Privacy & Information Security Law Blog

On May 21, 2024, staff of the U.S. Securities and Exchange Commission published additional interpretive guidance on reporting material cybersecurity incidents under Form 8-K. This blog entry provides highlights from the guidance.

On March 19, 2024, Utah’s Governor Spencer J. Cox signed Senate Bill (SB) 98 (the “Bill”), Online Data Security and Privacy Amendments, into law. The Bill amends the Protection of Personal Information Act (§13-44-101 et seq) and the Utah Technology Governance Act in the Utah Government Operations Code (§63A-16-1101 et seq). The Utah Technology Governance Act had previously established the Utah Cyber Center, a state initiative to coordinate efforts between local, state and federal resources by sharing threat intelligence and best practices.

On March 13, 2024, the Federal Communications Commission’s updates to the FCC data breach notification rules (the “Rules”) went into effect. They were adopted in December 2023 pursuant to an FCC Report and Order (the “Order”).

On February 1, 2024, the Federal Trade Commission announced a proposed settlement with Blackbaud Inc. (“Blackbaud”) in connection with alleged security failures that resulted in a breach of the company’s network and access to the personal data of millions of consumers. As part of the settlement, Blackbaud will be required to comply with a variety of obligations, including deleting personal data that the company does not have a need to retain.

On January 18, 2024, the European Data Protection Board published a thematic one-stop-shop (“OSS”) case digest titled, “Security of Processing and Data Breach Notification” (the “Digest”). The Digest analyzes a selection of decisions adopted by EU data protection authorities on data security and data breaches. 

On December 13, 2023, the Federal Communications Commission (FCC) voted to update its 16-year old data breach notification rules (the “Rules”). Pursuant to the FCC update, providers of telecommunications, Voice over Internet Protocol (VoIP) and telecommunications relay services (TRS) are now required to notify the FCC of a data breach, in addition to existing obligations to notify affected customers, the FBI and the U.S. Secret Service.

On November 16, 2023, the Federal Trade Commission released a proposed order in connection with a complaint filed in August of 2020 against Global Tel*Link Corp. (“GTL”) and its subsidiaries, Telmate and TouchPay, which offers communication and payment services for incarcerated individuals. The complaint centered around a security breach where a technician for a vendor of GTL placed unencrypted, personally identifiable information in a test environment to test a new search and storage software. The test environment allegedly was accessible on the internet without password protections which permitted an unauthorized actor to access and exfiltrate the data between August 11-13, 2020. Though GTL restricted access to the test environment, GTL allegedly failed to notify its customers for roughly nine months, while also falsely representing to prospective customers that it had never experienced a security breach.

Patrick Gunning from King & Wood Mallesons reports that, on November 2, 2023, the Australian Information Commissioner filed proceedings in the Federal Court of Australia against Australian Clinical Labs Limited seeking a civil penalty (i.e., a fine) in connection with the company’s response to a data breach that occurred in February 2022. The case is significant because: (1) it is only the second time that the Australian regulator has brought court proceedings of this kind despite having the power to do so since 2014; and (2) it signals the regulator’s priority in ensuring that cybersecurity incidents are responded to swiftly. The Australian legislature increased maximum penalties for ‘serious’ contraventions of the Privacy Act with effect from December 2022 to at least A$50 million. However, the maximum penalty available in this case will be A$2.2 million because the company’s conduct occurred prior to December 2022.

On October 31, 2023, the Department of Health and Human Services (“HHS”) announced the issuance of a settlement agreement with Doctors’ Management Services (“DMS”), a Massachusetts-based medical management company, related to alleged violations of the Health Insurance Portability and Accountability Act’s (“HIPAA’s”) Privacy and Security Rules (collectively, the “HIPAA Rules”). DMS is a HIPAA business associate (“BA”) that provides payer credentialing and medical billing services to HIPAA Covered Entities (“CEs”). 

October 12, 2023, the French Data Protection Authority (the “CNIL”) announced a €600,000 fine for mass media company Groupe Canal+ for failing to comply with its commercial prospecting obligations applicable under the French Post and Electronic Communications Code and several obligations of the EU General Data Protection Regulation (“GDPR”).

On October 27, 2023, the Federal Trade Commission announced that it has approved an amendment to the Safeguards Rule that would require non-banking institutions to report certain data breaches to the FTC. The FTC’s Safeguards Rule currently requires certain types of non-banking financial institutions, such as mortgage brokers, motor vehicle dealers, and payday lenders, to develop, implement and maintain a comprehensive security program to keep their customers’ information safe. The amendment will require such financial institutions to notify the FTC as soon as possible, and no later than 30 days after discovery, of a security breach involving the unauthorized acquisition of unencrypted customer  information of at least 500 consumers. The notice to the FTC will need to include certain information about the event, such as the number of consumers affected or potentially affected.

On October 5, 2023, Blackbaud Inc., a software provider for the philanthropy, healthcare, and education sectors, has resolved claims that the District of Columbia and 49 U.S. states raised. The claims stem from a ransomware attack that impacted Blackbaud in 2020. The company was affected by a ransomware attack that exposed user information to unauthorized third parties. The breach not only impacted approximately 13,000 Blackbaud customers, but the customers’ own clients and donors as well.

On July 25, 2023, Hunton published a client alert discussing the importance of cyber and directors and officers (“D&O”) liability insurance for companies and their executives to guard against cyber-related exposures. In today’s ever-changing threat landscape, all organizations are at risk of damaging cyber incidents and resulting investigations and lawsuits, underscoring the importance of utilizing all tools in a company’s risk mitigation toolkit, including insurance, to address these exposures. 

On July 26, 2023, the U.S. Securities and Exchange Commission (“SEC”) adopted long-anticipated disclosure rules for public companies by a 3-2 party-line vote. The final rules apply both to U.S. domestic public companies, as well as any offshore company that qualifies as a “foreign private issuer” under SEC rules due to a strong nexus to the U.S. capital markets. The new rules are effective as soon as December 18, 2023, as detailed further below.

On May 18, 2023, the Federal Trade Commission announced it is seeking comment to proposed changes to the Health Breach Notification Rule (the “Rule”). The Rule requires  vendors of personal health records (“PHR”), PHR-related entities and service providers to these entities, to notify consumers and the FTC (and, in some cases, the media) in the event of a breach of unsecured identifiable health information, including cybersecurity intrusions and other instances of unauthorized access. By clarifying the Rule’s scope and applicability, and by modernizing allowable methods of notice, the proposed amendments seek to update the Rule to account for technological change since the Rule’s issuance, which includes the proliferation of health apps and connected devices, and the emergence of a widespread market for health data.

On May 17, 2023, the Federal Trade Commission issued a consumer alert regarding the Premom Ovulation Tracker app (“Premom”) sharing sensitive information with third parties without users’ permission. According to the alert, Premom is a free app that is marketed as an accurate fertility calendar, which can be used to assist users who are trying to become pregnant.

On March 22, 2023, Capita PLC (“Capita”) experienced a cyber incident which it announced in a press release on April 3, 2023 and an update on April 20, 2023. Capita identified the incident on March 31, 2023, and confirmed the incident caused disruption to some services provided to individual clients, which has now been resolved. On April 21, 2023, the UK Information Commissioner’s Office (“ICO”) issued a statement confirming that Capita reported the incident and the ICO is investigating. The ICO also noted that other organizations affected by the incident should “consider their position[s]” and, if necessary, submit a breach notification.

On April 4, 2023, the data protection regulator of the UK, the Information Commissioner’s Office (ICO), issued a fine of a £12.7 million to TikTok Information Technologies UK Limited and TikTok Inc (together, “TikTok”) for a number of breaches of UK data protection law, including failing to use children’s personal data lawfully. 

On March 28, 2023, the French Data Protection Authority (the “CNIL” or “French DPA”) announced a €125,000 fine on the e-scooter rental company Cityscoot for breaching EU and French data protection rules, in particular in the context of geolocation and use of Google reCAPTCHA. The fine was imposed on March 16, 2023.

On March 27, 2023, New York Attorney General Letitia James announced that a New York-based law firm (Heidell, Pittoni, Murphy & Bach LLP) had agreed to pay $200,000 in penalties and enhance its cybersecurity practices to settle charges stemming from a 2021 data breach. 

On March 15, 2023, the Securities and Exchange Commission (“SEC”) proposed three rules related to cybersecurity and the protection of consumer information.

On February 16, 2023, the National Credit Union Administration (“NCUA”) Board unanimously approved a final rule requiring federally insured credit unions (“FICUs”) to notify the NCUA as soon as possible, within 72 hours, after an FCIU “reasonably believes” that a reportable cyber incident has occurred.

On February 1, 2023, the Federal Trade Commission announced that it entered into a proposed order with GoodRx, a telehealth and prescription drug discount provider, for violations of the FTC’s Health Breach Notification Rule stemming from GoodRx’s unauthorized disclosures of consumers’ personal health information to third party advertisers and other companies. This is the first enforcement action taken under the FTC’s Health Breach Notification Rule, which was issued in 2009.

On January 4, 2023, the Irish Data Protection Commission (“DPC”) announced the conclusion of two inquiries into the data processing practices of Meta Platforms, Inc. (“Meta”) with respect to the company’s Instagram and Facebook platforms. As a result of the investigations, the DPC fined Meta a combined €390 million for breaches of the EU General Data Protection Regulation (“GDPR”) and, following consultation with the European Data Protection Board (“EDPB”), notably held that Meta can no longer rely on the GDPR’s “performance of a contract” legal basis for processing personal data in the behavioral advertising context, a decision that has broad implications for publishers engaged in behavioral advertising in the EU.

On January 10, 2023, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP and Cisco’s Privacy Center of Excellence published a joint report on “Business Benefits of Investing in Data Privacy Management Programs” (the “Report”). The Report provides insights into how several leading global companies realize value from privacy management programs and demonstrates that organizations are experiencing a wide range of risk and compliance benefits as well as other tangible benefits from investing time, money, effort and other resources into building their privacy programs.

On December 20, 2022, the English High Court has granted the victim of a cyber attack a permanent injunction against cyber attackers whilst the victim organization maintains its anonymity. Generally, a claimant's identity is public in English court proceedings. Injunctions can be made against unknown and unidentifiable defendants enabling them to be granted against individuals who are acting in breach or threatening to commit a breach. 

On December 1, 2022, the Office for Civil Rights at the U.S. Department of Health and Human Services (“HHS”) released a Bulletin on the obligations of HIPAA covered entities and business associates under the HIPAA Privacy, Security, and Breach Notification Rules when using online tracking technologies. 

On November 3, 2022, Pennsylvania Governor Tom Wolf signed Senate Bill 696 into law (the “Act”), amending Pennsylvania’s breach notification law. 

On  November 2, 2022, the ICO issued to the UK Department for Education (“DfE”) a formal reprimand following an investigation into the sharing of personal data stored on the Learning Records Service (“LRS”), a database which provides a record of pupils’ qualifications that the DfE has overall responsibility for. The investigation found that the DfE’s poor due diligence meant the LRS database was being used by Trust Systems Software UK Ltd (trading as Trustopia), a third party screening firm, to check whether people opening online gambling accounts were 18. Trustopia was found to have had access from September 2018 to January 2020, during which it performed over 20,000 searches on children whose personal data was in the LRS database.

On October 31, 2022, the Federal Trade Commission announced a proposed settlement with education technology provider Chegg in connection with the company’s alleged poor cybersecurity practices. 

On October 24, 2022, the Federal Trade Commission announced a proposed consent order with Drizly, an online alcohol ordering and delivery service, and the company’s CEO, for the alleged failure to maintain appropriate security safeguards that led to a data breach that affected 2.5 million consumers’ personal information.

On October 24, 2022, the UK Information Commissioner’s Office (“ICO”) issued a £4.4 million fine to Interserve Group Limited for failing to keep employee personal data secure, which violates Article 5(1)(f) and Article 32 of the EU General Data Protection Regulation (“GDPR”), during the period of March 2019 to December 2020. The ICO determined that such violations rendered Interserve vulnerable to the cyber attack which took place between March 2020 and May 2020, affecting the personal data of up to 113,000 Interserve employees. The compromised data included contact details, national insurance numbers and bank account details, as well as special category data, including ethnic origin, religion, details of any disabilities, sexual orientation and health information.

On October 18, 2022, the New York State Department of Financial Services (“NYDFS”) announced that EyeMed Vision Care LLC (“EyeMed”) agreed to a $4.5 million settlement for violations of the Cybersecurity Regulation (23 NYCRR Part 500) that contributed to the exposure of hundreds of thousands of consumers’ health data in connection with a cybersecurity event in 2020.

On October 12, 2022, New York Attorney General Letitia James announced that her office had secured a $1.9 million penalty from e-commerce retailer Zoetop, owner of SHEIN and ROMWE, following an improperly handled data breach. The Office of the Attorney General of the State of New York (“NYAG”) alleged in its Assurance of Discontinuance that Zoetop failed to properly handle the breach and lied about its scope to consumers.

On October 5, 2022, former Uber security chief Joe Sullivan was found guilty by a jury in U.S. federal court for his alleged failure to disclose a breach of Uber customer and driver data to the FTC in the midst of an ongoing FTC investigation into the company. Sullivan was charged with one count of obstructing an FTC investigation and one count of misprision, the act of concealing a felony from authorities.

On September 20, 2022, Indonesia’s parliament ratified the Personal Data Protection Act (the “Act”). The Act is the first comprehensive data protection law to be enacted in Indonesia and will come into effect on a date set by the Minister of State Secretariat. Organizations subject to the Act will have two years to come into compliance with the Act’s requirements.

On August 23, 2022, the U.S. Department of Health & Human Services, Office for Civil Rights (“HHS”) announced that it had settled a case involving the disposal of physical protected health information (“PHI”).

On August 16, 2022, the Securities and Exchange Commission (“SEC”) charged 18 individuals and entities in relation to their involvement in a fraudulent hacking scheme. The scheme targeted and hacked 31 online retail brokerage accounts and forced them to make large purchases of certain stocks from two public microcap companies: Lotus Bio-Technology Development Corp. (“LBTD”) and Good Gaming, Inc. (“GMER”). The owners of the accounts that purchased the shares did not authorize the purchases. Both LBTD and GMER already were controlled in large blocks by fraudsters who repeatedly took steps to conceal their ownership. In doing so, the fraudsters artificially inflated the trading price and volume of the stocks and then sold the shares they had acquired at the inflated prices, generating approximately $1.3 million in proceeds and creating substantial profits.

On July 26, 2022, the attorneys general of New Jersey, Pennsylvania, Delaware, Maryland, Virginia, Florida and Washington D.C. announced an $8 million multistate settlement with Wawa Inc. that resolves the states’ investigation into a 2019 data breach that compromised approximately 34 million payment cards used by consumers at Wawa stores and fueling locations. 

In July 2022, Maria Ostashenko from ALRUD Law Firm reports that the Russian Parliament passed, and the President of the Russian Federation signed into law, major reforms in data protection and information governance. The reforms include:

• Significant changes to Federal Law No. 152-FZ on Personal Data, including the scope of its application, new rules for cross-border transfer of personal data, data breach notifications, and additional protections for data subjects;
• New amendments to the Unified Biometric System regulations;
• Establishment of a countersanction-information ...

On July 22, 2022, T-Mobile entered into an agreement to settle a class action lawsuit stemming from its 2021 data breach. The breach involved the personal information of 76.6 million U.S. residents and was T-Mobile’s fifth breach over a four year period. The proposed settlement will require T-Mobile to pay $500 million to settle customers’ claims and to bolster its cybersecurity practices.  

On July 22, 2022, companies are required to notify the Arizona Department of Homeland Security when they experience a data breach impacting more than 1,000 Arizona residents. This notification requirement is in addition to obligations to notify affected individuals, the Arizona state attorney general and the three largest national consumer reporting agencies. The notification to the Arizona Department of Homeland Security must be made within “45 days after a determination that there has been unauthorized acquisition and access that materially compromises the security or ...

On June 24, 2022, the New York State Department of Financial Services (“NYDFS” or the “Department”) announced it had entered into a $5 million settlement with Carnival Corp. (“Carnival”), the world’s largest cruise-ship operator, for violations of the Cybersecurity Regulation (23 NYCRR Part 500) in connection with four cybersecurity events between 2019 and 2021, including two ransomware events.  

On May 29, 2022, the Maryland legislature enacted House Bill 962, which amends Maryland’s Personal Information Protection Act (the “Act”). The amendments update and clarify various aspects of the Act, including, but not limited to, the timeframe for reporting a data breach affected individuals, and content requirements for providing notice to the Maryland Attorney General.

On June 1, 2022, Thailand’s Personal Data Protection Act (“PDPA”) entered into force after three years of delays. The PDPA, originally enacted in May 2019, provides for a one-year grace period, with the main operative provisions of the law originally set to come into force in 2020. Due to the COVID-19 pandemic, however, the Thai government issued royal decrees to extend the compliance deadline to June 1, 2022. 

On March 15, 2022, the Federal Trade Commission (FTC) announced a proposed settlement with custom merchandise platform CafePress in connection with the company’s alleged failure to implement reasonable security measures, and its alleged attempt to cover up a 2019 data breach. The proposed settlement would require CafePress to implement a comprehensive data security program and pay $500,000 in redress to affected individuals.

On March 11, 2022, the U.S. Senate passed an omnibus spending bill that includes language which would require certain critical infrastructure owners and operators to notify the federal government of cybersecurity incidents in specified circumstances. The bill  previously was passed by the House of Representatives on March 9, 2022. President Biden is expected to sign the bill and has until March 15, 2022, to do so before the current spending authorization expires.

On March 9, 2022, the Securities and Exchange Commission (“SEC”) held an open meeting and proposed new cybersecurity disclosure rules for public companies by a 3-1 vote. If adopted, the new rules would impose substantial new reporting obligations with respect to material cybersecurity incidents and cybersecurity risk management, strategy, and governance for both domestic and foreign private issuers subject to the reporting requirements under the Securities Exchange Act of 1934.

On January 4, 2022,  the Federal Trade Commission published a blog post reminding companies that “the duty to take reasonable steps to mitigate known software vulnerabilities implicates laws including, among others, the Federal Trade Commission Act and the Gramm Leach Bliley Act,” in response to Log4Shell’s public disclosure of the Log4j vulnerability. The blog post also calls for companies to take immediate steps to reduce the likelihood of harm to consumers that could result from the exposure of consumer data as a result of Log4j or similar known vulnerabilities.

On January 21, 2022, the Federal Trade Commission published two new resources for complying with the Health Breach Notification Rule (the “Rule”). In September 2021, the FTC issued a Policy Statement clarifying that the Rule applies to makers of health apps, connected devices and similar products. As we previously blogged, the Rule requires vendors of personal health records (“PHR”), PHR-related entities and service providers to these entities, to notify consumers and the FTC (and, in some cases, the media) in the event of a breach of unsecured identifiable health information, including cybersecurity intrusions and other instances of unauthorized access.

On January 5, 2022, the New York Office of the Attorney General (“NY AG”) announced the results of an investigation into “credential stuffing,” which uncovered 1.1 million compromised accounts from cyberattacks on 17 well-known companies. The announcement included a “Business Guide for Credential Stuffing Attacks,” (the “Guide”) detailing the attacks and providing tips for businesses to protect themselves.

On December 15, 2021, the New Jersey Acting Attorney General Andrew J. Bruck announced that its Division of Consumer Affairs had reached a $425,000 settlement with New Jersey-based providers of cancer care, Regional Cancer Care Associates LLC, RCCA MSO LLC and RCCA MD LLC (collectively, “RCCA”), over alleged failures to adequately safeguard patient data.

On November 8, 2021, law enforcement agencies in both the United States and European Union announced that a series of actions, including a number of arrests, were taken against the Russia-linked ransomware group, “REvil.” The U.S. Department of Justice (the “DOJ”) unsealed documents relating to an August indictment against two individuals in Dallas for alleged involvement in REvil ransomware attacks against several U.S. businesses. The European authorities, Europol, also announced that police in Romania and South Korea had arrested five people alleged to be REvil affiliates.

On October 12, 2021, New Jersey Acting Attorney General Andrew J. Bruck and the Division of Consumer Affairs announced a settlement with Diamond Institute for Infertility and Menopause, LLC, over a data breach that compromised the personal information of 14,663 patients, including 11,071 New Jersey residents. The Division of Consumer Affairs alleged that the fertility clinic violated the New Jersey Consumer Fraud Act and the federal Health Insurance Portability and Accountability Act’s (“HIPAA”) Privacy and Security Rules by removing protected health information (“PHI”) safeguards.

On September 28, 2021, Senators Gary Peters (D-MI) and Rob Portman (R-OH), Chairman and Ranking Member of the Homeland Security and Government Affairs Committee, respectively, introduced a bipartisan bill (the “Bill”) that would require owners and operators of critical infrastructure to notify the Director of the Cybersecurity and Infrastructure Security Agency (“CISA”) within 72 hours of having a reasonable belief that a covered cyber incident has occurred. Additionally, the Bill would require most entities (including businesses with 50 or more employees) that make ransom payments following ransomware attacks to report those payments to the CISA within 24 hours of payment. Notably, any entity required to submit a ransom payment report would first be required to conduct a due diligence review of alternatives to paying ransom, including an analysis of whether recovery from the ransomware attack is possible through other means, before making such a ransom payment. Critical infrastructure owners and operators also would be required to provide supplemental reports to the CISA in light of new or different information becoming available. All entities subject to these requirements would face data preservation obligations.

On October 1, 2021, Connecticut’s two new data security laws become effective. As we previously reported, the new laws modify Connecticut’s existing breach notification requirements and establish a safe harbor from certain Connecticut Superior Court assessed damages for businesses that create and maintain a written cybersecurity program.

On September 15, 2021, the Federal Trade Commission issued a Policy Statement to clarify the scope of the FTC’s Health Breach Notification Rule (the “Rule”) as it relates to health apps and connected devices. In its Policy Statement, the FTC emphasized that the Rule was designed to ensure that entities not covered under HIPAA must still be held accountable in the event of a breach of consumers’ sensitive health information. The Rule requires vendors of personal health records (“PHR”), PHR related entities, and service providers to these entities, to notify consumers and the FTC (and, in some cases, the media) in the event of a breach of unsecured identifiable health information. Failure to provide such notice can result in civil penalties under the Rule. While the Rule was established more than a decade ago, in 2009, it has never been enforced by the FTC.

On August 16, 2021, the U.S. Securities and Exchange Commission (“SEC”) announced that Pearson plc (“Pearson”), a publicly traded British multinational educational publishing and services company, agreed to pay a $1 million civil penalty in a settlement related to charges that Pearson misled investors about a 2018 data breach resulting in the theft of millions of student records. The SEC’s order found that Pearson made material misstatements and omissions about the data breach in a report furnished to the SEC and in a media statement.

On July 30, 2021, the UK High Court handed down its judgment in the case of Warren v DSG Retail Ltd [2021] EWHC 2168 (QB), determining that the claimant could not seek damages on the basis of misuse of personal information, breach of confidence or common law negligence following a data breach.

Connecticut recently passed two cybersecurity laws that will become effective on October 1, 2021. The newly passed laws modify Connecticut’s existing breach notification requirements and establish a safe harbor for businesses that create and maintain a written cybersecurity program that complies with applicable state or federal law or industry-recognized security frameworks.

On July 22, 2021, a Magistrate Judge in the U.S. District Court for the Middle District of Pennsylvania (the “Court”) ordered Rutter’s, a convenience-store chain, to produce an investigative report prepared by a security consultant regarding a suspected data breach event, as well as all communications between the party and the company performing the investigation. In the ruling, Rutter’s Data Sec Breach Litig, No. 1:20-cv-000382-JEJ-KM, the Court held that the report and related communications were not protected from disclosure by the work product doctrine or the attorney-client privilege.

On July 6, 2021, it was reported that British Airways (“BA”), which is owned by International Consolidated Airlines Group, S.A, had settled a UK class action lawsuit relating to its 2018 data breach, in which approximately 430,000 data subjects were affected. The UK Information Commissioner’s Office (“ICO”) previously fined BA £20 million for the same breach, after finding that BA had failed to process the personal data of its customers in a manner that ensured appropriate security, as required under Article 5(1)(f) and Article 32 of the EU General Data Protection Regulation. This amount was significantly reduced from the ICO’s proposed fine of more than £183 million.

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 May 18, 2021, New York Attorney General (“AG”) Letitia James announced a settlement agreement with Filters Fast LLC (“Filters Fast”) over a data breach that compromised personal information of approximately 324,000 consumers nationwide, including over 16,500 New York state residents. The breach affected purchases made on Filters Fast website for almost a year – from July 16, 2019 to July 10, 2020.

As reported on the Hunton Retail Law Blog, on April 26, 2021, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal on Article III standing grounds of a data breach class action predicated on an alleged increased risk of identity theft. McMorris v. Carlos Lopez & Assocs., LLC, No. 19-4310, 2021 WL 1603808 (2d Cir. Apr. 26, 2021). Notably, the district court that dismissed the action raised the issue of standing sua sponte in advance of a scheduled class settlement fairness hearing.

On April 9, 2021, the First-Tier Tribunal of the General Regulatory Chamber stayed proceedings in Ticketmaster UK Limited’s (“Ticketmaster’s”) appeal against a fine issued by the UK Information Commissioner’s Office (“ICO”) until 28 days after a judgment in civil litigation brought by 795 customers against Ticketmaster. The group action, which relates to the breach for which Ticketmaster was fined by the ICO, is currently before the High Court in England. As a result of the stay in proceedings, the appeal likely will not be heard before the Tribunal until mid to late 2023.

On February 8, 2021, Pinellas County, Florida officials announced that a hacker had remotely gained access to the City of Oldsmar's water treatment system on two separate occasions and was able to change the setting for sodium hydroxide in the water supply. The incident highlights the danger to local government information systems and the dangers of remote access vulnerabilities.

On January 18, 2021, the European Data Protection Board (“EDPB”) released draft Guidelines 01/2021 on Examples regarding Data Breach Notification (the “Guidelines”). The Guidelines complement the initial Guidelines on personal data breach notification under the EU General Data Protection Regulation (“GDPR”) adopted by the Article 29 Working Party in February 2018. The new draft Guidelines take into account supervisory authorities’ common experiences with data breaches since the GDPR became applicable in May 2018. The EDPB’s aim is to assist data controllers in deciding how to handle data breaches, including by identifying the factors that they must take into account when conducting risk assessments to determine whether a breach must be reported to relevant supervisory authorities and/or the affected data subjects.

On January 12, 2021, in Wengui v. Clark Hill, PLC, et al., the United States District Court for the District of Columbia rejected a law firm defendant’s assertions of the attorney-client privilege and work product doctrine for forensic reporting and other related information associated with its outside counsel’s data breach investigation.

On November 24, 2020, a multistate coalition of Attorneys General announced that The Home Depot, Inc. (“Home Depot”) agreed to pay $17.5 million and implement a series of data security practices in response to a data breach the company experienced in 2014. The $17.5 million payment will be divided among the 46 participating states and the District of Colombia. We previously reported on a settlement Home Depot reached in 2017 to resolve a putative class action brought by financial institutions impacted by the 2014 data breach.

On November 13, 2020, the UK Information Commissioner’s Office (“ICO”) fined Ticketmaster UK Limited (“Ticketmaster”) £1.25 million for failing to keep its customers’ personal data secure. The ICO found that Ticketmaster had failed to implement appropriate security measures to prevent a cyber attack, breaching the requirements of Articles 5(1)(f) and 32 of the EU General Data Protection Regulation (“GDPR”). The ICO acted as the lead supervisory authority with regard to the cross-border processing affected by this breach, and the penalty has been approved by the other EU data protection authorities through the GDPR’s cooperation process. Ticketmaster has indicated that it will appeal the fine.

On October 30, 2020, the UK Information Commissioner’s Office (“ICO”) announced its fine of £18.4 (approximately $23.9 million) issued to Marriott International, Inc., (“Marriott”) for violations of the EU General Data Protection Regulation (“GDPR”). This is a significant decrease from the proposed fine of £99,200,396 (approximately $124 million) announced by the ICO in July 2019. The ICO’s fine only relates to the breach from the point at which the GDPR came into force in May 2018, and is the second largest fine levied by the ICO thus far under the GDPR. Marriott has not admitted liability for the breach, but has indicated that it does not plan to appeal.

On October 21, 2020, China issued a draft of Personal Information Protection Law (“Draft PIPL”) for public comments. The Draft PIPL marks the introduction of a comprehensive system for the protection of personal information in China.

On October 16, 2020, the UK Information Commissioner’s Office (“ICO”) announced its fine of £20,000,000 (approximately $25,850,000) for British Airways (“BA”), which is owned by International Consolidated Airlines Group, S.A, for violations of the EU General Data Protection Regulation (“GDPR”). This is a significant (approximately 90%) decrease from the proposed fine of £183,390,000 (approximately $230,000,000) announced by the ICO in July 2019, but is the largest fine imposed to date by the ICO.

On September 30, 2020, Anthem, Inc. (“Anthem”) entered into an assurance of voluntary compliance (the “Agreement”) with the attorneys general of 42 states and the District of Columbia to settle claims under state and federal law relating to Anthem’s 2015 data breach (the “Breach”).

On September 21, 2020, the U.S. Department of Health and Human Services (“HHS”) Office for Civil Rights (“OCR”) announced a $1.5 million settlement with Athens Orthopedic Clinic PA (“Athens Orthopedic”) for alleged violations of the Health Insurance Portability and Accountability Act (“HIPAA”) Privacy and Security Rules.

On September 9, 2020, the UK Information Commissioner’s Office (“ICO”) published an Accountability Framework, designed to assist organizations in complying with their accountability obligations under the EU General Data Protection Regulation (“GDPR”). The GDPR’s accountability principle requires that organizations both comply with their legal requirements under the GDPR, and also demonstrate their compliance. The ICO states that its Accountability Framework “supports the foundations of an effective privacy management programme.”

On July 30, 2020, the Council of the European Union (the “Council”) imposed for the first time restrictive measures against six individuals and three entities responsible for or involved in various cyber attacks, including the “WannaCry,” “NotPetya” and “Operation Cloud Hopper” attacks and the attack against the Organization for the Prohibition of Chemical Weapons. Sanctions imposed by the Council include a travel ban, an asset freeze and a prohibition against making funds available to the sanctioned EU individuals and entities.

On Wednesday, July 22, the New York Department of Financial Services (the “NYDFS”) announced that it had filed administrative charges against First American Title Insurance Co. under the NYDFS Cybersecurity Regulation, marking the agency’s first enforcement action since the rules went into effect in March 2017.

On July 1, 2020, the Dubai International Financial Centre (“DIFC”) Data Protection Law No. 5 of 2020 came into effect (“New DP Law”). Due to the current pandemic, a three-month grace period, running until October 1, 2020, has been provided for companies to comply. The New DP Law replaces DIFC Law No. 1 of 2007. The release of the New DP Law is, in part, an effort to ensure that the DIFC, a financial hub for the Middle East, Africa and South Asia, meets the standard of data protection required to receive an “adequacy” finding from the European Commission and the United Kingdom, meaning that companies may transfer EU/UK personal data to the DIFC without putting in place a transfer mechanism (such as Standard Contractual Clauses).

Last month, in In re: Capital One Customer Data Security Breach Litigation, E.D. Va., No. 1:19-md-02915, U.S. Magistrate Judge John Anderson (the “Judge”) ordered Capital One Financial Corp. (“Capital One”) to disclose a forensic report to the plaintiffs in a lawsuit stemming from Capital One’s 2019 data breach. In doing so, the Judge rejected Capital One’s argument that the report is protected from disclosure to the plaintiffs by the work product doctrine.

On July 1, 2020, amendments to Vermont’s data breach notification law, signed into law earlier this year, will take effect along with Vermont’s new student privacy law.

On April 28, 2020, the Litigation Chamber of the Belgian Data Protection Authority (the “Belgian DPA”) imposed a €50,000 fine on a company for non-compliance with the requirements under the General Data Protection Regulation (“GDPR”) related to the appointment of a data protection officer (“DPO”).

On April 14, 2020, the Indiana Attorney General’s office announced that the state had reached a settlement agreement with Equifax in connection with Equifax’s 2017 data breach. Under the terms of the settlement, Equifax will pay a $19.5 million penalty. Indiana previously elected not to participate in a July 2019 multistate and Federal Trade Commission settlement with Equifax regarding the same data breach.

In GIR’s recently published Guide to Cyber Investigations, Hunton Andrews Kurth partner Aaron Simpson and associate Adam Solomon are featured as contributing authors to the chapter on Complying with Breach Notification Obligations in a Global Setting: A Legal Perspective.

On March 21, 2020, the data security provisions of New York’s Stop Hacks and Improve Electronic Data Security Act (“SHIELD Act”) went into effect. The SHIELD Act requires any person or business owning or licensing computerized data that includes the private information of a resident of New York (“covered business”) to implement and maintain reasonable safeguards to protect the security, confidentiality and integrity of the private information.

In the final part of our Never Stop Learning podcast series, Lisa Sotto, partner and chair of Hunton Andrews Kurth’s Privacy and Cybersecurity practice, and Eric Friedberg, Co-President of Stroz Friedberg, LLC, and Aon’s Cyber Solutions Group, discuss practical solutions in preparing for a cyber incident.

In part two of our podcast by Never Stop Learning, Lisa Sotto, partner and chair of Hunton Andrews Kurth’s Privacy and Cybersecurity practice, and Eric Friedberg, Co-President of Stroz Friedberg, LLC, and Aon’s Cyber Solutions Group, discuss the fragmented nature of data security law in the U.S. and abroad. Sotto notes that the “patchwork quilt of regulation” in the U.S. regarding data security makes it difficult for companies to know what rules to implement. She stresses that the severity of cyber attacks has increased significantly over the past decade.

On November 7, 2019, the Office for Civil Rights (“OCR”) of the U.S. Department of Health and Human Services (“HHS”) announced a $1.6 million civil penalty imposed against the Texas Health and Human Services Commission (“TX HHSC”), a state agency, for violations of HIPAA Privacy and Security Rules in connection with the unauthorized disclosure of electronic protected health information (“ePHI”). The ePHI breach – which exposed names, addresses, Social Security numbers, and treatment information of at least 6,617 individuals – was first reported to OCR on June 11, 2015, by Texas’s Department of Aging and Disability Services (“DADS”).

On October 11, 2019, California Governor Gavin Newsom signed into law AB 1130, which expands the types of personal information covered by California’s breach notification law to include, when compromised in combination with an individual’s name: (1) additional government identifiers, such as tax identification number, passport number, military identification number, or other unique identification number issued on a government document commonly used to verify the identity of a specific individual; and (2) biometric data generated from measurements or technical analysis of human body characteristics (e.g., fingerprint, retina, or iris image) used to authenticate a specific individual. Biometric data does not include a physical or digital photograph unless used or stored for facial recognition purposes.

On October 1, 2019, China’s Provisions on Cyber Protection of Children’s Personal Information (“Provisions”) became effective. The Cyberspace Administration of China had released the Provisions on August 23, 2019, and they are the first rules focusing on the protection of children’s personal information in China.

On October 15, 2019, Hunton Andrews Kurth will host a luncheon seminar in our Brussels office on Addressing GDPR Challenges: An Interactive Session on Handling Data Breaches. In this roundtable discussion, our speakers will lead a dialogue to share experiences on handling data breaches under the EU General Data Protection Regulation (“GDPR”).

California marked the end of the 2019 legislative session this past Friday, September 13, by passing five out of six pending bills to amend the California Consumer Privacy Act of 2018 (“CCPA”). The bills – AB-25, AB-874, AB-1146, AB-1355 and AB-1564 – now head to California Governor Newsom’s desk for signature, which must occur by October 13 for the bills to be signed into law. The only pending bill not to pass was AB-846, which would have addressed the law’s application to customer loyalty programs; it was ordered to the inactive file at the request of Senator Jackson.

On August 29, 2019, the Maryland Insurance Administration issued new breach notification requirements for entities that provide health insurance or related services. The new requirements will apply to insurers, non-profit health plans, HMOs, third-party administrators, and certain other managed care entities. The new rules will take effect on October 1, 2019.

On August 21, 2019, the Belgian Data Protection Authority (the “Belgian DPA”) published a press release informing of its intention to further investigate a data breach that was notified by Adecco Belgium, a temporary employment agency. The data breach affected thousands of biometric data, including fingerprints and images allowing facial recognition, and was suffered by the company Suprema. The compromised data included approximately 2,000 fingerprints of Adecco Belgium’s employees.

On July 25, 2019, New York Governor Andrew Cuomo signed into law Senate Bill S5575B (the “Bill”), an amendment to New York’s breach notification law (the “Act”). The Bill expands the Act’s definition of “breach of the security of the system” and the types of information (i.e., “private information”) covered by the Act, and makes certain changes to the Act’s requirements for breach notification.