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Top Privacy and Cybersecurity Trends of 2021Year in Review: 2021’s Top Privacy and Cybersecurity Trends

Year in Review: 2021’s Top Privacy and Cybersecurity Trends

Despite the ongoing COVID-19 pandemic, 2021 proved to be another incredibly busy year for consumer privacy and cybersecurity. In this blog post, we revisit some of the most important domestic and international privacy and cybersecurity trends of the past year. 

 

New State Consumer Privacy Laws 

On the heels of the California Consumer Privacy Act (CCPA) and the California Privacy Rights Act (CPRA), Virginia and Colorado became the next two states to enact comprehensive consumer privacy laws. Signed into law by Governor Ralph Northam back in March, the Virginia Consumer Data Protection Act (VCDPA) becomes effective on January 1, 2023 and applies to all companies who operate a business or produce products or services that are targeted to residents of Virginia and meet certain thresholds. Months later in July, Governor Jared Polis signed the Colorado Privacy Act (CPA) into law. Set to go into effect on July 1, 2023, the CPA applies to controllers that conduct business in Colorado or produce or deliver commercial products or services that are intentionally targeted to residents of Colorado and meet certain thresholds. Both the VCDPA and the CPA carve out several exemptions for entities that are already covered under the privacy and security requirements of other federal laws. Unlike the CCPA and the VCDPA, however, the CPA does not provide an exemption for non-profit organizations. Furthermore, neither the VCDPA nor the CPA offer a private right of action. 

Other notable state privacy developments include New York’s new rules on employee electronic monitoring as well as Nevada’s SB260 amendment, which expanded the right to opt-out of sales and created new requirements for “data brokers”. 

As we head into 2022, we anticipate that the patchwork of state consumer privacy laws will continue to grow. Beckage recommends that businesses take proactive steps to first evaluate what laws and regulations apply to their business and then develop a comprehensive roadmap and plan to mature their data privacy and security posture both internally and externally.   

 

Continued Focus on Cybersecurity 

Threat actors in 2021 continued to launch increasingly sophisticated ransomware and cyberattacks against businesses of all sizes and in all industries. In the wake of highly disruptive attacks such as SolarWinds and the Colonial Pipeline ransomware attack, both the federal government and also state governments sought to increase their focus on cybersecurity standards. For example, the New York State Department of Financial Services (NYDFS) issued guidance to cyber insurers in the form of the Cyber Insurance Risk Framework. The Cybersecurity and Infrastructure Security Agency (CISA) also regularly issued advisories informing businesses of vulnerabilities. In an effort to secure critical infrastructure, President Biden signed an Executive Order on “Improving the Nation’s Cybersecurity” in May. The new Civil Cyber-Fraud Initiative announced by the Department of Justice back in October further indicates the increasing importance of developing and maintaining resilient cybersecurity protocols.  

The federal government’s response to this year’s exponential increase in ransomware attacks has led several high-profile threat actors – such as DarkSide, REvil, and Black Matter – to take their dark web platforms offline.  At the same time, however, new variants of ransomware are constantly emerging and there is significant evidence that experienced cyber criminals are rebranding to evade law enforcement rather than shutting down their operations.   

In this complex threat landscape, companies across industries are wisely seeking to secure or renew cyber liability coverage in an increasingly competitive market.  Insurers are asking meaningful questions about applicants’ security programs and expecting strong safeguards in place.  For organizations of all sizes, the past year has shown that cybersecurity incidents are now a question of when rather than if.  

Beckage’s Incident Response Team urges businesses to develop plans and procedures to mitigate cyber and legal risk. Beckage recommends businesses continue to dedicate internal resources to refining compliance programs and testing incident response plans through tabletop training exercises. 

 

Health Privacy and Compliance Challenges 

Our lives have become increasingly digitized, and 2021 was no different – especially with the COVID-19 pandemic. The proliferation of apps and technologies handling personal health data led the FTC to confirm back in September that the requirements contained in the agency’s Health Breach Notification Rule extend to health apps and connected device companies. And as the world continued to operate under the shadow of the COVID-19 pandemic, businesses faced – and will continue to face – uncertainty regarding new federal vaccination and testing policies. Beckage’s Data Security and Privacy Compliance and Health Law Teams recommend businesses take stock of their employee data collection practices in their efforts to prevent the spread of COVID-19. 

 

Biometrics Class Actions, BIPA Claims Accrual, and Statute of Limitations 

In 2021, litigation under Illinois’ Biometric Information Privacy Act (BIPA) remained at the forefront of the data privacy landscape. As we noted back in JanuaryMarch, and April, BIPA’s private right of action has contributed in part to an increase in the number of class actions. In September, the First District of the Illinois Appellate Court found that the statute of limitations period could range from one year to as much as five years depending on the nature of the alleged violation. But as the year closed out, Illinois courts continued to wrestle with the issues of BIPA claims accrual and statute of limitations. As this blog post goes to press, the U.S. Court of Appeals for the Seventh Circuit had just issued its decision in Cothron v. White Castle, certifying the issue of BIPA claims accrual to the Illinois Supreme Court.  

 

Website Accessibility Litigation and What Counts as a Place of Public Accommodation 

The Beckage Accessibility Team continues to see a drastic increase in litigation filed under Title III of the Americans with Disabilities Act (ADA) as well as the rapidly evolving caselaw surrounding website accessibility claims. 2021 is set to be a record-breaking year, with approximately of 4,000 new lawsuits filed this year alone, with most of these cases filed against small to medium sized businesses. The issue of whether websites qualify as places of public accommodates under the ADA continued to take shape in 2021. For example, in May the Eleventh Circuit Court of Appeals held in Gil v. Winn-Dixie Stores that a website is not a “place of public accommodation” under Title III of the ADA, creating a clear conflict with 9th Circuit authority that has held a website is a place of public accommodation if there is a nexus to a brick and mortar location. In September, the United States District Court for the Eastern District of New York issued a decision in Winegard v Newsday LLC, which also concluded that a website is not a “place of public accommodation” under Title III of the ADA. Despite this unsettled landscape, we anticipate more litigation to come around the specific statutory definition of what constitutes a “public accommodation.” 

Nevertheless, there is no end in sight for companies facing lawsuits under the ADA. Accordingly, Beckage recommends that businesses with any online presence or mobile application take proactive steps and prioritize accessibility internally. Minimizing legal risk through a digital accessibility compliance buildout that includes both a full scale audit of digital assets and internal and external policy development is recommended for all businesses looking ahead in to 2022.  

 

Telephone Consumer Protection Act (TCPA) 

TCPA class actions are numerous. Beckage’s TCPA team has charted the complex legal landscape surrounding text message marketing and telemarketing throughout the course of 2021. In April, we covered the decision by the Supreme Court of the United States in Facebook v. Duguid et al., which narrowed the scope of the TCPA down to systems that utilize random number generators. In November, we covered Florida’s new telemarketer requirements. As we head into 2022, TCPA compliance will continue to be an important area of focus for businesses. Businesses that leverage text messaging marketing as part of their consumer outreach should evaluate compliance initiatives and stay up to date on this fast moving area of the law. 

 

More Global Privacy and Cybersecurity Developments 

Privacy and cybersecurity continued to be areas of significant focus on an international scale. For example, China’s new Data Security Law (DSL) and new Personal Information Protection Law (PIPL) became effective on September 1 and November 1, respectively. Along with the Cybersecurity Law (CSL) of 2017, these two new laws have added a set of new cross-border requirements for international companies seeking to do business in China. Furthermore, following the Schrems II decision, which invalidated the EU-US Privacy Shield, the EU Commission released new standard contractual clauses (SCCs) intended to provide more flexibility and options for cross-border data exchange. The new SCCs are applicable for all new contracts entered into as of September 27, and businesses have until December 27, 2022 to transition all contracts using the older SCCs to ones with the new SCCs. Additionally, Québec’s Bill 64, which received royal assent a few months ago, has a series of new requirements coming into effect within the next couple of years for businesses both within and outside the province. 

On the global data privacy class action front, the UK Supreme Court’s recent decision in Lloyd v. Google suggests that opt-out class action cases for data privacy claims will be very difficult to bring. 

 

Conclusion and Key Takeaways 

In the midst of the ongoing COVID-19 pandemic and a rise in sophisticated cyberattacks, 2021 saw many privacy and cybersecurity trends and developments. There were new laws and regulations on both a domestic and an international scale. Case law in relevant areas developed rapidly, with some issues still unresolved as we embark on 2022. Things do not seem to be slowing down at all in the realm of privacy and cybersecurity. Beckage’s team of attorneys and technologists work with businesses of all sizes and industries to develop comprehensive scalable data security and privacy infrastructures to navigate this fast moving area. 

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BiometricsIllinois Appellate Court Finds that Statute of Limitations for BIPA Claims Could be as Much as Five Years, Adding to Already Considerable Class Action Exposure

Illinois Appellate Court Finds that Statute of Limitations for BIPA Claims Could be as Much as Five Years, Adding to Already Considerable Class Action Exposure

On September 17, 2021, the First District of the Illinois Appellate Court issued the first appellate opinion regarding the applicable statute of limitations for claims arising under Illinois’ Biometric Information Privacy Act (“BIPA”).  In a mixed decision, the First District found that the limitations period could range from 1 year to as much as 5 years depending on the nature of the alleged violation at issue.

 

The implications of the First District’s decision are momentous, because many BIPA lawsuits are class actions.  In addition to expanding the pool of potential plaintiffs, a five-year limitations period greatly increases the potential class size and, consequently, defendants’ potential damages exposure.

 

Background

By way of background, Illinois enacted BIPA in 2008 after a company called Pay-by-Touch started a pilot program at Chicago-area retail stores to enable customers to pay for purchases using fingerprint scans linked to their credit cards. When Pay-by-Touch subsequently filed for bankruptcy after collecting customers’ biometric and financial account information, the bankruptcy trustee listed the customers’ biometric information as an asset and sought to sell it to pay off creditors.  This motivated the Illinois legislature to enact BIPA.

 

BIPA’s Requirements

BIPA contains five different subsections regulating the use of biometric information.  The differences between the following five subsections were critical to the First District’s decision:

  • First, anyone in possession of biometric information must develop a publicly-available retention policy.

 

  • Second, prior to collecting any biometric information, the collecting party must disclose the purpose and length of time for which the information will be used, and obtain a release from the subject of the information.

 

  • Third, biometric information cannot be disclosed without the authorization of the subject.

 

  • Fourth, a party cannot profit from the sale of biometric information under any circumstances.

 

  • Finally, a party must protect biometric information using the standard of care in the industry, and at least the same protection measures that the party uses for other personal and confidential information.

 

Debate Over Limitations Period

BIPA itself does not specify the applicable statute of limitations, and the plaintiff and defense bars have disagreed on the applicable limitations period.  Prior to the First District’s decision, the litigation in the trial courts has centered around three potential limitations periods, including the following:

  • One-year period for actions based on “publication of matter violating the right of privacy.” 735 ILCS 5/13-201;

 

  • Two-year period for personal injuries or “statutory penalties.” 735 ILCS 5/13-202; or

 

  • Five-year period for “all civil actions not otherwise provided for.” 735 ILCS 5/13-205.

 

The Subject Lawsuit

An employee sued his former employer alleging that his employer required him to clock-in for work using a biometric time clock, and that his employer violated BIPA by failing to obtain his informed consent, failing to have a retention policy, and disclosing his information to third parties such as the time clock vendor.

 

The plaintiff stopped working for the defendant in January 2018, and he filed suit in March 2019.  The employer moved to dismiss the lawsuit, arguing that the suit was time-barred because the one-year limitations period for “publication of matter violating the right of privacy” applied.  The plaintiff of course disagreed and argued that the five-year period for “civil actions not otherwise provided for” applied.  The trial court agreed with the plaintiff but certified the question for interlocutory appeal.

 

The Appellate Court’s Decision

On appeal, the First District found that the applicable limitations period depends on which of the five BIPA subsections is at issue.  More specifically, the First District found that the one-year limitations period is limited to matters involving “publication.”  Using this framework, the First District found that only two of BIPA’s subsections involve publication: the prohibition of unauthorized disclosure and the prohibition of the sale of biometric information.  On the other hand, the First District found that the other three requirements (the retention policy requirement, informed consent requirement, and standard of care requirement) can be violated without any publication, and therefore are subject to the five-year limitations period.

 

For the case at hand then, applying the First District’s decision means that the plaintiff’s allegations regarding his employer’s failure to obtain his informed consent and failure to have a retention policy were subject to the five-year limitations period and therefore timely.  In contrast, the plaintiff’s allegations of unauthorized disclosure were subject to the one-year limitations period and therefore barred.

 

Not the Last Word

The First District’s decision likely will not be the last word on the limitations period for BIPA claims.  A separate appeal regarding the limitations period for BIPA claims – Marion v. Ring Container Technologies – is pending in Illinois’ Third District. (The First District covers Chicago, and the Third District covers North-Central Illinois and Chicago’s southern suburbs). The parties to both cases are likely to seek further appeal to the Illinois Supreme Court, and the Supreme Court will have a good reason to weigh in on the novel issue, especially if the Third District reaches a contradictory decision.

 

It is also noteworthy that the First District’s decision did not address the potentially applicable two-year limitations period for “statutory penalties.”

 

Potential Legislative Reform

In addition to these appellate decisions, the Illinois legislature could also take action.  In its spring term, the legislature advanced a bill out of committee that would dramatically reform BIPA.  The legislature did not hold a final vote on that bill before the conclusion of its spring term, but new appellate decisions could motivate the legislature to renew the reform effort.

 

Beckage will continue to monitor any developments regarding BIPA and will update its guidance accordingly.  Our team of experienced attorneys, who are also devoted technologists, are especially equipped with the skills and experience necessary to not only develop a comprehensive and scalable biometric privacy compliance program but also handle any resulting litigation.

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FingerprintBiometric Litigation Continues To Rise As Businesses Work To Minimize Risk

Biometric Litigation Continues To Rise As Businesses Work To Minimize Risk

In 2008, Illinois enacted the Illinois Biometric Information Privacy Act (“BIPA”) with the purpose of recognizing a person’s privacy right to their “biometric information” and “biometric identifiers”.  BIPA was enacted in response to the growing use of biometrics by businesses.   

In part because of its private right of action, by which plaintiffs may bring suit against businesses directly, BIPA litigation remains at the forefront of the data privacy litigation landscape as businesses continue to collect the biometric identifiers of their employees.  Recent BIPA class action settlements with major tech companies like Facebook and TikTok have been in the hundreds of millions of dollars, but the majority of BIPA litigation is brought against small and medium sized enterprises who collect biometric information in employee timekeeping or for access controls to physical spaces.   

To date, defendants have found courts to be generally unwilling to dismiss BIPA litigation at early motion practice.  Two recent cases, Thornley v. Clearview AI and Barton v. Swan Surfaces, demonstrate that there are some potential limits to BIPA litigation. 

Thornley  v. Clearview AI 

In Thornley, Melissa Thornley accused Clearview AI of scaping publicly available photos from her social media accounts for facial recognition purposes and selling her biometric information to third parties without her consent.  Thornley v. Clearview AI, Inc., 984 F.3d 1241, 1242-1243 (7th Cir. 2021).  Thornley initially filed a complaint in Illinois state court, alleging as a class representative, that Clearview violated § 15(c) of BIPA, which requires in relevant part, that “[n]o private entity in possession of a biometric identifier or biometric information may sell, lease, trade, or otherwise profit from a person’s or a customer’s biometric identifier or biometric information.”  Id. at 1246.  Clearview removed the case to federal court on the basis that the allegation of a statutory violation gave rise to a concrete and particularized injury-in-fact that is necessary for Article III standing.  Id. at 1243.  Under the Constitution, a plaintiff must have Article III standing to sue in federal court, which requires that the plaintiff prove: (1) an injury in fact; (2) causation of the injury by the defendant; and (3) that the injury is likely to be redressed by the requested relief.  See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).  In Spokeo, the Supreme Court of the United States held that a statutory violation could be sufficient to constitute an injury in fact; however, it did not provide any analysis as to which types of statutory violations necessarily implicate concrete and particularized injuries in fact.  Id.   

The district court held that Clearview alleged violation of § 15(c) of BIPA was “only a bare statutory violation, not the kind of concrete and particularized harm that would support standing”, the case must be remanded to the state court.  Thornley., 984 F.3d at 1242.  Clearview then appealed to the Seventh Circuit, who concurred with the District Court and remanded the case back to the Illinois State Court for much the same lack of standing.  Id.  Clearview has now petitioned the Supreme Court of the United States to take its case.  See Porter Wells, Clearview AI Will Take BIPA Standing Challenge to Supreme Court. 

Barton v. Swan Surfaces, LLC 

In Barton, a unionized employee of Swan Surfaces, LLC (“Swan”) was required to clock in and out of her employer’s manufacturing plant using her fingerprints as part of company protocol.  Barton v. Swan Surfaces, LLC, No. No. 20-cv-499-SPM, 2021 WL 793983 at *1 (S.D. Ill March 2, 2021).  On May 29, 2020 Barton filed a complaint in the United States District Court for the Southern District of Illinois alleging that she represented a class of individuals who “while residing in the State of Illinois, had their fingerprints collected, captured, received, otherwise obtained and/or stored by Swan”.  Id. at *2.  Barton asserted Swan violated BIPA in: (1) failing to institute, maintain, and adhere to publicly available retention schedule in violation of 740 ILCS 14/15(a); and (2) failing to obtain informed written consent and release before collecting biometric of information.  Id.  On July 31, 2020, Swan filed a Motion to Dismiss, asserting in relevant part, that Barton’s BIPA claims were preempted by § 301 of the Labor Management Relations Act (“LMRA”).  Id.  

On March 2, 2021, the court held that as Barton was a unionized employee, her Collective Bargaining Agreement (“CBA”), which contained a management rights clause and grievance procedure, controlled and as such Barton’s BIPA claims were preempted by § 301 of the LMRA.  In coming to its conclusion, the court heavily relied on the courts holding in Miller v. Southwest Airlines, Inc., 926 F.3d 898 (7th Cir. 2019). Id. at *6. In Miller, the Seventh Circuit held an adjustment board had to resolve the employees’ dispute over the airline’s fingerprint collection practices because their unions may have bargained over the practice on their behalf.  Miller, 926 F.3d 898.  The court in Barton noted that the United States “Supreme Court has held that the RLA preemption standard is virtually identical to the pre-emption standard the Court employs in cases involving § 301 of the LMRA” and therefore the same outcome should apply.  Barton, 2021 WL 793983 at *4. 

Key Takeaway 

While these cases demonstrate the potential to circumvent or limit BIPA litigation, the increased volume of biometric information being used by companies and the push for biometric policies that govern the use of these technologies and promote safeguards for consumers will undoubtedly continue.  

With many states looking to implement biometric privacy laws similar to BIPA, it is important to have legal tech counsel to address compliance with these emerging laws. Beckage attorneys, who are also technologists and former tech business owners, have years of collective experience with new technologies, like artificial intelligence, biometric data, facial recognition technology. We have a team of highly skilled lawyers that stay up to date on all developments in case law on BIPA and who can help your company best defense given the current legal landscape. Our team can help assist your company in assessing and mitigating risks associated with emerging technologies. 

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BiometricsBipartisan Group Proposes New York Biometric Policy

Bipartisan Group Proposes New York Biometric Policy


In January of 2021, a bipartisan group of New York State lawmakers proposed a comprehensive policy that places restrictions on the collection of biometric information by companies operating in the state. Assembly Bill 27, the Biometric Privacy Act, would allow for consumers to sue companies that improperly use or retain an individual’s biometric information. New York’s biometric act follows suit behind Illinois’ Biometric Information Privacy Act (BIPA), the first and most robust state law that guards against the unlawful collection and storing of biometric information. Like BIPA, Assembly Bill 27 was created to place regulations on a company’s handling of biometric data, such as fingerprints, voiceprints, retina scans, and scans of the hand and face geometry. Assembly Bill 27, however, does not cover writing samples, written signatures, photographs, or physical descriptions.

What Is Included?

The Biometric Privacy Act requires businesses collecting biometric identifiers or information to develop a written policy establishing a retention schedule and guidelines for permanently destroying the biometric data. The destruction of the data must occur when the initial purpose for collecting the biometric data has been “satisfied,” or within three years of the individual’s last interaction with the company, whichever occurs first. This bill also includes a private right of action that would allow consumers to sue businesses for statutory damages up to $1000 for each negligent violation and $5,000 for each intentional or reckless violation.

Further, AB 27 requires companies to obtain written consent from individuals before collecting, purchasing, or obtaining biometric information and provide notification to those individuals about the specific purpose and length of time the data will collected, stored, and used. Companies are prohibited from selling, leasing, trading, and profiting from biometric information and strict restraints are placed on a business’s ability to disclose biometric information to a third party without consumer consent.

The Impact of Biometrics on Future Legislation

With the increased volume of biometric information being used by companies leveraging biometric-driven timekeeping systems and other technologies, the push for biometric privacy policies that govern the use of these technologies and promotes safeguards for employees is gaining momentum. Several states are also looking to amend their breach notification and security laws to include biometric identifiers. For example, New York State’s SHIELD Act, the breach notification law enacted in 2019, has already been expanded to include biometric data in its definition of private information.

At Beckage, we have a team of highly skilled lawyers that stay up to date on proposed and enacted legislation. With states looking to implement biometric privacy laws similar to BIPA, it is important to have legal tech counsel to address compliance with these emerging laws. Our team can help assist your company in assessing and mitigating risks associated with emerging technologies.

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Data Privacy DayBeckage Attorneys Make 2021 Data Security & Privacy Predictions in Observance of Data Privacy Day

Beckage Attorneys Make 2021 Data Security & Privacy Predictions in Observance of Data Privacy Day

Today is Data Privacy Day – an international event held annually on January 28th with the purpose of promoting privacy and data protection best practices for consumers and businesses. At Beckage, every day is Data Privacy Day – our team of lawyers and technologists works daily with clients on data security and privacy measures, from developing policies and procedures to comply with international and domestic privacy regimes to responding to headline-making data incidents and defending clients in data security and privacy class actions.

The legal landscape surrounding data security and privacy is constantly evolving to adapt to technological advancements and global privacy trends. In observance of this holiday, we asked some of our experienced team members what they expect to see in this space in 2021.


Litigation – Myriah V. Jaworski, Esq. CIPP/US, CIPP/E

My data privacy prediction for 2021 is also related to biometrics. This year we will see the continued rise of regulation over and litigation concerning the use of biometric information.

A few years after the Illinois State Legislature passed BIPA, the Biometric Information Privacy Act, we started to see a slew of class action lawsuits filed against businesses alleged to have violated BIPA’s written release requirement. BIPA class actions have ranged from headline-making cases against major tech companies, such has Facebook, to small and medium-sized businesses across numerous industries.

While biometric lawsuits were once viewed as a risk associated only with doing business in Illinois, other states, like Washington and Texas, have followed suit by passing their own laws mimicking BIPA and others are eyeing their own biometric privacy bills. Of note, a bill nearly identical to BIPA is pending in the New York State legislature, which, if passed, could have a much larger impact on businesses given that New York is one of the largest economies in the United States.

At the federal level, we have recently seen the Federal Trade Commission (FTC) enter the biometric conversation with its consent agreement with EverAlbum, Inc. This consent order may have set a nation-wide standard for businesses’ use and collection of biometric information, regardless of whether those businesses operate in states that have enacted or pending biometric privacy laws.

In short, in 2021 the risks and penalties associated with collecting and using biometric information are steep. Any business, regardless of location, that is engaging in biometric information collection should conduct a privacy audit, look at its written policies, and ensure that it has the requisite consents in mind. As a litigator, I always say “demonstrable compliance is the strongest legal defense,” and that is certainly true in the biometric privacy space.

Watch Myriah’s video prediction here.


Incident Response – Daniel P. Greene, Esq., CIPP/US, CIPP/E

At the heart of what we do as incident response privacy practitioners is data breach prevention.  My 2021 prediction for the privacy landscape is an expansion in the use of multi-factor authentication. This is great news for incident response because, often, multi-factor authentication is an important step in helping to avoid a data incident and protect the privacy of data.

Multi-factor authentication is when a user identifies themself through biometrics, like a facial or fingerprint scan, or though entering a code on a device to confirm access to sensitive spaces, like a bank account or work network. It helps in avoiding unauthorized access and we expect to see this technology used in new spaces in 2021, such as when using an ATM or checking out at a grocery store.

We also anticipate an expansion in the use of biometrics over device authentication. There have been numerous documented incidents where device authentication has backfired. A famous example occurred in 2019 when attackers were able to gain access to Twitter CEO Jeff Dorsey’s account using a SIM card swap scheme. Because biometric identifiers are much more difficult to change or duplicate, using a facial scan or fingerprint is a much more secure method of confirming a user’s identity. And while this brings up a host of other issues about safeguarding biometric information, I think we can expect to see it used a lot more soon.

Watch Dan’s video prediction here.


Government Investigations – Michael L. McCabe, Esq., CCEP

In 2021, I expect to see increased enforcement of privacy and data security laws and regulations at both the federal and state level. Considering new leadership in Washington D.C. and the looming impact of the COVID-19 pandemic, I predict not just an uptick in enforcement, but also a more muscular approach by regulators.  More enforcement actions are expected, a further reminder for companies to work with experienced tech privacy and security legal counsel to minimize legal and technical risk.

At the federal level, look for enhanced enforcement by the Federal Trade Commission (FTC), Federal Communications Commission (FCC), and Securities and Exchange Commission (SEC). On the state level, I anticipate a similar response by state attorneys general outside of Washington.   

In 2020, we saw a major uptick in cyber-attacks, due in part to companies having to quickly adopt policies for a distributed workforce.  There were also numerous COVID-related phishing attempts. These developments have resulted in a record number of data security incidents. Therefore, I expect the focus of these enforcement actions to be not just on privacy compliance, but also on effective data security and incident response.  

Watch Mike’s video prediction here.


Privacy Compliance – Kara L. Hilburger, Esq., CIPP-US

My prediction for the privacy compliance area in 2021 is the increased focus on consumer privacy rights. With California’s comprehensive privacy law, the California Consumer Privacy Act (CCPA), now one year old, there is increase awareness and attention to data subject rights.  With a myriad of other states entertaining statutes similar to the CCPA, I anticipate a host of plaintiff related lawsuits filed under these statutes’ privacy right of action provisions. The result is that business operating in this highly global, multi-jurisdictional environment will need to continue to work towards building out robust and scalable data security and privacy infrastructures that take into account not only the GDPR and CCPA but other emerging laws. For example, updating forward-facing website disclosure policies and user agreements will be paramount here to be sure they comply with the required disclosures.

Relatedly, my second prediction as that we will continue to see an uptick in litigation filed under the Americans with Disabilities Act and frankly no end is in sight.  Businesses are continuing to educate themselves on the legal standards necessary for building and maintaining an accessible website.  We also anticipate much in the way of legislation or increase DOJ involvement in this area under the new administration.

Watch Kara’s video prediction here.


Health Law – Allison K. Prout, Esq., Cert. AWS Cloud Practitioner

With so much of our everyday lives moving online in the wake of the COVID-19 pandemic, we have seen a large uptick in data breaches caused by third-party vendors and service providers. And when it comes to the healthcare industry, I anticipate a continued increase in incidents that originate with business associates and other vendors providing services to covered entities. 

 In fact, about 40% of HIPAA breaches involve or are caused by business associates. With a new administration that’s likely to favor regulatory action, we expect to see regulatory authorities continue to enforce actions against covered entities whose business associates or service providers experience breaches. 

So what does this mean for the industry?  We expect to see covered entities taking a much closer look at who they are working with—and whether those parties have robust security and privacy protocols. For this reason, business associates may need to prepare accordingly. Whether you are a covered entity or a business associate, now is the time to dust off vendor due diligence and monitoring policies and procedures. It’s also a good idea to take a closer look at those service agreements and business associate agreements to make sure your service providers are making the right security commitments—and assuming responsibility—when there’s a breach.

Watch Allie’s video prediction here.


Global Data Privacy – Jordan L. Fischer, Esq. CIPP/US, CIPP/E, CIPM

My first prediction for the global data privacy space in 2021 is the creation and evolution of additional data privacy regulations across the globe. The so-called “GDPR Effect” has been pushing data privacy trends across the globe, and we expect to this to continue as more regions and countries adopt legislation mimicking parts of the GDPR, putting their own unique twist on data privacy, or modernizing their existing data privacy regulations to make them more compatible with the GDPR and other global privacy regimes.

My second prediction is a major emphasis on cross-border data transfers. The 2020 Schrems II decision invalidated the EU-US Privacy Shield for sending data from Europe to the United States. This decision was focused on data transfers between the United States and the European Union, but it also highlights a challenge we are continuing to see in international law – while these privacy regulations see borders, the digital realm does not.  Thus, it is increasingly hard to segment data and maintain it within a specific region. This year, I anticipate a lot of tension between regions that approach privacy and security from various perspectives that don’t always align. This presents a challenge for businesses to continue to operate efficiently while minimizing risk and dealing with multiple global privacy and security regulations.

Regardless of the specific trends we expect to see this year, one thing is certain – the global data privacy landscape will continue to change rapidly, creating a fascinating environment for data privacy and security lawyers to practice in.  I am very excited to be a part of such a dynamic team that will continue to provide services to our clients in this space.

Watch Jordan’s video prediction here.


Key Takeaways

Today, as well as every other day of the year, we hope you take some time to reflect on data privacy and security and the ways you can better protect your personal or business’ private information. The Beckage team is passionate about to educating the masses on the importance of data security, the consumer privacy rights and the impact on businesses, and the steps you can take safeguard your information. We are committed to providing updates on relevant legislation, current threats, and proactive data security steps. Be sure to follow us on LinkedIn, read our blog, and subscribe to our newsletter to stay up to date on the latest in this ever-changing space. Happy Data Privacy Day!

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