Earlier this month, the Oregon state legislature introduced Senate Bill (SB) 619, “relating to protections for the personal data of consumers.”  The bill has since been referred to the Senate Committee on Judiciary and the Joint Committee on Ways and Means.  Of course, Oregon would not be the first state to enact general, or omnibus, privacy legislation; to date, five states (California, Virginia, Colorado, Connecticut, and Utah) have done so, with the first two operative as of today.  Likewise, Oregon is not the only state to introduce new omnibus privacy legislation this month.  The introduction of this bill (and other general state privacy legislation) remains significant because the prospect for omnibus federal privacy legislation (in the near term) fizzled out when the 117th Congress adjourned.   

No bill exists in a vacuum.  Structurally, SB 619 generally follows the Virginia Consumer Data Protection Act (VCDPA), as do the laws enacted by Colorado, Connecticut, and Utah. 

SB 619 is only 17 pages long, not as slim as the VCDPA (8 pages), but not as bulky as the California Consumer Privacy Act (59 pages).  Unlike the CCPA, SB 619 does not reference any implementing regulations; however, implementing regulations could be added.

As with any omnibus state privacy bill, the proposed legislation raises some key questions:…

Continue Reading A New Consumer Data Protection Bill in Oregon: A Summary of SB 619

To say that class action litigation regarding the use or collection of “biometric information” – such as fingerprints, face records, or voice records – is expensive would be a gross understatement.  The damages sought, and sometimes recovered, in litigation under the Illinois Biometric Information Privacy Act and similar laws that impose statutory penalties can be…

If you manage a company that collects and otherwise processes personal data (which is just about every company, these days), you may need to protect your own pocketbook.  As governments across the globe continue to enact and enforce data privacy, data protection, and cybersecurity laws, data becomes more readily available, and the volume of incidents…

It’s a great time to be a privacy attorney.  On October 17, 2022, the California Privacy Protection Agency (CPPA) released the next draft of the regulations under the California Privacy Rights Act of 2020 (CPRA) as well as a document explaining the proposed modifications.  Two days of public hearings were recently held on October 21-22…

In Illinois, the Biometric Information Privacy Act (“BIPA”) regulates the collection and use of “biometric information” such as fingerprints, facial images, and voice records.  It imposes significant penalties and has generated a cottage industry of class action litigation—hundreds of cases have been filed and millions of dollars in liability have been assessed.  It is also the most well known and heavily litigated of a slew of newly enacted, or soon to be passed, state and local laws aimed to regulate biometric information.

Many Illinois defendants had hoped that their liability under BIPA could be limited because, they argued, a one-year statute of limitations should apply to BIPA claims.  But, in a recently issued decision, Tims v. Black Horse Carriers, Inc., 2021 IL App (1st) 200563, the Illinois Court of Appeals rejected this position for a majority of BIPA claims.  It held that a five-year statute of limitations applies to the most frequently cited sections of the statute.
Continue Reading Illinois Court of Appeals: Statute of Limitations for Most Biometric Privacy Claims Remains at Five Years

In a widely anticipated ruling, the U.S. Supreme Court today ruled that just because a business has calling technology that has the capacity to store and dial multiple numbers – such as a cell phone — does not automatically subject that business to Telephone Consumer Protection Act (“TCPA”) liability for calls (and texts) to consumers that otherwise lack consent.

Beyond other aspects of what constitutes a robo-call, this ruling is likely to limit the number of class actions brought against businesses under TCPA.  Still, for businesses required to comply with consumer protection laws, obtaining and retaining evidence of consumer consent for calls and texts remains the primary business action to limit risk.  Where businesses use vendors to administer call campaigns, we recommend discussing with vendors the impact this decision may have on campaign practices.  As always, contacting experienced counsel to investigate whether creative steps can be taken to incorporate aspects of today’s ruling into your relationships is a wise step to better protect your business.

In an 8-0 opinion, with Justice Alito concurring in the judgment for unanimity, the U.S. Supreme Court reversed and remanded the Ninth Circuit’s decision in Facebook, Inc. v. Duguid, et al.  Slip Op. No. 19-511, 592 U. S. ___ (2021).  In the context of consumer protections ensconced in the TCPA, the Ninth Circuit held that any company maintaining a database that stored consumer phone numbers that could also be programmed to automatically call the numbers stored therein, were operators of “automatic telephone dialing systems” (“ATDS”).  Among other things, the TCPA prohibits unsolicited telemarketing and other calls and text messages from users of an ATDS.  The Ninth Circuit’s conclusion created a rift.  The TCPA’s definition of what constitutes an ATDS was more narrow than the Ninth Circuit’s interpretation.  As Facebook pointed out to the Supreme Court, the Ninth Circuit’s interpretation not only appeared to ignore the TCPA’s complete definition of what constitutes an ATDS – it made ubiquitous forms of technology previously untouched by the TCPA open to that liability.
Continue Reading The Only Bi-Partisan Show in D.C.: The U.S. Supreme Court Issues a Decisive Opinion Concerning TCPA Liability in Facebook, Inc. v. Duguid, et al.

Join me, Stoel Rives’ Chief Information Security Officer (and Global Privacy & Security Blog® author) Jon Washburn, for a panel discussion in which I will partner with top industry CISOs and CIOs to address the most pressing cybersecurity challenges of 2021. Register now for free for the Seattle & Portland Virtual Cybersecurity Summit…

In a recent letter to insurers, the New York State Department of Financial Services (“NYDFS”) acknowledged the key role cyber insurance plays in managing and reducing cyber risk – while also warning insurers that they could be writing policies that have the “perverse effect of increasing cyber risk.” If a cyber insurance policy does not…

Is your business using or thinking of using facial recognition technology for activities in Portland, Oregon? Think again.

That’s the message to businesses operating in Portland in a new ordinance that broadly bans the use of facial recognition technology in the city, subject to certain exceptions. The ordinance, which took effect January 1, 2021, restricts private businesses from using automated or semi-automated processes to identify an individual by comparing an image of a person captured through a camera with images of multiple individuals in a database. Due to the expansive language contained in the final version of the ordinance, routine business practices used to support or improve operations are no longer permitted. For example, retailers may have previously used software that compares surveillance video images of individuals as they enter a store with a cloud-based photo database to identify suspected shoplifters. The ordinance now prohibits use of this software.

The law also has teeth. It creates a private right of action, statutory damages of $1,000 per day for each violation, and allows for recovery of attorneys’ fees. Similar to other biometric privacy laws, this ordinance has the potential to trigger a wave of costly class action litigation and upend business operations. This ordinance creates significant risk with use of facial recognition technology, and organizations should proceed with this awareness. The law also raises numerous unanswered questions, as noted below. …
Continue Reading Portland’s New Facial Recognition Ban Increases Litigation Risk, Creates Uncertainty

Digital transformation,[1] the process of leveraging technology, people and processes to innovate, requires an “all-in, ongoing commitment to improvement.”[2] But the main drivers of digital transformation – data and profits – don’t always mesh seamlessly.

As shown by recent class actions filed against Blackbaud and Morgan Stanley, and a settlement with the New York Attorney General by Dunkin’ Brands, digital transformation has numerous cybersecurity issues that present legal obligations and potential liability.

Blackbaud

In May, Blackbaud, Inc., a company that provides cloud software services to thousands of non-profits including hospitals, suffered a ransomware attack.[3]  In July, it began informing its users of the attack, many of whom used Blackbaud to process personal and sensitive information.

On August 12, the first of many lawsuits was filed against Blackbaud.  Among the allegations in the lawsuit, Blackbaud is accused of failing to properly monitor its computer network and systems, failing to implement policies to secure communications, and failing to train employees.

The five years prior to the attack are telling.  In that timeframe, Blackbaud underwent a digital transformation that involved acquiring numerous other software platforms including a predictive modeling platform, and a software provider focused solely on corporate giving.

Since the ransomware attack, Blackbaud has published cybersecurity improvements that support adherence to industry standards for incident management, employee training, systems and network testing, risk assessments, application security, encryption, and end-user authentication.[4]…
Continue Reading Digital Transformation – Cybersecurity Lessons from Recent Lawsuits

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Contracts, laws and regulations require privacy compliance, and good business practices demand it. This blog is designed to inform our clients and readers about developing privacy issues and regulatory updates, and provide alerts on cyber security stories and data breaches that impact various data privacy and security requirements.