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Fran Faircloth

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California

At a meeting of the California Privacy Protection Agency (“CPPA”) on June 8, we learned additional information about the initial batch of proposed regulations (“Proposed Regulations”) to the California Privacy Rights Act (“CPRA”) that were published on May 27. The Proposed Regulations keep much of the pre-existing California Consumer Privacy Act (“CCPA”) regulations but modify and add some key provisions. Because the CPRA was drafted as an amendment to the CCPA, the Proposed Regulations reference the CCPA (as amended by the CPRA). The Proposed Regulations focus on data subject rights, contractual requirements, and obligations related to disclosures, notices, and consents. Additional proposals will cover cybersecurity audits, privacy risk assessments, and automated decision making, among other areas. While we expect significant changes as the Proposed Regulations proceed through the formal rulemaking process, which the CPPA has not yet officially started, we provide our key takeaways below:…

Continue Reading Recent Activity from the California Privacy Protection Agency

On April 28, 2022, the Connecticut General Assembly passed SB 6, the Act Concerning Personal Data Privacy And Online Monitoring (the “Connecticut Privacy Act”) by a vote of 144-5, which puts Connecticut on course to become the fifth state to enact a comprehensive data privacy law, following California, Virginia, Colorado, and Utah. The bill, which passed the state senate 35-0, now awaits the signature of Governor Ned Lamont. If it becomes law, the bulk of the statute is set to take effect July 1, 2023.

The bill passed by Connecticut legislature closely follows the structure of similar laws enacted in other states, giving support to the Colorado legislature’s claim, that “states across the United States are looking to [the Colorado Privacy Act, enacted in 2021] and similar models to enact state-based data privacy requirements and to exercise the leadership that is lacking at the national level.” One of the Connecticut bill’s sponsors and its key proponent in the state senate, Sen. James Maroney, compared the legislation to Colorado’s statute, saying that both SB 6 and the Colorado law are less aggressive than the California Consumer Privacy Act (“CCPA”) but provide more privacy protections that similar bills passed by other states.…

Continue Reading Connecticut Becomes the Fifth State to Pass a Comprehensive Data Privacy Law

On April 18, a Ninth Circuit panel reaffirmed its holding that LinkedIn cannot stop hiQ Labs (“hiQ”) from scraping publicly accessible data from its website at this stage of the litigation. In its latest opinion in HiQ Labs, Inc. v. LinkedIn Corporation, the Ninth Circuit ruled that hiQ raised serious questions about whether their scraping of public LinkedIn profile information should be permissible under the Computer Fraud and Abuse Act (“CFAA”). While the court’s opinion was limited to hiQ’s motion for a preliminary injunction prohibiting LinkedIn from preventing hiQ’s scraping, the reasoning and discussion in the court’s opinion suggests that the panel’s position is that scraping publicly accessible data likely does not violate the Computer Fraud and Abuse Act (“CFAA”).

The CFAA is the most prominent federal anti-hacking statute, and it prohibits, among other things, obtaining information through access to a protected computer system “without authorization” or in a way that “exceeds authorized access.” The bounds of what constitutes a violation of authorization under the CFAA has been a topic of debate in recent cases. Last year, in Van Buren v. United States (previously discussed here and here), the Supreme Court ruled that using information from a computer system for unpermitted purposes would not “exceed authorized access” under the CFAA if the user was otherwise authorized to access that information using the computer.

Less than two weeks after issuing its decision in Van Buren, the Court issued a summary disposition in LinkedIn v. hiQ Labs, LinkedIn’s petition to the Supreme Court to allow it to prevent hiQ from continuing its scraping practices. The Court vacated the Ninth Circuit’s earlier opinion affirming the trial court’s decision to allow the scraping to continue and remanded the case to the Night Circuit for further consideration in light of the Van Buren decision. In the opinion issued on April 18, the Ninth Circuit reasoned that the Supreme Court’s reasoning in Van Buren supported the conclusion that the CFAA does not prohibit access to publicly accessible data.…

Continue Reading Ninth Circuit Affirms Preliminary Injunction in HiQ Labs, Inc. v. LinkedIn Corporation, Reasoning that CFAA Is Unlikely to Bar Access to Public LinkedIn Data

Data, privacy & cybersecurity partners Ed McNicholas and Fran Faircloth and counsel Kevin Angle authored a chapter in Chambers Global Practice Guide Cybersecurity 2022 on “USA Law & Practice and Trends & Developments.” The chapter provides an overview of cybersecurity regulation in the United States and provides insights on the multitude of cybersecurity…

The California Attorney General’s office (OAG) recently released its first formal written opinion on the scope of the rights granted to consumers under the California Consumer Privacy Act (CCPA), specifically, the right for a consumer to know about the personal information that a business collects from them. The opinion comes in response to a question submitted by California Assembly member Kevin Kiley as to whether a consumer’s right to know the specific pieces of personal information that a business has collected about that consumer applies to internally generated inferences the business holds about them. The OAG asserted that the right to know does apply to such inferences, albeit with certain key exceptions.
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Continue Reading California Attorney General’s Office Releases First Formal CCPA Opinion

On March 24, 2022, Utah Governor Spencer Cox signed into law the Utah Consumer Privacy Act (“UCPA”), which was unanimously passed by the state legislature earlier this month. Utah is the fourth U.S. state to pass a comprehensive privacy law, following California, Virginia, and Colorado. The UCPA will go into effect on December 31, 2023.

The Utah law generally resembles the three existing state privacy models, but closely tracks with the Virginia Consumer Data Protection Act (CDPA) and Colorado Privacy Act (CPA), suggesting that states are shifting away from California’s more stringent strand of privacy regulation toward a version that balances the spirit of the EU’s General Data Protection Regulation (GDPR), in terms of purpose limitation and consumer protection, against the need to avoid overly burdening companies. In fact, the UCPA is seen by some as more business-friendly than legislation passed in Virginia and Colorado: Utah’s law does not require businesses to conduct data protection assessments and does not compel companies to provide a mechanism for consumers to appeal denials of requests to exercise personal data rights.…

Continue Reading Utah Passes Comprehensive Privacy Law

On March 15, 2022, President Biden signed into law significant new federal data breach reporting legislation that could vastly expand data breach notice requirements far beyond regulated entities or entities processing personal data. Unceremoniously tucked as Division Y into the H.R. 2471 Consolidated Appropriations Act, 2022, the Cyber Incident Reporting for Critical Infrastructure Act of…

On February 9, 2022, the SEC published a release addressing Cybersecurity Risk Management for Investment Advisers, Registered Investment Companies, and Business Development Companies (“Release”). The Release contained proposed new rules under the Advisers Act (Rules 206(4)-9 and 204-6) and the Investment Company Act of 1940 (Rule 38a-2) and amendments (collectively, the “Proposals”), which would require…

NY

Since the passage of the California Consumer Privacy Act (CCPA) in 2018, many states have proposed sweeping data protection legislation, but only two others, Colorado and Virginia, have so far succeeded in passing such laws. That may soon change. In 2021, several states came close to enacting comprehensive privacy legislation and that momentum has continued into this year, with data protection bills being carried over, introduced, and reintroduced in state legislatures across the country. As the possibility of a federal privacy law dwindles—particularly during this midterm year—state legislatures are poised to be the source of major data protection developments in 2022. Throughout the year, Ropes & Gray will monitor and analyze these developments in state privacy laws, beginning with a discussion of the latest iteration of the proposed New York Privacy Act.
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Continue Reading State Privacy Law Developments: The New York Privacy Act

Private funds that are excluded from the definition of “investment company” under sections 3(c)(1) or 3(c)(7) of the Investment Company Act of 1940 (“ICA”) will face significantly stricter cybersecurity requirements under the FTC’s revised Safeguards Rule, which comes into full effect as of December 9, 2022. The FTC’s updated Safeguards Rule breaks new ground for…