On May 16, 2024, Alabama enacted a genetic privacy bill (HB 21), which regulates consumer-facing genetic testing companies.  HB 21 continues the recent trend of states enacting genetic privacy legislation aimed at regulating direct-to-consumer (“DTC”) genetic testing companies, such as in Nebraska and Virginia, with more than 10 states now having similar laws on the books. 

Continue Reading Alabama Enacts Genetic Privacy Bill

Last month, the Federal Trade Commission (“FTC”) announced its enforcement action against telehealth firm, Cerebral, Inc. (“Cerebral”), for its alleged unauthorized disclosures of consumers’ sensitive personal health information and other sensitive data to third parties for advertising purposes in violation of the FTC Act.  The complaint also alleges that Cerebral violated the Opioid Addiction Recovery Fraud Prevention Act (“OARFPA”), and the Restore Online Shoppers’ Confidence Act (“ROSCA”), which permits the court to order permanent injunctive relief, civil penalties, and other monetary relief for actions in violations of specific sections of the FTC Act, the OARFPA, and the ROSCA.  According to the proposed order, Cerebral must pay more than $7 million in civil penalties and consumer refunds.  In addition, Cerebral will be banned from using or disclosing consumers’ personal and health information (including online identifiers, such as IP addresses or other persistent identifiers) for advertising and must obtain consumers’ affirmative express consent before disclosing such information to outside parties.

Below is a discussion of the complaint and proposed order.

Continue Reading FTC Announces Health Privacy Enforcement Action Against Telehealth Company, Cerebral

HHS Modifies Privacy Rule to Support Reproductive Health Care Privacy

On April 26, 2024, the Office for Civil Rights (“OCR”) at the U.S. Department of Health & Human Services (“HHS”) published a final rule that modifies the Standards for Privacy of Individually Identifiable Health Information (“Privacy Rule”) under the Health Insurance Portability and Accountability Act (“HIPAA”) regarding protected health information (“PHI”) concerning reproductive health. We previously covered the proposed rule (hereinafter, “the NPRM”), which was published on April 17, 2023. The final rule aligns closely with the NPRM.

Continue Reading HHS Modifies Privacy Rule to Support Reproductive Health Care Privacy

Yesterday, both houses of Illinois’ legislature passed S.B. 2979, a significant amendment to the Illinois Biometric Information Privacy Act (BIPA). The bill states that an entity that, in more than one instance, obtains the same biometric identifier or biometric information from the same person using the same method of collection, in violation of BIPA’s notice and consent requirement has committed a single violation. As a result, each aggrieved person is entitled to, at most, one recovery for a single collective violation.

Continue Reading Illinois Legislature Passes BIPA Amendment Limiting Violation Accrual

Although the final text of the EU AI Act should enter into force in the next few months, many of its obligations will only start to apply two or more years after that (for further details, see our earlier blog here). To address this gap, the Commission is encouraging industry to take early, voluntary steps to implement the Act’s requirements through an initiative it is calling the AI Pact. With the upcoming European elections on the horizon, the Commission on 6 May 2024 published additional details on the AI Pact and encouraged organizations to implement measures addressing “critical aspects of the imminent AI Act, with the aim of curbing potential misuse” and contributing “to a safe use of AI in the run-up to the election.”

Continue Reading European Commission Calls on Industry to Commit to the AI Pact in the Run-Up to the European Elections

Likely spurred by plaintiffs’ recent successes in cases under Illinois’s Biometric Information Privacy Act (“BIPA”), a new wave of class actions is emerging under Illinois’s Genetic Information Privacy Act (“GIPA”). While BIPA regulates the collection, use, and disclosure of biometric data, GIPA regulates that of genetic testing information. Each has a private right of action and provides for significant statutory damages, even potentially where plaintiffs allege a violation of the rule without actual damages.[1] From its 1998 enactment until last year, there were few GIPA cases, and they were largely focused on claims related to genetic testing companies.[2] More recently, plaintiffs have brought dozens of cases against employers alleging GIPA violations based on allegations of employers requesting family medical history through pre-employment physical exams. This article explores GIPA’s background, the current landscape and key issues, and considerations for employers.

Continue Reading Employers Beware: New Wave of Illinois Genetic Information Privacy Act Litigation

On April 26, 2024, the Office for Civil Rights (“OCR”) at the U.S. Department of Health & Human Services (“HHS”) published a final rule that modifies the Standards for Privacy of Individually Identifiable Health Information (“Privacy Rule”) under the Health Insurance Portability and Accountability Act (“HIPAA”) regarding protected health information (“PHI”) concerning reproductive health. We previously covered the proposed rule (hereinafter, “the NPRM”), which was published on April 17, 2023. The final rule aligns closely with the NPRM.

Continue Reading HHS Modifies Privacy Rule to Support Reproductive Health Care Privacy

On April 25, 2024, the UK’s Investigatory Powers (Amendment) Act 2024 (“IP(A)A”) received royal assent and became law.  This law makes the first substantive amendments to the existing Investigatory Powers Act 2016 (“IPA”) since it came into effect, and follows an independent review of the effectiveness of the IPA published in June 2023.

Continue Reading Changes to the UK investigatory powers regime receive royal assent

In 2020, Illinois residents whose photos were included in the Diversity in Faces dataset brought a series of lawsuits against multiple technology companies, including IBM, Facefirst, Microsoft, Amazon, and Google alleging violations of Illinois’ Biometric Information Privacy Act.[1] In the years since, the cases against IBM and FaceFirst were dismissed at the agreement of both parties, while the cases against Microsoft, Amazon, and most recently, Google were dismissed at summary judgment.

Continue Reading What the Diversity in Faces Litigation Means for Biometric Technologies

On April 24, 2024, President Biden signed into law H.R. 815, which includes the Protecting Americans’ Data from Foreign Adversaries Act of 2024 (“the Act”), a bill that passed the House 414-0 as H.R. 7520 on March 20.  The Act is one of several recent actions by the U.S. government to regulate transfers of U.S. personal data for national security reasons, with a particular focus on China.  While the ultimate policy objectives are similar, the Act takes a different approach by comparison to the Biden Administration’s Executive Order on Preventing Access to Americans’ Bulk Sensitive Personal Data and United States Government-Related Data by Countries of Concern (“the EO”), which the U.S. Department of Justice (“DOJ”) is in the process of implementing.  We summarize below some key features of the Act, which will go into effect on June 23, 2024.

Continue Reading Congress Passes Bill Prohibiting Sharing or Selling Americans’ Sensitive Data to Entities Controlled by Foreign Adversaries