Photo of Zachary Heck

Zach’s practice focuses on privacy and data security. Specifically, Zach assists clients in the areas of privacy compliance, defense litigation, class action defense and guidance in the aftermath of an information security event, including data breach. Zach has experience advising clients with respect to FTC investigations, federal privacy regulations such as HIPAA, FCRA, TCPA, and GLBA, as well as state laws governing personally identifiable information. For his clients, he also provides regulatory analysis, risk management, policy development, training and audits.

What is Privacy Shield?  Since 2016, U.S. companies and organizations receiving personal data relating to individuals in the European Union have relied upon a self-certification program known as Privacy Shield. Rather than enter into numerous agreements and meet other requirements to process the personal data of individuals in the EU, U.S. companies have been able to self-certify to a level of compliance to meet EU law. Privacy Shield serves to address the General Data Protection Regulation’s (GDPR) requirement that adequate safeguards be in place for the protection of transatlantic transfers of personal data and the receiving entity’s handling of that data. Under Privacy Shield, self-certified companies that comply with the agreement’s requirements are considered to have met the EU’s higher standard for data privacy and obtained some level of “adequacy.” Since its implementation, more than 5,300 companies have operated under its terms. The future of Privacy Shield, however, is now in jeopardy.

EU Court holds Privacy Shield to be Inadequate.  On July 16, 2020, Europe’s highest court, the Court of Justice of the European Union (CJEU) held that United States law is inadequate to protect EU citizens’ personal data to the extent that EU law requires. Specifically, the CJEU held that the “limitations on the protection of personal data arising from the domestic law of the United States, on the access and use by U.S. public authorities of such data transferred from the European Union… are not circumscribed in a way that satisfies requirements that are essentially equivalent to those required under EU law.” To put it another way, Privacy Shield’s fundamental flaw, according to the court, is not so much that member companies’ practices are inadequate, but rather that the U.S. government cannot be trusted to maintain the confidentiality, integrity, and availability of personal data.  Specifically, the justices found that federal laws such as the Foreign Intelligence Surveillance Act “cannot be regarded as limited to what is strictly necessary” and fails to meet “minimum safeguards” guaranteed by the EU.
Continue Reading Warning! Shields are Down: Top EU Court Invalidates EU-US Privacy Shield Protections

It is summer and you just finished all the hard work to make sure your organization addressed all applicable California Consumer Privacy Act (CCPA or the “Act”) requirements.  You sit down, take a deep breath, and see what California has been up to during your CCPA preparations.  Well, lo and behold, California wants to give the nation’s most aggressive data protection law a facelift in a new ballot initiative to be voted on this November.

You may remember that California pioneered the first sweeping privacy reform in the United States in 2018 when the CCPA was passed. The Act was amended in 2019 and went into effect January 1, 2020, with enforcement beginning July 1 of this year. Taft’s Privacy & Data Security group has provided information regarding the data requirements of the CCPA in previous blog posts, but generally, the Act affords consumers the right to know what information is being collected from them, the right to prohibit businesses from keeping their information, and the right to opt-out of the sale of their personal information, among other things.  The CCPA already reaches outside California state lines, as it applies to companies that do business within the state that have revenues of over $25 million per year, derive at least 50% of its revenue from selling information, or buy, sell or share personal information of at least 50,000 California consumers, households or devices.


Continue Reading Data Déjà vu? Data Protection Back On the Ballot in California

For years, the idea of a federal privacy law in the same vein as GDPR seemed to be a far-fetched dream.  Then came the nightmare: coronavirus.  As mobile device and other monitoring services are being considered for employers and retail, because of the COVID-19 pandemic, the U.S. Senate announced a bill, which would apply to the collection of American health, geolocation, and proximity information.

The COVID-19 Consumer Data Protection Act (the “Act”) aims to heighten protection for American’s data by imposing requirements on businesses similar to those seen in the GDPR and CCPA.  Specifically, the Act is designed to protect information that constitutes “precise geolocation data, proximity data, and personal health information.”  Any entity or person who “collects, processes, or transfers covered information” and is also subject to the Federal Trade Commission Act, is a common carrier subject to the Communications Act of 1934, or is a nonprofit organization would be subject to the law.


Continue Reading COVID-19 Inspires Federal Consumer Privacy Act

While hardly a new topic for anyone doing business with the government, current events and the challenges of COVID-19 provide a cautionary tale and proactive reminder that doing business with the government carries with the burden of ensuring applicable data privacy and security protections are in place.  As companies consider existing relationships with the U.S. government, or potentially pursuing new business with the U.S. government in responding to current challenges, we thought it a good time to provide a high-level summary of what to expect.

All organizations store, maintain, and process data to some extent.  However, organizations that contract with the federal government may also be storing controlled unclassified information (“CUI”).  The federal government requires that CUI be protected from public disclosure; or other unauthorized use.  Protection of CUI in nonfederal systems and organizations is important to federal agencies and can directly affect the ability of the federal government to successfully conduct its essential missions and functions. For example, over the last decade, cyber criminals have increasingly targeted contractor organizations to extract information in an attempt to weaken the federal government’s supply chain. Accordingly, companies can expect to see an emphasis on security of CUI when contracting with the federal government as they process CUI and other types of data on the government’s behalf, whether directly as a prime contractor or subcontractor to a prime contractor of the government.


Continue Reading COVID-19 Bulletin: Dreaming of a government contract? Neglecting data security can be a nightmare.

On Thursday, March 26, 2020, the Senate passed the Coronavirus Aid, Relief, and Economy Security Act (the “CARES Act”), which provides economic relief for individuals, businesses and industries affected by the COVID-19 pandemic. In addition, some provisions specifically relate to nascent privacy and data security concerns to be addressed both during and after the pandemic:

  • Financial Assistance for Training: Qualifying small businesses and minority owned businesses may apply for financial assistance in the form of grants to cover training and advising for employees on risks of and mitigation of cybersecurity threats in remote customer service or telework practices. The economic landscape following the COVID-19 pandemic will highlight businesses’ increased reliance upon technology, and the nascent need for increased attention to data security education. The financial assistance available to small and minority-owned businesses provides a great opportunity for companies to get ahead of the curve with respect to myriad information security threats.
  • Credit Reporting: The Fair Credit Reporting Act is revised so that furnishers of consumer and payment information, who make an accommodation with respect to one or more payments on a consumer’s account or credit obligation, must report the account or obligation as “current,” unless it was delinquent prior to the accommodation.
  • Public Health Service Act Amended to Conform with HIPAA: The Public Health Service Act is amended to include breach notification and consent requirements consistent with HIPAA. In addition, within one year after the date of enactment, the Secretary of Health and Human Services shall update 45 C.F.R 164.520 so that covered entities and entities creating or maintaining records relating to substance abuse education, training, treatment, and research shall provide easily understandable notices of privacy practices. As a result, some entities not currently regulated by HIPAA will need to adapt to some of the HIPAA requirements related to breach notification and notice of privacy practices.
  • Cybersecurity & Infrastructure Security Agency: $9 million is allocated for supply chain and information analysis, as well as impacted critical infrastructure coordination.
  • Funding for Public Health Surveillance: $500 million is allocated for public health data surveillance and analytics infrastructure modernization.


Continue Reading COVID-19 Bulletin: CARES Act Provides Attention to Privacy & Data Security Precautions

In our previous COVID-19 bulletin, we discussed the importance of companies maintaining information system and data security while allowing employees to work remotely. Over the last week, as people scramble to identify trustworthy information about the spread of COVID-19, how they can protect themselves, and how they can get tested, spammers and scammers have taken advantage of vulnerable telecommuters. For example, in just the past week, media outlets have reported on the following scams:

  • Email Phishing. According to a Kaspersky study and the FTC, email phishing schemes include the use of organizations’ names that would normally seem legitimate. Such emails appear to be coming from representatives of the Centers for Disease Control and Prevention (CDC) or the World Health Organization (WHO). The emails have the CDC or WHO logos and headings or have email addresses that, in a quick glance, look to be official (such as cdc-gov.org). The links in these emails may infect the user’s device with malware or even ask them to enter in an email and password for their Microsoft Outlook account.
  • Domains and Apps. There are website domains that appear to keep track of COVID-19 updates and health information. Instead, these domains prompt users to download apps to access this information. In particular, there is an Android App that, once downloaded, infects the device with ransomware and demands payment or else the data on the device will be erased. Additionally, there is an interactive infections and deaths map circulating that is being used to spread password-stealing malware.
  • Goods Delivery. While goods and supplies, such as cleaning and household supplies, are running out at local stores, there are online sellers purporting to have these items in stock. Instead, they are scams that take your payment and never deliver your ordered items. Employers, or employees in charge of supplies, should be cautious of online retailers and conduct additional research into the seller to verify legitimacy.
  • Fake Charities. As with any major event or crisis, there are scammers trying to take advantage of people’s good intentions. This can take form in fake charities or fake donation pages. The fake charity can be a completely made up organization or one that closely resembles names of established charities.


Continue Reading Don’t Let COVID-19 Lure You In: Phishing and Malware Attacks Skyrocket During Coronavirus Crisis

In Taft’s Privacy and Data Security Insight, we have been writing regularly on the California Consumer Privacy Act and what to expect as it goes into effect in January.  Like many new privacy laws, panic begins to set in about how to actually address the new approach towards consumer privacy (remember the great GDPR panic of May 25, 2018?)  In our last blog, we told you about the final amendments to the CCPA and how the language of the law will finally read. The next step to the implementation of the United States’ most comprehensive state privacy law is the issuance of the Attorney General’s  Proposed Regulations, a Notice of Proposed Rulemaking Action, and an Initial Statement of Reasons. These draft documents attempt to answer the question burning in the minds of lawyers and businesses around the country:  HOW am I supposed to actually do this? With these draft documents finally out (awaiting public comments until December), we have what we are to understand as the AG’s guidance to businesses on how to comply with the provisions of the CCPA, including, but not limited to:

  1. How to properly notify consumers;
  2. How to handle consumer requests;
  3. How to verify the identity of consumers;
  4. Collecting personal information of minors; and
  5. How the value of consumer data is calculated.

The California Consumer Privacy Act (“CCPA”) will go into effect on January 1, 2020.


Continue Reading How am I supposed to do this?: California AG issues proposed regulations for making CCPA a reality

As we have discussed before, the California Consumer Privacy Act (“CCPA”) is forcing entities doing business in California to critically examine their information collection and sharing practices. Although California signed it into law last year, the CCPA does not go into effect until January 1, 2020. Last month, the California Legislature passed six amendments to the CCPA that will affect how businesses operate, while also affording California residents their newfound rights.

I. Limiting Personal information & Publicly Available Information (AB-874).
The CCPA, before this amendment, defined “personal information” as any information that “is capable of being associated with… a particular consumer or household.” This amendment changes that language to any information that “is reasonably capable of being associated with… a particular consumer or household.” This is an attempt to clarify and limit the scope of personal information and what information is “capable of being associated with” a consumer. Much like other areas of the law, we expect contentious debate over what is “reasonable” when anticipating association with a particular consumer or household. Additionally, the definition of “personal information” will now exclude de-identified or aggregated consumer information. This amendment also removes restricting language on what information is treated as “publicly available” and simply states that it is information made available by federal, state, or local governments.


Continue Reading California Raisin’ the Stakes: Final CCPA Amendments Pass CA Legislature

Last week, I had the pleasure of speaking at the 11th Annual Northern Kentucky University Cybersecurity Symposium. This year, over three hundred attendees ranging from IT and security professionals, to corporate executives and attorneys, gathered for workshops and presentations relating to nascent privacy and security issues. During my presentation, “So Goes California, So Goes the Nation,” I discussed the California Consumer Privacy Act (“CCPA”), and the California legislature’s recent amendments to the CCPA (“the Amendments”), which were signed into law by Governor Brown on Sept. 28, 2018.

As I explained during my presentation, the CCPA was fast-tracked through the California legislature in an attempt to preempt a state-wide voter initiative that would enact regulations on California businesses that collect personal information, but would have been immune from amendment absent a second state-wide voter initiative. Because the California legislature drafted and passed the CCPA in a week, a number of businesses have identified vague and confusing aspects of the law. Therefore, just eight weeks after passing the CCPA, the California legislature has already passed the first set of Amendments. Here are the top takeaways from my talk at NKU:

  • Private Right of Action & Civil Penalties: The CCPA creates a private right of action for a California citizen only when a company has suffered a data breach that is the result of the company’s failure to implement reasonable security measures. The CCPA requires the individual to contact the company prior to initiating an action, and allows the company thirty (30) days to cure the violation. The California Attorney General can also issue civil penalties of up to $2,500 per violation of the CCPA, and up to $7,500 per each intentional violation.
  • Role of California Attorney General: The Amendments clarified that although the CCPA takes effect on Jan. 1, 2020, the California Attorney General can wait until July 1, 2020 to promulgate final regulations. Further, the California AG cannot file enforcement actions under the CCPA until the earlier of July 1, 2020, or six months after the date of the final regulations. Accordingly, businesses regulated under the CCPA will have limited time to align their compliance programs before potential enforcement. Additionally, the original CCPA required any private right of action suits or class actions to be sent to the California AG’s office to determine whether a potential violation existed. The Amendments removed this requirement to avoid forcing the AG’s office into the role of a litigation gatekeeper.
  • Federal Privacy Regulations Exemptions: Originally, the CCPA contained exemptions for compliance for information already subject to federal privacy laws, such as Gramm-Leach-Bliley Act, Driver’s Privacy Protection Act or Health Information Portability and Accountability Act, whenever the CCPA conflicted with a requirement of the federal law. Now, under the amendments, that exemption simply applies across the board regardless of whether or not the CCPA conflicts with these laws. However, companies need to be aware that being subject to a federal regulation does not exempt all data being collected from the new CCPA. If a business collects data outside the federal regulations, then that data will still be regulated by the CCPA.


Continue Reading Change is in the California Air as Legislature Amends New Privacy Law

Last November, Taft’s Scot Ganow and Bill Wagner wrote on Ohio first-of-its kind state legislation which would provide companies a safe harbor from some litigation resulting from a data breach. This month, Governor John Kasich signed the Ohio Senate Bill 220, also known as the Ohio Data Protection Act, into law. The law goes into effect in November, and is aimed at providing entities conducting business in Ohio with special protection from litigation in the event of a security incident or breach under certain circumstances. Specifically, the law creates a safe harbor affirmative defense when an entity adopts cybersecurity measures designed to: (1) protect the security and confidentiality of personal information; (2) protect against any anticipated threats or hazards to the security or integrity of the personal information; and (3) protect against unauthorized access to and acquisition of information that is likely to result in a material risk of identity theft or other fraud.

Continue Reading Proactive Approach to Cybersecurity Pays off in Ohio with New Data Protection Act