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Hamburg DPA orders WhatsApp to stop sharing data with Facebook; GAO: HHS Needs to Improve is Digital Health Protection Rules; Notice and Choice Becoming Par for the Course for Interest-Based-Ads in Apps

German Data Protection Authority of Hamburg orders WhatsApp to stop sharing data with Facebook

On September 27, 2016, the Hamburg Commissioner for

NHTSA Issues Voluntary Driverless Car Guidelines; European Privacy Supervisor proposes Digital Clearing House for coherent handling of Big Data cases; Facebook and Power Ventures Battle Over the Scope of the CFAA; Arizona Supreme Court: Police Cannot Search Unlocked, Unattended Phone; German consumer group urges Whatsapp to stop sharing data with Facebook; German DPA issues guidelines

Privacy law meets antitrust – EU Commissioner Vestager on data in competition law; ECJ to rule on admissibility of Privacy class actions; Northern District of California Sends Yelp Privacy Suit to the Jury; EU Advocate General finds EU-Canadian PNR pact unlawful; New York Unveils New Cyber Security Rules for Financial Services Organizations; New Jersey Senate Passes Shopping Privacy Bill; NIST Issues Mobile Threat Guidance

Privacy law meets antitrust – EU Commissioner Vestager on when privacy issues can lead to antitrust concerns

European Competition Commissioner Margarethe Vestager has commented on the relevance of privacy issues with regard to EU antitrust rules. According to Vestager, current investigations of the German Federal Cartel Office regarding Facebook’s “privacy issues” would “not necessarily” lead to competition law concerns, even though both fields of law might correlate under certain circumstances.

In the investigations at issue, the German Federal Cartel Office is alleging Facebook of abusing an alleged ‘dominant position’ in the market for social networks by imposing unfair conditions regarding the privacy settings for Facebook accounts on its users. The German antitrust regulator is arguing that users would have “no choice” whether to accept the conditions or to terminate their account, because there is no real alternative to the well-known social network. Under Article 102 of the Treaty on the Functioning of the European Union (‘TFEU’), “dominant companies are subject to special obligations. These include the use of adequate terms of service as far as these are relevant to the market.”

It still remains to be seen whether Facebook will ultimately be found in breach of EU antitrust rules relating to its Privacy Policy. On a more general matter, however, the Commissioner’s statements seem to confirm that indeed, companies controlling vast amounts of data may be considered able to prevent market entry by withholding this data from potential competitors who could not reproduce comparable datasets themselves and therefore might violate Article 102 TFEU. Companies that might fall in this category should therefore be prepared that not only privacy regulators, but also antitrust authorities might potentially be questioning them regarding their use of data in the future. Nevertheless, “simply holding a lot of data” would not be enough to raise antitrust suspicions, Vestager appeased.


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HHS Jumps on the Cybersecurity Information Sharing Bandwagon; Third Circuit on Economic Loss as a basis for Negligence Claim; FTC workshop on Ransomware; German draft implementing law for GDPR revealed.

HHS Jumps on the Cybersecurity Information Sharing Bandwagon

Because of recent news reports confirming that cyberattacks against healthcare agencies have increased 125 % in the past five years, HHS is encouraging HIPAA Covered Entities and Business Associates to share information to combat future attacks.

HHS, based on authority from Executive Order 13591 and the Cybersecurity Information Security Act (CISA), is urging Covered Entities and Business Associates to join Information Sharing and Analysis Organizations (ISAOs) to share security threat and vulnerability information related to electronic protected health information (ePHI).

Ideally, ISAOs will provide a mechanism for sharing information bi-directionally “between HHS and the Health Care and Public Health (HPH) sector regarding cyber threats and will also provide outreach and education to the HPH sector.” This press release from HHS follows a similar measure by the Department of Homeland Security, which also encourages information sharing to mitigate the risk of cyberattacks.

In developing ISAOs in the health care sector, it is critical to consider three things:

  • the standards and best practices for the creation of ISAOs to ensure that covered entities and business associates that participate gain the protections of such information sharing under CISA;
  • the data that is shared in light of what is permitted under the HIPAA Privacy Rule; and
  • how participation in an ISAO can support compliance with the HIPAA Security Rule.

Crowell & Moring is a leading expert in the creation of ISAOs and HIPAA compliance and can help stakeholders that seek to comply with HHS’s call to action to consider the intersection of these various legal frameworks


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The Panama Papers Leak – An overview on histories’ biggest data leak; Article 29 Working Party about to release opinion on EU-U.S. Privacy Shield; EU: GDPR and PCJ DPD about to be approved next week – final consolidated text published by Council; US: New HIPAA Audit Protocol Released as a Guidance Tool for phase two of Compliance Audits; U.S. Sneak News: Defend Trade Secrets Act, NPRM and Sony Settlement Approval. EU: GDPR, PCJ DPD and PNR Directive adoped by Parliament; U.S.: House Judiciary Committee approves E-Mail Privacy Act; Senate to require airlines to report cyberattacks; FTC issues online tool identifying applicable law for health apps; Global: Turkey releases first comprehensive Data Protection law; Connected cars found vulnerable for cyberattacks; Data Breaches May Waive Attorney-Client Privilege?; Encryption Continues to Dominate Privacy Headlines; Hospital Settles with HHS for $ 2.2 Million in HIPAA Action; Southern District of New York Adds Ransomware Conspirator to Hacking Case; European and Canadian Data Protection Authorities Investigate IoT Devices; Norway Requires Data Breach Notification for Individuals

The Panama Papers Leak – An overview on histories’ biggest data leak

On April 3, 2016, reports revealed that a set of 11.5 million confidential documents (“the Panama Papers”), providing detailed information about more than 200,000 offshore companies connected to Panamanian legal service provider Mossack Fonseca, had been made available to German Daily Newspaper Süddeutsche Zeitung by an anonymous source in 2015.

The documents, which form part of the biggest data leak in history, reveal aspects on (potential) exploitations of offshore tax regimes and other illegal purposes, such as fraud or drug trafficking. Among the people concerned are not only big companies, but also twelve national leaders among 143 politicians, celebrities, government officials or other law firms. The Süddeutsche Zeitung, given the scope of the leak, involved the International Consortium of Investigative Journalists (ICIJ) and about 400 other journalists in 76 different countries to investigate and analyze the documents. ICIJ has promised to publish a full list of companies involved in early May 2016.

Mossack Fonseca, the leaked firm, defended its commercial conduct, stating that itself would always comply with applicable laws and carry out thorough due diligence on its clients. However, the leak will have a huge impact on the offshore business, as the biggest selling point of this business, secrecy, has been massively cracked.


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On Tuesday, the FTC simultaneously released a “Mobile Health App Interactive Tool” and “Best Practices,” to help mobile health app developers navigate the maze of federal regulation, including data privacy regulation.  The tool walks developers through a series of high level questions about the nature of their app, and uses the

FCC Adopts a NPRM for Privacy Proposal; FTC Chairwoman Wants IoT Threat Addressed; Consumer Reports Hit with Privacy Class Action; DOJ Accesses Shooter’s Phone and Drops Apple Suit

FCC Adopts a NPRM for Privacy Proposal

On Thursday, March 31 in a 3-2 party-line vote, the FCC advanced a Notice of Proposed Rulemaking (NPRM) for broadband privacy. The proposed rules would restrict ISP’s use of basic consumer data and require consumer consent for certain types of data collection.  Although ISPs under the rule could still collect basic consumer data to market communications- related services to subscribers, ISPs would have to allow users to opt-out of that data collection.  On the other hand, ISPs would have to allow used to opt-in to the use and sharing of other types of data, such as browsing history and physical location.  Under the proposed rules, providers are also required to share how data is used or shared with consumers.  Some have criticized the proposed rules, arguing that they have the potential to create an uneven enforcement regime as companies have the potential to face varied FCC and FTC standards.

FTC Chairwoman Wants IoT Threat Addressed

On Thursday, March 31, FTC Chairwoman Edith Ramirez urged manufacturers of Internet of Things (IoT) devices to “design devices that take into consideration unexpected uses of their IoT data, and the potential for misuse.” In a speech at the American Bar Association’s conference on IoT in Washington, DC, Chairwoman Ramirez outlined a series of steps that she recommends manufacturers take as they develop new IoT technology.  Drawing on common privacy practices, Chairwoman Ramirez advised manufacturers to provide consumers with clear notice of data collection practices and to allow consumers to opt in or out of particular data collection practices.  She also encouraged manufacturers to build security into devices from the outset and keep track of issues through a device’s life cycle.   The FTC plans to hold a series of workshops this fall to look at a series of issues arising from new technology, such as smart televisions and UAVs.


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OCR Launches Next Round of HIPAA Audits; French Privacy Office Levies € 100,000 Fine on Google; SEC Reaches $18 Million Settlement for Alleged Hacker-Trader Conspiracy; FTC and Canadian Regulator Execute Anti-Spam MOU; FTC Commissioner Announces She Will Step Down

OCR Launches Next Round of HIPAA Audits

Last Monday, following much anticipation, the Department of Health and Human Services OCR announced Phase 2 of its audit program to measure compliance with the patient privacy provisions of HIPAA. This audit follows OCR’s pilot audit of 115 Covered Entities and will likely examine 200 additional Covered Entities. For more information about what entities can expect, read Elliot Golding’s March 23 post.

French Privacy Office Levies € 100,000 Fine on Google

The French data protection authority (CNIL), one of the most active privacy regulators in Europe, fined Google € 100,000 for “failure to comply with the obligation to respect the rights of individuals to erase data” under the European “right to be forgotten.”  In May 2014, the European Court of Justice ruled that the compilation of Google search result links were “data processing,” and, as such, search engines should remove links at the request of data subjects.  The CNIL faulted Google for only removing links from searches that originated from EU IP address and not delisting all “Google Search” extensions.

SEC Reaches $18 Million Settlement for Alleged Hacker-Trader Conspiracy

The SEC secured settlements, totaling almost $18 million, with seven defendants accused of participating in a scheme to trade on hacked newswire information. These seven defendants are part of a larger alleged scheme of 32 defendants who, over five years, hacked newswires to obtain earnings announcements before they were released and then distributed and traded on those stolen statements. The government has also brought a parallel criminal action against some of the 32 defendants in the District of New Jersey and has stayed a massive civil suit based on the same hacking scheme.  The $18 million in recent SEC settlements come on the heels of a $4.2 million SEC settlement with Concorde Bermuda Ltd., also accused of taking part in the scheme.


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OCR Announces a Settlement … Again; HHS Eases Restrictions on Mental Health Information Sharing to Facilitate Gun Control Efforts; Facebook: Users Lack Standing in Cookie MDL; Plaintiffs Argue for Summary Judgment in $5 Million Twitter TCPA Suit

OCR Announces a Settlement … Again

For the second time this week, OCR announced another huge settlement. The

US Changes Stance on Wassenaar Arrangement Hacking Amendment; FCC Proposes Privacy Rules for Internet Providers; New Jersey Supreme Court Unanimously Approves Roving Wiretaps; FTC Commissioner Opposes Encryption Backdoor Legislation

US Changes Stance on Wassenaar Arrangement Hacking Amendment

Last week, the U.S. executive branch announced that it will change its stance on the 2013 amendment to the Wassenaar Arrangement that closely regulates the international export of cyber hacking and surveillance technology.  This is a big win for the private sector.  Indeed, industry has long been critical of this amendment to the Wassenaar Arrangement, a multilateral export control regime with 41 participating states, because of its potential to chill and stifle innovation in the cybersecurity.  The controversy over this rule has highlighted the difficulty of applying export controls, which are usually restricted to physical items, to the virtual world.   Now, the U.S. faces the daunting task of convincing the 40 other countries on the Arrangement to agree with its new position before the controversial amendment can be formally changed.

FCC Proposes Privacy Rules for Internet Providers

After much anticipation, on March 10 the FCC unveiled its proposed broadband privacy rules, which will be voted on by the full commission at its March 31 open meeting.  According to the fact sheet published alongside the rules, the FCC sought to emphasize customer choice, transparency, and security. Generally, the proposed requirements parallel requirements of other consumer privacy efforts, such as the proposed SPY CAR Act, where lawmakers have sought to require industry to better inform consumers about the use and collection of their data.

Among other things, the proposed rules would oblige providers to obtain customer consent via an “opt-in” to use customer data outside of marketing for “communications-related services.”  The proposed rules also require ISPs to take “reasonable steps” to safeguard customer information.   Those reasonable steps include, “at a minimum,” adopting risk management practices, instituting personnel training practices, adopting strong consumer authentication requirements, identifying senior management responsible for data security, and taking responsibility for the use and protection of customer information when shared with third parties.  Providers must also notify consumers, the Commission, the FBI, and the Secret Service in the event of some breaches.


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