Recently, the U.S. Federal Trade Commission issued an important opinion, concluding that Cambridge Analytica, LLC, the data analytics and consulting company, engaged in “deceptive practices to harvest personal information” of tens of millions social media users, by way of using their data from a company developed app, GSRapp, for voter profiling purposes without the users’ knowledge or consent. In addition, the FTC found that Cambridge Analytica engaged in deceptive practices connected to their EU-US Privacy Shield (“Privacy Shield”) framework participation.

In particular the FTC opinion highlighted that Cambridge Analytica and its then CEO and GSRapp app developer deceived consumers, by falsely telling app users that it would not collect users’ names or other identifiable information, but then collected User IDs which allowed Cambridge Analytica access to users’ social media profiles containing identifiable information.

Regarding Cambridge Analytica’s deceptive Privacy Shield practices, the FTC concluded that Cambridge Analytica continued to claim participation in the Privacy Shield framework, after allowing its certification to pass. Moreover, the company failed to adhere to the Privacy Shield requirement that after ceasing participation in the framework, a company must affirm to the Department of Commerce that the company will continue to apply Privacy Shield protections to personal information that was collected during the time period the company participated in the framework.

The FTC’s Final Order prohibits Cambridge Analytica from making false representations regarding the extent to which it protects the privacy and confidentiality of personal information, and its participation in the Privacy Shield framework as well as other other similar regulatory or standard-setting organizations. Further, the company must continue to apply Privacy Shield framework protection to all personal information collected during the time period the company participated in the program, or alternatively delete or return the information. Finally, Cambridge Analytica must delete all personal information collected by the GSRapp.

The FTC’s opinion and order against Cambridge Analytica is particularly of relevance, as the newly effective California Consumer Privacy Act was a direct response to Cambridge Analytica’s deceptive practices towards user personal information, as well as other similar incidents of late. The CCPA creates extensive obligations for companies that handle consumer personal information, and provides consumers with enhanced control over their data, with the aim of preventing deceptive activity such as that of Cambridge Analytica. Key relevant CCPA provisions include:

Notice Obligations

  • A business that collects a consumer’s personal information must inform consumers, at or before the point of collection, as to the categories of personal information to be collected and the purposes for which the categories of personal information will be used. This does not include specific pieces of personal information.
  • A business must disclose certain information in an online privacy policy or on an internet website, as applicable. This information includes, without limitation, an explanation of the rights consumers have under the CCPA and certain information about the categories of personal information it collected, disclosed, or sold, as applicable. These disclosures must be updated every 12 months.

Consumer Rights

  • A consumer’s right to request information regarding the categories of personal information collected on them, the sources of that information (such as from an online survey or user profile as in the case of Cambridge Analytica), the categories of personal information used for business purposes or sold to third parties, and the “specific pieces” of information collected.
  • A consumer’s right to request that a business deletes personal information collected about them.

The CCPA is here (effective since January 1) and the development of a meaningful data protection program has never been more important. Jackson Lewis has established a CCPA Team that is available to answer questions regarding the CCPA and assist covered businesses in their compliance efforts.

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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.

Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Tampa, Florida, 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…

Joseph J. Lazzarotti is a principal in the Tampa, Florida, 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.