Building the Blueprint: The Foundation of South Florida’s Tech Evolution Part 3 [Podcast]
In part 3 of the Building the Blueprint podcast miniseries, host Jaret Davis, Senior Vice President of Greenberg Traurig and Co-Managing Shareholder of the Miami office, is joined by GT Shareholder Joshua Forman, who leads the firm’s team in Miami focused on digital infrastructure and data centers. Together, they explore the critical role of data centers in Miami’s tech growth and their broader impact on the global tech ecosystem.
As demand for data continues to grow – fueled by AI, IoT, and remote work – Miami and South Florida are poised to play a key role in this evolving industry. This episode offers insight into the advancements shaping the future of data centers and examines the intersection of tech infrastructure, investment, and innovation in one of the fastest-growing tech hubs in the U.S. Tune in!
Other Transactions: A Flexible and Efficient Acquisition Tool for the Department of Defense
On March 6, 2025, the Defense Secretary released a memorandum directing the Department of Defense (“DoD”) to adopt the Software Acquisition Pathway (“SWP”) to speed up the development, procurement, and delivery of software needed for weapons and business systems. Specifically, the memorandum directed DoD to use Commercial Solutions Openings and Other Transactions (“OTs”) as the default solicitation and award approaches for acquiring capabilities under the SWP. As a result, we are likely to see an expansion in DoD’s use of OTs. Thus, contractors should be aware of the rules and regulations regarding OTs.
Background
While OTs have been in the news a lot these days, they are not a new concept. OTs date back to 1958, when Congress granted the National Aeronautics and Space Administration (“NASA”) the authority to enter into transactions other than contracts, grants, or cooperative agreements in order to foster innovation and speed in the space race.
Since then, Congress has granted OT authority to several other federal agencies, including the Department of Energy, the Department of Health and Human Services, the Department of Homeland Security, the Transportation Security Administration, and the Department of Transportation. However, the most significant and frequent user of OTs has been the DoD.
What is an OT?
An OT is a legally binding agreement that is not subject to most of the federal laws and regulations governing procurement contracts, such as the Federal Acquisition Regulation, the Competition in Contracting Act, the Cost Accounting Standards, and the Contract Disputes Act. An OT can be structured in various ways, depending on the type, purpose, and scope of the project, as well as the needs and interests of the parties. This means that DoD has more discretion and flexibility to negotiate the terms and conditions of an OT, and to tailor them to the specific needs and objectives of the project. This also means that the participants have more freedom and autonomy to conduct their work, and to avoid most of the compliance burdens and administrative costs associated with procurement contracts.
An OT is still subject to certain statutory requirements, such as the Anti-Deficiency Act, the Freedom of Information Act, the False Claims Act, the Anti-Kickback Act, and the Procurement Integrity Act. An OT is also subject to certain policy and oversight considerations, such as the public interest; the protection of human subjects; the safeguarding of classified information; the prevention of fraud, waste, and abuse; and the audit and review by DoD and other agencies. Moreover, an OT—while not a procurement contract—is still a contract in the eyes of the law, and can be enforced and challenged in the courts. As we recently discussed, the Court of Federal Claims (“COFC”) appears to be taking a broader view of its jurisdiction over OTs than it has previously, so we may see more post-award protests for OTs at the COFC.
Because an OT is not subject to many of the federal laws and regulations applicable to procurement contracts, an OT does not automatically provide the same rights and remedies that are available under procurement contracts, such as those relating to equitable adjustments, claims, appeals, protests, and termination settlements. Therefore, the parties to an OT need to carefully consider and negotiate the terms and conditions of their agreement, and also address the risks and responsibilities that may arise during the performance and administration of the project. For example, in addition to basic terms such as the scope of work, deliverables, performance milestones, and payment provisions, the parties may want to negotiate clauses addressing data rights, intellectual property rights, dispute resolution mechanisms, termination procedures, and audit rights.
Types of DoD OTs
The DoD has two main types of OTs: Research and Development OTs and Prototype OTs, the latter of which can lead to production contracts.
Research and Development OTs
Research and Development OTs are utilized for basic, applied, and advanced research projects.10 U.S.C. § 4021(a). Research OTs may be used to pursue research and development of technology with dual-use application (commercial and government). Research OTs may also be used to advance new technologies and processes to evaluate the feasibility or utility of a technology. However, unlike Prototype OTs, DoD cannot transition a Research OT to a follow-on production contract.
Prototype OTs
A Prototype OT can be used for a broad range of projects, including but not limited to (A) a proof of concept, model, or process, including a business process; (B) reverse engineering to address obsolescence; (C) a pilot or novel application of commercial technologies for defense purposes; (D) agile development activity; (E) the creation, design, development, or demonstration of operational utility; or (F) any combination of subparagraphs (A) through (E). 10 U.S.C. § 4022(e)(5). And, for a Prototype OT to be awarded, one of the following conditions must be met: (i) significant participation by a nontraditional defense contractor or a nonprofit research institution; (ii) all significant participants being small businesses or nontraditional defense contractors; (iii) at least one-third of the total cost being covered by non-federal parties; or (iv) exceptional circumstances that justify the use of innovative business arrangements or structures. 10 U.S.C. § 4022(d).
Note that successful completion of a Prototype OT can result in a follow-on production contract without further competition, provided the prototype OT was competitively awarded, and the solicitation and agreement included the possibility of a production contract. This streamlined transition from prototype to production can allow for rapid fielding of new technologies and capabilities—once a prototype has proven its value and effectiveness, DoD can quickly move to production, ensuring that contractors are able to start working on delivering critical technologies without the delays often associated with competitive procurements.
Key Takeaways
DoD’s use of OTs has been steadily growing in recent years, both in terms of the number and the value of agreements. This is only expected to increase further under the current administration. Thus, contractors should keep in mind the following:
Embrace the Flexibility: Recognize that OTs offer a flexible framework that allows for innovative and collaborative agreements. This flexibility can be leveraged to tailor agreements that meet specific project needs without the constraints of traditional procurement regulations.
Leverage Nontraditional Partnerships: Consider forming partnerships with nontraditional defense contractors, research institutions, and consortia. These collaborations can bring diverse expertise and innovative solutions to the table, enhancing the project’s success.
Stay Informed on Legal Requirements: While OTs are exempt from many procurement laws, they are still subject to certain statutory and policy requirements. Ensure compliance with these requirements to avoid legal pitfalls.
Monitor Emerging Trends: Keep an eye on emerging technology areas where the DoD is increasing its use of OTs and position your organization to take advantage of opportunities in these high-priority areas.
Seek Legal Counsel: Given the unique nature of OTs and their legal implications, it is important to consult counsel with experience in federal contracting and OTs to assist in navigating complex legal landscapes and mitigate risks.
CFTC Accepting Whistleblower Award Claims for Financial Grooming Scam
On March 26, the CFTC posted a Notice of Covered Action for a $2.3 million enforcement action taken against a purported digital asset platform for an alleged online romance scam, signaling that the Commissions is accepting whistleblower award claims for the case.
Key Takeaways:
A court judgement found Debiex liable for misappropriating over $2 million in customers’ funds in an online romance fraud scheme
Online romance fraud schemes, including “pig butchering,” are a focus of the CFTC
Qualified CFTC whistleblowers are eligible to receive awards of 10-30% of the funds collected in connection with their disclosure
On March 26, the Commodity Futures Trading Commission (CFTC) posted a Notice of Covered Action (NCA) for a $2.3 million enforcement action taken against a purported digital asset platform for an alleged online romance scam. The NCA signals that the Commission is now accepting whistleblower award claims for the case.
Debiex Pig Butchering Case
The CFTC announced on March 21 that the U.S. District Court for the District of Arizona issued a default judgment against Debiex in response to the CFTC’s enforcement action. The judgement finds Debiex liable for misappropriating over $2 million in customers’ funds.
According to the CFTC, “Debiex’s unidentified officers and/or managers cultivated friendly or romantic relationships with potential customers by communicating falsehoods to gain trust, and then solicited them to open and fund trading accounts with Debiex.”
“Unbeknownst to the customers, and as alleged, the Debiex websites merely mimicked the features of a legitimate live trading platform and the ‘trading accounts’ depicted on the websites were a complete ruse,” the CFTC further claims. “No actual digital asset trading took place on the customers’ behalf.”
The type of online romance scam carried out by Debiex is known as “Sha Zhu Pan” or “Pig Butchering.”
“As the graphic name suggests, these schemes liken the practice of soliciting consumers to participate in a fraudulent investment opportunity to ‘fattening up’ an unsuspecting pig prior to slaughtering it,” CFTC Commissioner Kristin N. Johnson explained in a January statement announcing the charges against Debiex.
The court order bans Debiex from trading in any CFTC regulated markets or registering with the CFTC and requires Debiex to pay a $221,466 civil monetary penalty and over $2.2 million in restitution.
“This judgment demonstrates the CFTC’s ongoing commitment to protecting U.S. citizens from online scams,” said Director of Enforcement Brian Young.
Notice of Covered Action and CFTC Whistleblower Program
The Notice of Covered Action posted by the CFTC for this enforcement action signals that individuals have 90 days to file a whistleblower award claim for the case.
Under the CFTC Whistleblower Program, qualified whistleblowers, individuals who voluntarily provide original information which leads to a successful enforcement action, are eligible to receive monetary awards of 10-30% of the funds collected in the action.
In 2023, the CFTC Whistleblower Office published a whistleblower alert on the ability to anonymously blow the whistle on romance investment frauds and qualify for awards and protections.
“Under the Whistleblower Program of the Commodity Futures Trading Commission (CFTC), individuals may become eligible for both financial awards and certain protections by assisting the CFTC with identifying perpetrators and facilitators of romance investment frauds under the CFTC’s jurisdiction, such as solicitations related to digital assets, precious metals, and/or over-the-counter foreign currency exchange (forex) trading,” the alert reads.
Since issuing its first award in 2014, the CFTC Whistleblower Program has awarded nearly $390 million to qualified whistleblowers. In the 2023 Fiscal Year, the CFTC received a record 1,744 whistleblower tips and issued 12 award orders, the most it has granted in a single year.
Utah Pioneers App Store Age Limits
Utah’s governor recently signed the first law which puts age restrictions on app downloads. The law (the App Store Accountability Act, SB 142), was signed yesterday (Wednesday, April 26, 2025). We anticipate that the law may be challenged, similar to NetChoice’s challenge to the Utah Social Media Regulation Act and other similar state laws.
Once in effect, the law will apply to both app stores and app developers. There are various effective dates – May 7, 2025, May 6, 2026 and December 31, 2026— as outlined below. Among its requirements are the following:
Age Verification: Under the new law, beginning May 6, 2026, app stores will need to verify the age of any user located in the state using “commercially reasonable” measures. Prior to that time, the Division of Consumer Protection will need to create rules that outline how age can be verified. Also starting May 2026, app developers will need to verify age categories “through the app store’s data sharing methods.” Age categories are children (users under age 13), younger teenagers (users between the ages of 13 and 15), older teenagers (users aged 16 or 17), and adults (users aged 18 and up).
Parental Consent/Notification: Beginning May 6, 2026, app stores will need parental before a minor can download or purchase an app, or make in-app purchases. Consent is to be obtained through a parental account that links to the child’s account. At the same time, app developers will need to verify that app stores have parental consent for minors’ accounts. They also have to notify app stores of any significant changes to their apps. When this happens, the app stores will need to notify users and parents of these changes and get parents’ renewed consent. App stores will also need to notify developers any time parents revoke their consent.
Contract Enforcement: Under the new law, beginning May 6, 2026, app stores will not be able to enforce contracts against minors unless they already have consent from the minors’ parents. This applies to app developers as well, unless they verify that the app store has consent from the minor’s parents.
Safe Harbor: The new law contains safe harbor provisions for app developers. Developers won’t be responsible for violating this law if they rely in good faith on information provided by the app store. This includes age information as well as confirmation that parents provided consent for minors’ account. For the safe harbor to apply, developers also need to follow the other rules set out for them by the law (described above).
Putting it into Practice: While we anticipate that this law will be challenged, it signals that states are continuing their focus on laws relating to children in the digital space. This is the first law that is focused on app stores, but we expect to see more in the future.
James O’Reilly contributed to this post.
California Cryobank Hit with Lawsuit over Sperm Donor Databank Breach
California Cryobank, LLC, the largest sperm bank in the country, faces a lawsuit in the U.S. District Court for the Central District of California over an April 2024 data breach. Cryobank provides frozen donor sperm and specialized reproductive health care services, including egg and embryo storage.
Cryobank notified the affected individuals this month that it detected suspicious activity on its network and determined that an unauthorized party gained access to its IT environment and may have accessed files containing personal information.
While sperm is commonly donated anonymously, the information is associated with a donor-assigned ID number. That ID number can then be used by offspring at 18 if they want to learn more about their biological father. Nevertheless, the security incident affected information including, patient names, Social Security numbers, driver’s license numbers, financial account numbers, and health insurance information. The complaint alleges that Cryobank failed to sufficiently protect and secure its patients’ personal and health information. The plaintiff is seeking class certification to include others affected by the data breach.
The complaint states that the individual notifications did not include “the identity of the cybercriminals who perpetrated this Data Breach, the details of the root cause of the Data Breach, the vulnerabilities exploited, and the remedial measures undertaken to ensure such a breach does not occur again.”
The lawsuit asserts claims of negligence, breach of implied contract, and unjust enrichment, as well as violations of the California Unfair Competition Law and Confidentiality of Medical Information Act.
Joint Bulletin Warns Health Sector of Potential Coordinated Multi-City Attack
On March 20, 2025, the American Hospital Association (AHA) and the Health-ISAC issued an alert to the health care sector warning of a social media post that posed a potential threat “related to the active planning of a coordinated, multi-city terrorist attack on hospitals in the coming weeks.” The post targets “mid-tier cities with low-security facilities.”
The alert recommends “that teams review security and emergency management plans and heighten staff awareness of the threat,” including physical security protocols and practices, such as “having a publicly visible security presence.”
The alert, updated on March 26, 2025, indicates that the FBI has not identified a “specific credible threat targeted against hospitals in any U.S. city.” Nonetheless, the threat is concerning, and the recommendations of the AHA and Health-ISAC are worth noting.
Pennsylvania Teacher’s Union Faces Class Action over Data Breach
The Pennsylvania State Education Association (PSEA) faces a class action resulting from a July 2024 data breach. The proposed class consists of current and former members of the union as well as PSEA employees and their family members. The lawsuit alleges that the union was negligent and breached its fiduciary duty when it suffered a data breach that affected Social Security numbers and medical information. The complaint further alleges that the PSEA failed to implement and maintain appropriate safeguards to protect and secure the plaintiffs’ data.
The union sent notification letters in February 2025 informing members that the data acquired by the unauthorized actor contained some personal information within the network files. The letter also stated, “We took steps, to the best of our ability and knowledge, to ensure that the data taken by the unauthorized actor was deleted [. . .] We want to make the impacted individuals aware of the incident and provide them with steps they can take to further protect their information.” The union also informed affected individuals that they did not have any indication that the information was used fraudulently.
The complaint alleges “actual damages” suffered by the plaintiff related to monitoring financial accounts and an increased risk of fraud and identity theft. Further, the complaint states that “the breach of security was reasonably foreseeable given the known high frequency of cyberattacks and data breaches involving health information.”
In addition to a claim of negligence, the class alleges that the breach violates the Federal Trade Commission Act and the Health Insurance Portability and Accountability Act. The class is demanding 10 years of credit monitoring services, punitive, actual, compensatory, and statutory damages, as well as attorneys’ fees.
Personal Information Released in JFK Files
I am not sure what the rush was to make the JFK assassination files available, but the perceived urgency caused Social Security numbers of individuals involved in the investigation to be released to the public. Although The Washington Post found 3,500 Social Security numbers in the documents, it is estimated that many were duplicates, and over 400 individuals were affected.
The Social Security numbers contained in the over 60,000 pages of documents can be accessed online or in person. The Washington Post reported the unauthorized disclosure, and the National Archives then screened the documents “so that the Social Security Administration could identify living individuals and issue them new numbers.”
Unfortunately, the documents were not previously screened for personal information, a basic tenet of protection. It is another message reaffirming that the new administration does not prioritize data security.
Phishing Attacks – Anyone Can Get Owned
HaveIBeenPwned is a website that allows users to check whether their data has been involved in data breaches. The website’s creator, Troy Hunt, was the subject of a phishing attack earlier this week. The attack was unrelated to the HaveIBeenPwned website and compromised Hunt’s personal Mailchimp account.
According to Hunt, he received an email purporting to be from Mailchimp regarding a flag on his account. When he clicked the “Review Account” button, he was taken to a fake Mailchimp domain. Hunt notes in a blog post that he manually entered his credentials and that they did not auto-populate from his password management application as they usually would.
Hunt received and entered a one-time password and was taken to a hung page. Now suspicious, he then reportedly logged into the legitimate Mailchimp site and changed his password, but the phishing attack was likely an automated process. Within minutes, Hunt had already received notification emails from Mailchimp regarding login activity and list exports from another unknown IP address. Hunt noted that the list included approximately 16,000 records, including current and former blog subscribers.
Below is the screenshot shared on Hunt’s blog:
Our conception is that a typical phishing email tends to be poorly worded, involves an unusual payment request, and is a blatantly implausible email. However, this incident demonstrates that phishing attacks are becoming increasingly sophisticated and can happen to anyone.
Takeaways:
Sense of urgency can be subtle – As bad actors become more sophisticated, not all phishing emails will create an unbelievable sense of urgency, such as asking users to update their payment or billing information to unlock an account. In Hunt’s case, he acknowledged that the notification created “just the right amount of urgency without being over the top.” Any email from an organization or person creating a sense of urgency warrants pause and contemplation before clicking or performing any action.
Circumvention of password manager could be a sign – Password managers are designed to autofill credentials on known websites. Hunt realized that his credentials did not populate into the fake Mailchimp site, which, in hindsight, was a potential sign of unusual activity. If a site that typically remembers your credentials requests them, this might be (though it is not always) a sign of a spoofed domain.
One-time passwords are not foolproof – Although multi-factor authentication provides enhanced security over using only usernames and passwords, one-time passwords cannot protect against such automated phishing attacks because once the user enters the one-time password onto the spoofed site, the bad actor now has access to the legitimate account.
Passkeys are more phishing-resistant – A passkey is a password replacement, where a digital credential tied to a user’s account allows them to authenticate into the account. Passkeys rely on biometrics or swipe patterns to sign users into accounts. Passkeys cannot be stolen as easily as passwords because they require the bad actor to have access to users’ biometrics or swipe patterns, which is not readily accessible.
No single tip or trick can help prevent phishing attacks, but remaining vigilant and enacting certain security measures can minimize the chances of becoming subject to such social engineering schemes.
THE WHITE COAT DIDN’T BETRAY YOU—THE PIXEL DID: Judge Keeps Florida Wiretap Case Against Hospital Alive
Greetings CIPAWorld!
Your search history reveals more about you than you might realize. If you’ve ever noticed suspiciously specific medical ads appearing after researching health concerns online, you’re not just being paranoid; you’re witnessing sophisticated tracking technologies at work.
A federal court in Florida handed down a decision that should make us pause before typing that symptom into a healthcare website’s search bar. Here, this case involves a patient who claimed her medical searches on Orlando Health’s website allegedly led to targeted Facebook ads for her specific medical conditions. See W.W. v. Orlando Health, Inc., No. 6:24-cv-1068-JSS-RMN, 2025 U.S. Dist. LEXIS 40038 (M.D. Fla. Mar. 6, 2025).
Judge Julie S. Sneed’s ruling in W.W. v. Orlando Health, Inc. denied most of the healthcare provider’s attempts to dismiss the lawsuit, potentially opening the door for closer scrutiny of how medical websites track and share our sensitive health information. As someone who has researched medical information online in the past (who doesn’t these days?), I wondered exactly what happens when I click that “search” button on my insurance carrier’s website.
The Plaintiff alleged she used Orlando Health’s website to research conditions, including ileostomy, heart problems, and fatty liver disease. She later noticed Facebook advertisements popping up for products related to these exact conditions—ileostomy bags, heart failure treatments, and services from Orlando Health neurologists. Coincidence? Plaintiff didn’t think so, and Judge Sneed found her claims plausible enough to proceed.
However, the medical context elevates this case beyond another privacy suit. The Court noted that Orlando Health operates over 100 medical facilities. It encourages patients to use its website to communicate medical symptoms, conditions, and treatments via the search bar and related webpages, including access to appointment booking and the MyChart patient portal. As such, this wasn’t a casual browsing session but an online extension of the doctor-patient relationship.
What makes this case particularly concerning is the nature of the tracking technology itself. Plaintiff alleges that Orlando Health employed tracking tools that operate largely invisibly to users. Judge Sneed acknowledged this reality, noting these technologies are hidden from users’ view and difficult to avoid, even for the particularly tech-savvy user. This creates a troubling power imbalance—patients have no meaningful way to opt out of tracking that they don’t even know is happening.
Even more fascinating is how the court analyzed the claims of the Florida Security of Communications Act (“FSCA”). I think it’s important I highlight the FSCA… after all, I am a Floridian. The FSCA prohibits the intentional interception of electronic communications, and Orlando Health argued that what was being tracked was merely metadata, not the actual content of communications. But Judge Sneed distinguished this case from previous decisions involving commercial websites.
The key difference? Medical searches reveal something fundamentally private about us. For instance, if I decide to search “cardiologist for heart palpitations,” I’m not just clicking links—I’m communicating sensitive information about my health condition. The Court recognized this distinction, noting that information about a user’s medical conditions and healthcare searches constitutes ‘contents’ protected under these statutes.
To break this down further, the FSCA defines “contents” as “any information concerning the substance, purport, or meaning of that communication.” Fla. Stat. § 934.02(7). The Court emphasized that URLs and search queries on a medical website reflect the message Plaintiff sought to convey to Defendant through its website, thus satisfying the statutory standard. Judge Sneed’s approach relied on Black’s Law Dictionary to define “substance,” “purport,” and “meaning,” grounding her interpretation in long-standing legal usage.
As a result, Judge Sneed determined that W.W. successfully alleged all three required elements for an FSCA claim: (1) that Orlando Health intentionally intercepted her electronic communications, (2) that these interceptions captured protected “contents” under the statute, and (3) that she had not consented to this interception. The Court emphasized that Plaintiff has adequately alleged that the electronic communications she claims were intercepted were ‘contents’ as defined by the FSCA.
Orlando Health relied heavily on a Florida case, Jacome v. Spirit Airlines, Inc., No. 2021-000947-CA-01, 2021 WL 3087860, at *1 (Fla. Cir. Ct. June 17, 2021), which involved “session replay” technology tracking users’ movements on a commercial airline website. But Judge Sneed pointed out three crucial differences: first, Jacome involved different tracking technology in a non-healthcare context; second, the very case Orlando Health relied on actually supported W.W.’s position by acknowledging that medical records deserve protection; and third, other courts facing similar healthcare tracking cases have reached conclusions favorable to patients. The Court held that Plaintiff’s claims are predicated on the tracking tools’ interception of her communications… not on the simple fact that her movements on Defendant’s website were tracked.
Moreover, the Court analyzed multiple cases where similar tracking tools on healthcare websites were found potentially liable under wiretap laws. In A.D. v. Aspen Dental Mgmt., Inc., No. 24 C 1404, 2024 WL 4119153, at *5-7 (N.D. Ill. Sept. 9, 2024), the Northern District of Illinois denied a motion to dismiss, finding that URLs containing search terms about medical conditions constituted protected content. Similarly, in R.C. v. Walgreen Co., 733 F. Supp. 3d 876, 885, 903 (C.D. Cal. 2024), the Court found that when tracking technologies shared information about “sensitive healthcare products” with Meta and Google, resulting in targeted ads, this information “reveal[ed] a substantive message about [the p]laintiffs’ health concerns.”
As such, the ruling on the FSCA claim is principally significant because, as Judge Sneed noted, “the FSCA was modeled after the Wiretap Act, [and] Florida courts construe the FSCA’s provisions in accord with the meaning given to analogous provisions of the Wiretap Act.” W.W., 2025 U.S. Dist. LEXIS 40038, at *7. This means the Court’s interpretation of what constitutes “contents” under the FSCA directly influenced its analysis of the federal Wiretap Act claim.
What I found particularly striking was the Court’s reference to the Ninth Circuit’s decision in In re Zynga Priv. Litig., 750 F.3d 1098 (9th Cir. 2014). While that case found that basic website header information wasn’t protected content, it explicitly stated that “a user’s request to a search engine for specific information could constitute a communication such that divulging a URL containing that search term to a third party could amount to disclosure of the contents of a communication.” This distinction has become crucial in healthcare privacy cases, with courts like the Northern District of California in Doe v. Meta Platforms, Inc., 690 F. Supp. 3d 1064, 1076 (N.D. Cal. 2023), recognizing that “a URL disclosing a ‘search term or similar communication made by the user’ ‘could constitute a communication’ under the [Wiretap Act].”
Next, the Court also looked at similar cases in other jurisdictions. In In re Grp. Health Plan Litig., 709 F. Supp. 3d 707, 712, 718, 720 (D. Minn. 2023), a Minnesota Court determined that technology that “surreptitiously track[ed] users’ interactions on the [defendant’s w]ebsites and transmit those interactions to [Meta]” was actionable under the Wiretap Act. Similarly, in Doe v. Microsoft Corp., No. C23-0718-JCC, 2023 WL 8780879, at *9 (W.D. Wash. Dec. 19, 2023), a Washington Court found similar allegations sufficient under California’s Invasion of Privacy Act (“CIPA”).
The Court’s analysis demonstrated a sophisticated understanding of how modern tracking tools actually function. Judge Sneed described how the Facebook Pixel works, explaining that it causes the user’s web browser to instantaneously duplicate the contents of the communication with the website and send the duplicate from the user’s browser directly to Facebook’s server. In a sense, it’s like having a third person secretly photocopy your private medical forms as you fill them out—except it happens digitally, all without your knowledge. That’s a scary thought.
One crucial legal issue the Court had to address was whether Orlando Health could be liable under the Wiretap Act as a party to the communications. Normally, a party to communications can’t “intercept” them under the law. But Judge Sneed found that the “crime-tort exception” might apply, which creates liability when a party intercepts communications “for the purpose of committing any criminal or tortious act.” 18 U.S.C. § 2511(2)(d). This exception has created a split among federal courts, with some like B.K. v. Eisenhower Med. Ctr., 721 F. Supp. 3d 1056, 1065 (C.D. Cal. 2024) rejecting its application, while others like Cooper v. Mount Sinai Health Sys., Inc., 742 F. Supp. 3d 369, 380 (S.D.N.Y. 2024) have held that “A defendant’s criminal or tortious purpose of knowingly disclosing individually identifiable health information to another person in violation of HIPAA may satisfy the crime-tort exception.”
Let’s just think about this for a moment. When you visit your healthcare provider’s website and search for information about a medical condition, you’re effectively having a private conversation about your health. This is a conversation you reasonably expect to stay between you and your provider. Plaintiff alleges that Orlando Health allowed Facebook and Google to listen to this conversation without her knowledge or consent and then use what they heard to sell her things. That’s not just invasive—it’s monetizing vulnerability. The Complaint even describes Meta Pixel and Google’s APIs duplicating real-time communications and sending them to third-party servers without user awareness.
I remember searching for allergy specialists on my insurance provider’s website, only to suddenly see my social media feeds filled with ads for allergy medications. It felt like someone had been reading over my shoulder—because in a digital sense, they had been. This is a troubling loophole in our digital privacy framework. While HIPAA strictly regulates how healthcare providers handle patient information in traditional contexts, the rules often become murky in digital environments. The law hasn’t caught up to the technology, and it’s essential that case law helps close that gap.
The Court recognized other claims as well, including breach of confidence. Judge Sneed emphasized the profoundly personal nature of health information, quoting Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir. 1998): “One can think of few subject areas more personal and more likely to implicate privacy interests than that of one’s health.” Additionally, the Court also allowed unjust enrichment and breach of implied contract claims to proceed, acknowledging that private health information has economic value that healthcare providers shouldn’t be able to exploit without consent. Judge Sneed agreed that Defendant obtained enhanced advertising services and more cost-efficient marketing from the data disclosures, which plausibly conferred a benefit on Orlando Health without Plaintiff’s consent.
In an interesting development for data privacy attorneys, the Court expressly recognized the economic value of personal health information. As Judge Sneed noted, courts should not “ignore what common sense compels it to acknowledge—the value that personal identifying information has in our increasingly digital economy…. Consumers too recognize the value of their personal information and offer it in exchange for goods and services.” W.W., 2025 U.S. Dist. LEXIS 40038, at *32-33 (quoting In re Marriott Int’l, Inc., 440 F. Supp. 3d 447, 462 (D. Md. 2020)).
Interestingly, the Court did dismiss one claim—invasion of privacy by intrusion upon seclusion—finding that Florida law requires an intrusion into a private “place” rather than merely a private activity. As Pet Supermarket, Inc. v. Eldridge, 360 So. 3d 1201, 1207 (Fla. Dist. Ct. App. 2023) specified, “Florida law explicitly requires an intrusion into a private place and not merely into a private activity.” This reveals a gap in privacy law that has not yet adjusted to the digital age, where violations occur in virtual rather than physical spaces.
The irony here is palpable. Healthcare providers are bound by HIPAA and other regulations that severely restrict how they can share our health information in traditional contexts. Yet some providers may allow tech companies to access this information through their websites with far less oversight.
Judge Sneed’s decision aligns with similar rulings in cases like D.S. v. Tallahassee Mem’l HealthCare, No. 4:23cv540-MW/MAF, 2024 WL 2318621, at *1 (N.D. Fla. May 22, 2024), and Cyr v. Orlando Health, Inc., No. 8:23-cv-588-WFJ-CPT (M.D. Fla. July 5, 2023). In Tallahassee Memorial, the Court denied dismissal of identical claims where a healthcare provider allegedly disclosed patient information to Meta and Google through website tracking. Similarly, in Cyr—another case against Orlando Health itself—the Court found the plaintiff’s claims plausible and worthy of proceeding past the pleading stage. This suggests that Courts are increasingly receptive to these digital privacy concerns in the healthcare context.
All in all, healthcare marketers may need to rethink their digital strategies, and patients might finally gain transparency into how their online health searches are being monetized. The next time you search for symptoms online or book a medical appointment through a website, remember that a seemingly private digital conversation might have more participants than you realize.
From Seizures to Strategy: The U.S. Government’s Move Toward a National Crypto Reserve
Following President Trump’s March 6 Executive Order establishing a Strategic Bitcoin Reserve, released alongside a White House Briefing, the U.S. government has taken its most formal step yet toward integrating digital assets into national economic and security policy. The order outlines a broader strategy to manage and expand the federal government’s holdings of Bitcoin and other designated cryptocurrencies through the creation of a Strategic Bitcoin Reserve and U.S. Digital Asset Stockpile.
While many details remain forthcoming, existing government practices around crypto asset custody, combined with reporting on the administration’s plans, offer a glimpse into how the reserve may operate in practice.
Bitcoin: The Foundation of the Reserve
The executive order calls for the formation of a Strategic Bitcoin Reserve, leveraging the U.S. government’s existing crypto holdings—estimated to exceed 200,000 BTC based on seizures of crypto in connection with illicit activities. These assets are already under federal control and provide a ready base for the reserve.
The Department of Justice (DOJ) has historically overseen management of some of the U.S. government’s crypto assets under its Digital Asset Forfeiture Program. The U.S. government has also contracted with third-party institutional crypto custodians to provide secure custody, wallet management, and liquidation services for seized crypto assets. The U.S. Marshals Service, a unit of the DOJ, has also periodically offered crypto for sale, just as it does with artwork, vehicles and other assets forfeited to the government in various criminal, civil and administrative cases.
However, the White House Briefing points out shortcomings in the U.S. government’s current crypto asset management protocols, including that assets are scattered across multiple Federal agencies, leading to a non-cohesive approach where options to maximize value and security of crypto holdings have been left unexplored. Additional measures could include multi-signature wallet storage, layered access controls, segregated storage (as opposed to pooling crypto assets in one omnibus wallet), strategic portfolio management, and specialized regulatory oversight via the Presidential Working Group on Digital Asset Markets.
Beyond Bitcoin: The Digital Asset Stockpile
In addition to Bitcoin, the executive order also calls for the creation of a U.S. Digital Asset Stockpile, which will include four cryptocurrencies, reportedly selected for their market relevance, technical resilience, and utility in decentralized finance (DeFi) and cross-border settlement use cases. The rationale, as outlined in a White House briefing, is to ensure the United States maintains influence and optionality in emerging blockchain ecosystems while encouraging domestic innovation.
To date, no details have surfaced regarding a formal acquisition program for these assets or how the crypto asset portfolio will be managed.
Putting It Into Practice: The launch of the Strategic Bitcoin Reserve and Digital Asset Stockpile marks a watershed moment in U.S. crypto policy. This policy signals a clear shift toward legitimizing digital assets as sovereign financial instruments and could prompt other nations to consider similar reserves (for our previous discussions on recent developments in the ongoing shift in U.S. crypto policy, see here, here, here, and here). This development also suggests the U.S. intends to play an active role in shaping global crypto governance—not only through regulation, but also through participation and ownership.
ANCIENT TEXTS: Plaintiff Brings Class Action Against Ancient Cosmetics 3 years 364 Days After Text Was Sent
When people tell you the statute of limitations for a TCPA violation is four years– we really mean it.
Back on March 25, 2021 a company called Ancient Cosmetics allegedly sent a marketing text message to a lady named Patrice Gonzalez.
At that time Tom Brady had just won a Super Bowl over the Chiefs, that big ship Ever Given was still stuck in the Suez canal and the Czar was still working in big law.
Yeah, that was a looooong time ago.
But just this week Ms. Gonzalez filed a TCPA class action lawsuit against Ancient Cosmetics over the ancient text messages–what are the odds of that BTW?–and its a great reminder to folks.
Compare!
What you do today in TCPAWorld has consequences for a loooong time to come.
That means you need to be keeping records of consent–especially if you are buying leads–for that entire time.
And yes people WILL sue you 3 years, 364 days after you allegedly violate the TCPA.
Gross, right?
Let those who have ears to hear, hear.