Privacy & Information Security Law Blog

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

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

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

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

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

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

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

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

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

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

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

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