Miscellaneous Privacy-Related Laws - Articles

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13Jan

Miscellaneous Privacy-Related Laws

Freedom of Information Act (FOIA)

5 U.S.C. § 552
The Freedom of Information Act (FOIA) requires all agencies of the executive branch to disclose federal agency records or information upon receiving a written request from any individual, except for those records or portions that are protected from disclosure.

  • Types of records include medical, benefit, personnel, burial, financial, audits, administrative investigations, legal opinions, and contracts.
  • Any record may be obtained through the FOIA, provided that the record is not exempt from release by one of the nine FOIA exemptions.

Privacy Act of 1974

5 U.S.C. § 552a

The Privacy Act of 1974 governs the collection, use, and dissemination of a record about an individual maintained by federal government contractors.

  • The Act defines a record as “any item, collection, or grouping of information about an individual that is maintained by an agency and contains his or her name or another personal identifier.”
  • The Act prohibits the disclosure of any record maintained in a system of records to any person or agency without the written consent of the record subject, unless the disclosure falls within any of twelve exceptions to disclosure.
  • The Act allows most individuals to seek access to records about themselves, and requires that personal information in agency files be accurate, complete, relevant and timely.

Telemarketing and Consumer Fraud and Abuse Prevention Act

15 U.S.C. §§ 6101-6108
The Telemarketing and Consumer Fraud and Abuse Prevent Act directs the Federal Trade Commission (FTC) to promulgate rules prohibiting deceptive telemarketing acts or practices.

  • Addresses specific aspects of telemarketing, and empowers the Federal Trade Commission (FTC) to issue the Telemarketing Sales Rule (TSR).
  • The Act requires the Commission to promulgate regulations that:
    • Define and prohibit deceptive telemarketing acts or practices;
    • Prohibit telemarketers from engaging in a pattern of unsolicited telephone calls that a reasonable consumer would consider coercive or an invasion of privacy;
    • Restrict the hours of the day and night when unsolicited telephone calls may be made to consumers; and
    • Require disclosure of the nature of the call at the start of an unsolicited call made to sell goods or services.

Telemarketing Sales Rule (TSR)

16 C.F.R. Part 310
The Telemarketing Sales Rule (TSR) is the rule promulgated by the Federal Trade Commission (FTC) that prohibits misrepresentations and requires telemarketers to give certain disclosures and stop unwanted telemarketing calls.

  • Telemarketing Sales Rule covers telemarketing - any plan, program, or campaign to sell goods or services through interstate telephone calls.
  • Applies to any persons or companies that take part in any plan, program, or campaign to sell goods or services through interstate telephone calls must comply with the Rule.
  • Telemarketers must disclose at the outset of the call: the name of the seller and that the call is being made for sales purposes.
    • If there is a purchase, the telemarketer must also disclose the total charge, whether there are restrictions and if a refund policy applies.
    • Sweepstakes telemarketing must also disclose:  that no purchase is necessary to participate, the odds of winning, and if a cost applies to participate.
  • Calls cannot be initiated before 8 A.M. or after 9 P.M. in the recipient's time zone.
  • Telemarketers must records of advertisements, sales records, and employee records.
  • Does not apply to survey research calls.

Federal Trade Commission (FTC) Act

15 U.S.C. §§ 41-58
The Federal Trade Commission Act (FTC Act) prohibits unfair and deceptive trade practices and authorizes the Federal Trade Commission (FTC) to enforce penalties against those practices.

  • Under this Act, the Commission is empowered, among other things, to (a) prevent unfair methods of competition, and unfair or deceptive acts or practices in or affecting commerce; (b) seek monetary redress and other relief for conduct injurious to consumers; (c) prescribe trade regulation rules dealing with specific acts or practices that are unfair or deceptive, and establishing requirements designed to prevent such acts or practices; (d) conduct investigations relating to the organization, business, practices, and management of entities engaged in commerce; and (e) make reports and legislative recommendations to Congress.
  • Section 5 of the FTC Act (15 U.S.C. § 45) prohibits “unfair or deceptive acts or practices in or affecting commerce”.
    • The prohibition applies to all persons engaged in commerce, including banks.
  • An act or practice is unfair where it:
    • Causes or is likely to cause substantial injury to consumers;
    • Cannot be reasonably avoided by consumers; and
    • Is not outweighed by countervailing benefits to consumers or to competition.
  • An act or practice is deceptive where:
    • A representation, omission, or practice misleads or is likely to mislead the consumer;
    • A consumer’s interpretation of the representation, omission, or practice is considered reasonable under the circumstances; and
    • The misleading representation, omission, or practice is material.


Sarbanes-Oxley Act of 2002 (SOX)

Pub.L. 107-204, 116 § 745
The Sarbanes-Oxley Act primarily addresses corporate governance and financial practices.
The Act imposes duties to create, maintain, review and test internal controls in publicly-traded companies. A company's annual report must assess and confirm the effectiveness of the internal control structure and procedures for financial reporting, which should include reports on data security.


Human Subjects Research

Protection of Human Subjects
Code of Federal Regulations, Title 21, Chapter 1, Part 50
The Protection of Human Subjects is the Federal Drug Administration’s (FDA) regulation regarding the research and testing of human subjects. The FDA is an section within HHS that regulates activities involving clinical investigations of drugs, biological products and medical devices.

Office of Human Protections Research
The Office of Human Protections Research provides information regarding protection of human subjects that are involved in research that is conducted or supported by the U.S. Department of Health and Human Services (HHS).

The information provided in this document should not be construed as, or substituted for, legal advice. It is provided for informational purposes only. It is advisable to consult with private counsel on the precise scope and interpretation of any given laws and legislation and their impact on your particular business.

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