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The Office of Civil Rights for the Department of Health and Human Services (HHS) recently requested comments related to its upcoming rulemaking under the Health Information Technology for Economic and Clinical Health (HITECH) Act, part of the American Recovery and Reinvestment Act of 2009. HITECH expands the current HIPAA Privacy Rule requirement that a covered entity provide individuals with a right to receive an accounting of certain disclosures of the individual's protected health information to certain parties. Currently, under HIPAA, a covered entity is not obligated to provide an accounting of disclosures if such disclosures were in furtherance of treatment, payment, or health care operations (TPO).  HITECH eliminated these exemptions by requiring covered entities to account for TPO disclosures if such disclosures are made through an electronic health record.

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Bloggers have been buzzing since the Federal Trade Commission (FTC) updated its Guides Concerning Use of Endorsements and Testimonials in Advertising (“Guides”) to cover “consumer generated media” such as blogs and other Internet media forms. (16 C.F.R. Part 255) (.PDF) The changes are the first update since 1980 for the Guides, which are intended to offer guidance to compliance under 15 USC § 45 (“Unfair methods of competition unlawful; prevention by Commission”). While the FTC describes the Guides as providing “the basis for voluntary compliance with the law by advertisers and endorsers”, the Guides could form the basis for an enforcement action by the FTC, and noncompliance may result in a civil penalty of up to $10,000 per violation.

In the interest of providing consumers with full disclosure, the updated Guides require bloggers to disclose any “material connection[s]” they have with producers of any products that they “endorse” on their blogs. A “material connection” includes not only monetary compensation, but also any free good received by the blogger—even if that good was provided unsolicited, with no conditions attached, for the purpose of allowing the blogger to review the product. Under the Guides, “endorsers” and companies must fully disclose any connection between “the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement.” In an effort to further explain the intent behind the Guides, the FTC has provided 35 example fact patterns in the Guides, and even an instructional video.

Much of the recent media attention to the updated Guides has addressed the required disclosure by bloggers who write about products after receiving free samples of the product or other financial benefits from the product manufacturers. Companies, however, should also be aware of the recommendations and examples set forth in the Guides, and how the Guides might apply in at least two modern contexts: (1) with respect to a company’s interactions with bloggers, and (2) with respect to a company’s own social media or other customer-interactive online presence.

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On Tuesday May 4, a new privacy bill, known as the Boucher-Stearns Bill was released by Representative Rick Boucher, Democrat of Virginia, and Representative Cliff Stearns, Republican of Florida. If the bill were to become law, it would represent a dramatic shift in U.S. Privacy governance. To date, privacy regulation in the U.S. has generally fallen along industry lines such as (i) HIPAA's regulation of a hospital's use of medical information or (ii) Gramm Leach Bliley's regulation of a bank's use of an individual's financial information. The Boucher-Stearns Bill represents the first non-industry specific federal privacy law moving American regulation of personal information closer to that of the European Union and other countries. The impact on businesses and online commerce would be significant by adding broad-based constraints on how businesses collect, use, and disclose information related to individuals. 

In general the Boucher-Stearns Bill, among other things, (i) requires businesses to provide notice and receive consent from individuals prior to the collection of various pieces of information from such individuals, (ii) obligates businesses to establish reasonable procedures to assure the accuracy, privacy, and security of information collected, and (iii) empowers the Federal Trade Commission to implement regulations to enforce the bill's provisions. 

A few of the bill's key provisions are highlighted below:

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