2020 may very well be the most impactful year for data privacy and cybersecurity in the United States. In honor of Data Privacy Day, we discuss some of the reasons why that may be the case. In short, as privacy and cybersecurity risks continue to emerge for organizations large and small, the law is beginning to catch up which is prompting a significant uptick in compliance efforts.

The California Consumer Privacy Act and Its Admirers

On January 1, 2020, the long anticipated, hotly debated, and already amended California Consumer Privacy Act (CCPA) went into effect.  According to a survey conducted by ComplianceWeek.com, however, nearly 80% of respondents felt either “somewhat confident,” “uncertain,” or “not confident at all” they would be compliant by the effective date. These results may be due to a variety of reasons: a lack of awareness or resources, reliance on the extended CCPA enforcement date (July 1, 2020), a belief that the California Attorney General enforcement efforts will be directed elsewhere, and/or anticipation of final regulations/further guidance from the California Attorney General.

Nonetheless, many businesses are working on CCPA compliance: mapping consumer data; providing notices at collection to consumers, employees, and applicants; updating websites and privacy policies; building internal procedures to verify and respond to consumer requests; and tightening their safeguards for protecting personal information. These efforts are worthwhile for many businesses as they are likely to yield dividends beyond California.

Following California’s lead, a number of other states have introduced similar measures in 2020 regarding individual privacy rights.  These legislative efforts include: Florida (SB 1670, HB 963); Hawaii (SB 418, SB 2451); Illinois (SB 2330); Maryland (HB 249); Nebraska (LB 746); New Hampshire (HB 1680); New Jersey (S269, S236, A2188); Vermont (H. 899); Virginia (HB 473); Washington HB 2759). Earlier efforts began in 2019: New Mexico (SB 176); New York (A 6351, S 4411); Pennsylvania (HB 1049); Rhode Island (S 234, H 5930); and Texas (HB 4518). All of these measures may fail, but California’s influence on state privacy law is considerable. Remember, the country’s first data breach notification law became effective in 2003 in California, and now all 50 states have such a law, including a number of other countries.

Adoption of Biometric Technology Grows, Along with Regulation

SourceToday.com reports that “by 2025, Zion Market Research expects the global next-generation biometric market to reach $36.8 billion, up from $12.9 billion last year.” The same report cites Deloitte’s 2018 global mobile consumer survey (US edition) which finds that at least one biometric authentication method is used by nearly half of U.S. smartphone owners. The trend for biometrics is on the rise.

Organizations which collect and use biometric identifiers/information (e.g. fingerprints, face scans, etc.) should be mindful of the increasing privacy and data security regulation around biometric technologies and applications.  While biometrics may be helpful in preventing fraud, managing employees’ time, or improving security, these benefits must be considered against the potential legal and compliance risks.

The most critical of these risks exists in Illinois under its Biometric Information Privacy Act (BIPA). Under BIPA a plaintiff is entitled to statutory damages for violations and actual harm is not required in order for an individual to sue.  BIPA is at the heart of hundreds of putative class action lawsuits in Illinois. Compliance steps such as obtaining consent prior to collection or use and establishing a written policy may help mitigate risk.  For more information on the BIPA and biometric information related concerns checkout our FAQs.

Of course, BIPA does not present the only compliance concern. In California, for example, the CCPA includes biometric information as a specific category of personal information, and following a change in 2019, a breach of biometric information could trigger a notification requirement. Other states regulating biometric information in one for or another include without limitation Arkansas, Colorado, Florida, Massachusetts, Nebraska, New York, Texas, and Washington.

Organizations’ Websites Provide a Window Into Compliance

Websites facilitate communication with consumers, constituents, patients, employees, and the general public. They project an organization’s image and promote goodwill, provide information about products and services and allow for their purchase. Websites also inform investors about performance, enable job seekers to view and apply for open positions, and accept questions and comments from visitors to the site or app, among many other activities and functionalities. Because of this vital role, websites have become an increasing subject of regulation making them a growing compliance concern, particularly as they are open to inspection by the public.

CCPA privacy policies, ADA accessibility, HIPAA notice of privacy practices, and COPPA consent mandates are just a few of the compliance requirements affecting websites and online applications or services. In 2020 and beyond, organizations will need to take a closer look at these and other compliance issues concerning their websites and online services.

Telephone Consumer Protection Act (TCPA)

While the Supreme Court did not choose to address whether the Hobbs Act (also known as the Administrative Orders Review Act) requires a district court to accept the Federal Communications Commission (FCC) interpretation of the TCPA (PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., No. 17-1705) there have been a number of other developments impacting the TCPA.  In December 2019, the FCC ruled that online faxes are TCPA exempt and the Supreme Court recently accepted certiorari of a petition to rule on the constitutionality of the TCPA.  In granting certiorari, the Court agreed to review a ruling of the Fourth Circuit which held that a TCPA exemption for government debt collectors was in violation of the First Amendment.   The case could have a significant impact on TCPA claims.  Further, Congress recently proposed the TRACED Act, to combat the increasing number of robocall scams and other intentional violations of telemarketing laws. The TRACED Act, if passed, broadens FCC authority to levy civil penalties and extends the time period for the FCC to catch and take civil enforcement action against intentional violations.  Needless to say, 2020 should be an interesting year for the TCPA.

Cybersecurity, Cybersecurity, and Cybersecurity

A rundown of anticipated, critical cybersecurity risks vying for attention at the upcoming RSA Conference in 2020 (the world’s biggest conference for CISOs) should provide reason enough for organizations to redouble their efforts at tightening security. But that is not all.

Less than two months from now, New York’s Stop Hacks and Improve Electronic Data Security Act (SHIELD Act) becomes effective, imposing expansive data security requirements on companies. Among other things, and similar to data security frameworks in other states such as California, Colorado, Massachusetts, and Oregon, the SHIELD Act requires that any person or business, including a small business, that owns or licenses computerized data which includes private information of a resident of New York must develop, implement and maintain reasonable safeguards to protect the security, confidentiality and integrity of the private information.

Examples of practices considered reasonable administrative safeguards under the law include risk assessments, employee training, selecting vendors capable of maintaining appropriate safeguards and implementing contractual obligations for those vendors, and disposal of private information within a reasonable time period.

Similar frameworks already exist in other states. For example, in 2018, Colorado enacted HB 1128, creating obligations for businesses to maintain “reasonable security procedures and practices” for protecting personal identifying information. Similar rules have been in place since 2010 in Massachusetts. Requirements for reasonable safeguards to protect personal information also exist in numerous other states such as Alabama, Florida, Nevada, Illinois, Indiana, and Utah.

But, we will end where we began, the CCPA. We believe it will be an important driver of “reasonable safeguards” for personal information. This is because similar to BIPA, the CCPA authorizes a private cause of action against a covered business if a failure to implement reasonable security safeguards results in a data breach. If successful, a plaintiff can recover statutory damages in an amount not less than $100 and not greater than $750 per consumer per incident or actual damages, whichever is greater, as well as injunctive or declaratory relief and any other relief the court deems proper.  As the CCPA provides for statutory damages, Plaintiffs in these lawsuits may not have to show actual harm or injury to recover.

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For these reasons and others, we believe 2020 will be a significant year for privacy and data security.

Happy Privacy Day!

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.

Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy…

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Jason focuses on the matrix of laws governing privacy, security, and management of data. Jason is co-editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Jason’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Jason helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Jason assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Jason represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. He negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Jason represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. He regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Jason’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Jason’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Jason regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Jason is the co-leader of Jackson Lewis’ Hispanic Attorney resource group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. He also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Jason served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.