On May 17, the Federal Trade Commission (“FTC”) announced an enforcement action against Easy Healthcare Corporation (“Easy Healthcare”) alleging that it shared users’ sensitive personal information and health information with third parties contrary to its representations and without users’ affirmative express consent, in violation of Section 5 of the FTC Act.  It also alleges that Easy Healthcare failed to notify consumers of these unauthorized disclosures, in violation of the Health Breach Notification Rule (“HBNR”).  According to the proposed order, Easy Healthcare will pay a $100,000 civil penalty for violating the HBNR and, among other requirements, will be permanently prohibited from sharing users’ personal health data with third parties for advertising purposes.  The FTC also noted that Easy Healthcare will pay a total of $100,000 to Connecticut, the District of Columbia, and Oregon for violating their laws.

Complaint

According to the complaint filed by the Department of Justice (“DOJ”), Easy Healthcare’s fertility application, Premom Ovulation Tracker (“Premom”), allows users to upload, import, and track various personal and health information.  For example, according to the complaint, Premom allows users to add information about their periods or upload images of ovulation test strips. 

The FTC and DOJ allege that Easy Healthcare deceived users because it:

  • Represented that it would not share health information without user consent, when in fact it shared health information with third parties.  The FTC alleged that Easy Healthcare shared health information when it recorded certain user-app interactions (“Custom App Events”), such as where a user logged her fertility, titled the interactions with descriptive names, like “Calendar/Report/LogFertility,” and shared the Custom App Event with AppsFlyer and Google.
  • Represented that it shared only “non-identifiable data” with third-parties, when it actually shared identifiers, including non-resettable device identifiers and precise geolocation, with third-parties, including China-based entities.
  • Represented that it would collect data only for its own analytics or advertising, when in fact it provided data to third parties, including China-based entities, that reserved the right to use data for third party advertising. 

The complaint also alleges that Easy Healthcare committed unfair acts or practices when it failed to implement reasonable privacy and data security measures and transferred users’ health information for advertising purposes without users’ knowledge and without obtaining users’ affirmative express consent. 

Finally, the complaint alleges that Easy Healthcare violated the HBNR by failing to notify users that it shared  users’ identifiable health information without authorization.  The complaint alleges that Easy Healthcare is a vendor of personal health records because the Premom app collects personal health record identifiable health information from multiple sources, including from users (e.g., an image of an ovulation test strip) and Bluetooth thermometers and other third-party apps (e.g. temperature and time stamps of recordings).  In addition, users can manage and control the personal health record identifiable health information in the app.

Proposed Order

The proposed order requires Easy Healthcare to pay $100,000 in civil penalties for violating the HBNR.  The order also permanently prohibits Easy Healthcare from sharing health information with third parties for advertising, and requires it obtain “affirmative express consent” before sharing health information with third parties for other purposes.

The order prohibits future misrepresentations and requires Easy Healthcare to notify individuals, the FTC, and the media for certain security incidents.  It also imposes a number of other requirements, including, among others, that Easy Healthcare notify consumers of the allegations and settlement; direct third parties to delete previously shared data; implement a privacy and information security program and retain information for “only as long as is reasonably necessary” for the purpose for which it was collected; and obtain biennial privacy and information security assessments.

The FTC also noted in its announcement that Easy Healthcare has agreed to pay $100,000 total to Connecticut, the District of Columbia, and Oregon for violating their laws.  Each of these states appear to have worked with the FTC on this matter.

Photo of Libbie Canter Libbie Canter

Libbie Canter represents a wide variety of multinational companies on privacy, cyber security, and technology transaction issues, including helping clients with their most complex privacy challenges and the development of governance frameworks and processes to comply with global privacy laws. She routinely supports…

Libbie Canter represents a wide variety of multinational companies on privacy, cyber security, and technology transaction issues, including helping clients with their most complex privacy challenges and the development of governance frameworks and processes to comply with global privacy laws. She routinely supports clients on their efforts to launch new products and services involving emerging technologies, and she has assisted dozens of clients with their efforts to prepare for and comply with federal and state privacy laws, including the California Consumer Privacy Act and California Privacy Rights Act.

Libbie represents clients across industries, but she also has deep expertise in advising clients in highly-regulated sectors, including financial services and digital health companies. She counsels these companies — and their technology and advertising partners — on how to address legacy regulatory issues and the cutting edge issues that have emerged with industry innovations and data collaborations.

Photo of Anna D. Kraus Anna D. Kraus

Anna Durand Kraus has a multi-disciplinary practice advising clients on issues relating to the complex array of laws governing the health care industry. Her background as Deputy General Counsel to the U.S. Department of Health and Human Services (HHS) gives her broad experience…

Anna Durand Kraus has a multi-disciplinary practice advising clients on issues relating to the complex array of laws governing the health care industry. Her background as Deputy General Counsel to the U.S. Department of Health and Human Services (HHS) gives her broad experience with, and valuable insight into, the programs and issues within the purview of HHS, including Medicare, Medicaid, fraud and abuse, and health information privacy. Ms. Kraus regularly advises clients on Medicare reimbursement matters, the Medicaid Drug Rebate program, health information privacy issues (including under HIPAA and the HITECH Act), and the challenges and opportunities presented by the Affordable Care Act.

Photo of Ariel Dukes Ariel Dukes

Ariel Dukes is an associate in the firm’s Washington, DC office and a member of the Data Privacy and Cybersecurity Practice Group.

Ariel counsels clients on data privacy, cybersecurity, and artificial intelligence. Her practice includes partnering with clients on compliance with comprehensive privacy…

Ariel Dukes is an associate in the firm’s Washington, DC office and a member of the Data Privacy and Cybersecurity Practice Group.

Ariel counsels clients on data privacy, cybersecurity, and artificial intelligence. Her practice includes partnering with clients on compliance with comprehensive privacy laws, FTC and consumer protection laws and guidance, and laws governing the handling of health-related data. Additionally, Ariel routinely counsels clients on drafting and negotiating privacy terms with vendors and third parties, developing privacy notices and consent forms, and responding to regulatory inquiries regarding privacy and cybersecurity topics. Ariel also advises clients on trends in artificial intelligence regulations and helps design governance programs for the development and deployment of artificial intelligence technologies across a number of industries.

Photo of Elizabeth Brim Elizabeth Brim

Elizabeth Brim is an associate in the firm’s Washington, DC office. She is a member of the firm’s Health Care and Data Privacy and Cybersecurity Practice Groups, advising clients on a broad range of regulatory and compliance issues. In addition, Elizabeth maintains an…

Elizabeth Brim is an associate in the firm’s Washington, DC office. She is a member of the firm’s Health Care and Data Privacy and Cybersecurity Practice Groups, advising clients on a broad range of regulatory and compliance issues. In addition, Elizabeth maintains an active pro bono practice.