To celebrate Data Privacy Day (January 28), we present our top ten data privacy and cybersecurity predictions for 2024.
- AI regulations to protect data privacy.
Automated decision-making tools, smart cameras, wearables, and similar applications, powered by technology commonly referred to as “artificial intelligence” or “AI” will continue to expand in 2024 as will the regulations to protect individuals’ privacy and secure data when deploying those technologies. Last year, we saw a comprehensive Executive Order from the Biden Administration, the New York City AI law take effect, and states like Connecticut passed laws regarding the state use of AI. Already in 2024, several states have introduced proposed AI regulation, such as New York developing an AI Bill of Rights.
The use of “generative AI” also exploded, as several industries sought to leverage its benefits while trying to manage risks. In healthcare, for example, AI and HIPAA do not always mix when it comes to maintaining the confidentiality of protected health information. Additionally, generative AI is not only used for good, as criminal threat actors have enhanced their phishing attacks against the healthcare industry.
- The continued expansion of the patchwork of state privacy laws.
In 2023, seven states added comprehensive consumer privacy laws. And several other states enacted more limited privacy laws dealing with social media or health-related data. It looks like 2024 will continue the expansion. Already in 2024, New Jersey has passed its own consumer privacy law, which takes effect in 2025. And New Hampshire is not far behind in potentially passing a statute.
- Children’s data protections will expand.
In 2023, several states passed or considered data protection legislation for minors with growing concerns that the Children’s Online Privacy Protection Act (COPPA) was not sufficient to protect children’s data. Connecticut added additional protections for minors’ data in 2023.
In 2024, the Federal Trade Commission (FTC) issued a notice of proposed rulemaking pertaining to COPPA, in addition to several states proposing legislation to protect children’s online privacy.
- Cybersecurity audits will become even more of a necessity to protect data.
As privacy protection legislation increases, businesses must start working to protect the data they are collecting and maintaining. The importance of conducting cybersecurity audits to ensure that policies and procedures are in place.
In 2023, there California Privacy Protection Agency considered regulations pertaining to cybersecurity audits. The SEC and FTC expanded obligations for reporting security breaches, making audits, incident response planning, and tabletop exercises to avoid such incidents all the more important.
It is anticipated there will be further regulations and legislation forcing companies to consider their cybersecurity in order to protect individuals’ privacy.
- Genetic and health data protection will continue to rise.
In 2023, Nevada and Washington passed health data privacy laws to protect data collected that was not subject to HIPAA. Montana passed a genetic information privacy law. Already this year Nebraska is advancing its own genetic information privacy law. It is likely concerns about health and genetic data will grow along with other privacy concerns and so too will the legislation and regulations. We also have seen a significant uptick in class action litigation in Illinois under the state’s Genetic Information Privacy Act (GIPA). A close relative to the state’s Biometric Information Privacy Act (BIPA), GIPA carried nearly identical remedy provisions, except the amounts of statutory damages are higher than under BIPA.
- Continued enforcement actions for data security.
As legislation and regulations grow so too will enforcement actions. Many of the state statutes and city regulations only allow for governmental enforcement, however, those entities are going to start enforcing requirements to ensure there is an incentive for businesses to comply. In 2023, we saw the New York Attorney General continue its active enforcement of data security requirements.
- HIPAA compliance will continue to be difficult as it overlaps with cybersecurity.
In 2023, the Office of Civil Rights (OCR) which enforces HIPAA, discussed issues with driving cybersecurity and HIPAA compliance as well as other compliance concerns. In 2024, entities required to comply with HIPAA will be challenged to determine how to use new and useful technologies and data sharing while maintaining privacy, while also protecting HIPAA-covered information as cybersecurity threats continue to flourish.
- Website tracking technologies will continue to be in the hot seat.
In 2023, both the FTC and the Health and Human Services (HHS) took issue with website tracking technologies such as through “pixels”. By the time that guidance was issued, litigation concerning these technologies pertaining to data privacy and data sharing concerns had already been expanding. To help clients identify and address these risks Jackson Lewis and SecondSight joined forces to offer organizations a website compliance assessment tool that has been well received.
In 2024, it is anticipated that there will be further website-tracking litigation as well as enforcement actions from governmental agencies that see the technology as infringing on consumers’ privacy rights.
- Expect biometric information to increasingly be leveraged to address privacy and security concerns.
As we move toward a “passwordless” society, technologies using biometric identifiers and information continue to be the “go-to” method for authentication. However, also increasing are the regulations on the collection and use of biometric information. While the Illinois Biometric Information Privacy Act (BIPA) is most prolific in its protection of biometric information, many of the new comprehensive privacy laws include protections for biometric information. See our biometric law map for developments.
- Privacy class actions will continue to increase.
Whether it is BIPA, GIPA, CIPA, TCPA, DPPA, pixel litigation, or data breach class actions, 2024 will likely see an increase in privacy-related class actions. As such, it becomes more important than ever for businesses to understand and ensure the protection of the data they collect and control.
For these reasons and others, we believe data privacy will continue to be at the forefront of many industries in 2024, and Jackson Lewis will continue to track relevant developments. Happy Privacy Day!