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Who Suffers the Financial Consequences of Identity Theft: the Bank v. Banking Customer?
Compass Bank v. Calleja-Ahedo, 62 Tex. Sup. Ct. J. 260 (2018), No. 17-0065, 2018 LEXIS 1314 (Tex. Dec. 21, 2018)
Texas Privacy Law Essentials
Privacy law is rapidly evolving across the nation, and Texas is no exception. As businesses increasingly rely on data to drive operations, the legal landscape governing the collection, use, and protection of personal information is becoming more complex. Texas has established its own unique set of privacy regulations, including the Texas Identity Theft Enforcement and Protection Act, the Texas Medical Records Privacy Act, and, more recently, the Texas Data Privacy and Security Act. These laws impose significant obligations on businesses and grant enforcement powers to the Texas Attorney General, making compliance a top priority for companies operating within the state. Understanding Texas privacy law requires recognizing its interplay with federal regulations. Laws such as the Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley Act (GLBA), and the Children’s Online Privacy Protection Act (COPPA) set nationwide standards for data protection. However, Texas law often supplements and expands on these federal frameworks, creating a layered regulatory environment. For instance, Texas’s medical privacy laws may impose stricter standards than HIPAA in certain contexts. Business lawyers must appreciate these intersections to effectively advise clients on compliance strategies that mitigate legal risk at both the state and federal levels. Privacy is no longer a niche concern reserved for technology companies; it is a fundamental issue that impacts every business sector. From retail and healthcare to financial services and energy, companies are collecting vast amounts of personal data. A single data breach or non-compliance incident can lead to costly litigation, regulatory penalties, and reputational damage. As trusted advisors, business lawyers must be equipped to guide clients through privacy challenges, helping them not only meet legal requirements but also build consumer trust and maintain a competitive edge in an increasingly data- driven economy.
Consumer Privacy the Texas Way: The Texas Data Privacy and Security Act
On July 1, 2024, a new and expansive state privacy law—the Texas Data Privacy and Security Act (TDPSA)—went into effect in Texas. Another example of a state consumer protection law that complicates a state-by-state information security compliance approach, the TDPSA establishes privacy protection safeguards that apply to companies that conduct business in Texas or offer a product or service consumed by Texas residents and collect, use, store, sell, share, analyze, or process consumers’ personal data. We discuss the legislation and enforcement developments; the mechanics of the TDPSA; consumer rights and protections; controller and processor obligations; and corporate compliance action items.
Data Privacy Issues
Due to the increase in cyber attacks and misappropriation of data from companies of all sizes and across all industries, attorneys, both personally and professionally, face increasing responsibilities to understand and implement strong and robust data protection programs. Attorneys should be aware of the relevant and changing data protection standards, understand how to meet such standards and help clients to do the same, and prepare to react effectively when a data breach occurs.
Privacy and Data Security Law in Texas, An Overview
The import of this article is, hopefully, to make Texas attorneys aware of just how broad the considerations of privacy and data security can be. As the field grows, lawyers in Texas will inevitably have to take privacy and data security issues into account in many varied business issues, in terms of compliance, transactions, and enforcement of rights. It also seems clear that the federal actions to date indicate that there will not be an over-arching action by the U.S. Congress to address privacy matters to the exclusion of state regulation, or if such an action is taken, that it will only create a floor for minimum protections, and states will continue to be able to regulate as long as it is in a manner that is not contrary to the federal scheme. Consequently, Texas lawyers should anticipate a continuing growth in privacy law and regulation in Texas, as well as an increase in privacy claims being asserted in Texas courts. The transactional lawyer in Texas will have to be aware of, and provide allocations for, these risks in the contracts and other legal documents he or she drafts and negotiates for clients.