Privacy & Cybersecurity

Before the holidays, we warned of a critical vulnerability in a widely-used Java logging utility that could affect tens of thousands of companies.   Since that original alert, multiple US and foreign government cybersecurity agencies published a joint advisory and guidance for affected organizations recommending that patches or workarounds be applied immediately to mitigate the vulnerabilities and exposure.   The US Cybersecurity and Infrastructure Security Agency also ordered US federal civilian executive branch agencies to patch within days of the order. 

Unauthorized use of a trademark on the Internet occurs often and in many forms, usually involving the profiting, whether intentionally or unintentionally, from the goodwill associated with a trademark belonging to someone else. Such use, however, does not always rise to the level of trademark infringement. Unauthorized use of a trademark is only infringing if the particular use causes likely confusion among consumers. The most common type of confusion is confusion over source, which occurs at the time of purchase, but confusion can also arise as to affiliation, connection, or sponsorship, and confusion does not necessarily need to occur at the time of purchase.

Our Mintz Matrix has been updated to reflect the new 2021 requirements and should be a part of your information security toolbox.

Vice President of ML Strategies Christian Fjeld provided insights for a feature article published by The National Law Review examining the privacy implications of Facebook whistleblower Frances Haugen’s testimony before a Congressional Subcommittee regarding harms perpetuated by the tech giant.

Our previous blog post on pending California privacy legislation included a prediction that has since materialized: Governor Newsom signed the Genetic Information Privacy Act (“GIPA”) on October 6, 2021, and the law will go into effect on January 1, 2022. GIPA establishes a number of mechanisms to close the existing gap in the protection of genetic information under the current framework of federal and state privacy laws. As discussed in our earlier post, GIPA contains a robust penalty structure, but it includes a number of carve-outs and does not apply to entities already subject to regulation under other health information privacy laws. Notably, GIPA does not reduce or eliminate obligations under other laws, including California’s more broadly applicable consumer privacy laws, such as the CCPA and breach notification statute, as recently amended by AB 825. Given Governor Newsom’s former concern about GIPA’s interference with mandatory COVID-19 testing reporting, the law also does not apply to tests that are conducted exclusively to diagnose whether an individual has a specific disease.

Legislation is starting to move off California Governor Gavin Newsom’s desk including the Genetic Information Privacy Act, which will take effect on January 1, 2022.

California lawmakers wrapped up this year’s legislative session, passing roughly 900 bills this year. Among those were only a few privacy initiatives, which we outline here.

Welcome to Fall 2021!   We’re trying to curate some of the week’s privacy and cybersecurity news to keep you up-to-date.

The California Privacy Protection Agency Board (“CPPA Board”), has issued an invitation for preliminary comments from the public related to a wide swath of areas over which the CPPA Board has rulemaking authority. According to the invitation, comments may be used in developing new regulations under the CPRA, and determining whether changes to the existing regulations are needed to implement the CPRA.

When it comes to the privacy of health information, California belongs to the select group of states that have implemented broad consumer privacy protections above and beyond those provided by the federal Health Insurance Portability and Accountability Act (HIPAA) and the Federal Trade Commission Act (FTCA). This year, the state’s ongoing legislative efforts to protect the health information of its residents included: Assembly Bill 1436 (AB 1436) which if enacted would have revised California’s existing Confidentiality of Medical Information Act (CMIA), and Senate Bill 41 (SB 41), which if enacted will create the new Genetic Information Privacy Act (GIPA). As further discussed below, only SB 41 is moving forward, and if signed by Governor Newsom GIPA will go into effect on January 1, 2022.

On September 15, 2021, in response to the “proliferation of apps and connected devices that capture sensitive health data” the Federal Trade Commission (FTC) issued a Policy Statement ( the Statement) offering guidance on the scope of the FTC’s Health Breach Notification Rule (Breach Rule). According to the Statement, the Breach Rule applies outside of the traditional health care context (e.g. health care involving diagnosis and treatment by a licensed health care provider) and the FTC intends to bring enforcement actions for noncompliance involving up to $43,792 in civil penalties per violation, per day.

Organizations that use the European Union’s Standard Contractual Clauses (SCCs) to govern their transfers of personal data from the European Economic Area (EEA) to other countries should have September 27, 2021 circled in red in their calendars (or the virtual equivalent).

Long holiday weekends make for ransomware attacks and data breaches. It is well-known that malicious actors take advantage of understaffed IT resources on holidays. In fact, it’s become such a common occurrence, that the FBI and the Cybersecurity and Infrastructure Security Agency of the Department of Homeland Security have issued a joint advisory warning organizations to be on high alert as Labor Day weekend approaches.

The United Kingdom has been busy in the past couple of weeks starting to chart its independent course on data protection and privacy matters. Here’s a quick round-up of the some interesting and important developments.

There is a glut of information out there regarding privacy and cybersecurity these days. Our new feature “What We’re Reading” provides a curated list of articles, blogs, newsletters, and books that you may find interesting and helpful.

There is a glut of information out there regarding privacy and cybersecurity these days.  Our new feature “What We’re Reading” provides a curated list of articles, blogs, newsletters, and books that you may find interesting and helpful.

Another district court just ordered the defendant in a data breach class action to turn over the forensic report it believed was entirely protected from disclosure by the attorney-client privilege and work product doctrine. See In re Rutter’s Inc. Data Security Breach Litigation, Case No. 1:20-CV-382 (N.D. Penn. July 22, 2021). The court granted the motion to compel Rutter’s to produce its investigative report (the “Kroll Report”), which was created after the defendant was notified of a potential breach.

There is a glut of information out there regarding privacy and cybersecurity these days.  Our new feature “What We’re Reading” provides a curated list of articles, blogs, newsletters, and books that you may find interesting and helpful.

To note the one year anniversary of the California Consumer Privacy Act (CCPA) enforcement date, California Attorney General Rob Banta held a press conference on July 19, 2021 to share key information about enforcement efforts and announce a new consumer privacy tool. He also praised businesses for their prompt compliance efforts and urged consumers to be proactive about their privacy rights.