information management

We’re witnessing a “rapid, unscheduled disassembly” (thanks SpaceX) of comprehensive consumer privacy laws across the United States. While these new state laws generally have a different, sleeker structure than California’s CCPA/CPRA, they share a similar impact – each such law incents covered businesses to delete unnecessary data.
Continue Reading Less Data #6: Explosion of new state consumer privacy laws compels deletion of unnecessary data

Last month California finalized its updated regulations under the California Consumer Privacy Act (CCPA), as amended by the California Privacy Rights Act (CPRA). With the CPRA, California has upped the ante on requiring data retention schedules and disposal of unnecessary data.

As always, to fully appreciate where we are, we need to remember from where

Illinois court rules that failure to establish a biometric data retention schedule is an actionable BIPA violation. What may this mean for other states’ privacy laws that require data minimization and storage limitation policies?
Continue Reading Less Data #4: Illinois court rules that lack of data retention schedule violates BIPA

We’ve already seen how new FTC regulations for GLBA-regulated financial institutions require retention schedules and disposal of unnecessary data as essential data security controls. The FTC is now also taking that position for all businesses under Section 5 of the FTC Act, as seen in a slew of recent FTC data security enforcement actions.

Two

The FTC has updated its data security regulations for the financial institutions it regulates under the Gramm-Leach-Bliley Act (GLBA). The FTC’s revised requirements for information security programs, effective June 1, 2023, will now mandate data retention policies and disposal of unnecessary customer information.

To appreciate what this means, we must take a quick look at

Two years ago I made a prediction: “For the 2020s, the dots already connect clearly – the new impetus for managing information retention and disposal will be data privacy and security compliance.  Buckle up.”

This was the last line of a 2021 blog series exploring then-recent developments in United States’ data privacy and security

In this series we’ve looked at recent developments in United States’ data privacy and security laws, primarily at the state level, that are transforming retention schedules and data disposal from merely prudent practices into compliance requirements:

Deleting DataThis series explores how recent changes in U.S. privacy and data security laws are elevating retention schedules and data disposal from merely prudent practices to compliance requirements.

As mentioned earlier, The FTC enforces privacy and data security beyond its regulatory ambit for sector-specific privacy and security laws such as GLBA, FACTA, and COPPA.  It does so under the authority of Section 5 of the FTC Act, which prohibits “unfair or deceptive acts or practices in or affecting commerce.” 15 U.S.C. § 45(a)(1).  The FTC’s targeted businesses for Section 5 data security enforcement have ranged from the large and well-known to the small and obscure.  But the common theme is that the business, according to the FTC, either deceptively or unfairly engaged in unreasonable and inadequate data security practices for consumers’ personal information (PI).

In several Section 5 enforcement proceedings before 2019 the FTC alleged that the combination of several inadequate data security practices “taken together,” and including retaining consumers’ PI beyond any business need, can collectively be an unfair trade practice under Section 5.  Such past FTC data security matters mentioning over-retention include enforcement actions against BJ’s Wholesale Club, Inc., DSW Inc., Life is good, Inc., Ceridian Corporation, and Cbr Systems, Inc.

But in its recent Section 5 enforcement actions against InfoTrax Systems and SkyMed International, the FTC has changed its approach, elevating over-retention to be a core data security failure.  In each of these cases, as it had in the past, the FTC alleged multiple data security lapses, including the failure to dispose of PI once “no longer necessary.”  Yet the language of these recent complaints no longer uses the “taken together” language of the earlier enforcement actions, allowing over-retention of PI to stand on its own as an unreasonable data security practice.  And the consent orders in these cases, unlike the FTC’s earlier enforcement matters, set forth the explicit, independent requirement that the respondents must have policies, procedures, and measures to delete PI once it is no longer necessary.
Continue Reading Less data is more than ever: The FTC and the reasonable data security program