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Protecting the privacy of health information: A baker’s dozen takeaways from FTC cases

Retrieved on:

Saturday, August 12, 2023

Protecting the privacy of health information: A baker’s dozen takeaways from FTC cases In the past few months, the FTC has announced case after case involving consumers’ sensitive health data, alleging violations of both Section 5 of the FTC Act and the FTC’s Health Breach Notification Rule.

Key Points:

Protecting the privacy of health information: A baker’s dozen takeaways from FTC cases

In the past few months, the FTC has announced case after case involving consumers’ sensitive health data, alleging violations of both Section 5 of the FTC Act and the FTC’s Health Breach Notification Rule.
The privacy of health information is top of mind for consumers – and so it’s top of mind for the FTC.

Health Privacy: The Basics

Rather, it’s anything that conveys information – or enables an inference – about a consumer’s health.
Indeed, Premom, BetterHelp, GoodRx, and Flo Health make clear that the fact that a consumer is using a particular health-related app or website – one related to mental health or fertility, for example – or how they interact with that app (say, turning “pregnancy mode” on or off) may itself be health information.
Our guidance on health and location highlights the fact that location data can convey health information.
For example, repeated trips to a cancer treatment facility may convey highly sensitive information about an individual’s health.
To stay on the right side of the FTC Act, take a broad view of what constitutes health data and protect it accordingly.
Your obligation to protect the privacy of health information is a given. The need for privacy-by-design is (or should be!)

HIPAA-related claims

“HIPAA Compliant,” “HIPAA Secure,” and similar claims may deceive consumers. Compliance with HIPAA, the national law protecting the privacy of certain health information, has become a shorthand among patients and providers alike for health privacy protection.
Not surprisingly, companies offering health-related products and services often want to tout HIPAA compliance to give consumers comfort – even if these companies aren’t actually covered by HIPAA or aren’t actually complying with HIPAA.
FTC enforcement actions like GoodRx, BetterHelp, Henry Schein, and SkyMed make clear that HIPAA claims like that may deceive consumers, whether those consumers are health care providers (like the dentists in Henry Schein) or regular people (like the therapy patients in BetterHelp).
In ECM, the FTC proved in court that a company that gave its business customers labels and certificates bearing false claims about biodegradability had provided “the means and instrumentalities” to deceive downstream consumers.

Other Health Privacy Practices

It may be tempting to use your privacy policy to reserve the right to change your health data practices, so that any continued use of your service constitutes “consent” to the changes.
The FTC’s action in Vitagene makes clear that’s not a lawful means for obtaining consent for material retroactive privacy policy changes.
Hidden euphemisms don’t cut it. Rather than living up to their legal obligation to tell consumers the whole truth, some companies hide key terms about data practices in dense privacy policies or terms of service filled with ambiguous language that cloaks how they really use consumers’ health information.
The orders in our recent health privacy cases uniformly require affirmative express consent – consent that can be obtained only following a clear and conspicuous disclosure of all material facts.

Health privacy: A top priority for the FTC – and for your company

Trump’s free speech faces court-ordered limits, like any other defendant’s -- 2 law professors explain why, and how Trump’s lawyers need to watch themselves too

Retrieved on:

Friday, August 11, 2023

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It was the first time lawyers prosecuting and defending former President Donald Trump on charges he attempted to overturn the 2020 election appeared before the federal judge in the case.

Key Points:

It was the first time lawyers prosecuting and defending former President Donald Trump on charges he attempted to overturn the 2020 election appeared before the federal judge in the case.
Trump’s lawyers said any limit on the right to speak about the documents violated Trump’s free speech rights.
“I caution you and your client to take special care in your public statements in this case,” she said.

Do people lose their First Amendment rights when they are criminally indicted?

Durkin: You don’t really lose your rights, but the discovery process requires certain restrictions on what you can do with what are essentially government documents and information.
So I’m not sure that’s a restriction of the First Amendment.
From what I heard, the judge said to Trump and his lawyer, certain things are going to be restricted, and some of your rights are going to be limited.

What did the judge say?

Ferguson: The judge has signaled that Trump’s rights as a criminal defendant are subject to the rules of the court.
The judge and the lawyers as officers of the court have a responsibility to ensure the integrity of the proceedings, against the backdrop of the integrity of the criminal justice system.
That heightens the need for the judge to lay down the bright line.
The normal concerns for a judge in these cases is the possible tainting of the jury pool, the intimidation of witnesses and other forms of interference with the process of justice.

The government is pushing for a speedy trial. How does that strike you?

Existing Department of Justice practice is you don’t take a matter to trial in the 60 days before an election.
And the government is attempting to dump all this discovery material on the defense right away so that Trump’s lawyers can’t claim, “We need more time.”

The court session on Friday was focused on the terms of a protective order, which would determine what materials and information could be made public, right?

So the hearing was about what Trump’s lawyers could say, not just Trump?

That greatly limits the lawyers’ ability to file speaking motions – motions with a lot of detail – in the public domain.
Speaking motions, like Smith’s speaking indictment, are one of the ways a good defense lawyer can attempt to influence the jury, because you can dump documents into pleadings with impunity.

So you’re saying that lawyers can use those motions as a way to sneak in stuff that normally wouldn’t be able to get before the public.

What did the prosecution ask for in this hearing?

If materials are labeled sensitive, you have to keep your lips zipped?

So the government wanted to just get this done with and call everything sensitive and not have fights about each document they’re giving the defense.

At one point, Trump’s lawyers said keeping all of the discovery documents secret would be giving an advantage to Joe Biden.

Zuma prison case casts doubt on South Africa's medical parole law

Retrieved on:

Friday, August 11, 2023

In short, his parole tested the buoyancy of the law in facilitating the medical release of offenders without political or other interference.

Key Points:

In short, his parole tested the buoyancy of the law in facilitating the medical release of offenders without political or other interference.
The SCA had found that Zuma was unlawfully granted medical parole against the advice of the Medical Parole Advisory Board.
Less than two months after his admission to prison, he was released on medical parole.
And the time he was out of prison on medical parole should not have been counted as time served.
Medical parole in South Africa is governed by Section 79 of the Correctional Services Act, together with Regulation 29A of the Correctional Services Regulations.

The process and gaps in law

The board comprises ten medical practitioners, who must provide an independent medical report to the commissioner.
Unfortunately, the law does not require the board to offer such guidance.
These gaps in the law are exacerbated by the omission to specify whether the commissioner has the power to ignore the recommendation of the board, as in Zuma’s application.
While they may all seem relevant in assessing future criminality, there is no indication as to how they should be weighed up.
This is a task which should involve clinical evaluations by forensic psychiatrists, but the legislation does not require this.

Unfortunate omission

For example, if an offender is lawfully released on medical parole, but their health improves or even if they are cured, they cannot be forced to return to prison.
It is unfortunate that the Supreme Court of Appeal referred this question back to the Department of Correctional Services – the very department that flagrantly violated the law.

AI threatens to add to the growing wave of fraud but is also helping tackle it

Retrieved on:

Thursday, August 10, 2023

There were 4.5 million reported incidents of fraud in the UK in 2021/22, up 25% on the year before.

Key Points:

There were 4.5 million reported incidents of fraud in the UK in 2021/22, up 25% on the year before.
It is a growing problem which costs billions of pounds every year.
The COVID pandemic and the cost of living crisis have created ideal conditions for fraudsters to exploit the vulnerability and desperation of many households and businesses.
And with the use of AI increasing in general, we will likely see a further increase in new types of fraud and is probably contributing to the increased frequency of fraud we are seeing today.

Fraud detection

Over the past few years, complex mathematical models combining traditional statistical techniques and machine learning analysis have shown promise in the early detection of financial statement fraud.
For example, the risk of fraud decreases if there is better corporate governance and a lower proportion of directors who are also executives.
We are also seeing new collaborations in the industry, with the likes of Deutsche Bank partnering with chip maker Nvidia to embed AI into their fraud detection systems.

Risks of AI systems

However, the advent of new automated AI systems bring with it worries of potential unintended biases within them.
In a recent trial of a new AI fraud detection system by the Department of Work and Pensions, campaign groups were worried about potential biases.
Read more:
Scams, deepfake porn and romance bots: advanced AI is exciting, but incredibly dangerous in criminals' hands
But AI systems should not be used as a fully automated process to detect and accuse fraud but rather as a tool to assist assessors.

'Nobody's child' – despite a compelling case for reform, NZ's adoption laws remain stuck in the past

Retrieved on:

Tuesday, August 8, 2023

Despite some significant progress, the Ministry of Justice has revised its timeline for delivering final proposals from the first half of this year to “in due course”.

Key Points:

Despite some significant progress, the Ministry of Justice has revised its timeline for delivering final proposals from the first half of this year to “in due course”.
This means there is still no clear end in sight to what has already been a prolonged and frustrating process.
Most importantly, those touched by adoption – including extended families – continue to feel the enduring effects of the antiquated and outmoded Adoption Act 1955.
Some estimates suggest upwards of two million New Zealanders may have a direct link to adoption within their extended family.

Legal fictions

Legal adoption emerged in Aotearoa in the 1880s as a response to the growing problem of children born out of wedlock.
Closed adoption went a step further, attempting to legitimise the illegitimate child through a kind of legal fiction.
And in 2000, the Law Commission found the legal fiction of closed adoption was “a repugnant and unnecessary distortion of reality”.

A history of inaction

In the past 40 years there have been six formal reviews, two select committees, four cabinet committees and a draft bill.
Social work practice has also become more open, enabling birth parents, adoptive parents and the adopted child to be known to each other.
Taken together, these changes have reduced the all-encompassing impact once envisaged for adoption law reform.

The adoption paradox

Given this, the question must be asked whether the ministry is the right agency to lead adoption reform.
Ultimately, however, there is an unfortunate paradox at the centre of this issue.
Adoption reform pits the interests of some against others – typically, those who have been wronged by adoption, and those who want to adopt but fear reform will make the process even more difficult.

Controversial ‘forever chemicals’ could be phased out in Australia under new restrictions. Here’s what you need to know

Retrieved on:

Monday, August 7, 2023

Until now, Australia has not restricted the trade or use of most PFAS chemicals.

Key Points:

Until now, Australia has not restricted the trade or use of most PFAS chemicals.
The sooner industry acts on this, the faster we can eliminate PFAS from the products we use and our waste.
Read more:
PFAS might be everywhere – including toilet paper – but let's keep the health risks in context

Hang on, what is PFAS again?

PFAS (or per- and poly-fluoroalkyl substances) are a group of around 9,000 individual chemical compounds found in many everyday products.
These complex substances are made by joining carbon and fluorine atoms, creating one of the strongest bonds in organic chemistry.
The use of potentially hazardous chemicals such as PFAS also undermines recycling and the circular economy.

What is changing and what will this mean?

As a result, the federal, state and territory governments established the new Australian Industrial Chemical Environmental Management Standard in 2021.
Chemicals with industrial applications are placed into one of seven categories or “schedules”, according to the level of environmental risk they represent.
Increasingly, countries are pursuing coordinated regulatory actions that will shift market standards around industrial chemical use and management.

What should business do?

Industry risks being caught short, facing the economic and administrative consequences of compliance when new rules come into effect.
Phasing out potentially hazardous chemicals such as PFAS will require careful consideration of both risk and technical function.
Or in Australia, the Product Stewardship Centre of Excellence is providing tools for business and government to ensure safe, clean supply chains.
Governments also have a role to play in helping business transition away from hazardous chemicals.
They can encourage business to take a whole-of-system approach to reducing chemicals across supply chains.

FTC and DOJ Extend Public Comment Period by 30 Days on Proposed Changes to HSR Form

Retrieved on:

Saturday, August 5, 2023

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With the extension, the agencies will now be accepting comments on the proposed changes until September 27, 2023.

Key Points:

With the extension, the agencies will now be accepting comments on the proposed changes until September 27, 2023.
The proposed changes, announced by the FTC and DOJ in June of this year, would enable the agencies to more effectively and efficiently screen transactions for potential competition issues within the initial waiting period, which is typically 30 days.
The Commission vote approving the public comment period extension was 3-0.
For the latest news and resources, follow the FTC on social media, subscribe to press releases and read our blog.

FTC and DOJ Extend Public Comment Period by 30 Days on Proposed Changes to HSR Form

Retrieved on:

Saturday, August 5, 2023

Commission, Act, DOJ, Department, HSR, Hart–Scott–Rodino Antitrust Improvements Act, Social media, Federal Register, Blog, News, Register, FTC, Federal Trade Commission, Cryptocurrency

With the extension, the agencies will now be accepting comments on the proposed changes until September 27, 2023.

Key Points:

With the extension, the agencies will now be accepting comments on the proposed changes until September 27, 2023.
The proposed changes, announced by the FTC and DOJ in June of this year, would enable the agencies to more effectively and efficiently screen transactions for potential competition issues within the initial waiting period, which is typically 30 days.
The Commission vote approving the public comment period extension was 3-0.
For the latest news and resources, follow the FTC on social media, subscribe to press releases and read our blog.

Trump's political action committee wants a $60 million refund on paying his legal fees – 3 key things to know about PACs

Retrieved on:

Friday, August 4, 2023

Department, Advertising, Leadership, Trump, FEC, Federal Election Commission, Make America Great Again, Organization, PAC, The New York Times, Trade, PACS, Drug, Real estate, Thermoplastic, Pharmaceutical industry, Video game, Pod Save America

Save America, one of former President Donald Trump’s political organizations, is seeking a US$60 million refund from Make America Great Again, Inc., another Trump political organization that is less strictly regulated by federal rules.

Key Points:

Save America, one of former President Donald Trump’s political organizations, is seeking a US$60 million refund from Make America Great Again, Inc., another Trump political organization that is less strictly regulated by federal rules.
Save America has paid Trump’s legal fees connected to multiple investigations into alleged criminal activities and is now down to less than $4 million in its account, The New York Times reported on July 31, 2023.
Trump’s use of political action committees, often known as PACs, to pay his mounting legal fees has raised questions about these organizations and how they spend money.

1. PACs are not all made equal

Corporations, labor unions and other ideological groups originally set up PACs many decades ago as a way to participate in federal elections.
Most PACs today are either connected to a sponsor organization or have a particular issue agenda.
Federal law caps individual donations to most PACs, including leadership PACs, at $5,000 per year.
Because contribution limits do not apply to super PACs, they have become an essential component of election campaigns over the last 13 years.

2. PACs can sometimes pay legal fees

It is illegal to use campaign money to pay for personal expenses that would have occurred whether or not the candidate was running for office.
The Federal Election Commission has ruled that campaign funds can be used to pay a candidate’s legal fees if an investigation relates directly to the election or the candidate’s time in political office.

3. Trump’s case enters murky territory

But money raised for a campaign could probably not cover the Department of Justice’s Mar-a-Lago documents case, which does not involve either Trump’s campaign or his time in office.
So, campaign money might be used in the Mar-a-Lago case.
What’s unclear – and possibly unlawful – is whether Trump’s leadership PAC, Save America, can pay for Trump’s legal expenses.

A brief history of the Ku Klux Klan Acts: 1870s laws to protect Black voters, ignored for decades, now being used against Trump

Retrieved on:

Friday, August 4, 2023

Three of the charges in United States of America v. Donald J. Trump are fairly easy to understand.

Key Points:

Three of the charges in United States of America v. Donald J. Trump are fairly easy to understand.
They require a jury to determine whether Trump tried to overturn the lawful results of the 2020 election and if he knowingly conspired to obstruct the certification of results on Jan. 6, 2021, all in an attempt to remain in the White House.
But the fourth charge against Trump – of conspiring against the rights of the voters to cast ballots and have them fairly and honestly counted – is more complicated, and it comes from a dark time in U.S. history.
As a historian who studies and writes about democracy and the American South, I believe the 1870s have something to teach us about the fourth count in the Jan. 6 case against Trump.

Ku Klux Klan Acts

The indictment asserts that Trump knowingly conspired “to injure, oppress, threaten, and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States – that is, the right to vote, and to have one’s vote counted.” That quote comes from a series of laws enacted in the 1870s called the Ku Klux Klan Acts.
As the Brennan Center for Justice points out, in the 20th century the Supreme Court has ruled that all sorts of election infringements violate the Enforcement Acts, including stuffing ballot boxes and bribing voters.

Retreat from democracy

The Department of Justice secured convictions in 140 cases by using the law that is being used to prosecute Trump.
Congress had to expand the attorney general’s staff into an entire department of government to handle the excessive case load.
After Grant was reelected, many champions of Black rights lapsed into what historians often characterize as a moral fatigue.
Nine stood trial, including one William Cruikshank, the burly, self-confident plantation owner who had supervised the executions.
The Supreme Court set William Cruikshank free, and white supremacists established racist regimes in every Southern state for nearly 100 years thereafter.

Civil War amendments today

The 5-4 majority held that states could be trusted to guarantee citizens’ voting rights.
Writing in dissent, Justice Ruth Bader Ginsburg compared enforcing the Civil War amendments to “battling the Hydra,” the multiheaded monster that sprouted new heads after one was defeated.
Given this long history of advance and retreat, it’s not surprising, then, that special counsel Jack Smith, in his use of a law to prosecute Trump that dates back to the Reconstruction Era’s laws protecting the Black vote, has reasserted the Department of Justice’s power to enforce the Civil War amendments.