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State Privacy Laws Evolve While Congress Campaigns

New legislation governing data breaches and privacy issues is popping up in states across the country. Most recently, Connecticut, Vermont, and Illinois have enacted new laws in these areas.

Connecticut

At long last, the proposed legislation requiring a data breach to be reported has become law in Connecticut. Section 369-701b was unable to move its way through the 2012 General Session of the Connecticut Legislature, but it was recently passed as part of the Connecticut General Assembly’s Special Session as an attachment of the Budget Bill.

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FAA v. Cooper and the Federal Privacy Act: Narrow Interpretation, Broad Consequences

With its March 28, 2012 decision in Federal Aviation Administration, et al. v. Cooper, 132 S. Ct. 1441 (U.S. 2012), the United States Supreme Court restricted the scope of a federal privacy law, ruling that the law – which allows recovery for “actual damages” – only authorizes damages for monetary losses. Accordingly, a San Francisco pilot was not permitted to recover humiliation and emotional distress damages from government agencies that disclosed his HIV-positive status without his consent.

In 1964, Stanmore Cooper (“Cooper”) obtained his pilot’s license from the Federal Aviation Administration (“FAA”). In 1985, Cooper was diagnosed with HIV and began taking antiretroviral medication. At that time, the FAA did not issue medical certificates to persons with HIV, so Cooper gave up his pilot’s license, knowing that he would not qualify for renewal of his medical certificate. However, in 1994, Cooper re-applied for a pilot’s license and, to receive a medical certificate, purposefully withheld his HIV-positive status and medication from the FAA. He renewed his certificate four more times and as recently as 2004, each time withholding information about his condition. When Cooper’s health began to deteriorate, he applied for long-term disability benefits and, to substantiate his claim, disclosed his HIV-positive status to the Social Security Administration (“SSA”), which awarded him disability benefits.

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Keep Your Friends Close, But Your Facebook Posts Closer

“Facebook helps you connect and share with the people in your life.” That is the Facebook mantra, as displayed on its homepage, and the opening line of a recent – and extremely thorough! – Pennsylvania trial court decision regarding the discoverability of a plaintiff’s relevant Facebook information. The court’s conclusion: a plaintiff’s Facebook information is discoverable, provided the defendant has a good faith basis for seeking the material, because there is no confidential social networking privilege under Pennsylvania law and because the Stored Communications Act only applies to internet service providers. The take-away for Facebook users: be careful what you post – it’s not as “private” as you think!

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