Category: Countries

Massachusetts Approved Amendments to Data Breach Notification Law

15. January 2019

Massachusetts’ data breach law has been significantly amended by the legislation signed by Gov. Charlie Baker on 10th January becoming effective as of 11th April this year. An overview of the key changes can be found following.

The amended law requires companies to provide certain additional information when notifying the Massachusetts Attorney General and the Office of Consumer Affairs and Business Regulation about a breach of security or the reasonable believe of the existence such a breach. This information include, but are not limited to “the nature of the breach of  security or unauthorized acquisition or use”, the types of personal information compromised (e.g. social security numbers), “the number of residents affected by the incident at the time of notification”, the person responsible for the breach – if known -, and whether the entity maintains a written information security program according to Massachusetts 201 CMR § 17.03.

A further update concerns the notice of the affected individuals. The amended law explicitly sets out a rolling notification to individuals under certain circumstances and prohibits therefore a company from delaying notice to affected individuals referring to the ground that the total number of individuals affected has not yet been determined. “In such case, and where otherwise necessary to update or correct the information required, a person or agency shall provide additional notice as soon as practicable and without unreasonable delay upon learning such additional information.”
If the company experiencing a data security incident is owned by another entity, the particular notification to the affected individual must specify “the name of the parent or affiliated corporation”.

Another significant change to the data breach law refers to the requirement of providing an offer of complimentary credit monitoring for “a period of not less than 18 months” (42 months, if the company is a consumer reporting agency) when a Massachusetts resident’s Social Security number has been compromised, or is reasonably believed to have been compromised, in a data security incident.  Also, Companies must certify their credit monitoring services to the Massachusetts attorney general and the Director of the Office of Consumer Affairs and Business Regulation in order to demonstrate compliance with the respective Massachusetts state law. Companies must eventually provide the credit monitoring services at no costs to the affected residents and are prohibited from asking them to waive their right to a private action as a condition for the reception of such services.

However, when these amendments become effective, beside Connecticut and Delaware, Massachusetts will have become one of those states providing a credit monitoring obligation when residents’ Social Security numbers are concerned by a breach of security. In fact, according to Public Act No. 18-90 that substitutes Senate Bill No. 472, Connecticut recently increased the required period of credit monitoring to be provided to the affected individuals from 12 to 24 months.

Data breaches in US-American healthcare sector discovered

4. January 2019

In the last weeks, several data breaches in different US states were discovered. The latest one occurred in the Choice Rehabilitation Center based in Missouri. Data of 4,309 patients was breached in a hack on a corporate email account from July 1 until the end of September. Choice discovered the hack in November and started an investigation after consulting with Microsoft. Provider’s emails were forwarded to a personal account, which was later deactivated.

The sent emails contained billing data for different medical services such as physical or speech therapy services. These included for example patient names, medical record numbers, treatment information, diagnoses and the beginning and end of treatment dates.

Just a few weeks before, the largest healthcare breach of 2018 became public. Due to a cyberattack on the health’s systems billing vendor AccuDoc Solutions, data of more than 2.65 million Atrium Health patients was breached. AccuDoc Solutions prepares bills and operates the online billing system for Atrium Health, which is a hospital network that comprises 44 hospitals in Georgia, North Carolina and South Carolina.

The compromised database contained data of patients and guarantors, comprising full names, addresses, dates of birth, insurance policy details, medical record numbers, account balances and dates of service. 700,000 patient’s social security numbers were also among the hacked data.

However, financial data such as credit card numbers are not affected. Even though the data breach is contained to AccuDoc Solutions, Atrium Health has hired a team to investigate the occurrence and has reviewed its security precautions. Those patients whose Social Security numbers were hacked are being offered one year of free credit monitoring.

USA: Call for National Privacy Law

28. December 2018

The Association of National Advertisers (ANA) is urging the Federal Trade Commission (FTC) to work towards a national privacy legislation and prevent fragmentation of the U.S. privacy landscape.
In its plea, the ANA specifically raises concerns about current developments regarding the General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA). It deems both legislations to be overly restrictive and threatening to the free flow of information that “is vital to delivering the products and services that consumers value and expect” and asks the FTC to carry out a detailed review of the effects of the GDPR and the CCPA on competition and consumers.

The ANA is worried as “other states are considering additional and potentially inconsistent privacy and data security laws” and has been working with member companies and other industry groups to develop a new privacy paradigm that would be enforced by the FTC as a single national standard.

The approach involves allowing companies to use data considered “per se reasonable,” and prohibiting uses of data deemed “per se unreasonable.”
The reasonable practices “could include the collection and use of non-sensitive data for advertising purposes with consumer transparency and choice,” the ANA writes. Unreasonable ones “could include determining adverse terms or conditions or ineligibility for an individual’s: employment; credit; health care treatment; insurance; education and financial aid”.

The comments were filed in response to a request for input on the February 2019 FTC Hearing on Competition and Consumer Protection in the 21st Century, which will focus on consumer privacy.

Uber to pay another fine for 2016 data breach

27. December 2018

Uber’s major data breach of 2016 still has consequences as it has also been addressed by the French Data Protection Authority “CNIL”.

As reported in November 2017 and September 2018, the company had tried to hide that personal data of 50 million Uber customers had been stolen and chose to pay the hackers instead of disclosing the incident to the public.

1,4 million French customers were affected as well which is why the CNIL has now fined Uber 400K Euros (next to the settlement with the US authorities amounting to $148 Million).

The CNIL came to find out that the breach could have been avoided by implementing certain basic security measures such as stronger authentication.

Great Britain and the Netherlands have also already imposed a fine totalling €1 million.

Google changes Privacy Policy due to GDPR

19. December 2018

As it is widely known these days, the General Data Protection Regulation (GDPR) came into force earlier this year to standardize data protection regulation in the EU. This has now lead to the fact that Google will update the company’s terms of service and privacy policy to be compliant with the GDPR.

The company started to notify the countries in the European Economic Area (EEA) and Switzerland in regard to some upcoming changes. They will come into effect on January 22, 2019.

The most important update, also legally, is the change of the data controller. The Google Ireland Limited will become the so called “data controller” who is responsible for the information of European and Swiss users . Therefore, Google Ireland Limited will be in charge to respond to request from users and to ensure compliance with the GDPR. At present, these services are provided by Google LLC, based in the U.S.

For website operators this means that they might also have to adapt their privacy policy accordingly. This is the case, for example, if Google Analytics is used.

Furthermore, there are no changes in regard to the current settings and services.

Electronic receipts sent by leading retailers may not comply with data protection rules

12. December 2018

After investigating several large retailers the consumer body Which? claims that many retailers in the UK include in their e-receipt marketing messages.

A lot of retailers offer the possibility to send digital receipts instead of paper receipts to the shoppers. However, it should be noted that when the General Data Protection Regulation (GDPR) came into force on May 25th earlier this year, the regulations concerning this area were tightened.

Retailers are not allowed to send direct marketing to new customers by email unless the recipient has consented to receive it. Shoppers must be given the opportunity to opt out in case the retailer asks for their email address at the point of sale with the intention to afterwards send marketing information.

According to Which? the following companies were visited at least three times by “mystery shoppers” to test if they send out unwanted marketing information in their e-receipts: Topshop, Dorothy Perkins, Nike, Clarks, New Look, Arcadia Group (Miss Selfridge, Outfit, Burton), Gap, Mothercare, Halfords, Currys PC World and Schuh. The “mystery shoppers” requested an electronic receipt without receiving any additional marketing.

The retailers dealt with this situation differently. One shop apparently sent a marketing email with the e-receipt as an attachment, while others included prompts to sign up for a newsletter or invitations to complete a survey in return for money off a future purchase. The concern is that consumers might be “bombarded” with unwanted marketing messages.

ICO fines companies for not paying the data protection fee

4. December 2018

The UK’s Information Commissioner’s Office (ICO) fines the first companies for not paying the data protection fee. Unless they are exempt, all organisations, companies and sole traders who process personal data have to pay an annual data protection fee.

Depending on their maximum turnover, number of employees and whether they are a charity or public authority, the fee varies from £40 to £2,900. Whereas the fine for not paying varies from £400 to £4,000. The fines recovered go to the Treasury’s Consolidated Fund. The regulations came into force together with the new Data Protection Act on 25 May 2018.

“Following numerous attempts to collect the fees via our robust collection process, we are now left with no option but to issue fines to these organisations. They must now pay these fines within 28 days or risk further legal action. (…) You are breaking the law if you process personal data or are responsible for processing it and do not pay the data protection fee to the ICO”, said Paul Arnold, Deputy Chief Executive Officer at the ICO.

More than 900 fine notices have been issued by the ICO since September and more are set to follow. Companies can check if their fee is due to renewal on the ICO’s website.

Category: General · UK
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LinkedIn processed 18 million non-user email addresses to target Facebook advertisings

28. November 2018

The business and employment-oriented service LinkedIn processed the email addresses of 18 million non-members and targeted them with advertising on Facebook without permission.

A non-LinkedIn user issued a complaint to the Data Protection Commission that their email address had been obtained and used by the organisation for the purposes of targeted advertising on Facebook. Within Ireland’s Data Protection Commission the concerns grew regarding LinkedIn’s processing of personal data of non-users. Therefore, the office conducted an audit of the multinational LinkedIn Ireland, home to the company’s EU headquarters, and stated that it used million of e-mail addresses of non-users.

Also involved is LinkedIn Corp in the US, which processes data on behalf of LinkedIn Ireland. They targeted – by means of 18 million addresses – the individuals in Facebook. According to the commissioner’s annual report LinkedIn in the US carried out the processing in the absence of instructions from LinkedIn in Ireland (the controller). Said annual report covers the period from January 1st to May 24th 2018. Then the old office of the Data Protection Commissioner ceased to exist due to the General Data Protection Regulation. The new Data Protection Commission came into existence on May 25th 2018.

Brexit: Draft withdrawal agreement – GDPR remains applicable for foreseeable future

23. November 2018

Last week the U.K. and EU could conclude a draft withdrawal agreement for the United Kingdom to leave the European Union on 30th March 2019.The agreement covers the “divorce” of both of them and a non-binding political statement concerning their ideas for the future relations. The declaration is referring to a commitment regarding an ambitious free trade agreement, containing areas including financial services, continued free flow of data, and other subjects relating to the EU such as defense matters have been picked up.

After the U.K. will have left the EU in March 2019 a 21-month transition period is planned in order to facilitating business sectors in their planning. Thus, at least until the beginning of 2021, EU regulations would remain effective keeping the U.K. in the single market and Customs Union. However, this time frame could also be extended by common agreement.

With regard to data protection, the withdrawal agreement directly addresses data protection and security issues in Articles 70 to 74. These provisions stipulate that EU data protection rules, including the GDPR, shall apply in the U.K. when using personal data of data subjects outside the United Kingdom exchanged before the end of the transition period. Furthermore, after the end of the transition period, the U.K. is obliged to further apply these EU rules to the processing of “EU personal data”, until the U.K. data protection laws to be enacted ensure an adequate level of data protection which is “essentially equivalent” to that of the EU.  In the process of becoming subject to this formal adequacy decision to be established by the EU Commission the U.K.’s applicable data protection regime has to be assessed in the first place. In the event of annulling or repealing the adequacy decision, the provisions of the withdrawal agreement would be relevant for the EU personal data transferred to the U.K. to ensure the same “essentially equivalent” standard of data protection directly.

In other words, under the concluded agreement, the GDPR as well as the corresponding Data Protection Act would remain the applicable data protection law in the U.K. for the foreseeable future.

Privacy International accuses seven companies of violating the GDPR

13. November 2018

On November 8th, Privacy International – a British non-governmental organisation – has filed complaints against seven data brokers (Axiom, Oracle), ad-tech companies (Criteo, Quandcast, Tapad) and credit referencing agencies (Equifax, Experian) with data protection authorities in France, Ireland and the UK.

Privacy International accuses those companies of violating the GDPR: They all collect personal data from a wide variety of sources and merge them into individual profiles. Therefore, information from different areas of an individual’s life flow together to create a comprehensive picture e.g. online and offline shopping behaviour, hobbies, health, social life, income situation.

According to Privacy International, the companies not only deal with the collected data, but also with the conclusions they draw about their data subjects: Life situation, personality, creditworthiness. Among their customers are other companies, individuals and governments. Privacy International accuses them to violate data protection principals such as transparency, purpose limitation, data minimisation, integrity and confidentiality.

Furthermore, the companies have no valid legal basis for the processing of personal data, in particular for the purpose of profiling. According to Privacy International, where those companies claim to have the consent of the data subjects, they cannot prove how this consent was given, nor that the data subjects voluntarily provided it after sufficient and clear information.

“Without urgent and continuous action, data will be used in ways that people cannot now even imagine, to define and manipulate our lives without us being to understand why or being able to effectively fight back,” Frederike Kaltheuner, Privacy International’s data exploitation programme lead, said.

With its complaint, Privacy International takes advantage of a new possibility for collective enforcement of data protection created by the GDPR. The Regulation allows non-profit organisations or associations to use supervisory procedures to represent data subjects (Art. 80 GDPR).

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