Court Rules Nonpublic Facebook Posts Protected by SCA
The U.S. District Court in New Jersey has ruled that nonpublic Facebook posts are protected under the Stored Communications Act (SCA), reports Hunton & Williams’ Privacy and Information Security Law Blog. The case involved a hospital worker who posted to her page a negative comment, which could only be seen by her Facebook friends, about paramedics’ handling of a situation. A Facebook friend then took a screen shot of the post and shared it with hospital management—none of whom had access to the post through Facebook. The employee was suspended and issued a memo saying she had deliberately disregarded patient safety; she then sued on the grounds of SCA violations, among others. The court interpreted the 1986-era language and determined the post is protected under SCA, as it is an electronic communication “transmitted via an electronic communication service” that was in storage and not public.
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Court Reverses Heartland Negligence-Claim Ruling; Case Proceeds
Following the 2008 data breach at Heartland Payment Systems, several banks that had issued credit cards to customers affected by the breach alleged they incurred significant costs by replacing the cards of impacted customers and refunding fraudulent charges, writes attorney Stephen Shapiro. While a trial court dismissed the negligence claim, citing New Jersey’s economic loss doctrine, a Fifth Circuit Court has reversed the ruling, allowing the case to proceed. Editor’s Note: More on the possible implications of this case here.
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Is the False Light Tort Unnecessary?
Within the past 50 years, First Amendment lawyers have convinced courts and state legislatures to increase the difficulty for plaintiffs to bring defamation lawsuits, which “have helped preserve the public debate that is vital to our democracy,” writes Covington & Burling Associate Jeff Kosseff, CIPP/US. “Unfortunately, privacy law has long provided plaintiffs with an end-run around the First Amendment,” adding, “Rather than filing a defamation lawsuit, plaintiffs bring claims under a privacy tort known as ‘false light.’” In this Privacy Perspectives post, Kosseff argues why this privacy tort is outdated and unnecessary.
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CA Senate Passes Breach Notification Amendment
California’s Senate has passed an amendment to its breach notification law that would expand the notification requirement to incidents involving personal information that would allow access to online accounts, reports Hunton & Williams’ Privacy and Information Security Law Blog. SB 46 redefines personal information to include “a user name or e-mail address, in combination with a password or security question and answer that would permit access to an online account.” The bill also allows organizations to deliver notifications in electronic form but prohibits them from using an e-mail address that may have been compromised due to the breach. The future of SB 46 hinges on the passing of Assembly Bill 1149 as well; both must be passed and enacted prior to the start of 2014 in order to become law.
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Opinion: Do-Not-Track Disclosure Bill Would Have Broad Impact
While California’s Do-Not-Track Disclosure bill (AB 370) has been sent to the governor, it has not yet been signed, writes Tanya Forsheit for Information Law Group. The bill would amend the California Business & Professions Code (CalOPPA) to require commercial websites and services that collect personal data to disclose how they respond to Do-Not-Track signals as well as disclose whether third parties may collect personally identifiable information. “If AB 370 becomes law, it will have impact beyond California—CalOPPA purports to apply to any website that collects information from California residents,” Forsheit writes.
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Lawmaker, HIPAA Provision Raise Gun Privacy Questions
A Maryland legislator is asking Attorney General Douglas F. Gansler about the legality of viewing confidential information on potential gun-buyers, The Washington Times reports. Delegate Kevin Kelly (D-District 1B) has sent the AG’s office a letter seeking details on “whether it was legal for state police to allow up to 200 state employees from five agencies to view confidential information about prospective gun buyers,” the report states. Meanwhile, the Office for Civil Rights has sent the Office of Management and Budget a proposal “to lift legal barriers related to the HIPAA privacy rule that may prevent states from reporting mental health information to the National Instant Criminal Background Check,” HealthData Management reports.
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New HIPAA Rules Require Revised Notices; Deadline Looms
Earlier this year, the Department of Health and Human Services Office for Civil Rights released omnibus regulations changing significantly HIPAA’s privacy, security, enforcement and breach notification rules. An article for Boston’s WBUR looks at what the changes mean for patients. Under the changes, covered entities must update and post a revised notice of privacy practices before September 23. In this report for Lexology, attorneys from Wilson Elser describe what such notices must include. Meanwhile, California lawmakers are considering proposing stricter HIPAA regulations. (Registration may be required to access this story.)
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Google Case Can Proceed, Appeals Court Rules
A federal appeals court in San Francisco has said a lawsuit accusing Google of illegal wiretapping can proceed, The New York Times reports. The case involves Google’s Street View initiative, in which Google vehicles collected e-mail, passwords and other personal information from unencrypted home networks. Google wanted the case dismissed, arguing the data it accessed was exempt from the Wiretap Act because it was readily accessible to the general public. The appeals court agreed with an earlier federal court’s ruling, reasoning that, "Even if it is commonplace for members of the general public to connect to a neighbor's unencrypted Wi-Fi network, members of the general public do not typically mistakenly intercept, store and decode data transmitted by other devices on the network.” (Registration may be required to access this story.)
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Apple's Fingerprint Feature and Pleading the Fifth
The Wall Street Journal delves further into the inner workings of Apple’s new iPhone fingerprint sensor. As was previously reported, the phone will not store actual fingerprints but rather “fingerprint data.” The stored data is also encrypted. Meanwhile, in a column for Wired, privacy expert Marcia Hofmann argues that substituting biometric authentication for passwords could create legal issues, particularly with regard to the Fifth Amendment. Being required to share a password—a communication—is a “testimonial” because individuals are sharing the contents of their minds. However, “if we move toward authentication systems based solely on physical tokens or biometrics—things we have or things we are, rather than things we remember—the government could demand that we produce them without implicating anything we know,” Hofmann writes, “Which would make it less likely that a valid privilege against self-incrimination would apply.”
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The Future of Dealing With Data Breaches
The Lawyer reports on the European Commission’s draft data protection regulation and the mandatory reporting of data security breaches. “Organisations would have to inform the relevant data protection authority (DPA) of a breach ‘without undue delay and, where feasible, not later than 24 hours of becoming aware of it,’” the report states, highlighting key provisions in the draft. “Most obviously, in the current draft there are no exceptions to the requirement to notify data security breaches to DPAs. This means that every security breach, no matter how insignificant, will, in theory, have to be reported,” the report states. (Registration may be required to access this story.) Editor's Note: Laura Vivet Tañà, CIPP/US, CIPP/E, examines the EU data breach notification rule in a recent feature for The Privacy Advisor.
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Proposed DNA Bill in Ireland Leans Toward Destruction
Minister for Justice Alan Shatter has published a bill on the establishment of a national DNA database, Irish Times reports. The bill takes into account privacy concerns about earlier versions of the bill on destruction of samples and deletion of DNA profiles, among others. Shatter’s bill would allow authorities to take DNA samples from most criminal suspects but the default would be in favor of the destruction of such samples when an individual is not convicted.
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Latin America

The Right To Be Forgotten in Brazil
Brazil is still dragging its feet passing even basic legislation regarding the protection of personal data, and the issue regarding this right to be forgotten is beginning to grow in importance within the country. The issue was recently addressed by the 6ª Jornada de Direito Civil da Justica Federal/2013, a Brazilian legal committee, which concluded that such a right would strengthen the protection of human dignity, reports Renato Opice Blum in this exclusive for The Privacy Advisor.
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Written By

Emily Leach, CIPP/US


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