breach.”  Representative Bono Mack is Chairman of the House Subcommittee on Commerce, Manufacturing and Trade.  In a press release, Representative Bono Mack remarked that “E-commerce is a vital and growing part of our economy.  We should take steps to embrace and protect it – and that starts with robust cyber security.”  She added that “consumers have a right to know when their personal information has been compromised, and companies and other organizations have an overriding responsibility to promptly alert them.”

On June 8, 2011, the Department of Commerce’s Internet Policy Task Force released a report entitled “Cybersecurity, Innovation and the Internet Economy.”  The report contains four broad policy recommendations: (1) the creation of a nationally recognized approach to minimize vulnerabilities for the Internet and networking services industry, (2) the development of incentives to combat cybersecurity threats, (3) increased cybersecurity education and research, and (4) the promotion of international cooperation to enable sharing of cybersecurity best practices.

As we reported last week, on May 12, 2011, the Obama administration announced a comprehensive cybersecurity legislative proposal in a letter to Congress.  The proposal, which is the culmination of two years of work by an interagency team made up of representatives from multiple departments and agencies, aims to improve the nation’s cybersecurity and protect critical infrastructure.  If enacted, this legislation will affect many government and private-sector owners and operators of cyber systems, including all critical infrastructure, such as energy, financial systems, manufacturing, communications and transportation.  In addition, the proposal includes a wide-reaching data breach notification law that is intended generally to preempt the existing state breach laws in 46 states plus Washington, D.C., Puerto Rico and the U.S. Virgin Islands.

On May 9, 2011, Senator Jay Rockefeller (D-WV), the Chairman of the Senate Committee on Commerce, Science and Transportation, introduced the “Do-Not-Track Online Act of 2011” (the “Act”).  The Act instructs the Federal Trade Commission to promulgate regulations that would (1) create standards for the implementation of a “Do Not Track” mechanism that would enable individuals to express a desire to not be tracked online and (2) prohibit online service providers from tracking individuals who express such a desire.  The regulations would allow online service providers to track individuals who do not want to be tracked only if (1) the tracking is necessary to provide a service requested by the individual (and the individuals’ information is anonymized or deleted when the service is provided), or (2) the individual is given clear notice about the tracking and affirmatively consents to the tracking.

On April 12, 2011, U.S. Senators John Kerry (D-MA) and John McCain (R-AZ) introduced the Commercial Privacy Bill of Rights Act of 2011 (the “Act”) to “establish a regulatory framework for the comprehensive protection of personal data for individuals under the aegis of the Federal Trade Commission.”  The bill applies broadly to entities that collect, use, transfer or store the “covered information” of more than 5,000 individuals over a consecutive 12-month period.  Certain provisions of the bill would direct the FTC to initiate rulemaking proceedings within specified timeframes, but the bill also imposes requirements directly on covered entities.

On March 28, 2011, the Briar Group, LLC, owner and operator of several Boston-area bars and restaurants, reached a settlement with Massachusetts Attorney General Martha Coakley regarding the breach of “tens of thousands” of consumers’ payment card information.  The settlement resolves a lawsuit filed in Massachusetts Superior Court alleging that in April 2009 hackers gained access to the Briar Group’s computer systems and misappropriated customer data by installing malcode which was not removed by the company until December of that year.  The complaint further alleged that the Briar Group’s lax data protection practices, such as allowing employees to share computer passwords and failing to secure network wireless connections, put customers’ personal information at risk.

Representative Rick Boucher (D-VA), current head of the House Subcommittee on Communications, Technology and the Internet, lost his reelection bid yesterday to Republican Morgan Griffith, the Majority Leader of the Virginia House of Delegates.  Representative Boucher, widely recognized and respected for his legislative efforts in the areas of technology, telecommunications and privacy law, co-authored the CAN-SPAM Act and also introduced draft privacy legislation earlier this year.  Congressman Boucher’s defeat leaves the House Subcommittee on Communications, Technology and the Internet panel without its top Democrat, and it is unclear who will fill that leadership vacancy.

On September 15, 2010, New York State Attorney General Andrew Cuomo announced a $100,000 settlement with EchoMetrix, a developer of parental control software that monitors children’s online activity.  The settlement comes one year after the Electronic Privacy Information Center (“EPIC”) alleged in a complaint to the Federal Trade Commission that EcoMetrix was deceptively collecting and marketing children’s information.

On July 21, 2010, a coalition of 38 states sent a letter to Google demanding more information about the company’s collection of data from unsecured wireless networks by its Google Street View vehicles.  The letter was sent by Connecticut Attorney General Richard Blumenthal on behalf of the executive committee of a multistate working group investigating Google Street View practices.  As we reported on June 22, Blumenthal has spearheaded the nationwide investigation into Google Street View.  Among other things, the letter asks Google to identify who was responsible for the software code that allowed the Street View cars to collect data broadcast over Wi-Fi networks, and for a list of states where unauthorized data collection occurred.  The letter also asks Google for details regarding whether any of the data was disclosed to third parties or used for marketing purposes.

Connecticut Attorney General Richard Blumenthal recently announced that his office will lead a multistate investigation into the “deeply disturbing” unauthorized collection of personal data from wireless computer networks by Google’s Street View cars.  Attorney General Blumenthal noted that Google “must provide a complete and comprehensive explanation of how this unauthorized data collection happened, why the information was kept if collection was inadvertent and what action will prevent a recurrence.”  A significant number of states are expected to ...

The Attorney General of Connecticut, Richard Blumenthal, is investigating an alleged breach of medical records at Griffin Hospital in Derby, Connecticut.  The hospital believes that a formerly affiliated radiologist gained unauthorized access to its digital Picture Archiving and Communications System (“PACS”), which stores patient information, including names, exam descriptions and medical record numbers.  In February, the hospital began receiving inquiries from patients who had been contacted by the radiologist to promote professional services offered at another medical facility.  In response to patient inquiries, the hospital conducted an internal investigation that revealed several instances of unauthorized access to the PACS system.  The hospital subsequently notified Attorney General Blumenthal.

In a lawsuit he described as “[s]adly . . . historic,” Connecticut Attorney General Richard Blumenthal sued Health Net of Connecticut, Inc. for allegedly failing to secure private patient medical records and financial information involving hundreds of thousands of Connecticut enrollees and promptly notify consumers endangered by the security breach.  The case marks the first action by a state attorney general under the Health Information Technology for Economic and Clinical Health (“HITECH”) Act to enforce provisions of the Health Insurance Portability and Accountability Act (“HIPAA”).  The suit also alleges a violation of Connecticut’s breach notification statute.

On November 9, 2009, Connecticut’s Attorney General, Richard Blumenthal, announced an investigation of whether Blue Cross and Blue Shield (“BCBS”) violated Connecticut’s data breach notification law by waiting until two months after a data breach had occurred to notify affected Connecticut residents.  The data breach, which Attorney General Blumenthal called “one of the most sizable and significant in Connecticut’s history,” involved the theft of a laptop containing confidential unencrypted data from the car of a BCBS employee in late August.  BCBS notified affected Connecticut residents of the breach in late October.