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FCC Releases NPRM on Broadband ISPs and Net Neutrality Rules

The FCC has released the Notice of Proposed Rulemaking (“NPRM”) on “Restoring Internet Freedom” that was adopted by a 2-1 vote at the Commission’s open meeting on May 18.  The NPRM is substantively very similar to the draft released by Chairman Pai on April 27, and the comment deadlines remain the same: July 17 for … Continue Reading

New Republican Privacy Bill Would Expand Scope of “Sensitive” Data

Representative Marsha Blackburn (R-TN) has introduced a bill, the “Balancing the Rights of Web Surfers Equally and Responsibly Act of 2017” (“BROWSER Act,” H.R. 2520) that would  create new online privacy requirements.  The BROWSER Act would require both ISPs and edge providers (essentially any service provided over the Internet) to provide users with notice of … Continue Reading

First Annual Privacy Shield Review Will Comprehensively Assess the Framework

The first annual review of the EU-U.S. Privacy Shield (“Privacy Shield”) is scheduled to occur in September 2017 in Washington, D.C.  The first review is particularly important for the nascent framework, as regulators in both the U.S. and the EU are expected to closely scrutinize the operation of the first year of the Privacy Shield, … Continue Reading

White House Issues New Cybersecurity EO

On May 11, 2017, President Trump signed an Executive Order titled “Strengthening the Cybersecurity of Federal Networks and Critical Infrastructure” (the “Order”).  The long-anticipated directive was issued months after the White House originally planned to release a cybersecurity order in February.  Since then, revised drafts of the order were circulated, including a version from February … Continue Reading

Parties Discuss Privacy Issues in Advance of FTC, NHTSA Workshop on Connected Cars

Automated vehicle technology is accelerating, and regulators are racing to keep up.  On June 28, 2017, the Federal Trade Commission and the National Highway Traffic Safety Administration (“NHTSA”) will hold a workshop to examine the consumer privacy and security issues posed by automated and connected vehicles.  The workshop comes several months after the Department of … Continue Reading

Ninth Circuit Will Rehear Dismissal of FTC Throttling Suit

The Ninth Circuit announced today that the full court will rehear the case in which the three-judge panel opinion had dismissed the FTC’s lawsuit against AT&T for allegedly violating Section 5 of the FTC Act due to past “throttling” practices around unlimited data plans.  According to the panel opinion, the FTC lacked jurisdiction over AT&T’s … Continue Reading

Eleventh Circuit Hands Another VPPA Loss to Video App Plaintiffs

In Perry v. Cable News Network, the Eleventh Circuit dealt another loss to putative class-action plaintiffs seeking to use the Video Privacy Protection Act (“VPPA”) as a weapon against free online video services. The court affirmed that to be a “subscriber” of a video service—someone who can sue under the VPPA—one must have a genuine … Continue Reading

FCC Chairman Pai Proposes New Regulatory Framework for Broadband ISPs, Seeks Comment on Net Neutrality Rules

In a widely anticipated step, FCC Chairman Ajit Pai has released a draft Notice of Proposed Rulemaking (“NPRM”) on the legal framework that governs broadband providers and related net neutrality questions. Most notably from a privacy perspective, the draft NPRM proposes to find that broadband Internet access service is an “information service” under the Communications … Continue Reading

Federal Trade Commission Plans to Clarify its Data Security Standard

The Federal Trade Commission (FTC) has announced that it is launching a new initiative to improve data security guidance and transparency as part of a broader plan to implement process reform initiatives.  In an interview with Politico Pro (subscription required) last week, the new acting director of the FTC’s Bureau of Consumer Protection, Thomas Pahl, … Continue Reading

Advocacy Groups Urge FCC to End Data Retention Mandate

On April 24th, the Electronic Privacy Information Center (“EPIC”) and a coalition of 37 other civil society groups sent a letter urging the Federal Communications Commission (“FCC”) to act on an August 2015 petition to repeal the FCC’s data retention mandate under 47 C.F.R. §42.6 (“Retention of Telephone Toll Records”). The mandate requires communications carriers … Continue Reading

Developments in the Right to Be Forgotten

As we approach the May 2018 effective date of the EU General Data Protection Regulation (“GDPR”), there have been a number of global developments over the last few months with respect to the so-called “right to be forgotten,” which will be codified under Article 17 of the GDPR. European Developments In the EU, we previously … Continue Reading

Privacy Shield Approaches 2,000 Participants; Review Scheduled for September

Nearly 2,000 organizations are now listed as self-certified to the EU-U.S. Privacy Shield on the Department of Commerce’s (“Commerce”) Privacy Shield website.  Given current developments on both sides of the Atlantic, there are likely to be significant Privacy Shield developments in the coming months. EU Justice Commissioner Věra Jourová recently concluded her visit to the … Continue Reading

HHS Announces More HIPAA Enforcement Actions

The beginning of 2017 has brought a number of HIPAA enforcement actions involving covered entities. These enforcement actions indicate that HHS is continuing recent efforts to step up HIPAA enforcement and levy significant penalties for non-compliance. In January, HHS announced that it had reached a $475,000 settlement with a large health care network for failure … Continue Reading

Legislation Introduced in House and Senate to Establish Drone Privacy Rules

By Stephen Kiehl Continuing their focus on drone privacy issues, Senator Edward J. Markey (D-Mass.) and Rep. Peter Welch (D-Vt.) introduced legislation in the House and Senate this month that would require drone operators to create policies covering data collection and retention and require warrants for law enforcement agencies to conduct surveillance by drone. The … Continue Reading

Senators Reintroduce Cybersecurity Legislation for Cars and Planes

Senators Ed Markey (D-MA) and Richard Blumenthal (D-CT) reintroduced a pair of bills today relating to the cybersecurity of cars and aircraft, which would impose affirmative security, disclosure, and consent requirements on manufacturers and air carriers.  The Security and Privacy in Your Car (“SPY Car”) Act and Cybersecurity Standards for Aircraft to Improve Resilience (“Cyber … Continue Reading

FTC Announces June Workshop on Connected and Automated Cars

The FTC announced today that it will hold a joint workshop on June 28, 2017 with the National Highway Traffic Safety Administration (NHTSA) to “examine the consumer privacy and security issues posed by automated and connected motor vehicles.”  The announcement lists several discussion topics for the upcoming workshop: the types of data vehicles with wireless … Continue Reading

House Democrats Propose Three Bills that Would Bolster FCC Influence over Cybersecurity

On March 2nd, Democratic members of the House Energy and Commerce Committee introduced three pieces of legislation that would expand the Federal Communications Commission’s (FCC) authority over the cybersecurity practices of communications network providers. The first bill, the “Securing IoT Act of 2017” (introduced by Rep. Jerry McNerney (D-CA)), would expand the FCC’s certification authority … Continue Reading

Release of Cybersecurity EO May Have Notable Impact in Communications, Energy, and Defense Industrial Base Critical Infrastructure Sectors

The Trump Administration appears likely to release an Executive Order on Cybersecurity.  The most recent draft suggests this Executive Order may have notable impact in the Communications, Energy, and Defense Industrial Base sectors.  However, it remains unclear if and when the current draft will be signed. President Trump originally was scheduled to sign an Executive … Continue Reading

FTC Comments on NTIA’s Cybersecurity Vulnerability Disclosure Template

The FTC released public comments yesterday on the National Telecommunications and Information Administration’s (NTIA) draft “Early Stage” Coordinated Vulnerability Disclosure Template released in December 2016.  The draft template was released by the NTIA Safety Working Group as part of a multistakeholder process that convened security researchers and software and system developers and owners to address … Continue Reading

Senators Seek Answers from DHS on Privacy Aspects of Trump Order, Including Privacy Shield

On February 9, 2017, six Democratic senators wrote to DHS Secretary John Kelly about their concerns over a Trump executive order that would remove Privacy Act protections for non-U.S. citizens and lawful permanent residents. Senators Ed Markey (MA), Ron Wyden (OR), Jeff Merkley (OR), Al Franken (MN), Chris Coons (DE), and Mazie Hirono (HI) wrote … Continue Reading

European Commission Dismisses Privacy Shield Concerns Over Trump Executive Order

On January 25, 2017, President Trump signed a new Executive Order on Enhancing Public Safety in the Interior of the U.S.  Among other elements, the Executive Order directs U.S. government agencies to “ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy … Continue Reading

FTC Releases Cross-Device Tracking Report

The Federal Trade Commission yesterday released its report on cross-device tracking.  The report, which follows the Commission’s November 2015 Cross-Device Tracking Workshop, describes some of the current approaches to track consumers across multiple connected devices, discusses industry self-regulatory approaches to protect consumer privacy, and offers recommendations for how to apply longstanding FTC principles like transparency, … Continue Reading
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