Privacy & Information Security Law Blog

On March 4, 2011, Congressman Cliff Stearns (R-FL) announced plans to introduce new online privacy legislation. The proposed bill is based on legislation Stearns drafted in 2005, the Consumer Privacy Protection Act, which was not reported out of committee. While speaking at a Technology Policy Institute event, “Online Privacy After the DOC and FTC Reports,” Stearns stressed that this new legislation would seek to balance “privacy with innovation,” protecting the interests of both businesses and their online customers.

According to Stearns, “[t]he goal of the ...

“LOANMOD TXT MSGS VIOL8 LAW, SEZ FTC.”  So reads the headline on the Federal Trade Commission’s Bureau of Consumer Protection’s Business Center Blog.  The posting announced the FTC’s complaint against a marketer who sent more than 5.5 million spam text messages at a “mind boggling” rate of about 85 per minute, every minute of every day.  Allegedly, most or all of the messages were unsolicited, and, like most text messages, they caused many recipients to incur standard text messaging charges.

On March 2, 2011, the German Federal government adopted a draft law revising certain sector-specific data protection provisions in the German Telecommunications Act.  The draft law addresses the implementation of data breach notification requirements in the European e-Privacy Directive by introducing a breach notification obligation for telecommunications companies.

On March 1, 2011, the United States Supreme Court issued a unanimous ruling in Federal Communications Commission v. AT&T Inc., finding that corporations are not entitled to “personal privacy” and therefore may not invoke Exemption 7(C) of the Freedom of Information Act (“FOIA”).  AT&T sought to employ this exemption, which prevents the disclosure of law enforcement records that “could reasonably be expected to constitute an unwarranted invasion of personal privacy,” to prohibit the Federal Communications Commission (the “FCC”) from turning over documents in response to a trade association’s FOIA request.  Applicable federal law defines “person” to include “an individual, partnership, corporation, association, or public or private organization other than an agency;” AT&T contended that the adjective “personal” is a derivative of the noun “person,” giving it “personal privacy” rights as a “private corporate citizen.”

The Council of the European Union (the “Council”) released its conclusions following meetings held on February 24 and 25, 2011, regarding the European Commission’s November 4, 2010 Communication proposing “a comprehensive approach on personal data protection in the European Union” which we reported on last November.

A draft document, entitled Information Security Technology - Guidelines for Personal Information Protection, has been issued in China for comment.  While comments are being solicited at this time, if issued in its proposed form, this document has the potential to add significantly to the rules governing the handling of personal information in China.  Read More...

On February 24, 2011, the Department of Health and Human Services Office of Civil Rights (“OCR”) announced a $1,000,000 Resolution Agreement with the General Hospital Corporation and Massachusetts General Physicians Organization Inc. (“Mass General”) that stemmed from the loss of protected health information (“PHI”) of 192 patients.  A Mass General employee had left hard-copy records containing PHI on the subway in March 2009.  The records originated from Mass General’s Infectious Disease Associates outpatient practice and included sensitive records discussing patients’ treatments for HIV/AIDS.  After receiving a complaint from an affected patient, OCR conducted an investigation that demonstrated that Mass General had “failed to implement reasonable, appropriate safeguards to protect the privacy of PHI when removed from Mass General’s premises and impermissibly disclosed PHI potentially violating provisions of the HIPAA Privacy Rule.”

The Government of India’s Ministry of Communications & Information Technology has published three draft rules that would implement the Information Technology Act, 2000. These include: Reasonable Security Practices and Procedures and Sensitive Personal Information; Due Diligence Observed by Intermediaries Guidelines and Guidelines for Cyber Cafe. The first two of these rules could affect international companies that provide digital services or process data in India. The comment period on the rules ends February 28, 2011.

On February 18, 2011, the European Network and Information Security Agency (“ENISA”), an advisory body created to enhance information security in the EU, announced the issuance of its report on cookies, entitled “Bittersweet cookies.  Some security and privacy considerations.”

On February 22, 2011, the U.S. Department of Health and Human Services Office for Civil Rights (“OCR”) imposed its first civil money penalty for an entity’s violation of HIPAA’s Privacy Rule.  In its Notice of Final Determination, OCR concluded that Cignet Health withheld patient records despite requests for their disclosure.  Of the $4.3 million penalty, $1.3 million was levied for denying patients access to their own medical records, while an additional $3 million was imposed due to Cignet’s failure to cooperate with OCR’s investigation as required by the Privacy Rule.  Increased penalty amounts were authorized by Section 13410(d) of the Health Information Technology for Economic and Clinical Health Act (the “HITECH” Act).