Discerning Data

Keeping Pace with Today’s Challenges: FCC Proposes New Data Breach Rules for CPNI

Prompted by a rapid increase in frequency, sophistication, and scale of data leaks and data breach legislation in recent years, the Federal Communications Commission (FCC) unanimously voted to kick off a proceeding aimed at adopting new proposals to update data breach response obligations involving Customer Proprietary Network Information (CPNI). These proposals aim to ensure timely notification to affected customers, the FCC, and federal law enforcement agencies and require effective measures to mitigate and prevent harm.

CPNI is a subset of personal information with regard to telecommunications carriers’ customers and the FCC has maintained rules about safeguarding the confidentiality of CPNI data for many years. Examples of CPNI are rate plan, minutes used, type of services subscribed to, type of device, location information, call detail records, and other proprietary information about a customer’s telecommunications services accounts.

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Update: AI Regulation in the U.K. — New Government Approach

In October 2022, the U.K. Medicines and Health products Regulatory Agency (MHRA) published its Guidance, Software and AI as a Medical Device Change Programme – Roadmap, setting out how it will regulate software and AI medical devices in the U.K. by balancing patient protection and providing certainty to industry.

Background to the Reforms

The MHRA initially announced the Software as a Medical Device (SaMD) and Artificial Intelligence as a Medical Device (AIaMD) Change Programme in September 2021, designed to ensure that regulatory requirements for software and AI are clear and patients are kept safe. This builds on the broader reform of the medical device regulatory framework detailed in the Government response to consultation on the future regulation of medical devices in the United Kingdom, which recently saw its timetable for implementation extended by 12 months to July 2024.

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State AG Updates: Arizona, Texas, California, North Carolina, Washington, New York and an AG Coalition

In this edition of Faegre Drinker’s State Attorneys General Update, we discuss:

Arizona AG Enters $85 Million Settlement With Google for Alleged Improper Use of Consumer Location Data

Google agreed to an $85 million settlement for alleged violations of Arizona’s Consumer Fraud Act. Specifically, the Arizona AG alleged that Google violated the Act by building “coercive design tactics used to manipulate users’ behavior,” known as “dark patterns,” into its Android phone software. In this instance, the AG alleged that Google created misleading settings, so even if a consumer turned off location tracking in the “Location History” menu, location data would still be tracked and used to sell advertisements through other settings — specifically, the “Web & App Activity” menu.

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First Biometric Information Privacy Act Trial Results in $228M Verdict

Last week, the first jury trial under the Illinois Biometric Privacy Act (BIPA) resulted in a $228 million verdict in favor of the plaintiff and the class.

The case, Rogers v. BNSF Railway Co., was filed in May 2019 and was pending in the U.S. District Court for the Northern District of Illinois. A class was certified in March 2022. Plaintiff alleged that BNSF unlawfully scanned his and other truck drivers’ fingerprints for identity verification when he and they visited BNSF rail yards. He claimed the company took this scan without written notice or consent as required under BIPA. BNSF argued, among other things, that the third-party vendor it hired to control gate access was the only party to collect drivers’ fingerprints, and that BNSF therefore had not independently violated BIPA.

Pretrial briefing in the case was extensive. Each side filed several motions in limine seeking to bar or include certain evidence in the trial. For example, the Plaintiff found several references to use of “biometrics” or “biometric identities” on BNSF’s website that they alleged were responsive to former document requests. Anticipating objections from BNSF, Plaintiff filed a preemptive motion asking the court to permit them to introduce these exhibits at trial. Plaintiff were able to use this information at the trial and suggest that BNSF was aware of the biometric collection and that BNSF itself was collecting the information.

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Protecting Your Internet Brand and Online Identity – Faegre Drinker on Law and Technology Podcast

In current times where an online presence is just as crucial as a business’s physical assets, it is more important than ever to proactively protect and maintain your organization’s brand and identity. In this episode of the Faegre Drinker on Law and Technology Podcast, host Jason G. Weiss discusses strategies and solutions to protect your brand with intellectual property partner Tore DeBella.

The conversation tackles a number of questions, including:

How do we protect a company’s brand and how does that affect the organization’s identity?
What are the primary ways bad actors can attack a company’s brand or identity online?
How can an organization protect their domain?
What steps can clients take to protect their brands and identities online?

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Artificial Intelligence Briefing: FTC Holds Forum on Commercial Surveillance and Data Security

Our latest briefing explores the recent FTC commercial surveillance and data security forum (including discussion on widespread use of AI and algorithms in advertising), California’s inquiry into potentially discriminatory health care algorithms, and the recent California Department of Insurance workshop that could shape future rulemaking regarding the industry’s use of artificial intelligence, machine learning and algorithms.

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