By Mike Hintze

When it comes into effect, the Washington My Health My Data Act (MHMDA or the Act) will impose new privacy notice obligations on regulated entities. The Act requires specific privacy disclosures relating to data that meets the very broad definition of “consumer health data.” It appears to require regulated entities to draft, post, link to, and maintain a separate “Consumer Health Data Privacy Policy” that will be largely, but not entirely, redundant of their existing privacy statement(s).

Because the Consumer Health Data Privacy Policy will be publicly available and easily scrutinized by plaintiffs’ lawyers and the Washington Attorney General, mistakes implementing this obligation are likely to be a key source of costly and disruptive litigation. Regulated entities will therefore need to take great care in meeting the Act’s notice requirements which are, in some respects, unusual and unexpected. 

By Mike Hintze & Jevan Hutson

Biometric data is among the broad range of “consumer health data” regulated by the Washington My Health My Data Act (MHMDA). In light of MHMDA’s broad definition of biometric data, GDPR-level consent requirements, new obligations, and private right of action, the Act dramatically changes and complicates the regulation of biometric data in Washington state and is poised to become the most disruptive change in U.S. biometric privacy law since Illinois’ BIPA.

By Mike Hintze

The Washington My Health My Data Act provides consumers with several rights, including a right of access, a right to delete, a right to withdraw consent, and a right to not be discriminated against for exercising their rights. While each of these rights can be found in other privacy laws and so, at a high level, do not seem particularly surprising here, the ways they are included in this Act are unique, create uncertainty, and in some cases go well beyond what exists in any other privacy law.  As a result, regulated entities seeking to comply with them will face difficult, costly, and disruptive implementation challenges (and with respect to the deletion right, the potential for catch-22 situations where full legal compliance may be impossible). These challenges, along with the Act’s private right of action, set up a significant risk of expensive legal claims and litigation.

By Mike Hintze

When it comes into effect, the Washington My Health My Data Act will impose strict consent requirements on a wide range of common data collection and processing activities. In essence, the Act requires affirmative (opt-in) consent for any collection, use, disclosure, or other processing of consumer health data beyond what is necessary to provide a consumer-requested product or service. For anything that could be considered a data “sale,” the authorization requirements are so onerous and risky that they, in effect, create a prohibition.