Special thanks to Taft summer associates Tanner Wilburn and Lizzie Dobbins for their contributions to this post. 

On June 20, 2024, the U.S. District Court for the Northern District of Texas vacated a portion of guidance issued by the Department of Health and Human Services (HHS) regarding the use of online tracking technologies. This decision is beneficial to healthcare providers and other entities covered by the Health Insurance Portability and Accountability Act (HIPAA) which use third-party tracking tools on their public-facing websites, but such entities should be cautious to not read the case too broadly.

Continue Reading Federal Court Strikes Down HHS Rule on Website Tracking Technologies… To an Extent

Special thanks to Taft summer associate Tanner Wilburn for his significant contributions to this post. 

Earlier this year, we provided a law bulletin on changes coming to the Health Insurance Portability and Accountability Act (HIPAA). To recap briefly, in April 2024, the Department of Health and Human Services (HHS) issued a final regulation that modified the HIPAA Privacy Rule to safeguard individuals’ protected health information (PHI) concerning reproductive health care.

The regulations go into effect on June 25, 2024, and those subject to the regulations must comply with the requirements by December 23, 2024. HHS also set a special compliance date of February 16, 2026, for the regulations’ changes involving HIPAA notices of privacy practices (NPPs).

With the law going into effect this week and the compliance deadline coming in six months, we’ve put together a breakdown of what must happen, and when. 

Continue Reading Six Months to Go: HIPAA Privacy Rule Changes Require Additional Diligence

Last week, Vermont Governor Phil Scott vetoed one of the most-watched pieces of privacy legislation in the United States: the Vermont Data Privacy Act (VDPA). Described in H.121 as “an act relating to enhancing consumer privacy and the age-appropriate design code,” was passed by the Vermont legislature in the early morning hours on May 11, 2024. The act represented a seismic change in domestic consumer privacy rights. However, Governor Scott returned H.121 without signature, effectively vetoing the would-be watershed bill.

Continue Reading Not So Fast: Vermont Governor VETOES Private Right of Action for Consumer Privacy Violations

The U.S. is cracking down on data sharing and export with foreign countries. A clear example of the United States’ position is seen in Executive Order 14117 (EO 14117) issued by President Biden on February 28, 2024.

Department of Justice (DOJ) seal

Titled “Preventing Access to Americans’ Bulk Sensitive Personal Data and United States Government-Related Data by Countries of Concern,” EO 14117’s main objective is simple – protect the sensitive personal data of individuals located in the United States. But, the reason for this Executive Order is more nuanced.

Continue Reading Recent Executive Order and DOJ Rulemaking Prioritize the Protection of Sensitive Personal Data from “Countries of Concern”

Just past midnight on May 11, 2024, the Vermont legislature passed the Vermont Data Privacy Act (VDPA). VDPA, if signed by Governor Phil Scott, will take effect on July 1, 2025, and will make Vermont the 18th state to establish consumer privacy rights in the same vein as the California Consumer Privacy Act (CCPA). Although many state consumer privacy laws feel cookie cutter at this point, VDPA contains nuances that will require companies to strategize data management intake and processing.

Continue Reading While You Were Sleeping, Vermont Passed One of the Most Stringent State Consumer Privacy Laws Yet

In an effort to support reproductive health care privacy, the U.S. Department of Health and Human Services (HHS) recently modified the standards for privacy of individually identifiable health information (the “Privacy Rule”) relevant to an individual’s reproductive health information under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended. The new 2024 Privacy Rule has a compliance date of December 2024, except for required updates to health care providers’ Notice of Privacy Practices, which are required to be implemented by February 16, 2026. 

Continue Reading HHS Amends HIPAA Privacy Rule to Further Protect Reproductive Health Information

Artificial intelligence, referred to as “AI” for short, has had an outsized impact on nearly every aspect of human existence. If that sounds like an overstatement, it’s not— machine learning systems and generative AI tools have now been integrated into various sectors of life including healthcare, government services, industry, and education. In 2023, more than 50% of US companies reported using AI for cybersecurity/fraud management, and 97% of business owners expressed enthusiasm that AI platforms like ChatGPT will help their businesses. Several cities and municipalities have adopted protocols for how local government may use and rely upon AI as part of day-to-day duties. 

Unsurprisingly, the law has lagged well behind the impressive speed of AI’s ballooning technological development. This notwithstanding, various governmental agencies, legislative bodies, and courts have begun to assemble a regulatory regime which may help answer the million-dollar question in this brave new world: who, or what, is liable when AI goes wrong?

Continue Reading Artificial Intelligence, Real Liability: Who’s on the hook when things go wrong?

Yesterday, the California Privacy Protection Agency (CPPA) issued its first enforcement advisory regarding the California Consumer Privacy Act (CCPA).  Enforcement Advisory No. 2024-01(the Advisory) is solely devoted to data minimalization, which the CPPA describes as “a foundational principle in the CCPA.” An enforcement advisory is not an implementing rule, regulation, or law; it is not even an interpretation of the law or legal advice. Instead, CPPA enforcement advisories are intended to be informational bulletins to inform the public about nascent legal privacy issues that CPPA is engaging with at a given time. 

Continue Reading California Privacy Protection Agency Issues “Minimal” Guidance on CCPA in First Enforcement Advisory

Last December, the Department of Defense (“DoD”) published its proposed rule setting forth cybersecurity requirements for defense contractors and subcontractors. These requirements are designated with a particular Cybersecurity Maturity Model Certification (CMMC) level that is associated with the contractor’s procurement. As the second iteration of CMMC, 2.0 demonstrates an escalating system of maturity using designated levels 1, 2, and 3.

With the proposed rule set to be finalized this year, and implementation set to take place in 2025, now is as good a time as any to understand how contractors are impacted by CMMC 2.0; as well as the requirements, the certification process, and how your organization can best prepare.

Continue Reading CMMC 2.0 Is Here to Stay: Where Do We Start?

On Wednesday, February 21, 2024, California Attorney General Rob Bonta announced that his office reached a settlement with DoorDash, which addresses allegations that the company facilitated several violations of both the California Consumer Privacy Act (CCPA) and the California Online Privacy Protection Act (CalOPPA).

Following an investigation by the California Department of Justice, the CA AG’s office determined that DoorDash sold the personal information of California customers without requisite notice or an opportunity to opt-out of that sale.  The sale took place through marketing cooperatives, which are networks of businesses that share the personal information of their respective customers with one another in order for participating businesses to advertise to those same customers, regardless of any prior relationship.  In other words, by participating in marketing cooperatives and disclosing consumer personal information as part of its membership, DoorDash was able to reach new customers; in turn, the other businesses participating in the cooperative also gained the opportunity to market to DoorDash customers.

Continue Reading California Delivers to DoorDash $375,000 Civil Penalty: California AG Announces Second CCPA Settlement