Privacy & Information Security Law Blog

On September 29, 2023, the Supreme Court of the United States (“SCOTUS”) accepted petitions challenging the constitutionality of social media laws in Florida and Texas. Florida’s law, S.B. 7072, prohibits “a social media platform from willfully deplatforming a [political] candidate.” Texas’s law, H.B. 20, refers to social media platforms as “common carriers” that are “central public forums for public debate,” and requires common carriers to publicly disclose information related to the common carrier’s method of recommending content to users, content moderation efforts, use of algorithms to determine search results, and the common carrier’s ordinary disclosures to its users on user performance data for each of its platforms. Both of these laws were challenged by NetChoice, LLC, a national trade association of large online businesses, who had recent successes in blocking several laws, including the California Age-Appropriate Design Code and a similar social media law in Arkansas.

On June 28, 2023, Louisiana Governor John Bel Edwards signed into law H.B. 61, which requires interactive computer services to get parental consent (or consent from a legal representative of a minor) to enter into a contract or other agreement, including the creation of an online account, with minors younger than 18 years of age. The Act comes after similar laws enacted in Texas, Utah and Arkansas. H.B. 61 will take effect on August 1, 2024. 

On June 13, 2023, Texas Governor Greg Abbott signed H.B. 18, or the Securing Children Online through Parental Empowerment (“SCOPE”) Act that would impose obligations on digital service providers to protect minors.

On June 13, 2023, Texas Governor Greg Abbott signed H.B. 18, or the Securing Children Online through Parental Empowerment (“SCOPE”) Act that would require digital service providers to get parental consent to create an account with minors younger than 18 years of age.  

On June 2, 2023, Judge Brantley Starr of the U.S. District Court for the Northern District of Texas released what appears to be the first standing order regulating use of generative artificial intelligence (“AI”)—which has recently emerged as a powerful tool on many fronts—in court filings. Generative AI provides capabilities for ease of research, drafting, image creation and more. But along with this new technology comes the opportunity for abuse, and the legal system is taking notice.

On May 27, 2023, Texas Governor Greg Abbott signed into law an amendment to Texas’s data breach notification law. The amendment shortens the time period for notifying the Texas Attorney General, requiring notification of a data breach as soon as practicable and not later than 30 days after discovery of the breach. The amendment also requires notification to the Texas Attorney General to be submitted electronically using a form accessed through the Texas Attorney General’s Internet website. The amendment will take effect on September 1, 2023.

On May 10, 2023, the Texas Senate passed H.B. 4, also known as the Texas Data Privacy and Security Act (“TDPSA”). The TDPSA now heads to a conference committee between the Texas Senate and House to rectify the differences between the Senate and House versions. If the TDPSA is signed into law, Texas could become the tenth state to enact comprehensive privacy legislation.

On February 6, 2023, Texas State Representative Giovanni Capriglione submitted H.B. 1844, a comprehensive privacy bill modeled after the Virginia Consumer Data Protection Act (“VCDPA”). The bill could make Texas the sixth U.S. state to enact major privacy legislation, following California, Virginia, Colorado, Utah, and Connecticut. Although the bill closely follows the VCDPA, it departs from the Virginia law in several key areas, most notably in the definition of “personal data” and its applicability.

On November 14, 2022, Google LLC (“Google”) agreed to a $391.5 million settlement with the attorneys general of 40 U.S. states over the company’s location tracking controls available in its user account settings.   

The investigation by the state attorneys general found that, between 2014 and 2020, Google misled users by failing to disclose that toggling the “Location History” setting to off did not disable all tracking activities. The settlement noted that Google retained the ability to track users’ location via the “Web & App Activity” setting, and used the information for targeted advertising purposes.

On October 20, 2022, Texas Attorney General Ken Paxton brought suit against Google alleging various violations of Texas’s biometric privacy law, including that the company unlawfully collected and used the biometric data of millions of Texans without obtaining proper consent. The lawsuit alleges that, since 2015, Google has collected millions of biometric identifiers of Texas consumers, such as voiceprints and records of face geometry, through Google’s various products, including Google Photos, Google Assistant and Nest Hub Max, in violation of Texas’s biometric privacy law. Texas’s biometric privacy law prohibits the collection of biometric identifiers for a commercial purpose unless the individual whose biometric identifiers are collected is informed of the collection and provides consent. The law also requires companies to destroy biometric identifiers within a reasonable time, but not later than the first anniversary of the date the purpose for collecting the biometric identifier expires (except in limited circumstances).

On February 18, 2022, the Texas Attorney General’s Office (the “Texas AG”) announced that it had issued two Civil Investigative Demands (“CIDs”) to TikTok Inc. The Texas AG’s investigation focuses on TikTok’s alleged violations of children’s privacy and facilitation of human trafficking, along with other potential unlawful conduct.

On February 14, 2022, Texas Attorney General Ken Paxton brought suit against Meta, the parent company of Facebook and Instagram, over the company’s collection and use of biometric data. The suit alleges that Meta collected and used Texans’ facial geometry data in violation of the Texas Capture or Use of Biometric Identifier Act (“CUBI”) and the Texas Deceptive Trade Practices Act (“DTPA”). The lawsuit is significant because it represents the first time the Texas Attorney General’s Office has brought suit under CUBI.

On June 14, 2021, Texas Governor Greg Abbott signed HB 3746, a bill amending Texas’s data breach notification law. Texas’s breach notification law requires notice to affected residents in the event of a data breach affecting certain sensitive personal data, including Social Security numbers, driver’s license or other government-issued ID numbers, account numbers or payment card numbers in combination with any required security code, access code or password, or certain information about an individual’s health or medical condition or treatment. The law also requires businesses to notify the Texas Attorney General of any data breach affecting at least 250 Texas residents.

On December 15, 2020, the Federal Trade Commission announced a proposed settlement with Ascension Data & Analytics, LLC, a Texas-based mortgage industry data analytics company (“Ascension”), to resolve allegations that the company failed to ensure one of its vendors was adequately securing personal information of mortgage holders.

Texas Attorney General Ken Paxton is investigating Facebook Inc. (“Facebook”) for alleged violations of the Texas Business and Commercial Code, which contains provisions governing the collection, retention and disclosure of biometric data. As we previously reported, Facebook recently reached a $650 million settlement for alleged violations of Illinois’ Biometric Information Privacy Act for their use of facial recognition software without permission from affected users.

Texas Governor Greg Abbott recently signed into law HB 4390 (the “Bill”), which amends the state’s data breach notification law and creates an advisory council tasked with studying and developing recommendations regarding data privacy legislation.

On May 16, 2017, the Governor of the State of Washington, Jay Inslee, signed into law House Bill 1493 (“H.B. 1493”), which sets forth requirements for businesses who collect and use biometric identifiers for commercial purposes. The law will become effective on July 23, 2017. With the enactment of H.B. 1493, Washington becomes the third state to pass legislation regulating the commercial use of biometric identifiers. Previously, both Illinois and Texas enacted the Illinois Biometric Information Privacy Act (740 ILCS 14) (“BIPA”) and the Texas Statute on the Capture or Use of Biometric Identifier (Tex. Bus. & Com. Code Ann. §503.001), respectively.

On May 10, 2017, the U.S. Department of Health and Human Services’ Office for Civil Rights (“OCR”) announced a $2.4 million civil monetary penalty against Memorial Hermann Health System (“MHHS”) for alleged violations of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) Privacy Rule. 

On October 3, 2016, the Texas Attorney General announced a $30,000 settlement with mobile app developer Juxta Labs, Inc. (“Juxta”) stemming from allegations that the company violated Texas consumer protection law by engaging in false, deceptive or misleading acts or practices regarding the collection of personal information from children.

As reported in the Hunton Employment & Labor Perspectives Blog:

In a lawsuit filed in the United States District Court for the Northern District of Texas on November 4, 2013, Texas Attorney General Greg Abbott sought injunctive and declaratory relief against the Equal Employment Opportunity Commission (“EEOC”) on the grounds that the agency’s April 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions “purports to preempt the State’s sovereign power to enact and abide by state-law hiring practices.” In particular, the complaint argues against the EEOC’s prohibition against blanket “no felons” hiring policies. The Texas AG’s complaint highlights key failures and shortcomings of the EEOC’s recent investigative actions, and provides detailed examples of the “real world” effect of the guidance on the state’s hiring decisions.

On August 28, 2013, the Obama Administration issued several documents relating to the Cybersecurity Framework that the President called for in Executive Order 13636: Improving Critical Infrastructure Cybersecurity. The documents include:

• Preliminary Cybersecurity Framework (Discussion Draft);
• Preliminary Cybersecurity Framework: Illustrative Examples (Discussion Draft);
• Message to Senior Executives on the Cybersecurity Framework (Discussion Draft);  and
• Cybersecurity Framework Performance Goals (Draft).

On June 14, 2013, Texas Governor Rick Perry signed a bill requiring law enforcement agencies to obtain warrants before accessing customer electronic data held by email service providers. Introduced on March 4, 2013, the bill passed unanimously in both the Texas House and Senate on May 7 and May 22, respectively. The law takes effect immediately.

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.

Google Earth and Google Street View, two popular applications offered by Google that enable users to view detailed satellite images of buildings or street-level panoramas of major roads and neighborhoods, have recently engendered controversy.  In the United States, legislators in California and Texas have introduced bills directed at Google Earth and other similar applications.  The proposed California bill prohibits operators of commercial Internet websites that make a “virtual globe browser available to members of the public” from providing “aerial or satellite photographs or imagery” of schools, religious facilities or government buildings, unless those images have been blurred.  Violators could be fined at least $250,000 and natural persons who knowingly violate the provisions could face imprisonment between one to three years.  The proposed Texas bill prohibits any person from publishing on the Internet “an image capable of zooming into greater detail than that of an aerial photograph taken without a magnifying lens 300 feet or higher of private property not visible from the public right-of-way,” and classifies the offense as a Class B misdemeanor, which is punishable by a fine up to $2,000 or 180 days in prison.