Privacy

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As 2025 begins, businesses across the U.S. will be required to navigate an even more expanded landscape of state-level privacy regulations. In all, eight states are introducing comprehensive privacy laws, further adding to the growing patchwork of privacy requirements in the U.S.

January is kicking off with a flurry as five states (Iowa, Delaware, Nebraska, New Hampshire, and New Jersey) implement their laws in the first two weeks. Later this year, Tennessee, Minnesota, and Maryland will join the mix. For companies operating in the U.S., staying ahead in this shifting regulatory environment is essential. Failure to comply could result in hefty penalties, legal exposure, and a loss of consumer trust.

The good news? Businesses already aligned with current privacy laws may only need minor updates to meet the new requirements. However, it is important to be aware of all consumer-facing interactions, data collections, and sharing of personal information in each state to keep a firm handle on your compliance obligations.Continue Reading A New Year and New Compliance Requirements: Additional State Privacy Laws Take Effect in 2025

On September 6, 2024, the U.S. Department of Labor (DOL) issued Compliance Assistance Release No. 2024-01, titled “Cybersecurity Guidance Update.” The updated guidance clarifies that the DOL cybersecurity guidance applies to all ERISA-covered plans, and not just retirement plans, but also health and welfare plans. Also, as a direct response to service providers’ concerns, the DOL expanded its 2021 guidance to emphasize that plan sponsors, fiduciaries, recordkeepers, and participants should adopt cybersecurity practices across all employee benefit plans. With cyber risks continually evolving, the update highlights the importance of implementing robust security practices to protect participant information and plan assets.Continue Reading The Department of Labor’s Expanded Cybersecurity Guidance: What ERISA Plan Sponsors and Fiduciaries Need to Know

Seyfarth Synopsis: In a significant decision for website operators, the Massachusetts Supreme Judicial Court clarified that tracking users’ web activity does not constitute illegal wiretapping under the state’s Wiretap Act. The court found that person-to-website interactions fall outside the Act’s scope, which focuses on person-to-person communications. However, the court emphasized that other privacy laws could still apply to such tracking practices. This ruling may influence how similar cases proceed nationwide and signals to the Massachusetts legislature that any broader restrictions on web tracking require explicit statutory action.Continue Reading Tracking Users’ Web Browsing Activity Does Not Constitute Illegal Wiretapping under Massachusetts Law

In recent years, privacy and cybersecurity consistently hit the top of legal leaders’ lists of their biggest concerns. In fact, a recent Association of Corporate Counsel Chief Legal Officers Survey found that, when rating a list of items on their importance to the business, CLOs placed cybersecurity, regulation and compliance issues, and data privacy as the top three most critical issues for the business.
Continue Reading Upcoming Event! Seyfarth Privacy Salon: Roundtable on Cross-Border Data Transfers, Privacy, and Cybersecurity

The European Union (EU)’s government organizations are just like any another entity trying to function in a world where global companies and even government entities are reliant on digital platforms for messaging and collaboration. For years, there has been debate about how platforms like Microsoft 365, formerly Office 365, could be deployed in a way that complies with the GDPR processing and transfer restrictions. And it turns out that even the European Commission (EC) itself can apparently get it wrong. In a surprising turn of events earlier this month, the European Data Protection Supervisor (EDPS) concluded its nearly three year investigation into the Commission’s own deployment and use of Microsoft 365, signaling a pivotal moment in the conversation about the GDPR privacy and security requirements for cloud-based messaging and document collaboration platforms.Continue Reading Surprising Plot Twist: The European Data Protection Supervisor Reprimands the European Union for its use of Microsoft 365

This blog has been cross-posted on the Consumer Class Defense site.

Anyone following trends in consumer class action litigation will know that consumer privacy was a primary focus of the plaintiff’s bar in 2023. And there are no signs this uptick in consumer privacy claims is slowing any time soon. Although the claims center around use of tracking technology or analytics functions on consumer facing websites, several different statutes and claims have been asserted, including violations of state wiretap statutes and the Video Privacy Protection Act (“VPPA”).  

Although these cases are largely at the motion to dismiss stage, and therefore there is little insight into how certain key defenses will play out, some recent decisions surrounding VPPA claims have shifted the landscape in certain defendant’s favor.Continue Reading Is the Video Privacy Protection Act Losing its Allure?

Employers looking to enhance their suite of employee benefit programs, and focused on lessons learned during the pandemic on wellbeing, are interested in providing greater access to wellness tools. And, the vendors who support those tools are more than happy to provide them. Global spend in the health and wellness market would be around $24.8 billion in 2023 according to a study by Kilo Health. Wellness apps and wearables abound in all sorts of areas — from counting steps to nutrition to mental health to physical fitness to financial fitness. These tools are relatively inexpensive to provide and easily accessible to the workforce – many times with just a simple download to a smartphone. And, best of all they’re completely private with no middle man, and only the employee seeing their own data and progress. Right? Well — not so fast.Continue Reading Wellness Apps and Privacy

With so many companies being hauled into court in California based on claims that the functionalities on their website and use of service providers for marketing or analytics purposes violate consumer privacy rights, it is important to exhaust all possible defenses available to defendants. Late last year, the Ninth Circuit issued a ruling upholding a dismissal based on a lack of personal jurisdiction over a web-based payment company. Companies operating interactive websites may be able to take advantage of this ruling as part of their defense strategy in 2024.Continue Reading Ninth Circuit Opinion Supports Personal Jurisdiction Defense for Interactive Websites

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On October 5, 2023, Seyfarth offered a Masterclass, hosted by Lexology, which was designed to familiarize in-house counsel and privacy professionals, in and out of Washington state, with the My Health My Data Act legislation. Portions of the Act are already in effect and go into further effect on March 31, 2024.

We explored its…

As organizations begin renewing and entering into new contractual relationships for 2024, an oft-forgotten aspect of the contracting process is determining whether a Business Associate Agreement (a “BAA”) is required. Under HIPAA, health care providers, health plans and health care clearinghouses (“Covered Entities”) are required to enter into BAAs with any vendor (“Business Associate”) that may have access to Protected Health Information (“PHI”). Many organizations operate under a misconception that they are not subject to HIPAA if they are not in the health care industry but, in fact, HIPAA’s reach is much broader than that. For example, organizations that sponsor health plans, including employers that sponsor self-funded plans, are responsible for their health plans’ compliance with HIPAA, including the requirement to enter into BAAs with plan vendors. As another example, information technology organizations providing services to employers that offer health plans may be asked to sign a BAA as a Business Associate if they have access to data on the employer’s systems that may constitute PHI.Continue Reading Top 5 Reasons to Remember Your Business Associate Agreements This Fall