To celebrate Data Privacy Day, we present our top ten data privacy and cybersecurity predictions for 2023.

1. Healthcare and Medical Data Security and Tracking

The healthcare industry has been facing increased scrutiny for the protection of healthcare information both online and on apps.

2023 will see a significant increase in the number of lawsuits and perhaps OCR compliance reviews relating to medical information privacy and HIPAA, including new developments such as pixel and other tracking technologies. We will see more regulation of health apps and websites as the necessities and advantages of remote health care that were brought by the pandemic are considered further. 

Businesses in the healthcare industry should continue to work with counsel to review new ways of delivering healthcare services, including new technologies, with an eye toward the protection of medical information and privacy for patients. Building in protections from the outset can have significant advantages. Of course, medical device and technology companies also will need to consider how their devices and technologies could capture or affect medical information and the corresponding regulatory requirements and best practices.

2. A Patchwork of Legislation and Regulations Pertaining to Privacy and Cybersecurity

Currently, nine states are considering consumer privacy bills; Indiana, Iowa, Kentucky, Mississippi, New York, Oklahoma, Oregon, and Tennessee. This is already a complicated arena with California, Colorado, Connecticut, Utah, and Virginia that have laws on the books.

More cities and states will implement cybersecurity regulations with a view toward data protection and privacy, including in specific industries. In 2022, for example, we saw government entities such as the Nevada Gaming Commission issue security regulations for regulated entities in the gaming industry. The  New York State Bar is now requiring its members, lawyers practicing in New York, to have annual continuing legal education in cybersecurity.

The Biden Administration released its regulatory agenda which aimed at new cybersecurity requirements for government contractors, the maritime industry, public companies, and others. The Securities and Exchange Commission has also set goals to enact new cybersecurity regulations.

It will be important in 2023 for businesses to be more aware than ever about the data they are collecting, why it is processed, and how it is stored and safeguarded in order to comply with the myriad of privacy laws around the country.

3. California, California, California

California will continue to be a leader in the privacy data space, with both the implementation of its first-in-the-nation comprehensive consumer privacy law and further enforcement actions under that law. California will be sure to shape both state and national viewpoints on privacy requirements.

The California Privacy Protection Agency (CPPA) continues to work on revisions to regulations for the California Privacy Rights Act (CPRA). These changes are critical for covered organizations with respect to both their commercial activities and when functioning as an employer.

It does not stop there. Another first for California is that it is the first state to adopt a comprehensive law, AB 2273, addressing children’s online privacy.

4. Employee Privacy and Monitoring

As remote working remains mainstream, we will see more regulation on the monitoring of and privacy protections for employees. Last year, the NLRB’s General Counsel issued a memo on the electronic monitoring of employees. In the memo, the General Counsel suggested employers establish “narrowly tailored” practices to address “legitimate business needs” as to whether the practices outweigh employees’ Section 7 interests. If the employer establishes that its narrowly tailored business needs outweigh those rights, the General Counsel nonetheless will “urge the Board to require the employer to disclose to employees the technologies it uses to monitor and manage them, its reasons for doing so, and how it is using the information it obtains,” unless the employer can establish special circumstances.

In some industries, “workplace” monitoring goes beyond the home office. Consider transportation and logistics. An increasing number of states are advancing legislation on digital license plates, which could include related vehicle tracking and related telematics technologies. California’s recent statute on vehicle tracking and fleet management creates significant obligations for employers monitoring their fleets using these technologies.

5. Federal Government to Join in Privacy Regulation

We’re going out on a bit of a limb here as there have been predictions year after year that the federal government would enact a national privacy standard. Of course, none of those predictions turned out.  For sure, the federal government is on a much slower path toward joining states in privacy regulation, but we definitely see the federal government continuing its efforts whether via administrative regulations by the Federal Trade Commission or proposed legislation toward national privacy protection. Perhaps this is the year!

6. AI, Automated Decision Systems and Privacy

2022 saw a tremendous uptick in the attention to and use of AI and Automated Decision Systems, along with the potential effects of both in employment and related circumstances. Naturally, this raises significant privacy concerns among many stakeholders, including the Biden Administration. According to the framework issued by the White House in 2022 pertaining to the use of AI, data privacy was one of the five protections that individuals should be entitled to when using AI.

As the use of AI and automated decision systems continues to spread through industries and everyday life, how individuals’ privacy will be safeguarded will be a growing concern.

7. More privacy-related lawsuits

2023 will see more privacy-related lawsuits as privacy laws proliferate across the country.

We will continue to see more litigation under Illinois’ Biometric Information Privacy Act (BIPA) as plaintiff’s attorneys find more places that the law could apply from dash cams to timekeeping. Other states may enact laws that fuel more litigation, as several states including Maryland, Mississippi, and New York are considering biometric privacy laws. The facial recognition ban in the city of Portland a few years ago is beginning to see lawsuits filed under the ordinance.

While BIPA and the Telephone Consumer Protection Act (TCPA) continue to drive a significant amount of litigation, there is an emerging trend in cases seeking to apply newer technologies to privacy statutes such as the California Invasion of Privacy Act (CIPA), the Florida Telephone Solicitation Act (FTSA), the Video Privacy Protection Act (VPPA), and the Genetic Information Privacy Act (GIPA).

8. EU Continued Enforcement of Privacy Laws

Companies transferring personal data from the EEA (European Economic Area) to the U.S. may soon have an opportunity to leverage a new transfer mechanism. In October, President Biden signed Executive Order 14086 as part of the process to implement the EU-U.S. Data Privacy Framework (DPF), successor to the invalidated EU-U.S. Privacy Shield framework. The EU Commission has issued a draft decision that, upon adoption, will enable the DPF to proceed. In the meantime, the U.S. Department of Commerce announced it will help current U.S. Privacy Shield participants prepare to transition to the new framework.

In October, the European Data Protection Board approved Europrivacy, the first European Data Protection Seal. Europrivacy is a certification mechanism designed to help data controllers and processors demonstrate compliance with the GDPR.

Artificial Intelligence and data protection remain a top priority for the U.K. Information Commissioner’s Office. In November, the ICO published How to Use AI and Personal Data Appropriately and Lawfully. Earlier in the year, the EU Commission published an updated proposal for Laying Down Harmonised Rules On Artificial Intelligence (Artificial Intelligence Act). The proposal creates a legal framework and includes principle-based requirements for AI systems, harmonized rules for the development and use of AI systems, and a regulatory system.

9. Ransomware Attacks and Data Breaches Will Continue as Will Secondary Enforcement Actions

We will continue to see a flow of ransomware attacks, business email compromises, and other data breaches stemming from crafty hackers and cybersecurity lapses. In addition to business interruption costs and direct expenses incurred to respond to the incident, organizations will likely face more enforcement actions as states continue to tighten their data breach notification requirements.

Organizations cannot prevent all attacks from happening, but they can redouble their efforts around regulatory compliance, preparedness, and incident response planning. The stronger an organization is in these three areas, the more successful it likely will be in resolving a government agency enforcement action relating to a data breach.

10. More Focus on Critical Infrastructure Sector When it Comes to Cybersecurity and Privacy

In 2022, we saw the passage of federal legislation Cyber Incident Reporting for Critical Infrastructure of 2022 included within the Consolidated Appropriations Act, 2022. In short, the law requires certain entities in the critical infrastructure sector to report to the Department of Homeland Security (DHS):

  1. a covered cyber incident not later than 72 hours after the covered entity reasonably believes the incident occurred, and
  2. any ransom payment within 24 hours of making the payment as a result of a ransomware attack (even if the ransomware attack is not a covered cyber incident to be reported)

Because of the ongoing threats to critical infrastructure, the Cybersecurity Infrastructure Security Agency (CISA) has started to focus more on this sector, as small to medium-sized providers have been under threat. Recently, CISA stated in its review of 2022, that the agency would narrow in on “target-rich, resource-poor entities” such as small water facilities that are part of critical infrastructure but don’t have large security teams.

For these reasons and others, we believe data privacy will continue to be at the forefront of many industries in 2023.

Happy Privacy Day!

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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,, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and

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 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.