Privacy & Information Security Law Blog

The Digital Advertising Alliance (“DAA”) recently announced that its members will work “to add browser-based header signals to the set of tools by which consumers can express their preferences” not to be tracked online and will work with browser providers to develop “consistent language across browsers…that describes to consumers the effect of exercising such choice.”

This announcement came on the heels of the Obama administration’s release of a framework for a Consumer Privacy Bill of Rights. The DAA’s agreement represents the industry’s attempt to appease consumer privacy concerns in the face of the growth of online advertising. The DAA represents over 400 advertising and technology companies.

On January 25, 2012, the UK Information Commissioner’s Office (“ICO”) published an initial statement welcoming the European Commission’s proposed new General Data Protection Regulation (the “Proposed Regulation”), and commended the Commission’s efforts to strengthen the rights of individuals, recognize important privacy concepts such as privacy by design and privacy impact assessments, and include accountability requirements.

The American Bar Association’s (“ABA’s”) House of Delegates adopted a non-binding resolution urging courts to consider foreign data protection and privacy laws when resolving discovery issues. The full text of the resolution is as follows:

“RESOLVED, That the American Bar Association urges that, where possible in the context of the proceedings before them, U.S. federal, state, territorial, tribal and local courts consider and respect, as appropriate, the data protection and privacy laws of any applicable foreign sovereign, and the interests of any person who is subject to or benefits from such laws, with regard to data sought in discovery in civil litigation.”

The White House today released its long-awaited report outlining a framework for U.S. data protection and privacy policy. As expected, “Consumer Data Privacy in a Networked World: A Framework for Protecting Privacy and Promoting Global Innovation in the Global Digital Economy” articulates a Consumer Privacy Bill of Rights based on the individual’s right to exercise control over what personal data companies collect from the individual and how companies use the data. The Consumer Privacy Bill of Rights, which reflects principles of fair information practices and applies to personal data, sets forth individual rights for consumers and corresponding obligations of companies in connection with personal data. It also provides for the consumer’s right to:

• transparent privacy and data security practices;
• expect that companies will collect, use and disclose data in a manner consistent with the context in which it was collected;
• have their data handled in a secure manner;
• access and correct personal data;
• set reasonable limits on the personal data that companies collect and retain; and
• have personal data handled by companies with appropriate measures in place to assure they adhere to the Consumer Privacy Bill of Rights.

On February 14, 2012, a joint U.S. congressional committee, including Senators Joseph Lieberman (I-CT), Susan Collins (R-ME), Jay Rockefeller (D-WV) and Dianne Feinstein (D-CA), introduced the Cybersecurity Act of 2012 (the “Act”). Although the legislation appears to have strong bipartisan support, during a February 15 hearing before the Homeland Security and Governmental Affairs Committee, Senator John McCain (R-AZ) indicated that he and six Republican colleagues would propose their own cybersecurity legislation in March.

In its new report, Mobile Apps for Kids: Current Privacy Disclosures are Disappointing, the Federal Trade Commission issues a “warning call to industry that it must do more to provide parents with easily accessible, basic information about the mobile apps that their children use.” The report indicates:

“Parents should be able to learn what information an app collects, how the information will be used, and with whom the information will be shared. App developers also should alert parents if the app connects with any social media, or allows targeted advertising to occur through the app. Third parties that collect user information through apps also should disclose their privacy practices, whether through a link on the app promotion page, the developers’ disclosures, or another easily accessible method.”

On February 16, 2012, the European Court of Justice held in the SABAM vs. Netlog case (C-360/10) that imposing an obligation on social networks to install a “general filtering system” to prevent all users from sharing copyrighted music is disproportionate to the extent that such filters may infringe on user privacy rights or block lawful communications. SABAM, a Belgian copyright association, had filed an injunction against social network provider Netlog that would have required Netlog to install filtering systems to prevent copyright infringements by Netlog users. The Belgian court deciding on the injunction requested a preliminary ruling from the ECJ.

Since October 2011, the Hong Kong Office of the Privacy Commissioner for Personal Data has published three “Guidance Notes” to help data users comply with the Personal Data (Privacy) Ordinance (the “Ordinance”). These Notes are not legally binding, nor are they intended to serve as an exhaustive guide to the application of the Ordinance, but they provide good, practical examples and tips that the Commissioner has developed as it has implemented the Ordinance.

On January 25, 2012, the Article 29 Working Party (the “Working Party”) issued a Working Document providing guidance on data protection issues relating to the European Patients Smart Open Services (“epSOS”) project. epSOS is a pilot project focused on developing an information and communications technology infrastructure that enables access to patient health information (i.e., Patient Summaries) among different EU Member States for the purpose of providing medical treatment. The project also aims to facilitate the cross-border use of electronic prescriptions (i.e., ePrescriptions). epSOS involves the collaboration of a significant number of health care provider organizations and companies that contribute their knowledge and expertise to the project.

On July 13, 2011, Hong Kong’s Personal Data (Privacy) (Amendment) Bill 2011 (the “Bill”), was introduced in the Legislative Council. Although the Bill has not yet been subject to an official vote, there have been several noteworthy developments.

Monetary penalties are one mechanism in a suite of tools that the UK Information Commissioner’s Office (“ICO”) uses to encourage compliance with data protection regulations. The ICO generally uses monetary penalties to sanction deliberate or negligent breaches of the law, but the purpose is not to impose financial hardship but rather to “act as an encouragement towards compliance, or at least as a deterrent against non-compliance.” The following is a brief overview of the ICO’s authority to issue monetary penalties.

On February 7, 2012, the UK Ministry of Justice launched its Call for Evidence on the European Commission’s proposed general data protection regulation and criminal justice data protection directive (the “Proposals”). The Ministry is looking to gain perspective and solicit feedback on how the Proposals likely would impact organizations and individuals in the UK.

On February 6, 2012, the Federal Trade Commission warned six marketers of background screening mobile applications that they may be violating the Fair Credit Reporting Act (“FCRA”). In a sample letter posted on the FTC website, the FTC indicates that at least one of the recipient marketer’s mobile apps involves background screening reports that include criminal history checks. Pursuant to the FCRA, this could make the marketers of the mobile apps “consumer reporting agencies” if they are “providing information to employers regarding current or prospective employees’ criminal histories [that] involves the individuals’ character, general reputation, or personal characteristics.”

The Ministry of Industry and Information Technology of the People’s Republic of China (the “MIIT”) recently issued a regulation entitled “Several Provisions on Regulating Market Orders of Internet Information Services” (the “New Regulations”). The New Regulations, which will take effect on March 15, 2012, include significant new data protection requirements applicable to Internet information service providers (“IISPs”). Consistent with data protection regimes currently in place elsewhere in the world, IISPs will be required to provide much stronger protection for the personal data they collect from users in China, and will be subject to notice and consent requirements, collection limitations and use limitations.

As reported in the Hunton Employment & Labor Perspectives Blog, last week, the NLRB’s Acting General Counsel, Lafe Solomon, released a second report containing guidance relating to employee use of social media. This report comes less than six months after the release of the NLRB’s first report on the subject in August 2011. Like the August report, the new release summarizes a number of recent cases decided by the NLRB in which an employee was terminated at least in part because of his or her comments on social media websites.

Read the full post, which discusses key themes that emerge ...

In recent weeks, regulators in California and Illinois have issued guidance on responding to data security breaches, while UK and California authorities released online forms for organizations to use when providing notification of a breach to regulators.

In December 2011, the UK Information Commissioner’s Office (“ICO”) released a new breach notification form, reinforcing its expectation that organizations provide notification whether or not such notification is legally required. Sector-specific breach notification requirements were introduced in the UK by The Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011, and since May 2011, public electronic communication service providers have been required to notify the ICO, and in some cases affected individuals, in the event of a data security breach. All other organizations are strongly encouraged to notify the ICO of serious security breaches, and the fact that an incident was reported voluntarily is something the ICO takes into consideration when determining the appropriate enforcement action.

Throughout 2011, the UK Information Commissioner’s Office (“ICO”) escalated its use of data protection audits, encouraging organizations to submit to voluntary audits and seeking to increase its ability to conduct compulsory audits. Currently, the ICO has the authority to compel central government departments to undergo audits, but it would like to extend compulsory audits to include local government, the national health service and the private sector.

On January 26, 2012, the German Data Protection Commissioners (“DPAs”) of the federal states Rhineland-Palatinate and Hesse held a joint press conference to present their views on the European Commission’s legislative proposal for a comprehensive reform of current EU data protection rules. The day before, the European Commission proposed replacing the existing EU Data Protection Directive 95/46/EC with a Regulation that would be directly applicable in all European Member States and therefore not require implementing legislation on the national level.