United States: Privacy Monday – November 18, 2013

The month of November is quickly slipping by – this is the time to be looking at the 2014 cybersecurity and data privacy goals and updates and planning ahead.

Our selected bits and bytes for this Monday:

FTC Denies AssertID, Inc.'s Application for Obtaining Verifiable Consent Under the COPPA Rule

The FTC recently announced (press release) that the Commission voted 4-0 to deny AssertID, Inc.'s ("AssertID"or "Company") application for a proposed verifiable parental consent ("VPC") method submitted for approval under  the Voluntary Commission Approval Process provision of the COPPA Rule ("Rule").  The Company submitted their proposed VPC method, ConsentID, for approval on July 1, 2013, the FTC published the application in the Federal Register on August 21, and the public comment period closed on September 20, 2013. The Commission received six (6) comments on the application and the commentators urged the FTC to deny AssertID's application on the basis that the AssertID VPC method primarily because the proposed method is not "reasonably calculated, in light of available technology, to ensure that the person providing consent is the child's parent," as required by Section 312.5(b)(1) of the Rule.   You can access our prior blog post describing the AssertID VPC method here.

In its letter to AssertID informing the Company of the Commission's decision, the FTC stated that the Company has failed to show that its proposed VPC method satisfies the criteria required by Section 312.5(b)(1). Specifically, the Commission expressed concern about the reliability of the social-graph verification method proposed by AssertID, noting, as the commentators on the AssertID VPC method have, that (1) Facebook profiles can very easily be fabricated, in fact, according to Facebook's 10-Q filing, there are 83 million fake Facebook accounts, and (2) many children under 13 have created social media accounts by falsifying age information. In the Commission's view, AssertID's limited beta testing of its VPC method was not sufficient to demonstrate that social-graph identity verification will be effective and sufficiently reliable in verifying in a live environment that the individual providing consent is in fact the child's parent. The FTC declined to opine on whether the services that AssertID provides on behalf of Web site operators as part of the ConsentID service to satisfy their direct notice obligation under the Rule indeed satisfy the requirements of the Rule, as the Commission did not consider these services integral to the proposed VPC method.

SCOTUS Declines to Hear Electronic Privacy Information Center's NSA Surveillance Challenge

The Supreme Court today refused to consider the challenge to the controversial NSA surveillance program filed by the Electronic Privacy Information Center.   For more, read Dennis Fisher's post at threatpost.

Mintz Privacy in the Press

Wall Street Journal – NIST Cybersecurity Framework


Excerpt:  "Lawyers say the document will be highly influential, but some have been raising concerns about the privacy portions of the preliminary framework since its release.

In earlier iterations of the framework, "scant attention" was paid to the need for critical infrastructure organizations to address privacy as part of cybersecurity plans, according to a client alert from Mintz Levin.

"That nod to the importance of privacy has been replaced with a detailed methodology to protect privacy and civil liberties," the alert said, briefly explaining the changes. "These added standards should receive close attention by industry reviewers.""

Law360 – New PCI-DSS Standards

Payment Card Industry Group Retools Data Security Rules


By Allison Grande

Excerpt: "Companies that process credit card data are required to comply with the standard, which is incorporated by reference in every merchant agreement. A failure to comply could expose the merchant to fines imposed by the card brands, the inability to accept a particular brand, or breach of contract claims, according to Cynthia Larose, the privacy and security practice chair for  Mintz Levin Cohn Ferris Glovsky & Popeo PC.

While the changes contained in the latest version of the standard "are not dramatic," the new version "benefits from many clarifications, real-life examples and flexibility built in to enable merchants to meet the intent of the requirements," Larose told Law360 on Friday.

For example, the new version adds a "best practices for implementing PCI DSS" section that aims to push companies to make compliance "'continuous' rather than an annual validation exercise." It also adds guidance for cloud providers and merchants to clarify that there is "shared responsibility" for complying with the requirements, according to Larose.

"The merchant cannot outsource accountability, as it has shared responsibility with the service provider to comply," she said. "You can outsource the functionality, but you cannot outsource the potential for liability.""

Law360 - Security Flaws Land ACA Contractors In Legal Crosshairs

By Allison Grande

The report prompted Sen. Orrin Hatch, R-Utah, and others to push legislation that would delay the launch of the exchanges until the government could ensure they had strong protections. But the Internet-based hubs opened for business as scheduled Oct. 1, and their operators have done little in the past month to dispel privacy concerns, according to attorneys.

"We don't have the information yet to know whether or not the data security risks are real or worse than expected or have been fixed, so our assessment of the privacy risks associated with having so much incredibly sensitive information passing through these systems has not changed since they went live," said Cynthia Larose, the privacy and security practice chair for Mintz Levin Cohn Ferris Glovsky & Popeo PC.

....Attorneys pointed out that consumers might face an uphill battle in pursuing their claims, given the hurdles plaintiffs have traditionally faced in proving that a loss of sensitive data caused them actual harm.

"It's been notoriously hard for plaintiffs in data security class actions to maintain their claims, so unless the private cause of action is related to certain information that was compromised, it would be pretty difficult to initiate an action for a breach of the system," Larose said.

Plaintiffs might also have difficulty pinning liability for the data loss on a responsible entity in the vast web of the exchanges, according to attorneys.

However, some attorneys doubted whether federal and state enforcers would pursue data security violations very aggressively, given their close ties with the exchanges.

"The question becomes, who regulates the regulator?" Larose said.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.