Privacy & Information Security Law Blog

On October 19, 2023, the Consumer Financial Protection Bureau (“CFPB”) proposed a new rule that would provide consumers with more control over their financial information and impose certain requirements on the following types of entities:

On December 12, 2022, at the “POLITICO Live” event presented in cooperation with Hunton Andrews Kurth LLP’s Centre for Information Policy Leadership ("CIPL")—titled “EU-U.S. Data Flows: Game Changer or More Legal Uncertainty?”—featured speakers from both sides of the Atlantic optimistic that the new EU-U.S. Data Privacy Framework will withstand an anticipated legal challenge.

On November 22, 2022, the Department of Commerce’s National Telecommunications and Information Administration (“NTIA”) announced that it filed comments with the Federal Trade Commission that call for new limits on how companies can collect and use personal information about consumers. The comments were filed in response to the FTC’s request for public comment on its Advanced Notice of Proposed Rulemaking on commercial surveillance and lax data security practices.

On November 21, 2022, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth filed comments on the Federal Trade Commission’s Advanced Notice of Proposed Rulemaking (“ANPR”) on commercial surveillance and data security. The ANPR sought public comment on, among other things, whether the FTC should implement new rules addressing the ways in which companies collect, aggregate, protect, use, analyze and retain consumer data.

As reported in the the Retail Industry Law Resource blog:

Plaintiff’s firms continue to file variations of state law wiretapping lawsuits over “session replay” software and “live chat” or “chatbot” applications in various jurisdictions. These filings typically allege that companies use such software tools to record users’ interactions with a website without first obtaining users’ consent, thereby violating the wiretapping, eavesdropping, or interception provisions of various state laws. Session replay software allows companies to record and play back user’s interactions on its websites. The “live chat” or “chatbot” feature allows a website user to engage in text conversations with an assistant, to which chat the company has access. These wiretapping claims threaten substantial penalties. Companies that use these web-tracking tools, however, can take steps to protect themselves from these lawsuits by a careful examination of the software being used and by evaluating what disclosures or consent may be warranted.

On November 1, 2022, the Federal Trade Commission hosted their annual PrivacyCon 2022, which was available to the public via webcast. The FTC held seven different panels highlighting the latest research and trends in consumer privacy and data security.

On October 25, 2022, the Federal Trade Commission announced the agenda for its annual PrivacyCon to be held on November 1, 2022. The event will cover consumer surveillance, automated decision-making systems, children’s privacy, listening devices, augmented and virtual reality, interfaces and dark patterns, and AdTech.

On October 14, 2022, the Federal Trade Commission announced it is extending the deadline by one month to submit comments on its Advance Notice of Proposed Rulemaking (“ANPR”) on commercial surveillance and lax data security practices.

The FTC launched the ANPR in August and has sought public comment on it, including through a virtual public forum held in September.

Comments now must be filed by November 21, 2022.

Background

On September 15, 2022, the European Commission presented its proposal for a Regulation on horizontal cybersecurity requirements for products with digital elements (the “Cyber Resilience Act”). According to the European Commission, the Cyber Resilience Act will be the first EU-wide legislation introducing “cybersecurity requirements for products with digital elements, throughout their whole lifecycle.”

On September 8, 2022, the Federal Trade Commission hosted a virtual public forum on its Advanced Notice of Proposed Rulemaking (“ANPR”) concerning “commercial surveillance and lax data security.” The forum featured remarks from FTC Chair Lina Kahn, Commissioner Rebecca Kelly Slaughter and Commissioner Alvaro Bedoya, as well as panels with industry leaders and consumer advocates.

On August 29, 2022, the Federal Trade Commission released the agenda for its virtual public forum on the Commercial Surveillance and Data Security Advanced Notice of Public Rulemaking. The forum, to be held on September 8, 2022, seeks “public comment on the harms stemming from commercial surveillance and lax data security practices and whether new rules are needed to protect people’s privacy and information.” As we previously reported, the forum intends to discuss to what extent commercial surveillance practices or lax security measures harm consumers, including children and teenagers; how the FTC should balance the costs and benefits of existing or emergent commercial surveillance and data security practices and rules that would address them; and how, if at all, the FTC should regulate harmful commercial surveillance or data security practices.

On August 11, 2022, the Federal Trade Commission announced it is seeking public comment regarding its advance notice of proposed rulemaking (“ANPR”) on commercial surveillance and data security, on which we previously reported. The FTC defines “commercial surveillance” as the business of collecting, analyzing and profiting from consumer data.

On June 22, 2022, the Federal Trade Commission submitted an updated abstract to the Office of Information and Regulatory Affairs indicating that it is considering initiating a rulemaking under Section 18 of the FTC Act to curb lax security practices, limit privacy abuses, and ensure that algorithmic decision-making does not result in unlawful discrimination.

On June 16, 2022, the Federal Trade Commission issued a report to Congress titled Combatting Online Harms Through Innovation (the “Report”) that urges policymakers and other stakeholders to exercise “great caution” about relying on artificial intelligence (“AI”) to combat harmful online content.

On December 27, 2021, the Federal Trade Commission sought public comment on a petition filed by Accountable Tech calling on the FTC to use its rulemaking authority to prohibit “surveillance advertising” as an “unfair method of competition” (“UMC”). Accountable Tech is a non-profit organization that advocates for social media companies to strengthen the integrity of their platforms.

On September 1, 2021, the Federal Trade Commission banned Support King, LLC, the operator of SpyFone.com (“SpyFone”), and its CEO, Scott Zuckerman, from offering, promoting, selling or advertising any surveillance app, service or business. The FTC alleged SpyFone allowed purchasers to illegally surveil other individuals by surreptitiously monitoring a device user’s activity without the device user’s knowledge. The FTC also alleged that SpyFone failed to safeguard such illegally harvested personal information by failing to put in place basic security measures.