Privacy & Information Security Law Blog

On June 13, 2022, the U.S. Department of Health and Human Services Office for Civil Rights (“OCR”) released guidance to help covered entities understand how they can use remote communication technologies for audio-only telehealth in compliance with the HIPAA Privacy and Security Rules (the “Guidance”). Specifically, the Guidance clarifies how audio-only telehealth can be conducted after OCR’s Notification of Enforcement Discretion for Telehealth (the “Telehealth Notification”), put in place during the COVID-19 pandemic, is no longer in effect.

On May 29, 2022, the Maryland legislature enacted House Bill 962, which amends Maryland’s Personal Information Protection Act (the “Act”). The amendments update and clarify various aspects of the Act, including, but not limited to, the timeframe for reporting a data breach affected individuals, and content requirements for providing notice to the Maryland Attorney General.

On June 16, 2022, Industry Minister François-Philippe Champagne and Justice Minister David Lametti introduced the Digital Charter Implementation Act, 2022 (Bill C-27), a bill that would overhaul Canada’s existing legal framework for personal information protection in the private sector. In the Canadian government’s news release, Industry Minister Champagne stated that Bill C-27, if enacted, will “give businesses clear rules to support their efforts to innovate with data and will introduce a new regulatory framework for the responsible development of artificial intelligence systems, while recognizing the need to protect young people and their information.” Bill C-27 is similar to former Bill C-11, which died in the 2021 legislative session. 

On June 10, 2022, the Centre for Information Policy Leadership at Hunton Andrews Kurth published a white paper entitled “Local Law Assessments and Online Services – Refining the Approach to Beneficial and Privacy-Protective Cross-Border Data Flows A: Case Study from British Columbia.” The paper discusses recent developments in British Columbia that demonstrated a recognition by law- and policy-makers of the importance of cross-border data flows to an efficient and effective public sector.

On April 29, 2022, the National Information Security Standardization Technical Committee of China issued a draft version of the Cybersecurity Standard Practice Guidelines – Technical Specification on Certification of Personal Information Cross-border Transfer Activities (the “Guidelines”). The public comment period for the Guidelines closed May 13, 2022. The Guidelines establish the basic requirements for personal information protection certifications, which are one of four cross-border transfer mechanisms permitted under Article 38 of China’s Personal Information Protection Law (“PIPL”).

On May 27, 2022, Vermont Governor Phil Scott signed H.515, making Vermont the twenty-first state to enact legislation based on the National Association of Insurance Commissioners Insurance Data Security Model Law (“MDL-668”). The Vermont Insurance Data Security Law applies to “licensees”—those licensed, authorized to operate or registered, and those required to be licensed, authorized or registered, under Vermont insurance law, with few exceptions. The new law generally follows MDL-668’s provisions, adopting the model law’s broad definition of nonpublic information and requiring licensees to, in part, maintain a written information security program (“WISP”) and investigate cybersecurity incidents. Unlike other state laws based on MDL-668, however, the Vermont Insurance Data Security Law declines to establish separate cybersecurity event notification requirements for licensees.

On May 26, 2022, California Attorney General Rob Bonta issued a press release reminding health app providers that California’s Confidentiality of Medical Information Act (“CMIA”) applies to mobile apps that are designed to store medical information, which includes health apps such as fertility trackers. The press release reminds health app providers that the CMIA requires businesses to preserve the confidentiality of medical information and prohibits the disclosure of medical information without proper authorization. It also urges mobile app providers to adopt robust security and privacy measures to protect reproductive health information. According to the press release, this should include, at a minimum, “assess[ing] the risks associated with collecting and maintaining abortion-related information that could be leveraged against persons seeking to exercise their healthcare rights.”

On June 1, 2022, Thailand’s Personal Data Protection Act (“PDPA”) entered into force after three years of delays. The PDPA, originally enacted in May 2019, provides for a one-year grace period, with the main operative provisions of the law originally set to come into force in 2020. Due to the COVID-19 pandemic, however, the Thai government issued royal decrees to extend the compliance deadline to June 1, 2022. 

On May 25, 2022, Twitter reached a proposed $150 million settlement with the Department of Justice (“DOJ”) and the Federal Trade Commission to resolve allegations that the company deceptively used nonpublic user contact information obtained for account security purposes to serve targeted ads to Twitter users. In a complaint filed in federal court, the government alleged that Twitter violated both the FTC Act and a 2011 FTC Order by misrepresenting the extent to which the company maintained and protected users’ nonpublic contact information. The proposed settlement would require Twitter to pay $150 million in civil penalties and implement a comprehensive privacy and information security program “with extensive procedures to safeguard user information and assess internal and external data privacy risks.”

As reported in the Hunton Employment & Labor Perspectives Blog:

Assembly Bill 1651, or the Workplace Technology Accountability Act, a new bill proposed by California Assembly Member Ash Kalra, would regulate employers and their vendors regarding the use of employee data. Under the bill, data is defined as “any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular worker, regardless of how the information is collected, inferred, or obtained.”  Examples of data include personal identity information; biometric information; health, medical, lifestyle, and wellness information; any data related to workplace activities; and online information. The bill confers certain data rights on employees, including the right to access and correct their data. 

In April 2022, two states enacted insurance data security legislation based on the National Association of Insurance Commissioners (“NAIC”) Insurance Data Security Model Law (MDL-668). Kentucky Governor Andy Beshear signed HB 474 into law on April 8, 2022, and Maryland Governor Larry Hogan signed SB 207 into law on April 21, 2022. The new laws establish data security obligations for insurance carriers and generally require carriers to take the following actions, subject to certain exemptions:

On April 28, 2022, the Federal Trade Commission published a Notice of Proposed Rulemaking (“NPRM”) and an Advance Notice of Proposed Rulemaking (“ANPRM”), proposing several updates to the Telemarketing Sale Rules (“TSR”).

On April 28, 2022, India issued new guidance relating to “information security practices, procedure, prevention, response and reporting of cyber incidents for Safe & Trusted Internet.” Notably, the guidance requires “service providers, intermediary, data centre, body corporate and Government organizations” to report cyber incidents to India's Computer Emergency Response Team (“CERT-In”) within six hours of noticing such incidents or being notified about such incidents. Before this guidance, notification of a cyber incident was required "within a reasonable time” after occurrence or discovery.

On April 5, 2022, North Carolina became the first state in the U.S. to prohibit state agencies and local government entities from paying a ransom following a ransomware attack.

North Carolina’s new law, which was passed as part of the state’s 2021-2022 budget appropriations, prohibits government entities from paying a ransom to an attacker who has encrypted their IT systems and subsequently offers to decrypt that data in exchange for payment. The law prohibits government entities from even communicating with the attacker, instead directing them to report the ransomware attack to the North Carolina Department of Information Technology in accordance with G.S. 143B‑1379.

On April 21, 2022, the United States, Canada, Japan, Singapore, the Philippines, the Republic of Korea and Chinese Taipei published a declaration (the “Declaration”) establishing the Global Cross-Border Privacy Rules Forum (the “Global CBPR Forum”). The Global CBPR Forum will establish an international certification system based on the existing APEC Cross-Border Privacy Rules (“CBPR”) and Privacy Recognition for Processors (“PRP”) Systems, enabling participation beyond APEC member economies. The Global CBPR and PRP Systems, as they will be known, are designed to support the free flow of data and effective data protection, and enable interoperability with other privacy frameworks.

On April 11, 2022, Federal Trade Commission Chair Lina Khan spoke at the opening of the International Association of Privacy Professionals’ Global Privacy Summit. This speech marks Khan’s first major privacy address since her appointment last June.

On April 8, 2022, the New York Bar issued an opinion to protect “confidential” client identity information stored on an attorney’s smartphone. In particular, the opinion prohibits an attorney who stores “confidential” (as defined under Rule 1.6 of the New York Rules of Professional Conduct) client identity information in the attorney’s “contacts” folder on the attorney’s smartphone from consenting to share their “contacts” with a smartphone app, unless certain criteria are met.

On April 7, 2022, the European Data Protection Board (the “EDPB”) released a statement on the announcement of a new Trans-Atlantic Data Privacy Framework (the “Statement”).

On March 18, 2022, Indiana Governor Eric Holcomb signed into law an amendment to Indiana’s data breach notification statute. The amendment requires notification of a data breach to affected individuals and the Indiana Attorney General without unreasonable delay, but no later than forty-five (45) days after discovery of the breach. The amendment will take effect on July 1, 2022.

On January 18, 2022, New Jersey Governor Phil Murphy signed into law Assembly Bill No. 3950, requiring employers to provide written notice to employees prior to the use of tracking devices in vehicles used by employees (the “Act”). The Act will go into effect on April 18, 2022.

On March 29 and March 30, 2022, the California Privacy Protection Agency (“CPPA”) will hold public pre-rulemaking informational sessions regarding the California Privacy Rights Act (“CPRA”) via video conference. As we previously reported, the CPPA, which has rulemaking authority under the CPRA and will be responsible for implementing and enforcing the CPRA, recently estimated that it will not publish final CPRA regulations until the third or fourth quarter of 2022.

On March 25, 2022, the European Commission and United States issued a joint statement announcing an agreement in principle on a new Trans-Atlantic Data Privacy Framework (the “Joint Statement”).

On March 15, 2022, the Federal Trade Commission (FTC) announced a proposed settlement with custom merchandise platform CafePress in connection with the company’s alleged failure to implement reasonable security measures, and its alleged attempt to cover up a 2019 data breach. The proposed settlement would require CafePress to implement a comprehensive data security program and pay $500,000 in redress to affected individuals.

The Federal Trade Commission has reached a settlement with WW International, Inc. and Kurbo, Inc. over allegations the companies improperly registered children for the “Kurbo by WW” online weight loss management program. In pleadings filed on February 16, 2022, in federal court in the Northern District of California, the FTC claims WW and Kurbo offered a service that was tailored for children but that failed to ensure parental involvement in the registration process. According to the FTC, the defendants created an age gate that children could easily evade, and that ...

On February 14, 2022, Texas Attorney General Ken Paxton brought suit against Meta, the parent company of Facebook and Instagram, over the company’s collection and use of biometric data. The suit alleges that Meta collected and used Texans’ facial geometry data in violation of the Texas Capture or Use of Biometric Identifier Act (“CUBI”) and the Texas Deceptive Trade Practices Act (“DTPA”). The lawsuit is significant because it represents the first time the Texas Attorney General’s Office has brought suit under CUBI.

On January 28, 2022, in celebration of Data Privacy Day, the Colorado Attorney General’s Office issued prepared remarks from Colorado Attorney General Phil Weiser and published guidance on data security best practices. In his remarks, Attorney General Weiser highlighted the importance of protecting data security and outlined his office’s plans for implementing the Colorado Privacy Act (“CPA”), which takes effect July 1, 2023.

On February 2, 2022, the Secretary of State placed the UK Information Commissioner’s Office's (“ICO's ”) final international data transfer agreement (“IDTA”) and international data transfer addendum to the European Commission’s standard contractual clauses (“SCCs”) for international data transfers (“Addendum”) before the European Parliament. The IDTA and Addendum are set to come into force on March 21, 2022, but the ICO advises that they are of use to organizations immediately. The ICO also has stated that it intends to publish additional guidance on use of the IDTA and Addendum.

View the ICO’s final drafts of the IDTA and Addendum.

Organizations increasingly use artificial intelligence- (“AI”) driven solutions in their day-to-day business operations. Generally, these AI-driven solutions require the processing of significant amounts of personal data for the AI model’s own training, which often is not the purpose for which the personal data originally was collected. There is a clear tension between such further use of vast amounts of personal data and some of the key data protection principles outlined in EU privacy regulations. On the occasion of Data Privacy Day 2022, Hunton privacy attorneys ...

On November 14, 2021, the Cyberspace Administration of China (“CAC”) released for public comment its draft Regulations on Network Data Security Management (the “Draft Regulations”). The Draft Regulations are intended to implement portions of three existing laws – the Cybersecurity Law (“CSL”), the Data Security Law (“DSL”) and the Personal Information Protection Law (“PIPL”) (together, the “Three Laws”) – by providing guidance on certain provisions and establishing specific requirements for implementing certain principles contemplated in the Three Laws. In addition, the Draft Regulations add new requirements related to data processing activities. Once effective, the Draft Regulations will impose even greater compliance obligations on companies than the PIPL.

On December 17, 2021, the European Commission announced that it had adopted its adequacy decision on the Republic of Korea. The adequacy decision allows for the free flow of personal data between the EU and Korea, without any further need for authorization or additional transfer tool. The adequacy decision also covers transfers of personal data between public authorities.

On  November 27, 2021, the UAE Cabinet Office enacted its first federal Personal Data Protection Law (Federal Decree Law No. 45 of 2021, the “UAE Data Protection Law”). The UAE Data Protection Law will come into force on January 2, 2022.

On December 2, 2021, the Transportation Security Administration (“TSA”) announced that it issued two security directives requiring higher-risk freight railroads, passenger rail and rail transit to implement measures to strengthen cybersecurity within the sector. In its press release, the TSA stated that it determined these requirements needed to be issued immediately to protect the transportation sector. The TSA also stated that it sought input from industry stakeholders and federal partners, including the Cybersecurity and Infrastructure Security Agency (“CISA”), in developing its approach.

On November 17, 2021, the Senate Committee on Commerce, Science, and Transportation held its confirmation hearing on FTC Commissioner nominee, Alvaro Bedoya.

On November 8, 2021, law enforcement agencies in both the United States and European Union announced that a series of actions, including a number of arrests, were taken against the Russia-linked ransomware group, “REvil.” The U.S. Department of Justice (the “DOJ”) unsealed documents relating to an August indictment against two individuals in Dallas for alleged involvement in REvil ransomware attacks against several U.S. businesses. The European authorities, Europol, also announced that police in Romania and South Korea had arrested five people alleged to be REvil affiliates.

Beginning in 2022, Apple and Google will impose new privacy requirements on mobile apps available for download in the Apple App Store and Google Play Store, respectively. As described further below, Apple’s new account deletion requirement will apply to all mobile app submissions to the Apple App Store beginning January 31, 2022. Similarly, Google’s new Data Safety section will launch in February 2022, and app developers will be required to submit to the Google Play Store Data Safety forms and Privacy Policies by April 2022.

On October 21, 2021, the Consumer Financial Protection Bureau (“CFPB”) issued orders to Google, Apple, Facebook, Amazon, Square and PayPal requesting detailed information about their business practices in relation to payment systems they operate. The CFPB issued the orders pursuant to its statutory authority under the Consumer Financial Protection Act.

On September 28, 2021, Senators Gary Peters (D-MI) and Rob Portman (R-OH), Chairman and Ranking Member of the Homeland Security and Government Affairs Committee, respectively, introduced a bipartisan bill (the “Bill”) that would require owners and operators of critical infrastructure to notify the Director of the Cybersecurity and Infrastructure Security Agency (“CISA”) within 72 hours of having a reasonable belief that a covered cyber incident has occurred. Additionally, the Bill would require most entities (including businesses with 50 or more employees) that make ransom payments following ransomware attacks to report those payments to the CISA within 24 hours of payment. Notably, any entity required to submit a ransom payment report would first be required to conduct a due diligence review of alternatives to paying ransom, including an analysis of whether recovery from the ransomware attack is possible through other means, before making such a ransom payment. Critical infrastructure owners and operators also would be required to provide supplemental reports to the CISA in light of new or different information becoming available. All entities subject to these requirements would face data preservation obligations.

On September 29 and 30, 2021, the U.S. Senate Committee on Commerce, Science and Transportation convened hearings on how to better protect consumer and children’s privacy.

On October 1, 2021, Connecticut’s two new data security laws become effective. As we previously reported, the new laws modify Connecticut’s existing breach notification requirements and establish a safe harbor from certain Connecticut Superior Court assessed damages for businesses that create and maintain a written cybersecurity program.

On September 14 and 15, 2021, the National Institute of Standards and Technology (“NIST”) held a public workshop, as part of its effort to create a consumer labeling program to communicate the security capabilities of consumer Internet of Things (“IoT”) devices and software development practices, as mandated by the Biden administration’s May 2021 Executive Order on Improving the Nation’s Cybersecurity. NIST, in coordination with the Federal Trade Commission  and other agencies, must identify the criteria and components of such a labeling program by February 6, 2022.

On September 1, 2021, the Federal Trade Commission banned Support King, LLC, the operator of SpyFone.com (“SpyFone”), and its CEO, Scott Zuckerman, from offering, promoting, selling or advertising any surveillance app, service or business. The FTC alleged SpyFone allowed purchasers to illegally surveil other individuals by surreptitiously monitoring a device user’s activity without the device user’s knowledge. The FTC also alleged that SpyFone failed to safeguard such illegally harvested personal information by failing to put in place basic security measures.

On August 9, 2021, Baltimore joined Portland, Oregon and New York City in enacting a local ordinance regulating the private sector’s use of facial recognition technology. Baltimore’s ordinance will become effective on September 8, 2021. Read our earlier post for more details about Baltimore’s ban on the use of facial recognition technology by private entities and individuals within its city limits.

On September 2, 2021, Ireland’s Data Protection Commission (“DPC”) announced a fine of €225 million ($266 million) against WhatsApp Ireland Ltd (“WhatsApp”) for failure to meet the transparency requirements of Articles 12-14 of the EU General Data Protection Regulation (“GDPR”). This fine represents a more than four-fold increase in the €30-50 million fine that was proposed in a draft decision issued by the DPC in December 2020. Due to the cross-border nature of WhatsApp’s data processing activities, the DPC’s draft decision was reviewed by other relevant supervisory authorities, as required by the cooperation and consistency mechanism under Chapter VII of the GDPR. Eight other EU regulators objected to the DPC’s draft decision. Their objections were referred to the European Data Protection Board (“EDPB”), in accordance with the dispute resolution procedure under Article 65(1)(a) of the GDPR, after the DPC failed to reach a consensus with the objecting regulators.

On September 1, 2021, the South Korean Personal Information Protection Commission (“PIPC”) issued fines against Netflix and Facebook for violations of the Korean Personal Information Protection Act (“PIPA”).

On August 19, 2021, the UK Information Commissioner’s Office (“ICO”) approved the criteria for three certification schemes, as required under Article 42(5) of the UK General Data Protection Regulation (“UK GDPR”). Certification schemes are one method for organizations to demonstrate compliance with the UK GDPR.

On August 26, 2021, the UK Department of Culture, Media and Sport (“DCMS”) made news by publishing a document indicating its intent to begin making adequacy decisions for UK data transfers to foreign jurisdictions and by announcing its preferred candidate for the position of new UK Information Commissioner.

Laura Liguori of Portolano Cavallo reports that on June 10, 2021, the Italian Data Protection Authority (Garante or “DPA”) adopted a new version of its guidelines for cookies and other tracking mechanisms (the “Guidelines”).

On July 31, 2021, Zoom Video Communications, Inc. (“Zoom” or the “Company”) agreed to pay $85 million to settle a class action suit that alleged the Company violated users’ privacy rights by misleading consumers about encryption security, sharing data through third-party integrations without adequate notice or consent, and failing to protect private meetings from being disturbed by “zoombombings.” Class members would be eligible to receive payment, regardless of whether they paid for a Zoom account.

On July 20, 2021, the U.S. Department of Homeland Security’s (“DHS’s”) Transportation Security Administration (“TSA”) announced a new Security Directive (the “Second Directive”) requiring owners and operators of certain critical pipelines transporting hazardous liquids and natural gas to implement specific cybersecurity measures. This Second Directive builds on the TSA’s earlier directive of May 27, 2021, on which we previously reported.

Connecticut recently passed two cybersecurity laws that will become effective on October 1, 2021. The newly passed laws modify Connecticut’s existing breach notification requirements and establish a safe harbor for businesses that create and maintain a written cybersecurity program that complies with applicable state or federal law or industry-recognized security frameworks.

On June 29, 2021, the UK Department for Digital, Culture, Media and Sport (“DCMS”) published guidance for businesses on child online safety, which includes guidance on data protection and privacy, age-appropriate content, positive user interactions, and protecting children from online sexual exploitation and abuse.

On July 22, 2021, a Magistrate Judge in the U.S. District Court for the Middle District of Pennsylvania (the “Court”) ordered Rutter’s, a convenience-store chain, to produce an investigative report prepared by a security consultant regarding a suspected data breach event, as well as all communications between the party and the company performing the investigation. In the ruling, Rutter’s Data Sec Breach Litig, No. 1:20-cv-000382-JEJ-KM, the Court held that the report and related communications were not protected from disclosure by the work product doctrine or the attorney-client privilege.

On July 28, 2021, President Biden signed a National Security Memorandum entitled “Improving Cybersecurity for Critical Infrastructure Control Systems” (the “Memorandum”). The Memorandum formally establishes an Industrial Control Systems Cybersecurity Initiative and directs the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (“CISA”) and the Department of Commerce’s National Institute of Standards and Technology (“NIST”), in collaboration with other agencies, to develop and issue cybersecurity performance goals for critical infrastructure. The Memorandum follows recent high-profile attacks on U.S. critical infrastructure, including ransomware attacks on Colonial Pipeline and JBS Foods.

On July 9, 2021, President Biden signed the Executive Order on Promoting Competition in the American Economy (the “Executive Order”). The stated goal of the Executive Order is to increase competition in the United States and resolve issues related to monopolistic behaviors, including with respect to privacy and data protection.

On June 30, 2021, the New York State Department of Financial Services (“NYDFS,” the “Department”) issued guidance to all New York state regulated entities on ransomware (the “Guidance”), identifying controls it expects regulated companies to implement whenever possible.

On June 28, 2021, the European Commission (the “Commission”) adopted two adequacy decisions for the United Kingdom, one under the General Data Protection Regulation (“GDPR”) and another under the Law Enforcement Directive. Their adoption means organizations in the EU can continue to transfer personal data to organizations in the UK without restriction, and will not need to rely upon data transfer mechanisms, such as the EU Standard Contractual Clauses, to ensure an adequate level of protection. The adoption comes just before the conditional interim regime under the EU-UK Trade and Cooperation Agreement, under which data could flow freely from the EU to the UK, was set to expire on June 30, 2021.

On June 21, 2021, following a public consultation, the European Data Protection Board (“EDPB”) published the final version of its recommendations on supplementary measures in the context of international transfer safeguards, such as Standard Contractual Clauses (“SCCs”) (the “Recommendations”).

On June 16, 2021, the UK Government’s Taskforce on Innovation, Growth and Regulatory Reform published an independent report containing recommendations to the Prime Minister on how the UK can reshape its approach to regulation in the wake of Brexit (the “Report”). Among wide-ranging proposals across a range of areas, the Report recommends replacing the UK General Data Protection Regulation (“UK GDPR”) with a new UK Framework of Citizen Data Rights. The proposed approach would aim to give individuals greater control over their personal data while also allowing increased data flows and driving growth in the digital economy. The Report will be considered by the Government’s Better Regulation Committee.

On June 14, 2021, the Baltimore City Council passed a bill that would ban the use of facial recognition technology by private entities and individuals within the city limits. If signed into law, Baltimore, Maryland would become the latest U.S. city to enact stringent regulations governing the use of facial recognition technology in the private sector.

After two rounds of public comments, the Data Security Law of the People’s Republic of China (the “DSL”) was formally issued on June 10, 2021, and will become effective on September 1, 2021.

Compared to previous drafts of the law, the final version of the DSL differs with respect to:

• establishing a work coordination mechanism and clarifying the duties of each governmental authority;
• establishing an administration system for state core data;
• encouraging data development and use to make public service more intelligent and requiring consideration of the needs of the elderly and people with disabilities when providing intelligent public services;
• protecting the security of government data; and
• increasing the punishment dynamics for violations of the law. 

On June 9, 2021, President Biden signed an Executive Order on Protecting Americans’ Sensitive Data from Foreign Adversaries (the “EO” or “Biden EO”). The Biden EO elaborates on measures to address the national emergency regarding the information technology supply chain declared in 2019 by the Trump administration in Executive Order 13873. Simultaneously, the Biden EO also revokes three Trump administration orders (Executive Orders 13942, 13943 and 13971) that sought to prohibit transactions with TikTok, WeChat, their parent companies and certain other “Chinese connected software applications.” In their place, the Biden EO provides for (1) cabinet-level assessments and future recommendations to protect against risks from foreign adversaries’ (a) access to U.S. persons’ sensitive data and (b) involvement in software application supply and development; and (2) the continuing evaluation of transactions involving connected software applications that threaten U.S. national security.

July 1, 2021 marks the deadline for certain businesses to comply with the metrics reporting obligations under the California Consumer Privacy Act of 2018 (“CCPA”) regulations. Section 999.317(g) of the regulations applies to any business that is subject to the CCPA and that knows or reasonably should know that it, alone or in combination, buys, receives for the business’s commercial purposes, sells, or shares for commercial purposes the personal information of 10,000,000 or more California residents in a calendar year.

On May 25, 2021, the Grand Chamber of the European Court of Human Rights handed down its judgement in the case of Big Brother Watch and Others v. the United Kingdom, determining that the former surveillance regime in the UK violated Article 8 of the European Convention on Human Rights (“ECHR”), i.e., the right to respect for private and family life.

On June 2, 2021, Nevada’s governor approved SB 260 (the “Amendment Bill”), which expands on the previously amended Nevada Privacy of Information Collected on the Internet from Consumers Act (the “Act”). Specifically, the Amendment Bill broadens the definition of key terms along with providing several new exemptions.

On May 25, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP submitted its response (in English and in Mandarin) to the Standing Committee of the National People’s Congress (“NPC”) of the People’s Republic of China on the updated version of the Draft Personal Information Protection Law (“PIPL”).

On May 27, 2021, the European Data Protection Supervisor (the “EDPS”) announced that it has opened two investigations regarding (1) the use of cloud services provided by Amazon Web Services and Microsoft under Cloud II contracts by European Union institutions, bodies and agencies; and (2) the use of Microsoft Office 365 by the European Commission.

On May 27, 2021, the U.S. Department of Homeland Security’s (“DHS”) Transportation Security Administration (“TSA”) announced a Security Directive (the “Directive”) that will impose new cybersecurity requirements on critical pipeline owners and operators.

On May 26, 2021, the Court of Appeal handed down its judgment in the case of R (Open Rights Group and the3million) v Secretary of State for the Home Department and Others [2021] EWCA Civ 800, finding that the UK 2018 Data Protection Act’s (“DPA 2018”) “immigration exemption” is unlawful.

On May 20, 2021, the Belgian Data Protection Authority (“Belgian DPA”), as the lead authority (in collaboration with two co-reviewing authorities), announced that it had approved the EU Data Protection Code of Conduct for Cloud Service Providers (the “EU Cloud CoC”). The EU Cloud CoC is the first transnational EU code of conduct since the entry into force of the EU General Data Protection Regulation (the “GDPR”).

On May 20, 2021, the U.S. Department of the Treasury announced a proposal that would require any cryptocurrency transaction of $10,000 or more to be reported to the Internal Review Service (“IRS”). As a supplement to President Biden’s American Families Plan, which focuses on investments in American children and families, the Treasury detailed the cryptocurrency reporting requirement and other tax compliance initiatives in a new report titled The American Families Plan Tax Compliance Agenda (the “Report”).

On May 18, 2021, New York Attorney General (“AG”) Letitia James announced a settlement agreement with Filters Fast LLC (“Filters Fast”) over a data breach that compromised personal information of approximately 324,000 consumers nationwide, including over 16,500 New York state residents. The breach affected purchases made on Filters Fast website for almost a year – from July 16, 2019 to July 10, 2020.

On May 10, 2021, the Ecuadorian National Assembly unanimously approved the Organic Law on Data Protection (the “Data Protection Law”), which President Moreno is expected to sign.

On May 14, 2021, the Irish High Court dismissed Facebook Ireland’s (“Facebook”) challenge to the Irish Data Protection Commissioner’s (“DPC”) investigation into Facebook’s international transfers of personal data.

On May 11, 2021, the European Parliament issued a press release requesting that the European Commission amend its draft decisions on UK adequacy to more closely align with EU court rulings and the opinion of the European Data Protection Board (“EDPB”). The request came after the Parliament’s Civil Liberties Committee (the “Committee”) passed a resolution evaluating the Commission’s approach regarding the adequacy of the UK’s data protection regime. The Members of European Parliament (“MEPs”) stated that if the Commission’s implementing decisions are adopted without amendment, transfers of personal data to the UK should be suspended when there is the potential for indiscriminate access to personal data.

On May 12, 2021, President Biden signed an Executive Order on Improving the Nation’s Cybersecurity. The Order outlines a number of initiatives intended to improve cybersecurity in the U.S. and protect federal government networks, including:

On April 29, 2021, the New York City Council passed the Tenant Data Privacy Act (“TDPA”), which would regulate the collection, use, safeguarding and retention of tenant data by owners of “smart access” buildings. The TDPA has been sent to the New York City Mayor’s desk for signature.

On May 6, 2021, Google announced that beginning in the second quarter of 2022, mobile app developers submitting new apps and app updates to the Google Play store will be required to disclose certain information regarding their apps’ data collection, use, sharing and security practices, as well as provide a privacy policy for their apps. This information will be displayed in a new “safety section” of Google Play.

On April 29, 2021, China issued a second version of the draft Personal Information Protection Law (“Draft PIPL”). The Draft PIPL will be open for public comments until May 28, 2021.

While the framework of this version of the Draft PIPL is the same as the prior version issued on October 21, 2020, below we summarize the material changes in the second version of the Draft PIPL.

On April 29, 2021, China issued a second draft version of the Data Security Law (“Draft DSL”). The Draft DSL will be open for public comments until May 28, 2021.

While the framework of this version of the Draft DSL is the same as the prior version issued on July 3, 2020, below we summarize the material changes in the second version of the Draft DSL.

On April 23, 2021, the National Information Security Standardization Technical Committee of China published a draft standard (in Chinese) on Security Requirements of Facial Recognition Data (the “Standard”). The Standard, which is non-mandatory, details requirements for collecting, processing, sharing and transferring data used for facial recognition.

On April 27, 2021, the Portuguese Data Protection Authority (Comissão Nacional de Proteção de Dados, the “CNPD”) ordered the National Institute of Statistics (the “INE”) to suspend, within 12 hours, any international transfers of personal data to the U.S. or other third countries that have not been recognized as providing an adequate level of data protection.

On April 23, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the European Data Protection Board (“EDPB”) consultation on draft guidelines on virtual voice assistants (the “Guidelines”). The Guidelines were adopted on March 12, 2021 for public consultation.

As reported on the Hunton Retail Law Blog, on April 26, 2021, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal on Article III standing grounds of a data breach class action predicated on an alleged increased risk of identity theft. McMorris v. Carlos Lopez & Assocs., LLC, No. 19-4310, 2021 WL 1603808 (2d Cir. Apr. 26, 2021). Notably, the district court that dismissed the action raised the issue of standing sua sponte in advance of a scheduled class settlement fairness hearing.

On April 22, 2021, the Belgian Constitutional Court annulled (in French) the framework set forth by the Law of 29 May 2016 (the “Law”) requiring telecommunications providers to retain electronic communications data in bulk.

Building upon its April 2020 business guidance on Artificial Intelligence and algorithms, on April 19, 2021, the FTC published new guidance focused on how businesses can promote truth, fairness and equity in their use of AI.

On April 21, 2021, the European Commission (the “Commission”) published its Proposal for a Regulation on a European approach for Artificial Intelligence (the “Artificial Intelligence Act”). The Proposal follows a public consultation on the Commission’s white paper on AI published in February 2020. The Commission simultaneously proposed a new Machinery Regulation, designed to ensure the safe integration of AI systems into machinery.

On April 20, 2021, Apple announced that its AppTracking Transparency Framework (“ATT Framework”) will go into effect starting April 26, 2021, along with the upcoming public release of iOS 14.5, iPadOS 14.5 and tvOS 14.5.

On April 14, 2021, the European Data Protection Board (“EDPB”) announced that it had adopted its Opinion on the draft UK adequacy decision issued by the European Commission on February 19, 2021. The EDPB’s Opinion is non-binding but will be persuasive. The adequacy decision will be formally adopted if it is approved by the EU Member States acting through the European Council. If the adequacy decision is adopted, transfers of personal data from the EU to the UK may continue following the end of the post-Brexit transition period without the implementation of a data transfer mechanism under the EU General Data Protection Regulation (“GDPR”), such as Standard Contractual Clauses.

On April 8, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted comments in response to the Ministry of Public Security (“MPS”) of Vietnam’s Draft Decree on Personal Data Protection (“Draft Decree”).

On April 1, 2021, California’s Supreme Court ruled unanimously that the state’s prohibition on recording calls without consent applies to parties on the call and not just third-party eavesdroppers. Writing for the Court, Chief Justice Tani G. Cantil-Sakauye wrote that California’s penal code “prohibits parties as well as nonparties from intentionally recording a communication transmitted between a cellular or cordless phone and another device without the consent of all parties to the communication.”

On March 25, 2021, the Centre for Information Policy Leadership at Hunton Andrews Kurth organized an expert roundtable on the EU Approach to Regulating AI–How Can Experimentation Help Bridge Innovation and Regulation? (the “Roundtable”). The Roundtable was hosted by Dragoș Tudorache, Member of Parliament and Chair of the Artificial Intelligence in the Digital Age (“AIDA”) Committee of the European Parliament.  The Roundtable gathered industry representatives and data protection authorities (“DPAs”) as well Axel Voss, Rapporteur of the AIDA Committee.

On April 1, 2021, the Supreme Court issued its long-awaited opinion in Facebook, Inc. v. Duguid et al., No. 19-511 (Apr. 1, 2021).  At issue in Facebook, was the question of what technology constitutes an “automatic telephone dialing system” (“ATDS”) within the meaning of the Telephone Consumer Protection Act, 47 U.S.C. §227 et seq (“TCPA”). The Supreme Court’s unanimous decision is a huge win for companies who communicate with their consumers by telephone/text message.

On March 15, 2021, China’s State Administration for Market Regulation (“SAMR”) issued Measures for the Supervision and Administration of Online Transactions (the “Measures”) (in Chinese). The Measures implement rules for the E-commerce Law of China and provide specific rules for addressing registration of an online operation entity, supervision of new business models (such as social e-commerce and livestreaming), platform operators’ responsibilities, protection of consumers’ rights and protection of personal information.

On March 30, 2021, the European Commission (the “Commission”) announced the successful conclusion of the adequacy talks with the Republic of Korea.

On March 12, 2021, the Cyberspace Administration of China released Provisions on the “Scope of Necessary Personal Information Required for Common Types of Mobile Internet Applications” (the “Provisions”) (available here in Chinese).

On March 22, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth published its paper on delivering a risk-based approach to regulating artificial intelligence (the “Paper”), with the intention of informing current EU discussions on the development of rules to regulate AI.

On March 19, 2021, the Secretary of State for Digital, Culture, Media & Sport (“DCMS”) signed a Memorandum of Understanding (“MoU”) with the UK Information Commissioner’s Office (the “ICO”) with respect to new UK adequacy assessments following the UK’s departure from the European Union. The MoU sets out how DCMS and third countries will negotiate adequacy decisions, referred to under the MoU as “adequacy regulations”. These permit the free transfer of personal data collected in the UK to the relevant “adequate” jurisdiction.

On March 12, 2021, France’s highest administrative court (the “Conseil d’État”) issued a summary judgment that rejected a request for the suspension of the partnership between the French Ministry of Health and Doctolib, a leading provider of online medical consultations in Europe, for the management of COVID-19 vaccination appointments.

On March 12, 2021, the European Data Protection Board (“EDPB”) published its Guidelines 01/2021 on Virtual Voice Assistants for consultation (the “Guidelines”). Virtual voice assistants (“VVAs”) understand and execute voice commands or coordinate with other IT systems. These tools are available on most smartphones and other devices and collect significant amounts of personal data, such as through user commands. In addition, VVAs require a terminal device equipped with a microphone and transfer data to remote service. These activities raise compliance issues under both the General Data Protection Regulation (“GDPR”) and the e-Privacy Directive.

On March 2, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the European Data Protection Board (“EDPB”) consultation on draft guidelines on examples regarding data breach notification (the “Guidelines”). The Guidelines were adopted on January 14, 2021 for public consultation.