Privacy & Security Matters

Mintz Levin : Data Compliance & Security, Employee Privacy Lawyer & Attorney

Update on Google Unauthorized Children’s In-App Purchase Class Action: THE SHOW MUST GO ON!

Posted in Children, Class Action Litigation, Privacy Litigation

Written by Julia Siripurapu, CIPP

U.S. District Court Judge Ronald M. Whyte has issued an order  granting in part and denying in part Google’s Motion to Dismiss the class action filed against the Company on ­March 7 in the U.S. District Court for the Northern District of California as a result of unauthorized children’s in-app purchases in the Google Play Store. As discussed in detail in our prior blog post, the lawsuit was filed by a New York mother on behalf of herself and other parents whose minor children downloaded free or relatively inexpensive child-directed games from the Google Play store and then incurred charges for purchasing items that cost money within the app without parental consent or authorization. Continue Reading

COPPA Update: FTC Provides More Flexibility on Obtaining Verifiable Parental Consent

Posted in Children, Privacy Regulation

Written by Julia Siripurapu, CIPP/US

Some clarification and a bit more flexibility was forthcoming late last week from the Federal Trade Commission to help ease compliance with the “new” COPPA.

In its recent update to three FAQs in Section H (Verifiable Parental Consent) of the COPPA FAQs , the FTC provided important information on the topic of verifiable parental consent. The revisions are particularly important for the mobile application market since it is now very clear that developers of mobile applications directed to children under 13 can use an app store to obtain verifiable parental consent and that the app stores providing the verifiable parental consent mechanism “will not be liable under COPPA for failing to investigate the privacy practices of the operators for whom you obtain consent.” Continue Reading

Privacy Monday: July 21, 2014

Posted in Data Breach, Data Breach Notification, Identity Theft, Privacy Monday

We are now officially in the throes of “midsummer” on this Privacy Monday.  And, on occasion in the data privacy world, we agree with Will Shakespeare’s words….“Lord, what fools these mortals be!”

Flash Drives  ….

Butler University has warned about 160,000 students, faculty, staff, and alumni that personal information was discovered on a flash drive of an identity theft suspect arrested in California.  Exposed information includes birthdates, Social Security numbers and bank account information.

CSO Online

Houston to “Ground Control” – We Have a Problem

The Houston Astros have not exactly been hitting the cover off the ball this season, but the team’s proprietary database system known as “Ground Control” had been the envy of Major League Baseball.  That is, until it was hacked.  Details of trade discussions involving 22 teams during a 6-month period ending in March were leaked first to Anonbin, a data sharing website, and then most recently, to the website  Astros GM Jeff Luhnow is furious and says that the team intends to prosecute those involved.

Goodbye Hotel Hippo …

Disclosure of weak security and privacy controls can be harmful to the health of your business.   One week after an independent security consultant discovered that the Hotel Hippo site had been leaking large amounts of customer information.  The incident is being investigated by UK privacy watchdogs and the site says “website permanently closed.”

SC Magazine UK


Changes in Breach Notification Risk Assessments Under HIPAA

Posted in Data Breach Notification, Data Compliance & Security, HIPAA/HITECH, Privacy Regulation

Reposted from Mintz Levin’s Health Law & Policy Matters blog

The American Bar Association Health Law Section’s July 2014 eSource publication includes an article by Dianne Bourque, Kimberly Gold, and Stephanie Willis that provides examples of how risk assessments under the Breach Notification Rule have changed since the HIPAA Omnibus Rule went into effect in September 2013.   The examples analyzed in this article involve two situations that often stymie health care providers:  1) appropriate disclosures to law enforcement and 2) sending appointment reminders to patients.

Covered entities and business associates having difficulty distinguishing the old “harm standard” and the new Omnibus Rule analysis should understand that the latter clearly imposes a rebuttable presumption that a breach of protected health information will require notification to affected individuals and the government, except under narrow circumstances.  As the article concludes, “striking a balance between an inquiry that meets the risk assessment’s requirements but that minimizes the over-reporting of breaches will be a challenge that covered entities and business associates will need to address” for years to come.

Mintz Levin’s Privacy team constantly monitors the HHS Office of Civil Rights’ enforcement and monitoring activities and writes posts noting trends in the area of HIPAA compliance, so keep checking the blog for current health care privacy and security news.

Even in Privacy Cases, Risk of Injury Does not Always Equal Injury

Posted in Class Action Litigation, Data Breach, HIPAA/HITECH

Written by Kevin McGinty

It’s an ancient conundrum; if a tree falls in the forest, and no one is there to hear it, does it make a sound?  Privacy litigation may well offer the closest jurisprudential equivalent; if data is stolen, but no one does anything with it, has there been an injury?  A recent Illinois state court decision is the latest to answer the latter question in the negative. Continue Reading

Privacy Monday: July 14, 2014

Posted in Children, Federal Trade Commission

FTC Sues Amazon Over In-App Purchases Made by Children

 Written by Jake Romero, CIPP

Children, according to Whitney Houston, are our future, but they are also, according to the Federal Trade Commission, willing to spend unlimited amounts of money to purchase virtual items within mobile applications.  In a lawsuit filed after, Inc. resisted a settlement offer similar to the FTC’s settlement with Apple, Inc., the FTC claims that Amazon allowed millions of dollars of in-app purchases from children on the mobile application store installed on its Kindle Fire devices and on mobile devices running the Android operating system.  In response to the alleged unfair practices, the FTC is seeking an injunction against Amazon and restitution to Amazon consumers. Continue Reading

Backlash Over Facebook Timeline Experiment Serves as a Reminder: User Expectations Still Trump Fine Print

Posted in Federal Trade Commission, Privacy Litigation, Privacy Regulation

Written by Jake Romero, CIPP

If you are one of the approximately 1.3 billion people who use Facebook, you’ve likely experienced the phenomenon where a single event (like Luiz Suarez biting that Italian guy or pretty much anything involving TSA) manages to raise the ire of a large number of your Facebook friends, causing them to flood your timeline with single-issue Facebook user rage.  Another recent event you likely heard about both on the news and through numerous status updates is Facebook’s 2012 experiment in which user timelines were manipulated to gauge users’ response to changes in the number of positive or negative posts.  After results of the study were published in March, many users became upset at the idea of possibly having unknowingly taken part in the study.  Now, the Electronic Privacy Information Center (EPIC) has filed a formal complaint asking the Federal Trade Commission (FTC) to investigate Facebook’s use of user data for research purposes as a deceptive trade practice. Continue Reading

Hulu Scores a Victory (at least temporarily) in Avoiding Class Certification

Posted in Class Action Litigation, Privacy Litigation

Written by Meredith Leary

Another important decision has been rendered in the ongoing In re: Hulu Privacy Litigation saga pending in the United States District Court for the Northern District of California, this time denying – without prejudice – the proposed certification of a class of Hulu users pursuing claims involving Hulu’s allegedly wrongful disclosure of “cookies.”  This class certification decision comes hot on the heels of the Hulu court’s denial of summary judgment in favor of Hulu back in April, when the court found there to be a material issue of fact on the issue of whether the disclosure of a video name tied to an identified Facebook user was a prohibited disclosure under the Video Privacy Protection Act, 18 U.S.C. §2710 (“VPPA”), which prohibits a “video tape service provider” from knowingly disclosing “personally identifiable information of a consumer of the provider” to third parties.

The key factual allegations in this case are as follows.  Plaintiffs allege that at all times relevant to their claims, Hulu included a Facebook “Like” button on the “watch” page of Hulu’s users, and that under certain circumstances, the code that loaded and operated this “Like” button caused the browser of the Hulu user to send to Facebook, among other things, a URL of the user’s watch page (which would indicate the name of the video that the Hulu user accessed) and under certain circumstances, a cookie called the “c_user” cookie that enabled Facebook to link information identifying the Hulu user with that Hulu user’s video choices.  But there was also an additional factual wrinkle, and one that ultimately proved critical to the Hulu court’s denial of plaintiffs’ proposed class: the c_user cookie would only be transmitted to Facebook if the Hulu user used the same computer and same browser to log into Facebook within the four previous weeks and selected Facebook’s “keep me logged in” option.  In addition, the c_user cookie would not be transmitted to Facebook if the Hulu user deleted, blocked or otherwise cleaned his or her cookies after using Facebook and prior to accessing Hulu. 

In denying class certification, the Hulu court concluded that the proposed class articulated by the plaintiffs satisfied the numerosity, commonality, typicality and adequacy of representation requirements for class certification but did not meet the class action prerequisites of ascertainability or predominance.  The Hulu court made quite clear, however, that it would willingly entertain the possibility of certifying subclasses of plaintiffs, and even mused, in dicta, about some possible subclasses for plaintiffs to consider exploring.

The Hulu court closely focused on the impact that individual practices of the proposed class members would necessarily have on the requirements of ascertainability and predominance.  For example, because Hulu users could only qualify as class members if they actually had their PII transmitted to Facebook (meaning that the user’s c_user cookie was sent by Hulu to Facebook), to meet the ascertainability requirement, the plaintiffs needed to (and did not) propose an adequate method of identifying a class of users who accessed Facebook within a month of using Hulu, checked the “keep me logged in” button, and did not clear cookies, either manually or otherwise.  The Hulu court specifically rejected the plaintiff’s suggested method of ascertaining class members through the combined use of broad notice and a self-reporting affidavit, noting concerns with both reliability of that data and the incentives inherent in a per-violation penalty of $2,500.  The Hulu court concluded that at least on the current record, it could not tell how potential class members reliably could establish by affidavit the answer to questions such as whether they looked at Facebook and Hulu from the same browser, whether they logged out of Facebook or whether the user’s cookies were cleared, manually or otherwise. Similarly, on the baseline class action requirement that common questions of fact or law “predominate” over questions affecting only individual class members, the Hulu court concluded that the plaintiffs’ main stumbling block was cookie clearing or cookie blocking, because the record was clear that if the c_user cookie was cleared, then it could not be transmitted to Facebook when the Like button was loaded.  After noting these potential challenges, the Hulu court again suggested the possibility of overcoming these hurdles through narrower subclasses, or through the use of reference to objective criteria or an approach to damages that abated the risk of undue pecuniary incentives.

In light of the Hulu court’s signaling of its willingness to consider subclasses or other approaches that would permit class certification, we would expect to see the plaintiffs try for another bite at the apple. We will be watching this closely, and will keep readers posted on any important developments as they unfold. 


Privacy Monday – June 30, 2014

Posted in Data Breach Notification, Privacy Monday, Privacy Regulation, Uncategorized

Not only the last Monday in June, but the last day of June.    There are quite a few privacy-related things taking effect tomorrow, July 1.   Some reminders:

Florida Amendments to Data Breach Notification Law

The Florida Information Protection Act of 2014 (“FIPA”) takes effect tomorrow.   The FIPA essentially repeals Florida’s existing data breach notification law and replaces it with one of the nation’s most extensive laws relating to data security and notification.

  • The definition of “personal information” now includes “a user name or e-mail in combination with a password or security question and answer that would permit access to an online account.
  • Notice must be provided within 30 days of the incident.
  • When a breach affects more than 500 Florida residents notice must be provided to the Attorney General’s office (see more below).
  • If you rely on Florida’s “risk of harm” exception to avoid providing notice, it will require that the entity investigate the incident, consult with federal, state or local law enforcement and report to the AG of such determination within 30 days.

The Attorney General notice requirement differs in a material way from the other states that have a regulatory reporting requirement.  The notice must contain information about “[a]ny services related to the breach to be offered or scheduled to be offered…”   Although the AG is specifically required to be notified of credit monitoring or identity theft services to be offered, most notices to consumers contain all the information required by FIPA.   Attention must be paid to the second requirement:   Upon request, the entity must provide: (1) “a police report, incident report, or computer forensics report”; (2) “a copy of the policies in place regarding breaches”; and (3) “steps that have been taken to rectify the breach.”    When launching into an investigation of a data breach, remember that attorney-client privilege is important when engaging with investigatory service providers who will create documentation such as “incident” reports or “computer forensics” reports.

Kentucky’s New Data Breach Notification Law

Kentucky became the 47th state to enact a data breach notification law.   Consult the latest version of the Mintz Matrix for the details of the Kentucky law (and all the other July 1 effective amendments).

Canada’s Anti-Spam Law

Canada’s draconian anti-spam law (known as CASL) goes into force tomorrow.   U.S. companies should have compliance programs in place and should have been carefully examining email lists to either obtain express consent or at least determining whether they could be subject to CASL.  Fines of up to CSD$10 million can be imposed under CASL and the Canadian Radio-Television and Telecommunications Commission has already announced its intention to enforce.  Take it seriously.


Happy Canada Day (July 1) to our Canadian readers and Happy Independence Day (July 4) to our US readers!







Wyndham Gets Life Preserver in Data Breach Case

Posted in Data Breach, Data Breach Notification, Federal Trade Commission, Privacy Litigation

Written by Adam Veness

New Jersey U.S. District Judge Esther Salas agreed to allow Wyndham Hotels and Resorts LLC to immediately appeal to the Third Circuit a ruling affirming the FTC’s authority to bring data security cases.  We have been following this case since the beginning, and you can see our last post here.

Judge Salas noted that businesses and consumers nationwide would benefit from appellate review of the issues.  In granting Wyndham’s motion for interlocutory review of her order refusing to dismiss the case, she certified to the Third Circuit the following two questions:

1) Whether the Federal Trade Commission can bring an unfairness claim involving data security under Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a); and

2) Whether the Federal Trade Commission must formally promulgate regulations before bringing its unfairness claim under Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a). Continue Reading