IAPP Updated CIPP-US Exam Questions and Answers by luisa

 The Federal Trade Commission (FTC) is the primary federal agency that enforces consumer privacy and data security laws in the United States. The FTC has the authority to bring enforcement actions against businesses that engage in unfair or deceptive acts or practices that affect commerce, under Section 5 of the FTC Act. Unfair acts or practices are those that cause or are likely to cause substantial injury to consumers that is not reasonably avoidable by consumers and is not outweighed by countervailing benefits to consumers or competition. Deceptive acts or practices are those that involve a material representation, omission, or practice that is likely to mislead consumers acting reasonably under the circumstances.

The FTC’s action against B.J.'s Wholesale Club in 2005 was unique because it was based on matters of fairness rather than deception. The FTC alleged that B.J.'s Wholesale Club, a retailer that operates warehouse stores and gas stations, failed to provide reasonable security for the sensitive information of its customers, such as name, card number, and expiration date, that it collected from the magnetic stripes of credit and debit cards. The FTC claimed that this information was used by unauthorized persons to make millions of dollars of fraudulent purchases. The FTC did not allege that B.J.'s Wholesale Club made any false or misleading statements or omissions about its data security practices, but rather that its failure to take appropriate security measures was an unfair practice that violated Section 5 of the FTC Act. The FTC argued that B.J.'s Wholesale Club’s lax security caused or was likely to cause substantial injury to consumers that was not reasonably avoidable by consumers and was not outweighed by any benefits to consumers or competition.

The FTC’s action against B.J.'s Wholesale Club was one of the first cases in which the FTC used its unfairness authority to address data security issues,and it set a precedent for future enforcement actions against businesses that fail to protect consumer data. The settlement required B.J.'s Wholesale Club to implement a comprehensive information security program and obtain audits by an independent third-party security professional every other year for 20 years. References:

FTC Complaint, Paragraphs 1-23

FTC Agreement Containing Consent Order, Paragraphs 1-9

FTC Analysis of Proposed Consent Order to Aid Public Comment, Pages 1-3

[IAPP CIPP/US Study Guide], Pages 69-70

 An intrusion upon seclusion tort occurs when someone intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, if the intrusion would be highly offensive to a reasonable person12. The intrusion does not need to involve a physical trespass, but can also be an electronic or optical intrusion, such as using a webcam to record a person who has a reasonable expectation of privacy2. The intrusion must also cause mental anguish or suffering to the plaintiff2.

In this case, option A would best support an employee claim for an intrusion upon seclusion tort, because the webcam is enabled to record video any time the computer is turned on, regardless of whether the employee is working or not, or whether the employee is in a private or public place. This would be an intentional and highly offensive intrusion into the employee’s seclusion or private affairs, and would likely cause the employee distress or anxiety.

Option B would not support an intrusion upon seclusion tort, because the creation and saving of a biometric template based on keystroke dynamics is not an intrusion into the employee’s seclusion or private affairs, but rather a data collection and processing activity that may implicate other privacy laws or principles, such as notice, consent, and security3.

Option C would not support an intrusion upon seclusion tort, because the software sending a notification to a supervisor when the employee’s mouse is dormant for more than five minutes is not an intrusion into the employee’s seclusion or private affairs, but rather a performance monitoring activity that may be justified by the employer’s legitimate business interests4.

Option D would not support an intrusion upon seclusion tort, because the webcam recording video of an employee using a company laptop to perform personal business while at a coffee shop during work hours is not an intrusion into the employee’s seclusion or private affairs, but rather a misuse of company property and time that may be subject to the employer’s policies and disciplinary actions5. Moreover, the employee may not have a reasonable expectation of privacy in a public place like a coffee shop. References: 1: Intrusion on seclusion - Wikipedia 2: Elements of an Intrusion Claim | Digital Media Law Project 3: Biometrics - IAPP 4: Employee Monitoring - IAPP 5: Employee Privacy - IAPP : Privacy in Public Places - IAPP

 The law that ACME violated by designing the service to prevent access to the information by a law enforcement agency is the Communications Assistance for Law Enforcement Act (CALEA)1. CALEA is a federal law that requires telecommunications carriers and manufacturers of telecommunications equipment to design their equipment, facilities, and services to ensure that they have the necessarysurveillance capabilities to comply with legal requests for interception of communications2. CALEA applies to all commercial messages, including text messages, and gives law enforcement agencies the authority to subpoena the records of such communications from the service providers3. By encrypting its text message records so that only the suspect could access this data, ACME violated CALEA’s duty to cooperate in the interception of communications for law enforcement purposes. References: 1: Communications Assistance for Law Enforcement Act - Wikipedia2: Home | CALEA® | The Commission on Accreditation for Law Enforcement Agencies, Inc.3: Communications Assistance for Law Enforcement Act : IAPP CIPP/US Certified Information Privacy Professional Study Guide, Chapter 6: Law Enforcement and National Security Access, p. 177

 The U.S. Constitution plays a limited role in the area of workplace privacy, because it mainly applies to the actions of the government, not private employers. The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures1. The Supreme Court has interpreted this right to include a reasonable expectation of privacy in certain situations, such as in one’s home, car, or personal belongings2. However, this right does not extend to private-sector employees, who are not protected by the Constitution from the actions of their employers, unless the employer is acting as an agent of the government3. Private-sector employees may have some privacy rights under state laws, common law, or contractual agreements, but these vary depending on the jurisdiction and the circumstances4.

Public-sector employees, on the other hand, are protected by the Constitution from unreasonable searches and seizures by their employers, who are considered part of the government. Public-sector employees have a reasonable expectation of privacy in their workplace, unless there is a legitimate work-related reason for the search or seizure, such as to ensure safety, security, or efficiency. Public-sector employers must also comply with the due process and equal protection clauses of the Fifth and Fourteenth Amendments, which prohibit the government from depriving any person of life, liberty, or property without due process of law, or from denying any person the equal protection of the laws. These clauses protect public-sector employees from arbitrary or discriminatory actions by their employers that affect their employment status or benefits.

Therefore, the U.S. Constitution plays a significant role in the area of workplace privacy for federal and state governments, but not for private-sector employment, because it only regulates the actions of the government, not private actors. References:

1: Cornell Law School, Fourth Amendment, https://www.law.cornell.edu/constitution/fourth_amendment

2: FindLaw, What Is a Reasonable Expectation of Privacy?, https://www.findlaw.com/criminal/criminal-rights/what-is-a-reasonable-expectation-of-privacy.html

3: FindLaw, Workplace Privacy, https://www.findlaw.com/smallbusiness/employment-law-and-human-resources/workplace-privacy.html

4: Nolo, Privacy Rights of Employees, https://www.nolo.com/legal-encyclopedia/privacy-rights-employees-29849.html

: OPM, Employee Relations, https://www.opm.gov/policy-data-oversight/employee-relations/reference-materials/employee-privacy/

: Cornell Law School, Fifth Amendment, https://www.law.cornell.edu/constitution/fifth_amendment

: FindLaw, Public Employees and the Constitution, https://www.findlaw.com/employment/employment-rights/public-employees-and-the-constitution.html