Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Partner

Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Health care apps are one of the most important and growing segments in the ecosystem known as the Internet of Things (IoT). After the recent amendments to the Health Insurance Portability and Accountability Act (HIPAA) that—among other things—broadened the definition of a “Business Associate,” many technology companies found themselves wondering whether they were, or were not, subject to HIPAA. Health and Human Services (HHS) recently issued some guidance, Health App Use Scenarios & HIPAA, that attempts to provide some clarity on these issues for app developers.HIPAA, while broad in some ways, is actually somewhat narrow in its application. It does not apply to all medical information. Instead, it primarily focuses on “Covered Entities,” or CEs. A CE is a health care provider that conducts certain transactions in electronic form, a health care clearinghouse, or a health plan. If your company does not meet those criteria, then it is not a CE, and not subject to HIPAA as a CE.While that analysis is an important step, it is not the final step in assessing whether HIPAA impacts your app. A company that does not meet the definition of a CE can still be a “<a href="https://www.law.cornell.edu/cfr/text/45/160.103" target="_blank" rel="noopener">Business Associate</a>,” or BA—in essence a service provider for a CE—if it receives, maintains, or transmits Personal Health Information (PHI) on behalf of a CE. As we will see, the “on behalf of” language is critical.In the emerging realm of health care apps, another distinction with its own set of acronyms is also important—the difference between an EHR and a PHR. Electronic Health Records (EHRs) are electronic records that are, in essence, created or maintained by a CE or a BA. They are official records that facilitate medical treatment, and they are subject to HIPAA and other medical record requirements. At their core, they are provider-centric records.Personal Health Records (PHRs) are a related but distinct concept. PHRs are medical records that typically are electronic, but consumer-facing and not necessarily part of a patient’s medical file. While related to EHRs and interoperability (that is, the ability of all necessary health care providers to be able to review and place a patient’s medical information into an electronic chart), the purpose of PHRs is to inform patients rather than to serve as the basis for treatment, which is the purpose of an EHR. This distinction is important in understanding the guidance that HHS recently provided.The first scenario that HHS evaluates in its guidance is one that is becoming increasingly common:A consumer downloads a health app to her smartphone. She populates it with her own information. For example, she inputs blood glucose levels and blood pressure readings that she obtained herself using home health equipment.In this scenario, HHS concludes that the app developer is not a BA, and therefore HIPAA doesn’t apply, because the consumer is using the app to create a PHR, and the health care providers are not involved. This scenario is common in the personal health space, and likely applies to some of the health and fitness trackers on the market.The second scenario is also a common one, but it has more of a connection to health care providers:A consumer downloads a health app to her smartphone that is designed to help her manage a chronic condition. She downloads data from her doctor’s EHR through a patient portal, onto her computer and then uploads it into the app. She also adds her own information to the app.Despite the connection to an EHR, HHS does not believe that the app developer is a BA within HIPAA, even though it is receiving PHI from a CE. In this case, the app developer was not hired by the CE to “provide or facilitate” the service; hence, it is not operating “on behalf of” the CE, and in essence the EHR information becomes a PHR once transmitted to the app.The third scenario moves closer to the HIPAA line, but still does not cross it:A doctor counsels a patient that his BMI is too high, and recommends a particular app that tracks diet, exercise, and weight. The patient downloads the app to his smartphone and uses it to send a summary report to his doctor before his next appointment.Despite the transmission of medical information to a CE, and the doctor’s recommendation of the app, HHS does not believe this app developer is a BA. This is again due to the “on behalf of” language in the definition of a BA. In sum, the transmission of information to a CE, by itself, does not make the app developer a BA.Interoperability is a key issue with EHRs, and at times entities will enter into Interoperability Agreements, as explained by HHS in the next scenario:A consumer downloads a health app to her smartphone that is designed to help her manage a chronic condition. A health care provider and the app developer have entered into an interoperability arrangement at the consumer’s request that facilitates the secure exchange of consumer information between the provider EHR and the app. The consumer populates information on the app and directs the app to transmit the information to the provider’s EHR. The consumer is able to access test results from the provider through the app.Despite the transmission of medical information to a CE, as well as an interoperability agreement, the app developer in this case is still not a BA because the agreement was initiated by the consumer. Therefore, even in this scenario, the transmission is not “on behalf of” a CE.The next scenario presented by HHS moves past an agreement initiated by the consumer, and into a scenario that does trigger HIPAA, according to HHS:At direction of her provider, a patient downloads a health app to her smartphone. The provider has contracted with app developer for patient management services, including remote patient health counseling, monitoring of patients’ food and exercise, patient messaging, EHR integration and application interfaces. Information that the patient inputs into the app is automatically incorporated into provider EHR.The key factor for HHS in this scenario is that the provider contracted with the app developer for patient management services that involve creating, receiving, and transmitting PHI, and the app is part of those services.Finally, HHS provided a scenario that is essentially a split or hybrid scenario:A consumer downloads to her smartphone a mobile PHR app offered by her health plan that offers users in its network the ability to request, download and store health plan records and to check the status of claims and coverage decisions. The app also contains the plan’s wellness tools for members, so that they can track their progress in improving their health. The health plan analyzes health information and data about app usage to understand effectiveness of its health and wellness offerings. App developer also offers a separate, direct-to-consumer version of the app that consumers can use to store, manage, and organize their health records, to improve their health habits and to send health information to providers.In this case, the portion of the app that is offered by the health plan triggers HIPAA and the developer is a BA, but this does not extend to the direct-to-consumer side of the business. If the app developer keeps the data separate, then, according to HHS, “the developer does not need to apply HIPAA protections to the consumer information obtained through the ‘direct-to-consumer’ app.” It appears that HHS is unofficially recognizing a hybrid designation for app developers, though the concept is, in actual terms, one <a href="https://www.law.cornell.edu/cfr/text/45/164.103" target="_blank" rel="noopener">more appropriately applied to CEs</a>.HHS offered a series of questions that app developers who are not CEs can ask to determine whether they are a BA:HHS offered a series of questions that app developers who are not CEs can ask to determine if they are or are not a BA:<ul><li>Does your health app create, receive, maintain, or transmit identifiable information?</li><li>Who are your clients? How are you funded?<ul><li>Are your clients covered entities? <ul><li>e.g., hospitals, doctor’s offices, clinics, pharmacies, or other health care providers who conduct electronic transactions;</li><li>health insurance issuers; health or wellness program related to a health plan offered by an employer</li></ul> </li><li>Were you hired by, or are you paid for your service or product by, a covered entity? Or another business contracted to a covered entity?</li><li>Does a covered entity (or a business associate acting on its behalf) direct you to create, receive, maintain or disclose information related to a patient or health plan member?</li></ul> </li></ul>Even though an app developer may not be covered by HIPAA, HHS notes other existing guidance regarding apps, including direction from the Federal Trade Commission. This guidance, as well as any applicable laws, should be considered if HIPAA is not applicable.As the IoT becomes more ubiquitous, novel apps will appear allowing us to gather and process more health information. App developers who wish to create health-related apps should factor this guidance in early so that they can understand the rules of the road and determine whether HIPAA applies.

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Erin Bosman is chair of MoFo’s Class Actions and Mass Torts Practice Group and is a founder and co-head of the Artificial Intelligence Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin M. Bosman

Erin Bosman is chair of MoFo’s Class Actions and Mass Torts Practice Group and is a founder and co-head of the Artificial Intelligence Group. Clients value her business strategy, seeking her comprehensive counsel throughout the product life cycle, especially in high-stakes litigation and product recalls.

Erin Bosman

An orthopedic implant company

A children&rsquo;s monthly subscription service product

A fertility company

A major technology company

A smart fitness equipment company

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Julie Park provides analytic and strategic counsel for issues in product life cycle, product liability and defective products, consumer class actions, and more.

Julie Park

Julie Park | Product Liability Lawyer

Julie Park protects her clients’ products no matter what kind of product issue they face—whether it is planning for new product development, recalling an existing product, or defending clients against product liability or consumer class actions. Drawing on her deep technical and legal expertise, Julie counsels clients on consumer product safety regulation and pharmaceutical and medical device preemption while also managing complex and multijurisdictional litigation both in state and federal court.

Julie Y. Park

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HIPAA and Health Care Apps: Is Your App Covered?

HIPAA and Health Care Apps: Is Your App Covered?