On February 12, 2019, the Federal Trade Commission announced that it completed its first review of the CAN-SPAM Rule, a rule governing commercial e-mail. Based on its review, the FTC announced its decision, available here, to “retain the [R]ule in its present form.” The FTC reviewed public comments and proposals in making its determination. According to the FTC’s confirmation of the Rule available here, of the 92 comments received, most were submitted by individual consumers and many suggested modifications to the Rule. Many comments were responses to specific issues raised by the FTC […] Read more
In October 2018, the Federal Trade Commission (“FTC”) published a report that summarized discussions at a December 2017 workshop discussing the potential impact to consumers of privacy and security incidents. The purpose of the workshop was to explore whether government intervention in this arena is warranted under the enforcement authority granted to the FTC under the FTC Act, 15 U.S.C. § 41 et seq.
The report reveals that the workshop participants identified several types of potential impacts that they believe consumers may face in the wake of a data security incident that could warrant [...] Read more
Last week, the Federal Trade Commission granted a petition by Sears Holding Management seeking modification of a 2009 Commission Order. The notable 2009 Order settled allegations that Sears had improperly failed to provide notice regarding data collection by certain software the company offered to consumers. Sears argued that the 2009 Order placed it at a “competitive disadvantage” in the mobile application marketplace. The now-modified Order enables Sears to conduct certain “consumer-expected” forms of data collection and use without requiring heightened notice or consent under the 2009 [...] Read more
On November 30, 2017, a group of U.S. senators re-introduced a bill, known as the Data Security and Breach Notification Act, which seeks to impose criminal liability of up to five years of jail time on any corporate executive convicted of “intentionally and willfully” concealing a data breach.
The bill also proposes that the Federal Trade Commission (FTC) establish standard, nationwide security protocols for businesses to follow. The bill would also require companies to report data breaches to consumers or users within 30 days unless a U.S. federal law enforcement or intelligence agency [...] Read more
In June, the Federal Trade Commission released a new guide for businesses on implementing sound data security protections and procedures. In “Protecting Personal Information: A Guide For Business,” the FTC offers “10 practical lessons” based on the numerous enforcement actions brought by the FTC. The guide offers insight into the thinking of this key federal regulator.
Key points from the guide:
“Start with Security.” Build information security considerations into business processes so that they are part of “the decisionmaking in every department of your business.” The FTC [...] Read more
The Federal Trade Commission (FTC) recently released its staff report on Cross-Device Tracking.
Cross-device tracking refers to the tracking of consumer activity across multiple devices such as smartphones, desktops, tablets and other connected devices. It helps companies understand consumer behavior better. The tracking can be deterministic (where a user logs into multiple devices affirmatively identifying the device as his/hers) or probabilistic (companies infer cross-device activity using factors like common IP address). Benefits include account security, fraud detection, targeted advertising [...] Read more
The Multi-State Information Sharing and Analysis Center (MS-ISAC) published its 2016 mid-year review on August 22, 2016, highlighting large incidents of malware infections, with particular emphasis on ransomware and click fraud malware. In contrast to the MS-ISAC report, however, an August 2016 report suggests most organizations would benefit from addressing issues of credential management and network segmentation. The report is based on data collected over the course of 100 internal penetration tests (i.e., tests assuming one user on the network has already had their account compromised) on [...] Read more
On August 29, 2016, the FTC announced it is seeking public comment on its Safeguards Rule as part of a systematic review of all FTC rules and guides. The Safeguards Rule came into force in 2003 after the Gramm-Leach-Bliley Act (GLBA) required that the FTC and other agencies establish administrative, technical, and physical information security standards for financial institutions. Of particular note is the FTC’s call for comments on whether it should reference or incorporate other standards, such as PCI-DSS or NIST standards, which may signal a shift from the FTC’s previous resistance toward [...] Read more
The FTC issued an Opinion and Final Order reversing the previously dismissed charges against LabMD on July 29. FTC Administrative Law Judge (ALJ) D. Michael Chappell had dismissed the case against LabMD on November 13, 2015 based on an insufficient showing of harm, as required to find an act or practice unfair under § 5 of the FTC Act (15 U.S.C. § 45(n)). In overturning the ALJ’s Initial Decision, the FTC clarified its view of the proper standard for unfairness under § 5. The FTC further detailed specific security failings of LabMD and signaled the importance of timely and effective [...] Read more
On June 29, 2016, the Federal Trade Commission (FTC) announced it had approved a final order resolving the complaint against Vipvape, a manufacturer of hand-held vaporizers. The complaint alleged Vipvape misrepresented its practices on the website related to Vipvape’s participation in the Asia-Pacific Economic Cooperation (APEC) Cross-Border Privacy Rules (CBPR) system when, if fact, Vipvape was not certified to participate in the APEC CBPR system.
In the Analysis of Proposed Consent Order to Aid Public Comment, the FTC explained that the APEC CBPR system is a voluntary, enforceable mechanism [...] Read more
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