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Consumer Protection

Though CCPA is Now Live, Questions About Its Constitutionality Linger

by Jonathan Ende | Jan 20, 2020 | Consumer Protection, Data breach, Data Privacy

As businesses have scrambled to obtain compliance with the California Consumer Privacy Act (CCPA) in recent months, questions surrounding its constitutionality have arisen. As a broad, sometimes unclear state law that imposes significant obligations on businesses around the country, CCPA may be ripe for legal challenge. The strongest bases for such challenges appear to be: (1) that CCPA violates the “Dormant Commerce Clause”; and (2) that CCPA is impermissibly vague.

Dormant Commerce Clause

The burden that CCPA imposes on out-of-state economic activity may place it in violation of the Dormant Commerce Clause, a legal doctrine created out of the Commerce Clause of the US Constitution. The Commerce Clause allows the US Congress to regulate interstate commerce; from this grant of power, courts have inferred a limitation on the authority of states to regulate interstate commerce, a doctrine coined the Dormant Commerce Clause. On this basis, courts will strike down state laws that explicitly discriminate against out-of-state actors or that regulate activity that occurs entirely outside of the state. In addition, the Dormant Commerce Clause prohibits laws that do not explicitly discriminate against out-of-state economic interests if the effect of a law is to unduly burden interstate commerce. If a state law does unduly burden out-of-state interests, a court will typically balance the burdens imposed on interstate commerce against the benefits the law creates for the state to determine whether or not the law should be upheld.

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Little by Little, Attorney General Becerra Sheds Light on the CCPA in 2020

by Amy C. Pimentel | Jan 20, 2020 | Consumer Protection, Data breach, Data Privacy

Minimal Changes Expected to the Final Regulations

On October 10, 2019, the Attorney General issued his Proposed Text of Regulations, along with a Notice of Proposed Rulemaking Action and Initial Statement of Reasons. According to the Attorney General, the regulations will “benefit the welfare of California residents because they will facilitate the implementation of many components of the CCPA” and “provid[e] clear direction to businesses on how to inform consumers of their rights and how to handle their requests.” See Notice of Proposed Rulemaking, page 10.

The deadline to submit public comments on the proposed regulations was December 6, 2019. The Office of the Attorney General (OAG) reported receiving about 1,700 pages of written comments from almost 200 parties. Despite this, the Attorney General stated in a news briefing that he does not expect the final regulations to include significant changes.

The proposed regulations should give everyone a sense of how the Attorney General will interpret the CCPA. The Attorney General is required to issue final regulations and a final Statement of Reasons at some point before July 1, 2020, which is the first day that the Attorney General can enforce the law.

Investing in Enforcement

California has invested in enforcement resources. The Attorney General stated that the CCPA will cost the state about $4.7 million for FY 2019-2020, and $4.5 million for FYI 2020-2021, which reflects the cost of hiring an additional 23 full-time positions and expert consultants to enforce and defend the CCPA. See Notice of Proposed Rulemaking, page 10. Despite this additional funding, the OAG is still an agency with limited resources. Many expect that the OAG will only be able to pursue a limited number of CCPA enforcement actions, particularly if it takes large on and well-funded companies.

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US Office of Management and Budget Calls for Federal Agencies to Reduce Barriers to Artificial Intelligence

by Bernadette M. Broccolo | Jan 17, 2020 | Big Data, Consumer Protection, Data Privacy, Telehealth

On January 7, 2020, the Director of the US Office of Management and Budget (OMB) issued a Draft Memorandum (the Memorandum) to all federal “implementing agencies” regarding the development of regulatory and non-regulatory approaches to reducing barriers to the development and adoption of artificial intelligence (AI) technologies. Implementing agencies are agencies that conduct foundational research, develop and deploy AI technologies, provide educational grants, and regulate and provide guidance for applications of AI technologies, as determined by the co-chairs of the National Science and Technology Council (NSTC) Select Committee. To our knowledge, the NTSC has not yet determined which agencies are “implementing agencies” for purposes of the Memorandum.

Submission of Agency Plan to OMB

The “implementing agencies” have 180 days to submit to OMB their plans for addressing the Memorandum.

An agency’s plan must: (1) identify any statutory authorities specifically governing the agency’s regulation of AI applications as well as collections of AI-related information from regulated entities; and (2) report on the outcomes of stakeholder engagements that identify existing regulatory barriers to AI applications and high-priority AI applications that are within the agency’s regulatory authorities. OMB also requests but does not require agencies to list and describe any planned or considered regulatory actions on AI.

Principles for the Stewardship of AI Applications

The Memorandum outlines the following as principles and considerations that agencies should address in determining regulatory or non-regulatory approaches to AI:

Public trust in AI. Regulatory and non-regulatory approaches to AI need to be reliable, robust and trustworthy.
Public participation. The public should have the opportunity to take part in the rule-making process.
Scientific integrity and information quality. The government should use scientific and technical information and processes when developing a stance on AI.
Risk assessment and management.A risk assessment should be conducted before determining regulatory and non-regulatory approaches.
Benefits and costs. Agencies need to consider the societal costs and benefits related to developing and using AI applications.
Flexibility. Agency approaches to AI should be flexible and performance-based.
Fairness and nondiscrimination. Fairness and nondiscrimination in outcomes needs to be considered in both regulatory and non-regulatory approaches.
Disclosure and transparency. Agencies should be transparent. Transparency can serve to improve public trust in AI.
Safety and security. Agencies should guarantee confidentiality, integrity and availability of data use by AI by ensuring that the proper controls are in place.
Interagency coordination. Agencies need to work together to ensure consistency and predictability of AI-related policies.

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California Bill Proposes CCPA Exceptions for HIPAA De-identified Information, Other Health Data

by Deepali Doddi and Daniel F. Gottlieb | Jan 17, 2020 | Consumer Protection, Data Privacy, Data Transfers/Safe Harbor/Privacy Shield

On January 6, 2020, the California State Senate’s Health Committee unanimously approved California AB 713, a bill that would amend the California Consumer Privacy Act (CCPA) to except from CCPA requirements additional categories of health information, including data de-identified in accordance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), medical research data, personal information used for public health and safety activities, and patient information that is maintained by HIPAA business associates in the same manner as HIPAA protected health information (PHI). If enacted, the bill would simplify CCPA compliance strategies for many HIPAA-regulated entities, life sciences companies, research institutions and health data aggregators.

Exemption for HIPAA Business Associates

Presently, the CCPA does not regulate PHI that is collected by either a HIPAA covered entity or business associate.

The CCPA also exempts covered entities to the extent that they maintain patient information in the same manner as PHI subject to HIPAA. The CCPA does not, however, currently include a similar entity-based exemption for business associates.

AB 713 would add an exemption for business associates to the extent that they maintain, use and disclose patient information consistent with HIPAA requirements applicable to PHI. For example, if a business associate maintains consumer-generated health information that is not PHI, but processes the information in accordance with HIPAA requirements for PHI, then the information would not be regulated by the CCPA. While the practical import of the new exemption may be limited because business associates may not want to apply HIPAA requirements to consumer-generated health information, AB 713 offers business associates another potential exception to CCPA requirements for patient information about California consumers.

Exception for De-Identified Health Information

AB 713 would except from CCPA requirements de-identified health information when each of the following three conditions are met:

The information is de-identified in accordance with a HIPAA de-identification method (i.e., the safe harbor or expert determination method) at 45 CFR § 164.514(b).
The information is derived from PHI or “individually identifiable health information” under HIPAA, “medical information” as defined by the California Confidentiality of Medical Information Act (CMIA), or “identifiable private information” subject to the Common Rule.
The business (or its business associate) does not actually, or attempt to, re-identify the information.

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A Sale or Not a Sale? The Digital Advertising Debate

by Austin Mooney and Amy C. Pimentel | Jan 17, 2020 | Advertising & Marketing, Consumer Protection, Data Privacy, Ecommerce, Email/Spam, Social Media

The California Consumer Privacy Act (CCPA) requires businesses who engage in sales of personal information, to offer consumers the right to opt out of such sales through a “Do Not Sell My Personal Information” link or button on their websites. These “Do Not Sell” obligations present a particularly thorny question for businesses that participate in a digital ad exchange or otherwise use advertising tracking technologies on their websites. Because data elements such as IP address, cookie ID, device identifier and browsing history are considered “personal information” for purposes of the CCPA, the question is: does sharing that information with third-party ad tech providers constitute a “sale” of data?

The answer, so far, is a resounding “maybe.” In what follows, we expand on the issue and survey different approaches to this hotly contested question.

Why the Debate?

The CCPA defines a “sale” as “selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a consumer’s personal information by the business to another business or a third party for monetary or other valuable consideration.” The Network Advertising Initiative (NAI) broke this definition down into three main elements that, when satisfied, might make the case that digital advertising involves a “sale.”

- The digital advertising must involve “personal information.” We know that it does because serving digital ads requires, at the very least, access to IP address and browsing history.
- The digital advertising must involve the movement of personal information from a business to another business or third party. This is often true for digital advertising relationships, as ad tech intermediaries and other participants in the ad exchange often use the personal information they have received from businesses for their own purposes, thus taking many ad tech entities outside of CCPA’s “service provider” safe harbor.
- The digital advertising must involve the exchange of monetary or other valuable consideration for the personal information. This is a fact-specific inquiry that will vary across contractual arrangements. For that reason, the NAI analysis states it would be difficult to broadly categorize all digital advertising activities as “sales.” However, the NAI cautions that if the recipients of personal information can retain the information “for profiling or segmenting purposes” (e.g., the ability to monetize the data independently), that could be evidence of a “sale” of data.

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The GDPR’s Effects in China: Comparison with Local Rules and Considerations for Implementation

by Jared T. Nelson and Shi Yuhang | May 31, 2018 | Consumer Protection, Cybersecurity, Data breach, Data Privacy, Data Transfers/Safe Harbor/Privacy Shield, General Interest

As Europe’s General Data Protection Regulation (GDPR) takes effect, companies around the world are racing to implement compliance measures. In parallel with the GDPR’s development, China’s new data protection framework has emerged over the past year and is in the final stages of implementing the remaining details. With similar and often overlapping obligations, full compliance with the GDPR and China’s data protection framework presents a significant new challenge for companies with operations in China.

Does the GDPR Apply to Companies in China?

The GDPR applies to the processing of personal data of people who are in the European Union, even for a controller or processor in China, where the processing of the data is related to:

The offering of goods or services to the data subjects in the European Union, regardless of whether a payment is required; or
The monitoring of people’s behavior in the European Union.

As a result, even if a Chinese company does not have any formal establishments in the European Union, the GDPR will nonetheless apply if it is conducting either of these two types of activities.

What Are the Requirements for Companies in China Subject to the GDPR?

The GDPR primarily focuses on two categories of entities: “controllers” and “processors.” These two types are similar to concepts in the Chinese rules. “Controllers” are entities that, alone or jointly with others, determine the purposes and means of the processing of personal data. “Processors” are entities that carry out the processing of personal data on behalf of the controllers.

Key requirements for most controllers under the GDPR: (more…)

Surfing “Tech’s Next Big Wave”: Navigating the Legal Challenges in Digital Health

by Bernadette M. Broccolo and Lisa Mazur | May 4, 2018 | Big Data, Consumer Protection, Data Privacy, Mobile Apps

Fortune’s April 2018 cover story, “Tech’s Next Big Wave: Big Data Meets Biology,” conveys loudly and clearly that technological innovation is transforming the health care continuum—changing the way care is delivered, as well as how patients manage their ongoing health—and as patient demand for health innovation increases, more companies seem eager to hop on the digital health bandwagon. The article provides a thoughtful, realistic (and somewhat sobering) perspective on digital health innovation’s successes and other results to date. It also quite effectively uses real world stories to convey the human dimension of digital health. One is the story of a mother who manually sampled and recorded her son’s glucose levels 20 times a day before an automated monitoring system connected to a mobile app allowed them both to live their lives without constant interruption by this critical care management function. Another describes use of an artificial intelligence “command center” to expedite access to life-saving surgery by a man with an aortic dissection. These real-world examples drive home the fact that digital health is already making a profound difference in our lives by removing barriers to care that are critical to saving lives and managing chronic diseases.

What the article does not touch on, however, are the myriad, complex legal challenges that must be addressed at the earliest stages of the planning process and the intensifying interest of government oversight and enforcement bodies, such as the Federal Trade Commission, the Food and Drug Administration, the Office of Civil Rights of the Department of Health and Human Services, and the Securities and Exchange Commission, interested in protecting the safety and privacy of patients and consumers. Just last month, we saw the SEC charge Theranos’ CEO Elizabeth Holmes with fraud for allegedly misleading investors about the company’s ability to detect health conditions from a small sample of blood. Earlier this year, another “unicorn” start-up, Outcome Health, settled with the federal government after The Wall Street Journal reported that they allegedly misled advertisers with manipulated information. The United States has also brought claims against the private equity company investor of a compounding pharmacy that allegedly paid illegal kickbacks to marketing firms to induce prescriptions written by telemedicine providers for costly compounded drugs reimbursed by TRICARE.

Opportunities and Challenges of the Patient Data “Gold Rush”

Eric Topol, MD, director at the Scripps Research Institute, told Fortune that “the quest to retrieve, analyze and leverage” data “has become the new gold rush. And a vanguard of tech titans—not to mention a bevy of hot startups—are on the hunt for it.” There is no doubt that harnessing and analyzing big data provide virtually limitless fuel for digital health innovation of the type patients and consumers are demanding and that tech companies are eager to develop and commercialize. While optimism about the quest for big data is certainly justified, it must be tempered by caution and careful consideration of complex, multi-dimensional legal [...]

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Appeals Court Strikes Down Key Portions of FCC’s Onerous TCPA Rulemaking

by Daniel F. Gottlieb and Matthew L. Knowles | Mar 23, 2018 | Consumer Protection, Data Privacy, Data Transfers/Safe Harbor/Privacy Shield, Email/Spam, General Interest, Text Messaging

Last week, the US Court of Appeals for the DC Circuit issued a long-awaited decision on an omnibus challenge to the FCC’s interpretation of the TCPA. While the decision provides some relief for businesses, it does not eliminate the prospect of TCPA liability and leaves important TCPA interpretive questions unresolved. Businesses should continue to be vigilant regarding consent and opt-out procedures when sending automated text messages and automated or pre-recorded calls to consumers. Continue Reading

Order now: The Law of Digital Health Book

by Vanessa K. Burrows, McDermott Will & Emery, Amanda Enyeart, Anisa Mohanty, Amy C. Pimentel, Bernadette M. Broccolo, Dale C. Van Demark, Jiayan Chen, Lisa Mazur, Marshall E. Jackson, Jr., Michael W. Ryan, Ryan S. Higgins and Scott Weinstein | Mar 20, 2018 | Big Data, Cloud, Consumer Protection, Data Privacy, General Interest, Telehealth

Designed to provide business leaders and their key advisors with the knowledge and insight they need to grow and sustain successful digital health initiatives, we are pleased to present The Law of Digital Health, a new book edited and authored by McDermott’s team of distinguished digital health lawyers, and published by AHLA.

Visit www.mwe.com/lawofdigitalhealth to order this comprehensive legal and regulatory analysis, coupled with practical planning and implementation strategies. You can also download the Executive Summary and hear more about how Digital Health is quickly and dynamically changing the health care landscape.

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Walking the Fine Line between the Delivery of Health Care Services and Information/Educational Support

by Lisa Mazur | Feb 27, 2018 | Consumer Protection, General Interest, Mobile Apps, Telehealth

The explosion in digital health solutions that connect consumers with licensed health care providers (e.g., nurses, nutritionists, physicians) and laypersons who have certain informal training (e.g., wellness guide, lifestyle coach, outreach partner) has the potential to blur the lines between what constitutes the practice of a licensed health care profession and what does not (usually because the service is intended to be merely informational or educational). Why does it matter which side of the line a particular service falls on? If a service is one that is delivered by a licensed health care professional, there are various state laws and regulations that may govern the activity, and different potential causes of action that may apply in the event a consumer/patient is injured in the process.

If a digital health solution connects a consumer to an individual who is engaged in an activity that is normally performed by a licensed health care professional, state laws and regulations governing health care professionals likely apply.

As background, state professional boards regulate individuals who deliver health care services to the public (e.g., nursing, psychology, medicine, phlebotomy). What falls within the definition of a specific health care service can be very broad and varies state to state. (more…)

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