Artificial Intelligence Briefing: FTC Holds Forum on Commercial Surveillance and Data Security

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Our latest briefing explores the recent FTC commercial surveillance and data security forum (including discussion on widespread use of AI and algorithms in advertising), California’s inquiry into potentially discriminatory health care algorithms, and the recent California Department of Insurance workshop that could shape future rulemaking regarding the industry’s use of artificial intelligence, machine learning and algorithms.

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Second Circuit Addresses Critical Issue in Data Breach Class Actions: Article III Standing Based on Allegations of Future Misuse of Personal Data

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On April 26, 2021, the Second Circuit Court of Appeals decided the case of McMorris v. Carlos Lopez & Assocs., No. 19-4310, 2021 WL 1603808 (2d Cir. Apr. 26, 2021) and addressed one of the most critical issues in private data breach class actions – whether victims of a data breach can establish Article III standing by alleging they are at an increased risk of identity theft or fraud, even if their personal data has not yet been misused.

Although the district court’s ruling that plaintiffs did not establish standing was upheld, the Second Circuit found that victims of a data breach can establish standing based on a risk of future identity theft or fraud. The court also put forward a three-factor test to determine if standing exists when misuse of plaintiffs’ data has not yet occurred.

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FTC Settlement with Zoom Concerning Alleged Data-Security Lapses

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On November 9, 2020, the United States Federal Trade Commission (FTC) announced that it had entered into a consent agreement, subject to final approval, with videoconferencing company Zoom Video Communications, Inc. (Zoom). The consent agreement settles allegations that Zoom engaged in a series of deceptive and unfair practices that undermined the security of its users. The Commission voted 3–2 to accept the settlement, with Commissioners Chopra and Slaughter voting no and issuing dissenting statements asserting that the FTC’s action did not go far enough.

While the FTC generally does not identify what triggers a law enforcement action, there have been many news articles and a number of class actions filed in connection with Zoom’s data-security practices over the past six months that likely led to this action.

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But Wait, There Really Is More: California AG Releases New Proposed Modifications to the Final CCPA Regulations

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Throwing covered businesses a bit of a curveball, the California attorney general issued a third set of proposed changes to the formerly assumed “final” CCPA implementing regulations. Fortunately for those overseeing CCPA compliance, the revisions are largely clarifications of the existing regulations rather than fundamental changes. Interested stakeholders have until 5:00 p.m. Pacific Time on Wednesday, October 28, to submit comments.

For the full alert, visit the Faegre Drinker website.

It’s Finally Final… But Wait, There’s More: Fall 2020 California Privacy Update

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Businesses nationwide finally have clarity on their compliance obligations under the California Consumer Privacy Act (CCPA), as the landmark privacy law’s implementing regulations were finalized in August after a few last changes worth noting, and the Governor just signed two important CCPA amendments. With enforcement underway, business leaders should continue to focus on compliance — while also monitoring the progress of the California Privacy Rights and Enforcement Act, a 2020 ballot initiative that could soon become the next sweeping privacy law.

For the full alert, visit the Faegre Drinker website.

As CCPA Pressure Heats Up, Here’s What Should Be on Your Summer To-Do List

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Despite the business disruptions brought on by the novel coronavirus, enforcement of the California Consumer Privacy Act (CCPA) is still set to begin on July 1. With that key date just around the corner and companies facing a new slate of COVID-19-related privacy issues, we cover the high-level action items California businesses should address to help get their compliance programs up to speed.

For the full alert, visit the Faegre Drinker website.