Privacy Law Blog

COVID-19, the California Consumer Privacy Act (CCPA) coming into force, and the invalidation of the EU-US Privacy Shield already made 2020 an especially active year for privacy and data security risks and obligations. Rounding out the year, December then brought discovery of the unprecedented Solarwinds cyberattack affecting government agencies, critical infrastructure entities and others.

Thus, looking ahead,

On January 21, 2021, President Biden designated Federal Trade Commission (the “FTC”) Commissioner Rebecca Kelly Slaughter as acting chair of the FTC. Soon thereafter in one of her first speeches in her new role, Chairwoman Slaughter announced two substantive areas of priority for the FTC – the COVID-19 pandemic and racial equity.

Privacy and cybersecurity remain top priorities for regulators and companies alike, as the threats posed by large-scale data breaches and other cyber incidents show no signs of waning. Companies and their counsel must monitor privacy and data security-related enforcement trends, new laws and regulations, and key emerging issues to mitigate risks and minimize potential liability.

On April 2, 2020, the Office for Civil Rights (OCR) at the U.S Department of Health and Human Services released a notification related to the discretion that OCR will exercise concerning HIPAA enforcement during the COVID-19 public health emergency. Effective immediately, OCR will not impose penalties for violations of certain provisions of the HIPAA Privacy Rule against business associates for “good faith uses and disclosures of PHI by business associates for public health and health oversight activities.” HIPAA already permits covered entities to provide this data. With this new guidance from OCR, now business associates can disclose this data to certain public health authorities without risk of a HIPAA privacy enforcement action or penalty.

The developing coronavirus pandemic affects businesses and personnel within the state and elsewhere.  With more New Yorkers working from home, there are more opportunities for cyberattacks through unsecure remote connections and the public concern growing each day.

The New York SHIELD (“Stop Hacks and Improve Electronic Data Security”) Act was signed to law on July 25, 2019.  It is an amendment to New York’s data breach notification law.  The SHIELD Act provides a number of changes that we reported last year, including expanding the definitions of “private information” and “breach.”  The definition of “private information” now covers emails and passwords or security questions and answers, credit card details, and biometric data among others.  A “breach of the security system” now covers unauthorized access, where such access may have occurred if “the information was viewed, communicated with, used, or altered” without authorization.

With the spread of the novel coronavirus (COVID-19), cybersecurity criminals and scammers are ramping up their efforts to target vulnerable employers and workforces. The FTC announced today that since January they have received more than 7,800 fraud complaints from consumers related to the COVID-19 pandemic. But the FTC isn’t slowing down either. Even with the FTC having to change its own procedures due to COVID-19, the FTC has been publishing guidance on COVID-19 scams and also sending out warning letters to sellers of false treatments.

This alert focuses on the ongoing and developing privacy issues that have arisen for employers and healthcare providers communicating about the 2019 novel coronavirus (COVID-19).  Specifically, we will discuss the steps that employers and healthcare companies need to consider when communicating to its employees, the media and general public, and government officials when an individual has been diagnosed with the coronavirus or may have been exposed to the coronavirus.