Privacy & Information Security Law Blog

On January 27, 2015, the Federal Trade Commission announced the release of a report on the Internet of Things: Privacy and Security in a Connected World (the “Report”). The Report describes the current state of the Internet of Things, analyzes the benefits and risks of its development, applies privacy principles to the Internet of Things and discusses whether legislation is needed to address this burgeoning area. The Report follows a workshop by the FTC on this topic in November 2013.

On January 12, 2015, the European Union Agency for Network and Information Security (“ENISA”) published a report on Privacy and Data Protection by Design - from policy to engineering (the “Report”). The “privacy by design” principle emphasizes the development of privacy protections at the early stages of the product or service development process, rather than at later stages. Although the principle has found its way into some proposed legislation (e.g., the proposed EU General Data Protection Regulation), its concrete implementation remains presently unclear. Hence, the Report aims to promote a discussion on how the principle can be implemented concretely and effectively with the help of engineering methods.

Indiana Attorney General Greg Zoeller has prepared a new bill that, although styled a “security breach” bill, would impose substantial new privacy obligations on companies holding the personal data of Indiana residents. Introduced by Indiana Senator James Merritt (R-Indianapolis) on January 12, 2015, SB413 would make a number of changes to existing Indiana law. For example, it would amend the existing Indiana breach notification law to apply to all data users, rather than owners of data bases. The bill also would expand Indiana’s breach notification law to eliminate the requirement that the breached data be computerized for notices to be required.

On January 5, 2015, the State Administration for Industry and Commerce of the People’s Republic of China published its Measures for the Punishment of Conduct Infringing the Rights and Interests of Consumers (the “Measures”). The Measures contain a number of provisions defining circumstances or actions under which enterprise operators may be deemed to have infringed the rights or interests of consumers. These provisions are consistent with the basic rules in the currently effective P.R.C. Law on the Protection of Consumer Rights and Interests (“Consumer Protection Law”). The Measures will take effect on March 15, 2015.

On December 31, 2014, Russian President Vladimir Putin signed legislation to move the deadline for compliance to September 1, 2015, for Federal Law No. 242-FZ (the “Localization Law”), which requires companies to store the personal data of Russian citizens in databases located in Russia. The bill that became the Localization Law was adopted by the lower chamber of Russian Parliament in July 2014 with a compliance deadline of September 1, 2016. The compliance deadline was then moved to January 1, 2015, before being changed to September 1, 2015 in the legislation signed by President Putin.

In a flurry of activity on cybersecurity in the waning days of the 113th Congress, Congress unexpectedly approved, largely without debate and by voice vote, four cybersecurity bills that: (1) clarify the role of the Department of Homeland Security (“DHS”) in private-sector information sharing, (2) codify the National Institute of Standards and Technology’s (“NIST”) cybersecurity framework, (3) reform oversight of federal information systems, and (4) enhance the cybersecurity workforce. The President is expected to sign all four bills. The approved legislation is somewhat limited as it largely codifies agency activity already underway. With many observers expecting little legislative activity on cybersecurity before the end of the year, however, that Congress has passed and sent major cybersecurity legislation to the White House for the first time in 12 years may signal Congress’ intent to address systems protection issues more thoroughly in the next Congress.

On October 30, 2014, the Supreme Court of Canada extended the deadline for the province of Alberta to amend its Personal Information Protection Act (“PIPA”). In November 2013, the Supreme Court of Canada declared PIPA invalid because it interfered with the right to freedom of expression in the labor context under Section 2(b) of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada gave the Alberta legislature 12 months to determine how to make the legislation constitutionally compliant, which it apparently failed to do. The new deadline for amending PIPA is May 2015.

Eduardo Cunha, a congressman from the Brazilian Democratic Movement Party in Rio de Janeiro, recently introduced a new bill in Brazil that provides Brazilians with a right to be forgotten (PL 7881/2014). Rep. Cunha is one of the most influential congressmen in Brazil and has been reported likely to be the next Speaker of the Brazilian House of Representatives (also translated as the “Chamber of Deputies”).

On October 17, 2014, the White House announced that the President signed a new executive order focused on cybersecurity.  The signed executive order, entitled Improving the Security of Consumer Financial Transactions (the “Order”), is focused on securing consumer transactions and sensitive personal data handled by the U.S. Federal Government.

On September 2, 2014, the UK Information Commissioner’s Office (“ICO”) published a consultation on the framework criteria for selecting scheme providers for its privacy seal scheme. The consultation gives organizations the opportunity to provide recommendations for the framework criteria that will be used to assess the relevant schemes. The consultation is open until October 3, 2014.

The Article 29 Working Party (the “Working Party”) recently released its August 1, 2014 statement providing recommendations on the actions that EU Member States should take in light of the European Court of Justice’s April 8, 2014 ruling invalidating the EU Data Retention Directive (the “Ruling”).

On August 19, 2014, California state legislators made final amendments to a bill updating the state’s breach notification law. The amended bill, which passed the State Senate on August 21 and the Assembly on August 25, is now headed to California Governor Jerry Brown for signature. If signed, the scope of the existing law would extend to apply to entities that “maintain” personal information about California residents. Currently, only entities that “own” or “license” such personal information are required to implement and maintain reasonable security procedures and practices to protect the personal information from unauthorized access, destruction, modification or disclosure.

As reported in the Hunton Employment & Labor Perspectives Blog:

Illinois recently joined a growing number of states and municipalities that have passed “ban the box” laws regulating when employers can inquire into an applicant’s criminal history.

On July 1, 2014, Delaware Governor Jack Markell signed into law a bill that creates new safe destruction requirements for the disposal of business records containing consumer personal information. The new law requires commercial entities conducting business in Delaware to take reasonable steps to destroy their consumers’ “personal identifying information” prior to the disposal of electronic or paper records. The law will take effect on January 1, 2015.

On July 17, 2014, the Belgian government announced that it has finalized its Royal Decree on the establishment of a Cybersecurity Center (Centrum Cyber Security België or Centre Cyber Security Belgique). The Cybersecurity Center’s tasks would be to monitor the country’s cybersecurity and manage cyber incidents. It also would oversee various cybersecurity projects, formulate legislative proposals relating to cybersecurity, and issue standards and guidelines for securing public sector IT systems. The Cybersecurity Center is expected to be operational by the end of ...

On July 10, 2014, the UK government announced plans to introduce emergency data retention rules, publishing the Data Retention and Investigatory Powers Bill (the “Bill”) along with explanatory notes and draft regulations. The publication of the Bill follows the European Court of Justice’s April 2014 declaration that the EU Data Retention Directive (the “Directive”) is invalid. Under the Directive, EU Member States were able to require communications service provides (e.g., ISPs) to retain communications data relating to their subscribers for up to 12 months.

On June 20, 2014, Florida Governor Rick Scott signed a bill into law that repeals and replaces the state’s existing breach notification statute with a similar law entitled the Florida Information Protection Act (Section 501.171 of the Florida Statutes) (the “Act”).

Last week, the Russian Parliament adopted a bill amending portions of Russia’s existing legislation on privacy, information technology and data protection. Among other provisions, the law would create a “data localization” obligation for companies engaged in the transmission or recording of electronic communications over the Internet. Such companies would be required to store copies of the data for a minimum of six months in databases that must be located within the Russian Federation. The new bill also would empower the Russian data protection authority to block public Internet access to any service that does not comply with this requirement.

On June 25, 2014, U.S. Attorney General Eric Holder announced that the Obama Administration is looking to pass legislation that would provide EU citizens with a right to judicial redress in U.S. courts if their personal information that was shared for law enforcement purposes is later intentionally or wilfully disclosed. The announcement was made during the EU-U.S. Ministerial Meeting on Justice and Home Affairs in Athens, Greece, which was co-chaired by the Attorney General and aimed to advance EU-U.S. cooperation in efforts to stop transnational crime and terrorism. The announcement also relates to the ongoing negotiations of the new “umbrella” EU-U.S. Data Protection and Privacy Agreement (“DPPA”).

On June 4, 2014, the U.S. Government Accountability Office (“GAO”) testified before the U.S. Senate Judiciary Subcommittee on Privacy, Technology and the Law on GAO’s findings regarding (1) companies’ use and sharing of consumer location data, (2) privacy risks associated with the collection of location data, and (3) actions taken by certain companies and federal agencies to protect the privacy of location data. GAO’s testimony relates to its 2012 and 2013 reports that examined the collection of location data by certain mobile industry companies and in-car navigation providers.

On May 27, 2014, the Federal Trade Commission announced the release of a new report entitled Data Brokers: A Call for Transparency and Accountability, detailing the findings of an FTC study of nine data brokers, representing a cross-section of the industry. The Report concludes that the data broker industry needs greater transparency and recommends that Congress consider enacting legislation that would make data brokers’ practices more visible and give consumers more control over the collection and sharing of their personal information.

On May 1, 2014, the White House released a report examining how Big Data is affecting government, society and commerce. In addition to questioning longstanding tenets of privacy legislation, such as notice and consent, the report recommends (1) passing national data breach legislation, (2) revising the Electronic Communications Privacy Act (“ECPA”), and (3) advancing the Consumer Privacy Bill of Rights.

On April 23, 2014, Brazilian President Dilma Rousseff enacted the Marco Civil da Internet (“Marco Civil”), Brazil’s first set of Internet regulations. The Marco Civil was approved by the Brazilian Senate on April 22, 2014. President Rousseff signed the law at the NETMundial Internet Governance conference in São Paulo, a global multistakeholder event on the future of Internet governance.

On April 10, 2014, Kentucky Governor Steve Beshear signed into law a data breach notification statute requiring persons and entities conducting business in Kentucky to notify individuals whose personally identifiable information was compromised in certain circumstances. The law will take effect on July 14, 2014.

On April 10, 2014, U.S. Department of Justice Deputy Attorney General James Cole and Federal Trade Commission Chair Edith Ramirez announced a joint DOJ and FTC antitrust policy statement on the sharing of cybersecurity information (“Policy Statement”). The Policy Statement, as well as their remarks, emphasize the seriousness of the cybersecurity challenge and the need to improve cybersecurity information sharing. It is another example of the Obama Administration’s efforts to encourage the sharing of information about cybersecurity threats and vulnerabilities.

On April 8, 2014, the European Court of Justice ruled that the EU Data Retention Directive is invalid because it disproportionally interferes with the European citizens’ rights to private life and protection of personal data. The Court’s ruling applies retroactively to the day the Directive entered into force.

As reported in the Hunton Employment & Labor Perspectives Blog:

On February 14, 2014, San Francisco passed the San Francisco Fair Chance Ordinance and became the latest national municipality to “ban the box” and limit the use of criminal background checks in employment hiring decisions. The deadline for San Francisco employers to comply with the San Francisco Fair Chance Ordinance is August 13, 2014. The “ban the box” campaign continues to gain momentum – San Francisco joins other cities (Buffalo, Newark, Philadelphia, and Seattle) and states (Hawaii, Massachusetts ...

On March 20, 2014, Australia’s Privacy Amendment (Privacy Alerts) Bill 2014 was re-introduced in the Senate for a first read. The bill, which was subject to a second reading debate on March 27, 2014, originally was introduced on May 29, 2013, but it lapsed on November 12, 2013 at the end of the session.

On March 18, 2014, Brazilian lawmakers announced the withdrawal of a provision in pending legislation that would have required Internet companies to store Brazilian users’ data within the country.

On February 12, 2014, the National Institute of Standards and Technology (“NIST”) issued the final Cybersecurity Framework, as required under Section 7 of the Obama Administration’s February 2013 executive order, Improving Critical Infrastructure Cybersecurity (the “Executive Order”). The Framework, which includes standards, procedures and processes for reducing cyber risks to critical infrastructure, reflects changes based on input received during a widely-attended public workshop held last November in North Carolina and comments submitted with respect to a preliminary version of the Framework that was issued in October 2013.

On February 11, 2014, Germany’s Federal Minister of Justice and Consumer Protection announced that consumer rights organizations will soon be able to sue businesses directly for breaches of German data protection law. Such additional powers had already been contemplated by the German governing coalition’s agreement and the Minister now expects to present a draft law in April of this year to implement them.

On February 5, 2014, the Member States of the EU and European Free Trade Association (“EFTA”) as well as the European Network and Information Security Agency (“ENISA”) issued Standard Operational Procedures (“SOPs”) to provide guidance on how to manage cyber incidents that could escalate to a cyber crisis.

On January 28, 2014, Data Protection Day, Vice-President of the European Commission and Commissioner for Justice Fundamental Rights and Citizenship Viviane Reding gave a speech in Brussels proposing a new data protection compact for Europe. She focused on three key themes: (1) the need to rebuild trust in data processing, (2) the current state of data protection in the EU, and (3) a new data protection compact for Europe.

As reported in the Hunton Employment & Labor Perspectives Blog, the “ban the box” movement continues to sweep through state legislatures. “Ban the box” laws, which vary in terms of scope and detail, generally prohibit employers from requesting information about job applicants’ criminal histories. Recent legislation in two states applies “ban the box” prohibitions to private employers in those states:

• On December 1, 2013, a new North Carolina law went into effect that prohibits employers from inquiring about job applicants’ arrests, charges or convictions ...

On December 12, 2013, Advocate-General Cruz Villalón of the European Court of Justice (“ECJ”) issued his Opinion on the compatibility of the EU Data Retention Directive 2006/24/EC (the “Data Retention Directive”) with the Charter of Fundamental Rights of the European Union (the “EU Charter”).

As we previously reported, on October 21, 2013, the European Parliament approved its Compromise Text of the proposed EU General Data Protection Regulation (the “Proposed Regulation”). Hunton & Williams has now published an analysis of these proposals.

On November 21, 2013, the Supreme People’s Court of China passed the Provisions on the Online Issuance of Judgment Documents by People’s Courts (the “Provisions”), which will take effect on January 1, 2014. The Provisions replace earlier rules (of the same title) enacted by the Supreme People’s Court on November 8, 2010, and generally focus on improved implementation of the principles of standardizing the online issuance of judgment documents, promoting judicial justice and enhancing the public credibility of the judiciary.

Brazilian lawmakers, including José Eduardo Cardozo, the Minister of Justice of Brazil, and Ideli Salvatti, the Secretariat of Institutional Relations, held several consensus-building meetings with party leaders over the past two weeks to reach a voting agreement on the Marco Civil da Internet (“Marco Civil”), a draft bill introduced in the Brazilian Congress in 2011. The Marco Civil would establish Brazil’s first set of Internet regulations, including requirements regarding personal data protection and net neutrality.

On November 15, 2013, the Supreme Court of Canada declared the Alberta Personal Information Protection Act (“PIPA”) invalid because the legislation interfered with the right to freedom of expression in the labor context under Section 2(b) of the Canadian Charter of Rights and Freedoms (the “Canadian Charter”). The case arose in the context of a labor union representing employees of a casino in Alberta. During a lawful strike, the union recorded and photographed individuals crossing the union’s picket line near the main entrance of the casino. The union had posted a sign that the images of persons crossing the picket line might be placed on a website. A number of individuals who were recorded crossing the picket line filed complaints under PIPA with the Alberta Information and Privacy Commissioner, who appointed an adjudicator to determine whether the union had contravened PIPA by collecting and disclosing personal information about individuals without their consent. Under PIPA, organizations cannot collect, use or disclose personal information without the individual’s consent, unless an exception applies.

On November 14, 2013, the Minister of the Malaysian Communications and Multimedia Commission (the “Minister”) announced that Malaysia’s Personal Data Protection Act 2010 (the “Act”) would be going into effect as of November 15, marking the end of years of postponements. The following features of the law are of particular significance:

On November 26, 2013, Kazakhstan’s new data privacy law, On Personal Data and Their Protection, will come into effect. The law was passed on May 21, 2013. Kazakhstan is the second country in Central Asia to enact a data privacy law, joining the Kyrgyz Republic, which passed the Law on Personal Data in 2008.

On October 25, 2013, the Standing Committee of the National People’s Congress of the People’s Republic of China passed an amendment to the P.R.C. Law on the Protection of Consumer Rights and Interests (the “Amendment”). The Amendment, which was adopted after three readings and will take effect on March 15, 2014, adds provisions designed to respond to the recent boom in online shopping and focuses on improving protections in the area of consumer rights and interests by:

On October 22, 2013, the National Institute of Standards and Technology (“NIST”) issued the Preliminary Cybersecurity Framework (the “Preliminary Framework”), as required under Section 7 of the Obama Administration’s February 2013 executive order, Improving Critical Infrastructure Cybersecurity (the “Executive Order”). The Preliminary Framework includes standards, procedures and processes for reducing cyber risks to critical infrastructure. It will be published in the Federal Register within a few days for public comment. Under the Executive Order, NIST is required to issue a final version of the Framework in February 2014. NIST is planning to host a public workshop on the Preliminary Framework in mid-November to give industry and other groups an opportunity to provide their views on this document.

On October 19, 2013, the Center for Internet and Society (“CIS”), the Federation of Indian Chambers of Commerce and Industry, and the Data Security Council of India held a Privacy Roundtable in New Delhi, the last in a series of roundtables that began in April 2013. The events were designed to elicit comments on a draft Privacy Protection Bill, proposed legislation for a privacy and personal data protection regime in India. The law would regulate the collection and use of personal data in India, as well as surveillance and interception of communications.

On October 12, 2013, California Governor Jerry Brown vetoed an electronic communications privacy bill. The bill, SB 467, would have compelled law enforcement to obtain a search warrant before seeking to access any email or other electronic communication maintained by service providers. The bill went beyond the scope of the federal Electronic Communications Privacy Act, which obligates law enforcement to obtain search warrants only for electronic communications that are unopened or stored by service providers for fewer than 180 days. The California bill was very similar to a bill signed into law in Texas earlier in 2013 that required law enforcement agencies to obtain warrants before accessing customer electronic data held by email service providers.

On September 27, 2013, California Governor Jerry Brown signed into law a bill amending the California Online Privacy Protection Act (“CalOPPA”) to require website privacy notices to disclose how the site responds to “Do Not Track” signals, and whether third parties may collect personal information when a consumer uses the site. Although the changes to the law do not prohibit online behavioral advertising, this is the first law in the United States to impose disclosure requirements on website operators that track consumers’ online behavior.

On September 23, 2013, California Governor Jerry Brown signed a bill that adds “Privacy Rights for California Minors in the Digital World” to the California Online Privacy Protection Act (“CalOPPA”). The new CalOPPA provisions prohibit online marketing or advertising certain products to anyone under age 18, and require website operators to honor requests made by minors who are registered users to remove content the minor posted on the site. In addition, operators must provide notice and instructions to minors explaining their rights regarding the removal of content they’ve posted.

On September 4, 2013, California state legislators passed an amendment to the state’s breach notification law. The bill, SB 46, would expand notification requirements to include security incidents involving the compromise of personal information that would permit access to an online or email account. Pursuant to SB 46, the definition of “personal information” contained in Sections 1798.29 and 1798.82 of California’s Civil Code would be amended to include “a user name or email address, in combination with a password or security question and answer that would permit access to an online account.” Notably, the compromise of these data elements alone  ̶  even when not in conjunction with an individual’s first name or first initial and last name  ̶  would trigger a notification obligation under the amended law. In addition, the bill does not limit the data elements that constitute “personal information” to those that would permit access to an individual’s financial account.

On August 8, 2013, the State Council of the People’s Republic of China released its “Opinions Regarding Facilitating Information Consumption and Boosting Domestic Demand” (Guofa [2013] No. 32, the “Opinions”). The Opinions provide guidelines for encouraging the development of the “consumption of information” in the next few years. “Consumption of information” is a recently-coined Chinese term that encompasses the demand for, and possession, processing and reproduction of, information.

As reported by Bloomberg BNA, the South African Parliament passed the Protection of Personal Information Bill on August 22, 2013. The bill, which was sent to President Jacob Zuma to be signed into law, represents South Africa’s first comprehensive data protection legislation.

On August 6, 2013, the Obama Administration posted links on The White House Blog to reports from the Departments of Commerce, Homeland Security and Treasury containing recommendations on incentivizing companies to align their cybersecurity practices with the Cybersecurity Framework. These reports respond to the Administration’s February 2013 executive order entitled Improving Critical Infrastructure Cybersecurity (the “Executive Order”).

On April 19, 2013, the North Dakota legislature amended the state’s breach notification law (Section 51-30-01 of the North Dakota Century Code) to expand the definition of “personal information” to include “health insurance information” and “medical information.” Pursuant to the amended breach law, “health insurance information” is defined to mean an “individual’s health insurance policy number or subscriber identification number and any unique identifier used by a health insurer to identify the individual.” “Medical information” is defined to mean “any information regarding an individual’s medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional.” The amendment also carves out an exemption for covered entities, business associates and subcontractors that are subject to the breach notification requirements of 45 C.F.R. 164, Subpart D.

On July 16, 2013, the Ministry of Industry and Information Technology of the People’s Republic of China (the “MIIT”) issued a new rule entitled Provisions on the Registration of Real Identity Information of Telephone Users (the “Provisions”), which will take effect on September 1, 2013. The Provisions were issued pursuant to the Resolution of the Standing Committee of the National People’s Congress Relating to Strengthening the Protection of Information on the Internet (the “Resolution”) and the Telecommunications Regulations of the People’s Republic of China. In April 2013, the MIIT issued a draft of the Provisions and solicited public comment.

On July 16, 2013, the Ministry of Industry and Information Technology of the People’s Republic of China (the “MIIT”) issued a new rule entitled Provisions on the Protection of Personal Information of Telecommunications and Internet Users (the “Provisions”). The Provisions, which will take effect on September 1, 2013, are intended to implement the general requirements set forth in last December’s Resolution of the Standing Committee of the National People’s Congress Relating to Strengthening the Protection of Information on the Internet (the “Resolution”). The Provisions are the first specific regulations concerning personal information protection by telecommunications service providers in China.

On July 12, 2013, during the Centre for Information Policy Leadership’s First Friday call, José Alejandro Bermúdez Durana, Deputy Superintendent for Data Protection for Colombia’s Superintendency of Industry and Commerce, discussed the secondary regulations issued on June 27, 2013 to implement Colombia’s omnibus data protection law enacted in 2012. The Deputy Superintendent discussed key aspects of the regulations, and provided information regarding additional regulations that are needed to implement binding codes of conduct.

On June 27, 2013, the Colombian Ministry of Commerce, Industry and Tourism issued regulations pursuant to the country’s new data protection law. The regulations, entitled Decreto Número 1377 de 2013, por el cual se reglamenta parcialmente la Ley 1581 de 2012, address a variety of topics, including the following:

• Consent requirements relating to the collection of personal data;
• Restrictions on the processing of children’s personal data;
• Content and delivery of privacy notices;
• Cross-border data transfer restrictions;
• Data transfer agreements;
• Internal privacy ...

On July 4, 2013, the European Parliament adopted new EU legislation to fight cyber crime. The Directive on attacks against information systems (the “Directive”) (see the Committee on Civil Liberties, Justice and Home Affairs’ report tabled for plenary), together with the launch of the European Cybercrime Centre and the adoption of the EU cybersecurity strategy, will strengthen the EU’s overall response to cyber crime and contribute to improving cybersecurity for all EU citizens.

On July 1, 2013, the National Institute of Standards and Technology (“NIST”) issued a preliminary draft outline of the Cybersecurity Framework that is being developed pursuant to the Obama Administration’s February 2013 executive order, Improving Critical Infrastructure Cybersecurity (the “Executive Order”).

On June 20, 2013, the UK Information Commissioner’s Office (“ICO”) launched its Annual Report and Financial Statements for 2012/13 (the “Report”). Introducing the Report, Information Commissioner Christopher Graham strongly emphasized that, as consumers become increasingly aware of their information rights, good privacy practices will become a commercial benefit and a business differentiator. He outlined the seven key “e”s of the ICO’s role: enforce, educate, empower, enable, engage, and to be effective and efficient.

On June 14, 2013, Texas Governor Rick Perry signed a bill requiring law enforcement agencies to obtain warrants before accessing customer electronic data held by email service providers. Introduced on March 4, 2013, the bill passed unanimously in both the Texas House and Senate on May 7 and May 22, respectively. The law takes effect immediately.

On June 14, 2013, the French Data Protection Authority (“CNIL”) announced that last March it had created an internal working group to study the privacy issues arising from the access of the personal data of French citizens by foreign public authorities. The CNIL further announced that the working group has decided to organize meetings with the various concerned stakeholders (attorneys, telecommunications operators, public institutions and non-governmental organizations) and that it has already had discussions with some of them. A summary of the CNIL’s findings is expected to be published in September 2013.

On June 6, 2013, the European Union’s Justice and Home Affairs Council held legislative deliberations regarding key issues concerning the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”). The discussions were based on the Irish Presidency’s draft compromise text on Chapters I to IV of the Proposed Regulation, containing the fundamentals of the proposal and reflecting the Presidency’s view of the state of play of negotiations. At the Council meeting, the Presidency was seeking general support for the conclusions drawn in their draft compromise text on the key issues in Chapters I to IV.

On May 30, 2013, the European Court of Justice held that Sweden failed to fulfill its obligations under EU law when it delayed complying with the Court’s 2010 ruling regarding the country’s implementation of the EU Data Retention Directive 2006/24/EC (the “Data Retention Directive”). The Court ordered Sweden to pay a lump sum of €3,000,000.

On May 31, 2013, the Council of the European Union’s Justice and Home Affairs released a draft compromise text in response to the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”). This compromise text narrows the scope of the Proposed Regulation and seeks to move from a detailed, prescriptive approach toward a risk-based framework.

On May 29, 2013, a bill, accompanied by an explanatory memorandum, was proposed in the Australian Parliament that requires businesses and government agencies that experience a serious data breach to notify affected individuals and the Office of the Australian Information Commissioner (“OAIC”). The proposed legislation requires organizations to notify individuals only when they are “significantly affected” by a “serious” data breach. Breaches that merely pose a “remote risk” of harm would not require notification. The factors organizations should assess when determining whether a breach is “serious” include: (1) harm to a person’s reputation, (2) economic harm, (3) financial harm, and (4) physical and psychological harm. Additionally, the bill specifies that implementing regulations may identify other situations that would require notification even if the breach does not give rise to a risk of serious harm. Organizations should notify affected individuals through the normal method of communication they have previously used to communicate with those individuals. Absent a normal method of prior communication, organizations must take reasonable steps to notify the affected individuals via email, telephone or postal mail. If passed, the legislation would become effective in March 2014.

On May 13, 2013, the Article 29 Working Party (the “Working Party”) adopted an Advice Paper on profiling (the “Advice Paper”). The Advice Paper serves as the national data protection authorities’ contribution to the ongoing legislative debate before the European Parliament and the Council of the European Union on the proposed EU General Data Protection Regulation (the “Proposed Regulation”).

On April 16, 2013, the Office of the President issued a Statement of Administration Policy that includes a threat to veto the U.S. House of Representatives’ Cyber Intelligence Sharing and Protection Act (“CISPA” or H.R. 624) if further changes are not made to the bill’s privacy protections. Specifically, the Obama Administration recommends that the bill require private entities to remove personal information when sharing cybersecurity information with the government or other private entities.

On March 20, 2013, the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE”) held legislative deliberations regarding the European Commission’s proposed General Data Protection Regulation (”Proposed Regulation”). The LIBE Committee Chair, Juan Fernando López Aguilar, noted that 2,783 amendments to the Proposed Regulation and 504 amendments to the proposed Police and Criminal Justice Directive (“Proposed Directive”) have been tabled.

On March 5, 2013, the German Federal Ministry of the Interior published proposed amendments (in German) to the German Federal Office for Information Security Law. These proposed amendments are significant because they establish a new duty to notify the German Federal Office for Information Security in the event of a cybersecurity breach.

On March 8, 2013, the European Union’s Justice and Home Affairs Council held legislative deliberations regarding the European Commission’s proposed General Data Protection Regulation (the “Proposed Regulation”).

The Executive Order, “Improving Critical Infrastructure Cybersecurity,” and the Presidential Policy Directive (“PPD”), “Critical Infrastructure Security and Resilience,” signed by President Obama on February 12, 2013, raise the stakes in the national debate over cybersecurity requirements and seem likely, if not designed, to provoke a legislative response. Industry has good reason to pay attention.

On February 8, 2013, during the Centre for Information Policy Leadership’s First Friday call, Hunton & Williams partner Frederick Eames offered insights on how key U.S. government players are likely to approach privacy and data security initiatives this session. Eames discussed upcoming privacy legislation and outlined his predictions regarding how several Congressional committees, including the House of Representatives Energy & Commerce Committee and the Senate Committee on Commerce, Science, & Transportation, will address privacy-related issues.

Listen to the full ...

On February 12, 2013, in conjunction with the release of an executive order on Improving Critical Infrastructure Cybersecurity (the “Executive Order”), President Obama signed a Presidential Policy Directive on Critical Infrastructure Security and Resilience (“PPD-21” or “PPD”). The PPD revokes the 2003 Homeland Security Presidential Directive-7 (issued by President George W. Bush as an initiative under the former Office of Homeland Security and the Homeland Security Council) to adjust to the new risk environment and make the nation’s critical infrastructure more resilient. The PPD expands upon the work that has been accomplished to date for the physical security of critical infrastructure and lays a foundation for the implementation of the Executive Order to protect critical infrastructure cybersecurity.

Today, the Obama Administration released an executive order, Improving Critical Infrastructure Cybersecurity (the “Executive Order”), which is focused primarily on government actions to support critical infrastructure owners and operators in protecting their systems and networks from cyber threats. The Executive Order requires administrative agencies with cybersecurity responsibilities to (1) share information in the near-term with the private sector within the scope of their current authority and to develop processes to address cyber risks; and (2) review and report to the President on the sufficiency of their current cyber authorities. The requirements to review and report to the President likely will serve to pressure Congress to pass more comprehensive legislation that should, inter alia, address issues that an executive order cannot, such as the provision of liability protection, incentives for compliance, and regulatory authority to compel compliance.

On January 29, 2013, the UK Court of Appeal ruled that the UK criminal records disclosure regime is disproportionate and incompatible with the UK Human Rights Act 1998 (the “Act”). The landmark judgment focused on the case of an appellant named “T,” who had received two “cautions” for stealing two bicycles when he was 11 years old. After a number of years, the appellant had to disclose these cautions twice in connection with required criminal records checks: first, at the age of 17, when he applied for a part-time job at a local football club, and again when he applied for a college course.

On January 28, 2013, European Data Privacy Day, the London office of Hunton & Williams hosted the launch of senior attorney Rosemary Jay’s fourth edition book, Data Protection Law & Practice, by publisher Sweet & Maxwell.

Reporting from Australia, former Australian Privacy Commissioner Malcolm Crompton, Managing Director of Information Integrity Solutions Pty Ltd (“IIS”), writes:

The Australian Privacy Amendment (Enhancing Privacy Protection) Act 2012 (the “Act”) will make significant changes to the Privacy Act 1988. It’s early days for the changes and the impact for organizations will depend on their circumstances. Over the next 15 months we expect to see a range of guidance material from the Office of the Australian Information Commissioner.

In an interview with Tom Field of BankInfoSecurity, Lisa J. Sotto, partner and head of the Global Privacy and Data Security practice at Hunton & Williams LLP, discussed the top privacy trends and threats for 2013. Lisa predicts that security vulnerabilities will remain the biggest threat to privacy, particularly with the move toward mobile computing. She also talked about key issues to watch in 2013, such as online behavioral advertising, big data and evolving privacy legislation and regulation, especially in the EU and other countries around the globe.

Listen to Lisa’s ...

On November 15, 2012, the UK Office of Fair Trading (the “OFT”) launched a call for information to investigate whether offering “personalized pricing” based on data companies collect about consumers’ online behavior violates consumer protection legislation in the UK. The OFT will look at how companies gather data related to “consumers’ browsing history, purchases, demographic, hardware, operating system, etc and use this to personalise products and prices.” In particular, as indicated on the OFT’s website, the OFT will analyze:

On November 20, 2012, the UK Information Commissioner’s Office (“ICO”) published “Anonymisation: Managing Data Protection Risk Code of Practice” (the “Code”). The purpose of the Code is to provide organizations with a framework for assessing the risks of anonymization. It also sets forth good practice recommendations that may be adopted by organizations to provide a “reasonable degree of confidence” that the publication and sharing of anonymized data will not lead to an “inappropriate disclosure of personal data.” The published Code follows a consultation on the same topic earlier this year. The ICO also announced the creation of the UK Anonymisation Network, which will promote the sharing of good practices related to anonymization across the public and private sectors.

On November 8, 2012, the 84th Conference of the German Data Protection Commissioners concluded in Frankfurt (Oder). This bi-annual conference provides a private forum for the 16 German state data protection authorities (“DPAs”) and the Federal Commissioner for Data Protection and Freedom of Information Peter Schaar to share their views on current issues, discuss relevant cases and adopt Resolutions aimed at harmonizing how data protection law is applied across Germany.

The UK Information Commissioner’s Office (“ICO”) recently published a questionnaire to gather feedback on how privacy seals might be used to improve data protection compliance and customer privacy awareness. The questionnaire is available online until November 30, 2012.

Reporting from Washington, D.C., Hunton & Williams partner Frederick Eames writes:

Elections have consequences. What are the consequences of the 2012 election on U.S. federal privacy, data security and breach notice legislation? We outline some key developments in the U.S. House of Representatives and Senate and explain how these developments might affect legislative priorities and prospects for the 113th Congress beginning in 2013.

On October 31, 2012, the UK Information Commissioner’s Office (“ICO”) published a consultation on changes to the notification process in the UK (the “Consultation”), which will be open for comment until November 30, 2012. The purpose of the Consultation is to provide the ICO with feedback on its proposed changes regarding: (1) whether an online and telephone payment service would be beneficial to data controllers, (2) whether the inclusion of contact details for information requests is useful and (3) whether the format of the public register should become narrative-based. The ICO is also seeking input regarding whether these changes would make the public register more meaningful and notification simpler for data controllers.

On October 17, 2012, Colombia enacted a new omnibus data protection law known as Ley 1581 del 17 de octubre de 2012 por el cual se dictan disposiciones generales para la protección de datos personales. The law contains significant notice and consent requirements, special provisions for the processing of children’s data, European-style data subject rights (e.g., access and correction), special obligations applicable specifically and directly to service providers, a registration requirement and cross-border data transfer restrictions. The law also provides for the ...

The absence of congressional action on cybersecurity legislation has spurred efforts by various entities to exert influence over cybersecurity policy. This client alert focuses on some of those efforts, including the Federal Energy Regulatory Commission’s (“FERC’s”) creation of a new cybersecurity office, North American Electric Reliability Corporation (“NERC”) action on cybersecurity Critical Infrastructure Protection (“CIP”) standards, continuing legislative developments concerning cybersecurity and anticipated White House executive orders on cybersecurity.

On September 12, 2012, Congressman Edward Markey (D-MA) released a bill that would require companies to tell customers about monitoring software installed on their mobile devices and obtain customers’ express consent before engaging in monitoring. These requirements would apply to mobile phone makers, network providers and application developers.

On August 30, 2012, Taiwan’s Executive Yuan announced that the Personal Data Protection Act will become effective on October 1, 2012. In connection with the announcement, the Executive Yuan also proposed several amendments to certain controversial provisions to be discussed by the Legislative Yuan in September.

Reportedly, the amendments would include the following changes:

1. adding “medical records” as a type of sensitive personal data, and inserting exceptions to restrictions on the use of sensitive personal data (e.g., for public interest reasons or with the data ...

On August 15, 2012, Philippines President Benigno S. Aquino III signed the Data Privacy Act of 2012 passed earlier this year by the Philippine Senate and House of Representatives. Concerns about the creation of the National Privacy Commission and the criminal penalties associated with the Act delayed final enactment.

On August 10, 2012, a federal district court in California denied Hulu’s motion to dismiss the remaining claim in a putative class action suit alleging that the online streaming video provider transmitted users’ personal information to third parties in violation of the Video Privacy Protection Act (“VPPA”). The VPPA prohibits a “video tape service provider” from transmitting personally identifiable information of “consumers,” except in certain, limited circumstances. According to the complaint, Hulu allegedly allowed KISSmetrics, a data analytics company, to place tracking codes on the plaintiffs’ computers that re-spawned previously-deleted cookies, and shared Hulu users’ video viewing choices and “personally identifiable information” with third parties, including online ad networks, metrics companies and social media networks.

In recent weeks, both state and federal regulators have considered security breach notification legislation. On June 15, 2012, Connecticut Governor Dannel Malloy signed a budget bill that, among other things, amends the state’s security breach notification law. The changes, which will take effect on October 1, 2012, most notably require businesses to notify the state Attorney General no later than the time when notice of a security breach is provided to state residents. Although the law does not specify when notice must be provided to affected individuals, the law states that such notice must be made “without unreasonable delay,” subject to law enforcement delays and the completion of an investigation by the business to determine the nature and scope of the incident, to identify affected individuals, or to restore the reasonable integrity of the data system. As we previously reported, Vermont also recently amended its breach notification statute to require businesses to notify the state Attorney General within 14 days of discovering a security breach or concurrently when notifying consumers, whichever is sooner.

On May 30, 2012, the Federal Trade Commission hosted a public workshop addressing the need for new guidance on advertising and privacy disclosures online and in mobile environments. During the workshop, the FTC announced that it hopes to release an updated version of its online advertising disclosure guidance this fall that would incorporate input from businesses and consumer advocates. Topics explored at the workshop included:

• Best practices for privacy disclosures on mobile platforms and how they can be short, effective and accessible to consumers;
• how to put disclosures in proximity to offers on mobile platforms;
• social media disclosures; and
• the placement of material information on webpages.

On May 31, 2012, the UK Information Commissioner’s Office (“ICO”) published a draft anonymization code of practice (the “Code”) which will be open to public consultation until August 23, 2012. The purpose of the Code is to provide organizations with guidance on how personal data can be anonymized successfully, and how to assess the risk of individuals being identified using data that has been anonymized. The ICO also has launched a £15,000 invitation to tender to establish a network of experts to share best practices regarding anonymization.

On June 1, 2012, the Attorney General of Vermont announced a series of recent legislative moves to enhance the state’s consumer protection laws, including amendments to Vermont’s security breach notification law. The changes, which were signed into law by Governor Peter Shumlin in early May, include a revised definition of “security breach,” the addition of a 45-day timing requirement for notifying affected consumers, and a requirement to notify the state Attorney General within 14 days of discovering the breach (or when notifying consumers, if sooner).

In recent months, two high-profile cases involving Hulu and Netflix have raised questions regarding the scope and application of the Video Privacy Protection Act (“VPPA”), a federal privacy law that has been the focus of increasing attention over the past few years. In the Hulu case, Hulu users claimed that the subscription-based video streaming service disclosed their viewing history to third parties. Specifically, their complaint alleges that Hulu worked with KISSmetrics, a data analytics company, to track subscribers’ viewing histories and then share that information with third parties such as Facebook. In its response, Hulu has maintained that it is not subject to the VPPA because it is not a “video tape service provider,” which is defined in relevant part as “any person, engaged in the business, in or affecting interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials…” Alternatively, Hulu has argued that its information sharing with third parties was permitted by the VPPA’s exception that allows disclosures “incident to the ordinary course of business of the video tape service provider.” The case, which currently is headed to mediation, could have far-reaching effects if it is determined that video streaming services are subject to the VPPA’s requirements.

On May 2, 2012, Australia’s Attorney General Nicola Roxon announced that the Australian government will introduce a bill to the Australian Parliament that will enact a number of the recommendations from the 2008 Law Reform Commission Report (ALRC Report 108) and reform privacy law in Australia. Discussion drafts of segments of the bill were considered by a Senate Committee in 2011. On May 4, Australian Privacy Commissioner Timothy Pilgrim presented an overview of the draft legislation at an event held during the iappANZ Privacy Awareness Week. Commissioner Pilgrim noted that the legislative package includes:

On May 3, 2012, Viviane Reding, Justice Commissioner and European Commission Vice-President, delivered a speech during the European data protection authorities’ (“DPAs’”) Spring Conference, which was held in closed sessions in Luxembourg. In her speech, Commissioner Reding discussed how the proposed EU Data Protection Regulation aimed to empower the DPAs and addressed some of the DPAs’ primary concerns with the reform.

On April 27, 2012, the Centre for Information Policy Leadership at Hunton & Williams LLP (the “Centre”) submitted comments to the latest Singapore consultation on proposed personal data protection legislation, the Personal Data Protection Act 2012. The consultation is being conducted by the Ministry of Information, Communications and the Arts and expired on April 30, 2012.

On April 26, 2012, the U.S. House of Representatives approved the Cyber Intelligence Sharing and Protection Act (“CISPA” or H.R. 3523), which is aimed at facilitating the exchange of cyber threat intelligence information between the government and certain private entities. In addition, the House approved the Federal Information Security Amendments Act of 2012 (H.R. 4257), which modifies the Federal Information Security Management Act of 2002 to provide for automated and continuous monitoring of the security of government information systems.

On April 9, 2012, Maryland became the first state to pass legislation that would prevent employers from asking or forcing employees and applicants to hand over their social media login credentials. The bill, which passed the state Senate unanimously (Senate Bill 433) and the House of Delegates by a wide margin (House Bill 964), now awaits Maryland Governor Martin O’Malley’s signature.