Privacy & Information Security Law Blog

On September 9, 2020, the UK Information Commissioner’s Office (“ICO”) published an Accountability Framework, designed to assist organizations in complying with their accountability obligations under the EU General Data Protection Regulation (“GDPR”). The GDPR’s accountability principle requires that organizations both comply with their legal requirements under the GDPR, and also demonstrate their compliance. The ICO states that its Accountability Framework “supports the foundations of an effective privacy management programme.”

On September 9, 2020, Portland, Oregon became the first jurisdiction in the country to ban the private-sector use of facial recognition technology in public places within the city, including stores, restaurants and hotels. The city Ordinance was unanimously passed by the Portland City Council and will take effect on January 1, 2021. The City Council cited as rationale for the Ordinance documented instances of gender and racial bias in facial recognition technology, and the fact that marginalized communities have been subject to “over surveillance and [the] disparate and detrimental impact of the use of surveillance.”

On September 1, 2020, the Centre for Information Policy Leadership at Hunton Andrews Kurth (“CIPL”) and the Centro de Direito, Internet e Sociedade of Instituto Brasiliense de Direito Público (“CEDIS-IDP”) released a new paper (“Paper”) on the Top Priorities for Public and Private Organizations to Effectively Implement the New Brazilian General Data Protection Law (“LGPD”). This paper is part of their joint-project on effective implementation and regulation under the LGPD.

On September 8, 2020, the Swiss Data Protection Authority (the Federal Data Protection and Information Commissioner, “FDPIC”), announced in a position statement that it no longer considers the Swiss-U.S. Privacy Shield adequate for the purposes of transfers of personal data from Switzerland to the U.S. This decision follows the July 2020 ruling of the Court of Justice of the European Union (“CJEU”) in the Schrems II case, which invalidated the EU-U.S. Privacy Shield for EU-U.S. transfers of personal data. This ruling was considered as part of the annual review of the Swiss-U.S. Privacy Shield Framework by the FDPIC since, as Switzerland is not a member of the EU, it is not bound by the CJEU ruling.

On September 3, 2020, the Committee on Civil Liberties, Justice and Home Affairs (“LIBE Committee”) of the European Parliament held a meeting to discuss the future of EU-U.S. data flows following the Schrems II judgment of the Court of Justice of the European Union (the “CJEU”). In addition to Members of the European Parliament (“MEPs”), the meeting’s participants included Justice Commissioner Didier Reynders, European Data Protection Board (“EDPB”) Chair Andrea Jelinek and Maximilian Schrems. Importantly, Commissioner Reynders stated during the meeting that the new Standard Contractual Clauses (“SCCs”) might be adopted by the end of 2020, at the earliest.

UPDATE: On September 25, 2020, California Governor Gavin Newsom vetoed SB-980.

On August 31, 2020, the California Senate joined the Assembly in passing SB-980, as amended, a bill to establish the Genetic Information Privacy Act (the “Act”), which would require direct-to-consumer genetic testing companies to comply with certain privacy and data security provisions, including providing consumers with prescribed notice; obtaining consumers’ express consent regarding the collection, use and disclosure of genetic data; and enabling consumers to access and delete their genetic data. The bill is pending California Governor Gavin Newsom’s signature.

On August 30, 2020, the California legislature passed AB-1281. As background, the California Consumer Privacy Act of 2018 (“CCPA”) currently exempts from most of its requirements certain information collected in the HR context and certain information collected about B2B personnel. Each exemption is scheduled to sunset on January 1, 2021. As we previously reported, the California Privacy Rights Act (“CPRA”) ballot initiative, if passed during the state’s November 3, 2020 general election, would extend the CCPA’s HR and B2B exemptions to January 1, 2023 ...

Apple’s iOS 14, which was announced by Apple in June 2020 and is scheduled for official release later this year, will require that all apps receive affirmative (i.e., opt-in) user consent to (1) access an iPhone’s unique advertising identifier (Identifier for Advertisers, or “IDFA”) or (2) to "track" users.

On August 14, 2020, the California Attorney General announced that the California Office of Administrative Law (“OAL”) approved the final regulations issued under the California Consumer Privacy Act of 2018 (“CCPA”) and filed them with the California Secretary of State. As we previously reported, the California Attorney General submitted the draft regulations to the OAL on June 1, 2020, and requested that the regulations become effective on the same day they are filed with the Secretary of State. The OAL has complied with that request, and the regulations go into effect ...

Earlier this year, The Retail Equation, a loss prevention service provider, and Sephora were hit with a class action lawsuit in which the plaintiff claimed Sephora improperly shared consumer data with The Retail Equation without consumers’ knowledge or consent. The plaintiff claimed The Retail Equation did so to generate risk scores that allegedly were “used as a pretext to advise Sephora that attempted product returns and exchanges are fraudulent and abusive.”

On August 6, 2020, President Trump signed executive orders imposing new economic sanctions under the International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq.) and the National Emergencies Act (50 U.S.C. § 1601 et seq.) against TikTok, a video-sharing mobile application, and WeChat, a messaging, social media and mobile payments application. The orders potentially affect tens of millions of U.S. users of these applications and billions of users worldwide.

On August 5, 2020, the French Data Protection Authority (the “CNIL”) announced that it has levied a fine of €250,000 on French online shoe retailer, Spartoo, for various infringements of the EU General Data Protection Regulation (“GDPR”). This is the first penalty under the GDPR enforced by the CNIL as the lead supervisory authority (“Lead SA”) in cooperation with other EU supervisory authorities (“SAs”).

On August 10, 2020, European Commissioner for Justice Didier Reynders and U.S. Secretary of Commerce Wilbur Ross released a joint press statement (the “Statement”) following the ruling of the Court of Justice of the European Union (“CJEU”) in the Schrems II case.

On August 4, 2020, Senators Jeff Merkley (OR) and Bernie Sanders (VT) introduced the National Biometric Information Privacy Act of 2020 (the “bill”). The bill would require companies to obtain individuals’ consent before collecting biometric data. Specifically, the bill would prohibit private companies from collecting biometric data—including eye scans, voiceprints, faceprints and fingerprints—without individuals’ written consent, and from profiting off of biometric data. The bill provides individuals and state attorneys general the ability to institute legal proceedings against entities for alleged violations of the act.

The U.S. Department of Commerce has issued two new sets of FAQs in light of the Court of Justice of the European Union’s (“CJEU’s”) recent decision to invalidate the EU-U.S. Privacy Shield in Schrems II. We previously reported on the Schrems II ruling and its implication for businesses that transfer personal data to the U.S. The new FAQs from the Department of Commerce address the impact of the decision on the EU-U.S. Privacy Shield framework and the Swiss-U.S. Privacy Shield framework.

On July 23, 2020, the UK Information Commissioner’s Office (the “ICO”) published the first two reports of its Data Protection Regulatory Sandbox Beta phase (the “Beta phase”) involving projects by Jisc (a not-for-profit organization serving the higher and further education and skills sectors) and Heathrow Airport Ltd.

On July 16, 2020, the Court of Justice of the European Union (the “CJEU”) invalidated the EU-U.S. Privacy Shield Framework as part of its judgment in the Schrems II case (case C-311/18). In its judgment, the CJEU concluded that the Standard Contractual Clauses (the “SCCs”) issued by the European Commission for the transfer of personal data to data processors established outside of the EU are valid, but it struck down the Privacy Shield framework on the basis that the limitations on U.S. public authorities’ access to EU personal data were not sufficient for the level of protection in the U.S. to be considered equivalent to that ensured in the EU, and that the framework does not grant EU individuals actionable rights before a body offering guarantees that are substantially equivalent to those required under EU law.

On July 16, 2020, the Court of Justice of the European Union (the “CJEU”) issued its landmark judgment in the Schrems II case (case C-311/18). In its judgment, the CJEU concluded that the Standard Contractual Clauses (the “SCCs”) issued by the European Commission for the transfer of personal data to data processors established outside of the EU are valid. Unexpectedly, the Court invalidated the EU-U.S. Privacy Shield framework.

In one of the most important cases on global data transfers, the Court of Justice of the European Union (“CJEU”) will rule on the validity of the Standard Contractual Clauses (“SCCs”) in the Schrems II case (case C-311/18) on July 16, 2020. Invalidation of the SCCs would leave businesses scrambling to find an alternative data transfer mechanism. But there may be significant practical challenges for businesses even if the SCCs survive.

In a case that has garnered widespread interest, the Court of Justice of the European Union (“CJEU”) will deliver its judgment in the Schrems II case (case C-311/18) on July 16, 2020, determining the validity of the controller–to-processor Standard Contractual Clauses (“SCCs”) as a cross-border data transfer mechanism under the EU General Data Protection Regulation (“GDPR”). If the SCCs are invalidated, the judgment would deliver a significant blow to the numerous businesses that rely on them, leaving many scrambling to find a suitable alternative transfer mechanism. Even if the SCCs survive, they may become more cumbersome to use.

On July 9, 2020, the European Commission (the “Commission”) adopted a Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions entitled: “Getting ready for changes – Communication on readiness at the end of the transition period between the European Union and the United Kingdom” (the “Communication”).

On June 26, 2020, New Zealand Justice Minister Andrew Little announced that the bill to repeal and replace New Zealand’s existing Privacy Act 1993 (the “Privacy Bill”) had passed its third reading in Parliament. The Privacy Bill received royal assent on June 30, 2020.

The Civil Code of China (the “Civil Code”) was approved by the National People's Congress of China on May 28, 2020 and will take effect January 1, 2021. Part Four of the Civil Code explicitly stipulates that the “Right of Privacy” is one of the “Rights of Personality” covered therein and includes a chapter on “Privacy and Personal Information Protection,” which contains detailed provisions to protect privacy and personal information.

On July 1, 2020, the Dubai International Financial Centre (“DIFC”) Data Protection Law No. 5 of 2020 came into effect (“New DP Law”). Due to the current pandemic, a three-month grace period, running until October 1, 2020, has been provided for companies to comply. The New DP Law replaces DIFC Law No. 1 of 2007. The release of the New DP Law is, in part, an effort to ensure that the DIFC, a financial hub for the Middle East, Africa and South Asia, meets the standard of data protection required to receive an “adequacy” finding from the European Commission and the United Kingdom, meaning that companies may transfer EU/UK personal data to the DIFC without putting in place a transfer mechanism (such as Standard Contractual Clauses).

When compared to the EU or the U.S., China has lacked a comprehensive data protection and data security law that regulates in detail requirements and procedures relating to the collection, processing, control and storage of personal data. In recent years, China has seen developments on data protection both in legislation and in practice. Recently, another significant draft law on data security was issued by the Chinese legislative authority. On June 28 to June 30, 2020, the 20th Session of the 13th Standing Committee of the National People’s Congress of China (the “NPC”) deliberated on the draft of the Data Security Law (the “Draft”), and on July 3, published the Draft on the NPC’s official website for public comment. The public comment period for the Draft will end on August 16, 2020. It is expected that the Draft will be finalized within the year and that the regulatory requirements relating to data security eventually will be reflected in law in China.

Last month, in In re: Capital One Customer Data Security Breach Litigation, E.D. Va., No. 1:19-md-02915, U.S. Magistrate Judge John Anderson (the “Judge”) ordered Capital One Financial Corp. (“Capital One”) to disclose a forensic report to the plaintiffs in a lawsuit stemming from Capital One’s 2019 data breach. In doing so, the Judge rejected Capital One’s argument that the report is protected from disclosure to the plaintiffs by the work product doctrine.

The Italian Data Protection Authority (Garante per la protezione dei dati personali, “Garante”) recently announced that it levied a €600,000 fine on banking institution UniCredit for several violations of the Italian Personal Data Protection Code, in its pre-General Data Protection Regulation (“GDPR”) form.

On June 25, 2020, the European Commission launched a public consultation on the revision of the Directive on Security of Network and Information Systems (the “NIS Directive”). According to the Commission, a revision is needed because cybersecurity capabilities in EU Member States remain unequal despite progress made with the NIS Directive, and the level of protection in the EU is insufficient. In addition, the rapid digitalization of society has expanded the threat landscape and presents new challenges requiring adaptive and innovative responses.

On June 23, 2020, the German Federal Court of Justice (the Bundesgerichtshof, or “BGH”) issued a decision confirming the enforceability, in preliminary proceedings, of the order of the German Federal Cartel Office (the “Bundeskartellamt”) against Facebook’s data practices.

Zeyn Bhyat of ENSafrica reports that on June 22, 2020, it was announced that South Africa’s comprehensive privacy law known as the Protection of Personal Information Act, 2013 (the “POPIA”) will become effective on July 1, 2020. POPIA acts as the more detailed framework legislation supporting South Africa’s constitutional right to privacy.

On June 18, 2020, Senator Sherrod Brown (OH) released a discussion draft of a privacy bill entitled the Data Accountability and Transparency Act of 2020 (“the Bill”). The Bill would provide individuals with several new rights regarding their personal data; implement rules limiting how personal data is collected, used or shared; and establish a new federal agency called the Data Accountability and Transparency Agency to protect individuals’ privacy and enforce those rules.

On June 3, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP published its report, What Good and Effective Data Privacy Accountability Looks Like: Mapping Organizations’ Practices to the CIPL Accountability Framework (“Report”). The Report consolidates the findings of CIPL’s Accountability Mapping Project launched in September 2019, which is part of CIPL’s broader work on the central role of organizational accountability in data privacy.

We previously posted about the Tapplock, Inc. (“Tapplock”) settlement with the Federal Trade Commission (“FTC”) over allegations that the company violated Section 5 of the FTC Act by falsely claiming that its “smart locks” were secure. Earlier this month, the FTC voted 5-0 to approve the settlement.

On April 25, 2020, the Philippines National Privacy Commission (“NPC”) issued a statement that it is investigating several breach notifications it has received relating to the unauthorized disclosure of sensitive personal information of confirmed and suspected COVID-19 patients (the “Statement”).

On April 13, 2020, the New York Department of Financial Services (“NYDFS”) issued guidance (“April guidance”) to all New York State entities covered under NYDFS’s cybersecurity regulation regarding assessing and addressing heightened cybersecurity risks due to the COVID-19 pandemic. In asking regulated entities to address risks “appropriately,” the April guidance references NYDFS’s earlier March 10, 2020 guidance calling on regulated institutions to submit to the agency (within 30 days of the guidance) plans “to address operational risks posed by the outbreak of a novel coronavirus,” including “assessment[s] of potential increased cyber-attacks and fraud.”

On April 16, 2020, the European eHealth Network—a voluntary network connecting national authorities responsible for eHealth designated by EU Member States—published a common EU toolbox for the use of contact tracing and warning apps in response to the coronavirus pandemic (the “Toolbox”). The Toolbox is part of the common EU coordinated approach to using COVID-19 mobile apps, as set out in the European Commission’s Recommendation of April 8, 2020. The Toolbox was accompanied by guidance from the European Commission on data protection and privacy aspects of the use of such apps (the “Guidance”).

Elizabeth Denham, the UK Information Commissioner, has released an opinion in response to the joint effort announced by Apple Inc. (“Apple”) and Google LLC (“Google”) to enable the use of Bluetooth technology to help governments and health agencies reduce the spread of COVID-19 by building contact-tracing technology into iOS and Android smartphones. In the opinion, the Information Commissioner concludes that the "Contact Tracing Framework" (“CTF”) being developed supports data protection principles.

On April 14, 2020, the Indiana Attorney General’s office announced that the state had reached a settlement agreement with Equifax in connection with Equifax’s 2017 data breach. Under the terms of the settlement, Equifax will pay a $19.5 million penalty. Indiana previously elected not to participate in a July 2019 multistate and Federal Trade Commission settlement with Equifax regarding the same data breach.

On April 3, 2020, the Brazilian Senate approved Bill of Law (“PL 1179/2020”), which includes a number of emergency measures intended to address the COVID-19 pandemic. Importantly, one provision delays the effective date of the Brazilian Data Protection Law (Lei Geral de Proteção de Dados Pessoais, “LGPD”) until January 2021. Fines and sanctions for companies that fail to comply with the LGPD are now scheduled to become effective August 2021.

A Canadian maker of Internet-connected padlocks, Tapplock, Inc. (“Tapplock”), settled Federal Trade Commission (“FTC”) allegations that the company violated Section 5 of the FTC Act by falsely claiming that its “smart locks” were secure. The FTC alleged that Tapplock “did not take reasonable measures to secure its locks, or take reasonable precautions or follow industry best practices for protecting consumers’ personal information.” The FTC further alleged that Tapplock did not have a security program in place prior to security researchers discovering vulnerabilities in the design and function of the smart locks.

As of early April, hundreds of millions of workers around the world have been affected by “stay-at-home” or “station-in-place” orders issued by governments in response to the COVID-19 pandemic. To cope, transaction processors are shifting work out of their high-security delivery centers and into the spare bedrooms and home offices of their personnel. That shift creates security challenges that have chief information security officers’ (“CISOs’”) heads spinning. Specifically, special challenges are created when work-from-home (“WFH”) orders affect payment cardholder data that is subject to the Payment Card Industry’s Data Security Standard (“PCI DSS”).

On April 2, 2020, the French Data Protection Authority (the “CNIL”) published a press release highlighting the importance of the ISO/IEC 27701 standard for the protection of personal data. The CNIL reminds that this is an international standard that defines the management system and security measures that need to be implemented for the processing of personal data (“personally identifiable information” under the ISO/IEC 27701 standard), by extending the requirements of two well-known information security standards.

On March 21, 2020, the data security provisions of New York’s Stop Hacks and Improve Electronic Data Security Act (“SHIELD Act”) went into effect. The SHIELD Act requires any person or business owning or licensing computerized data that includes the private information of a resident of New York (“covered business”) to implement and maintain reasonable safeguards to protect the security, confidentiality and integrity of the private information.

On March 4, 2020, the UK Information Commissioner’s Office (“ICO”) fined the international airline Cathay Pacific Airways Limited (“Cathay Pacific”) £500,000 for failing to protect the security of its customers’ personal data. The fine was issued under the Data Protection Act 1998 (the “DPA”) and represents the maximum fine available. The ICO found that between October 2014 and May 2018, Cathay Pacific’s computer systems lacked appropriate security measures which led to customers’ personal details being exposed. Of the approximately 9.4 million customers affected worldwide, 111,578 were from the UK.

On March 1, 2020, the Provisions on the Governance of Network Information Content Ecology (the “Provisions”) took effect. The Provisions govern China’s network information content ecology—including content producers (the “Producers”), content service platforms (the “Platforms”), content service users (the “Users”), industry organizations and Departments of Cyberspace Administration at all levels.

At this point, most companies doing business in California are aware of the California Consumer Privacy Act (“CCPA”), and most have been bracing for the eventual onslaught of class action litigation to follow its passage.

The Securities and Exchange Commission’s (“SEC”) Office of Compliance Inspections and Examinations (“OCIE”) recently announced the publication of a report entitled “Cybersecurity and Resiliency Observations.” The report summarizes the observations gleaned from OCIE’s cybersecurity examinations of broker-dealers, investment advisers, clearing agencies, national securities exchanges and other SEC registrants.

2019 was the “Year of the CCPA” as companies around the world worked tirelessly to comply with the California Consumer Privacy Act of 2018 (“CCPA”). The CCPA aims to provide data privacy rights for California residents and imposes significant new requirements on covered businesses.

In a January 6, 2020 blog post, the Director of the Federal Trade Commission’s Bureau of Consumer Protection reflected on how the FTC has taken action over the past year to strengthen its orders in data security cases. These orders have been a subject of focus for the FTC: in June 2018, the 11th Circuit’s LabMD decision struck down an FTC data security order as unenforceably vague, and the FTC subsequently held a hearing in the course of the FTC’s Hearings on Competition and Consumer Protection in the 21st Century on how it could improve data security orders.

On November 18, 2019, the ranking members from four Senate Committees (Senator Maria Cantwell (WA) from Commerce, Senator Dianne Feinstein (CA) from Judiciary, Senator Sherrod Brown (OH), and Senator Patty Murray (WA) from Health, Education, Labor and Pensions) released a set of “core principles” for federal privacy legislation.

On November 7, 2019, the Office for Civil Rights (“OCR”) of the U.S. Department of Health and Human Services (“HHS”) announced a $1.6 million civil penalty imposed against the Texas Health and Human Services Commission (“TX HHSC”), a state agency, for violations of HIPAA Privacy and Security Rules in connection with the unauthorized disclosure of electronic protected health information (“ePHI”). The ePHI breach – which exposed names, addresses, Social Security numbers, and treatment information of at least 6,617 individuals – was first reported to OCR on June 11, 2015, by Texas’s Department of Aging and Disability Services (“DADS”).

On October 22, 2019, the drafting group of China’s National Information Security Standardization Technology Committee (“NISSTC”) released a third set of draft amendments to the Information Security Technology - Personal Information Security Specification (GB/T 35273 – 2017) (the “Updated Draft Specification”). The original Specification, first issued on December 29, 2017, became effective May 1, 2018, and saw earlier draft amendments on February 1, 2019 and June 25, 2019. The NISSTC received more than 400 public comments on the proposed June amendments. The latest draft amendment was issued without a public comment period.

On October 22, 2019, the Federal Trade Commission announced that, for the first time, it has brought a case against a developer of “Stalking” Apps. The agency alleges that Retina-X Studios, and its owner, James N. Johns, Jr., developed and marketed three apps that allowed purchasers to surreptitiously monitor the movements and online activities of users of devices on which the apps were installed without the knowledge or permission of the device’s user. The FTC also alleges that the app developer took steps to ensure that a device user would not be aware that the app had been installed, bypassing mobile device manufacturers’ security restrictions and leaving the device vulnerable to cybersecurity risks. The apps were marketed as tools for monitoring the behavior of employees and children. The FTC further alleges that the app developer issued policies that made inaccurate representations regarding the security of their online systems, which were recently found to have been hacked twice during earlier incidents.

On October 11, 2019, California Governor Gavin Newsom signed into law AB 1130, which expands the types of personal information covered by California’s breach notification law to include, when compromised in combination with an individual’s name: (1) additional government identifiers, such as tax identification number, passport number, military identification number, or other unique identification number issued on a government document commonly used to verify the identity of a specific individual; and (2) biometric data generated from measurements or technical analysis of human body characteristics (e.g., fingerprint, retina, or iris image) used to authenticate a specific individual. Biometric data does not include a physical or digital photograph unless used or stored for facial recognition purposes.

The U.S. Chamber’s Technology Engagement Center (“C_TEC”) and Center for Global Regulatory Cooperation (“GRC”) recently released a set of ten principles essential for attaining the full potential of AI technologies.

The principles, drafted with input from more than 50 Chamber member companies, stress the importance of creating a sensible and innovation-forward approach to addressing the challenges and opportunities presented by AI.

On September 23, 2019, the Office of the Privacy Commissioner of Canada (“OPC”) announced that it completed its consultation on transfers for processing and that the OPC’s current guidelines for processing personal data across borders remain unchanged. Under these guidelines, consent for transfers to data processors generally is not required.

On September 10, 2019, the French data protection authority (the “CNIL”) updated its existing set of questions and answers (“FAQs”) on the impact of a no-deal Brexit on data transfers from the EU to the UK and how controllers should prepare.

California marked the end of the 2019 legislative session this past Friday, September 13, by passing five out of six pending bills to amend the California Consumer Privacy Act of 2018 (“CCPA”). The bills – AB-25, AB-874, AB-1146, AB-1355 and AB-1564 – now head to California Governor Newsom’s desk for signature, which must occur by October 13 for the bills to be signed into law. The only pending bill not to pass was AB-846, which would have addressed the law’s application to customer loyalty programs; it was ordered to the inactive file at the request of Senator Jackson.

On September 6, 2019, the National Institute of Standards and Technology (“NIST”) released a preliminary draft of its Privacy Framework: A Tool for Improving Privacy Through Enterprise Risk Management (“Privacy Framework”).

There are six bills pending before the California legislature that would amend the California Consumer Privacy Act of 2018 (“CCPA”). These bills could significantly alter the law’s application and associated compliance obligations, including with respect to HR data, B2B customer data, loyalty programs and the definition of “personal information.” As of September 12, three bills have passed out of the California Senate and are pending before the Assembly for a concurring vote: AB 874, AB 1146 and AB 1564. The California legislature must vote on all pending CCPA ...

As an update to our previous blog posts, the FTC announced that it and the New York Attorney General reached a $170 million agreement with Google to resolve allegations that the company violated COPPA through its YouTube platform. Under the agreement, Google will pay $136 million to the FTC and $34 million to New York. The FTC voted 3-2 to authorize the action.

As an update to our previous blog post, according to media reports, Google has reached a settlement with the FTC in the range of $150 to $200 million over the agency’s investigation into the company’s alleged violations of COPPA through its YouTube platform. The settlement has not been announced by the FTC or Google, and the details of the settlement have not been made publicly available. These reports follow Google’s announcement earlier this week that it has created a separate YouTube Kids site, which will include different content for different age groups. This news also ...

On August 15, 2019, the UK Information Commissioner’s Office (“ICO”) announced that it had launched an investigation into the use of live facial recognition technology at the King’s Cross development in London. This follows a letter sent by the mayor of London, Sadiq Khan, to the owner of the development inquiring as to whether the use of the software was legal. The company responsible for the technology said it was used for the purposes of public safety.

On August 8, 2019, the United States Court of Appeals for the Ninth Circuit allowed a class action brought by Illinois residents to proceed against Facebook under the Illinois Biometric Information Privacy Act (“BIPA”) (740 ICLS 14/1, et seq.).

On August 2, 2019, New Hampshire Governor Chris Sununu signed into law SB 194 (the “Bill”), which requires insurers licensed in the state (“licensees”) to put in place data security programs and report cybersecurity events. Although the Bill takes effect January 1, 2020, licensees have one year from the effective date to implement relevant cybersecurity requirements and two years from the effective date to ensure that their third-party vendors also implement appropriate safeguards to protect and secure the information systems and nonpublic information accessible to, or held by, the third-party service providers.

On July 29, 2019, the Court of Justice of the European Union (the “CJEU”) released its judgment in case C-40/17, Fashion ID GmbH & Co. KG vs. Verbraucherzentrale NRW eV. The Higher Regional Court of Düsseldorf (Oberlandesgericht Düsseldorf) requested a preliminary ruling from the CJEU on several provisions of the former EU Data Protection Directive of 1995, which was still applicable to the case since the court proceedings had started before the implementation of the EU General Data Protection Regulation (“GDPR”).

On July 25, 2019, New York Governor Andrew Cuomo signed into law Senate Bill S5575B (the “Bill”), an amendment to New York’s breach notification law (the “Act”). The Bill expands the Act’s definition of “breach of the security of the system” and the types of information (i.e., “private information”) covered by the Act, and makes certain changes to the Act’s requirements for breach notification.

On July 23, 2019, New York City Council members introduced Int. 1632-2019 (the “Bill”), an amendment to the administrative code of New York City that would prohibit telecommunications carriers and mobile applications from sharing a customer’s location data if such data was collected from a device in the five boroughs.

In addition to Facebook’s record-breaking Federal Trade Commission penalty and settlement order, on July 24, 2019, the Securities and Exchange Commission announced charges against Facebook for inadequate and misleading disclosures over its privacy practices. Facebook, without admitting or denying the SEC’s allegations, has agreed to the entry of a final judgment ordering a fine of $100 million.

As previously reported on July 12, 2019, Facebook will pay a $5 billion penalty to the Federal Trade Commission to resolve a privacy probe into whether Facebook violated a prior FTC consent decree requiring the company to better protect user privacy. The $5 billion penalty is the largest imposed on any company for violating consumers’ privacy – nearly 20 times the largest privacy or data security penalty to date.

According to media reports, the Federal Trade Commission has approved a multimillion dollar fine as part of a settlement with Google related to the FTC’s investigation into YouTube’s children’s data privacy practices. The FTC found that, in violation of COPPA, Google had failed to adequately protect children under 13 who used the video-streaming service and improperly collected their data.

The UK Information Commissioner’s Office (“ICO”) published its 2018-19 Annual Report on July 9, 2019. This is the first Annual Report published by the ICO since the EU General Data Protection Regulation (“GDPR”) took effect on May 25, 2018.

According to media reports, the Federal Trade Commission has approved a roughly $5 billion settlement with Facebook, Inc. to resolve a privacy probe investigating whether Facebook had violated a prior FTC consent decree requiring the company to better protect user privacy. The investigation followed reports that Cambridge Analytica improperly accessed the personal data of 87 million Facebook users.

On July 11, 2019, Washington Attorney General Bob Ferguson announced that his office had entered into a consent decree and $10 million settlement with Premera Blue Cross (“Premera”) that stems from a 2014-2015 breach that affected more than 11 million individuals. The settlement, which includes a payment of roughly $5.4 million to Washington state and $4.6 million to a coalition of 29 other state Attorneys General (the “Multistate AGs”), is one of the largest ever for a breach involving protected health information (“PHI”) and comes just one month after another notable HIPAA settlement involving a similar coalition of state AGs.

On June 14, 2019, the United States Court of Appeals for the Ninth Circuit affirmed summary judgment in favor of Facebook, holding that the company did not violate the Illinois Biometric Information Privacy Act (“BIPA”) (740 ICLS ¶¶ 15, 20).

On July 2, 2019, the Federal Trade Commission announced a case involving the operator of an online rewards website who allegedly failed to take reasonable steps to secure consumers’ personal data.

On June 19, 2019, the National Institute of Standards and Technology (“NIST”) issued its draft SP 800-171B guidelines (the “draft”), which outlines enhanced measures to protect controlled unclassified information (“CUI”) held by government contractors.

Today marks one year since the California Consumer Privacy Act of 2018 (“CCPA”) was passed and signed into law. The CCPA signals a dramatic shift in the data privacy regime in the United States, imposing on covered businesses the most prescriptive general privacy rules in the nation. In addition, the past year has seen a legislative explosion in the form of similar proposed state laws and potential federal data privacy legislation.

Given the value of personal information as a significant corporate asset, companies seeking to acquire or merge with another business should focus carefully on the data they will obtain as a result of the transaction. In addition, as cybersecurity attacks continue unabated, companies must carefully evaluate how personal information maintained by a potential target is protected. In a recent article published by Bloomberg Law, Hunton Andrews Kurth partner Lisa J. Sotto and counsel Ryan P. Logan discuss how legal frameworks involving U.S. federal and state law, the EU General Data Protection Regulation, antitrust law and other relevant legal regimes may affect how a company can use personal information following a transaction. The article also addresses key questions companies should ask during the due diligence process, how answers to those questions impact the deal documents and offers post-closing strategies companies should consider.

Texas Governor Greg Abbott recently signed into law HB 4390 (the “Bill”), which amends the state’s data breach notification law and creates an advisory council tasked with studying and developing recommendations regarding data privacy legislation.

On June 14, 2019, the Federal Trade Commission announced that it has taken action against a number of companies that allegedly misrepresented their compliance with the EU-U.S. and Swiss-U.S. Privacy Shield frameworks (collectively, the “Privacy Shield”) and other international privacy agreements.

Maryland Governor Larry Hogan recently signed into law House Bill 1154 (the “Bill”), which amends the state’s data breach notification law. Among other obligations, the amendments expand the required actions a business must take after becoming aware of a data security breach.

On June 12, 2019, Hunton Andrews Kurth and its Centre for Information Policy Leadership (“CIPL”) hosted a roundtable discussion in the firm’s Brussels office on the update of the EU Standard Contractual Clauses for international data transfers (“SCCs”). More than 30 privacy leaders joined together to discuss the challenges of the current SCCs and provide their insights on the updated versions. Hunton partner David Dumont led the discussion, while CIPL President Bojana Bellamy illuminated CIPL’s work in this area. The session also featured Cristina Monti, Policy Officer in the International Data Flows and Protection Unit of the EU Commission DG Justice and Consumers.

On May 30, 2019, the UK Information Commissioner’s Office (“ICO”) published its reflections on the year that has passed since the implementation of the EU General Data Protection Regulation (“GDPR”), together with a blog post by Elizabeth Denham, the UK Information Commissioner.

On June 6, 2019, the French Data Protection Authority (the “CNIL”) announced that it levied a fine of €400,000 on SERGIC, a French real estate service provider, for failure to (1) implement appropriate security measures and (2) define data retention periods for the personal data of unsuccessful rental candidates.

On May 28, 2019, the Cyberspace Administration of China (“CAC”) released draft Data Security Administrative Measures (the “Measures”) for public comment. The Measures, which, when finalized, will be legally binding, supplement the Cybersecurity Law of China (the “Cybersecurity Law”) that took force on June 1, 2017, with detailed and practical requirements for network operators who collect, store, transmit, process and use data within Chinese territory. The Measures likely will significantly impact network operators’ compliance programs in China.

On May 24, 2019, Oregon Governor Kate Brown signed Senate Bill 684 (the “Bill”) into law. The Bill, which takes effect January 1, 2020, amends the Oregon Consumer Identity Theft Protection Act (“OCITPA”) by enhancing the breach notification requirements applicable to third-party vendors.

On May 27, 2019, the Illinois General Assembly voted 79-32 to approve Senate Bill 1624, an amendment to the Personal Information Protection Act (“PIPA”). The bill’s sponsor, Senator Suzy Glowiak (D), expects Illinois Governor J.B. Pritzker (D) to sign the bill into law in short order. The amendment had already unanimously passed the state Senate last month.

On May 28, 2019, a federal jury returned a verdict awarding $1,000 to each of the roughly 68,000 class members whose criminal history was made publicly available online. The jury found that Bucks County willfully violated Pennsylvania’s Criminal History Records Information Act (“CHRIA”) and awarded the statutory minimum to each of the class members. As a result, Bucks County could pay up to $68 million in punitive damages.

On May 24, 2019, the Cyberspace Administration of China (the “CAC”), together with eleven other relevant government authorities, jointly released the draft Cybersecurity Review Measures for public comment. The deadline for public comment is June 24, 2019.

On May 27, 2019, Thailand’s Personal Data Protection Act B.E. 2562 (A.D. 2019) (the “PDPA”), which was passed by the National Legislative Assembly on February 28, 2019, was finally published in the Government Gazette, and thus became effective on May 28, 2019. Although now effective, the main operative provisions concerning personal data protection (including requests for data subjects’ consent; collection/use and disclosure of personal data; rights of data subjects; complaints; civil liabilities and penalties) will not come into force until one year after their ...

On May 10, 2019, New Jersey Governor Phil Murphy signed into law a bill that amends New Jersey’s data breach notification law to expand the definition of personal information to include online account information. The amendment goes into effect September 1, 2019.

On May 6, 2019, the U.S. Department of Health and Human Services’ Office for Civil Rights (“OCR”) announced that it had entered into a resolution agreement and $3 million settlement with Touchstone Medical Imaging (“Touchstone”). The settlement is the first OCR HIPAA enforcement action in 2019, following an all-time record year of HIPAA enforcement in 2018.

On April 26, 2019, the U.S. Department of Health and Human Services (“HHS”) Office for Civil Rights announced reductions in available penalties for three out of four tiers of privacy and security violations set forth in the HITECH Act, based on the severity of the violation. Previously, all four tiers of violation were subject to a maximum annual civil monetary penalty of $1.5 million. The revised regime provides for maximum civil penalties of $25,000 for the lowest tier of violation (i.e., unknowing violations), $100,000 for the second tier of violation (i.e., violations where ...

At its annual conference, CYBERUK, the National Cyber Security Centre (the “NCSC”), pledged not to pass on confidential information about cyberattacks to the UK Information Commissioner’s Office (the “ICO”) without the consent of the affected organization. This commitment is an attempt to reassure organizations, encouraging them to report and seek assistance in the event of a cybersecurity incident.

On April 11, 2019, the People’s Republic of China’s Network Security Bureau of the Ministry of Public Security, the Beijing Network Industry Association and the Third Research Institution of the Ministry of Public Security jointly released a “Guide to Protection of Security of Internet Personal Information (the “Guide”). The Guide presents itself as a reference, rather than a legally-enforceable regulation, but how it will interact with cybersecurity-related law, regulations and standards in practice remains to be seen.

On April 25, 2019, the Belgian Data Protection Authority (the “Belgian DPA”) published its Annual Activity Report for 2018 (the “Annual Report”), highlighting the main developments and accomplishments of the past year.

On April 15, 2019, the UK Information Commissioner’s Office (the “ICO”) issued for public consultation a draft code of practice, “Age Appropriate Design,” that will regulate the provision of online services likely to be accessed by children in the UK. Given the extraterritorial reach of the UK Data Protection Act 2018, organizations based outside of the UK may be subject to the code, which is expected to take effect by the end of 2019. The deadline for responding to the public consultation is May 31, 2019.

On April 22, 2019, Washington state legislators voted to send HB 1071 (the “Bill”) to Governor Jay Inslee for consideration. The Bill was requested by Attorney General Ferguson and would strengthen Washington’s data breach law. The request to amend the current law followed Attorney General Ferguson’s third annual Data Breach Report, which found that data breaches affected nearly 3.4 million Washingtonians between July 2017 and July 2018.

On April 17, 2019, the Dutch Data Protection Authority, the Autoriteit Persoonsgegevens (the “Dutch DPA”) issued six recommendations (in Dutch) for companies, to be taken into account when drafting privacy policies for the purpose of Article 24.2 of the EU General Data Protection Regulation (the “GDPR”). Article 24.2 of the GDPR provides the obligation for data controllers to implement privacy policies for accountability purposes, under certain criteria. The published recommendations follow the Dutch DPA’s investigation of companies’ privacy policies. The investigation focused on companies that process sensitive personal data, including health data and data related to individuals’ political beliefs. Alongside the recommendations, the Dutch DPA released a report (in Dutch) summarizing the investigation’s results.