Privacy & Information Security Law Blog

In late October, the Brazilian Ministry of Justice (the “Ministry”) issued its revised Draft Bill for the Protection of Personal Data (“Draft Bill”). The Ministry released its preliminary draft in January 2015, and the Centre for Information Policy Leadership at Hunton & Williams LLP (“CIPL”) filed public comments to the draft on May 5, 2015.

On November 5, 2015, the White House released the proposed text of the Trans-Pacific Partnership Agreement (the “TPP”) containing a chapter on cross-border data transfers in the context of electronic commerce. In the chapter on Electronic Commerce, Chapter 14, the TPP includes commitments from participating parties to adopt and maintain a legal framework to protect personal information, and encourages cross-border data transfers to help facilitate business and trade.

On November 3, 2015, John Murphy, Senior Vice President for International Policy at the U.S. Chamber of Commerce, testified about the Court of Justice of the European Union’s (“CJEU’s”) EU-U.S. Safe Harbor Decision at a joint hearing of the House Commerce and Communications and Technology Subcommittees.

On October 27, 2015, the U.S. Senate passed S.754 - Cybersecurity Information Sharing Act of 2015 (“CISA”) by a vote of 74 to 21. CISA is intended to facilitate and encourage the sharing of Internet traffic information between and among companies and the federal government to prevent cyber attacks, by giving companies legal immunity from antitrust and privacy lawsuits. CISA comes in the wake of numerous recent, high-profile cyber attacks.

On October 6, 2015, the Court of Justice of the European Union (the “CJEU”) issued its judgment in the Schrems v. Facebook case, following the Opinion of the Advocate General published on September 23, 2015. In its judgment, the CJEU concluded that:

• The national data protection authorities (“DPAs”) have the power to investigate and suspend international data transfers even where the European Commission (the “Commission”) has adopted a decision finding that a third country affords an adequate level of data protection, such as Decision 2000/520 on the adequacy of the protection provided by the Safe Harbor Privacy Principles (the “Safe Harbor Decision”).
• The Safe Harbor Decision is invalid.

On October 6 and 7, 2015, the Centre for Information Policy Leadership at Hunton & Williams LLP (“CIPL”), a global privacy policy think-tank based in Washington D.C. and London, and the Instituto Brasiliense de Direito Publico, a legal institute based in Brazil, will co-host a two-day Global Data Privacy Dialogue in Brazil, at the IDP’s conference facilities.

On July 28, 2015, the UK Supreme Court announced its decision to grant permission in part for Google Inc. (“Google”) to appeal the England and Wales Court of Appeal’s decision in Google Inc. v Vidal-Hall and Others.

Recent class actions filed against Facebook and Shutterfly are the first cases to test an Illinois law that requires consent before biometric information may be captured for commercial purposes. Although the cases focus on biometric capture activities primarily in the social-media realm, these cases and the Illinois law at issue have ramifications for any business that employs biometric-capture technology, including those who use it for security or sale-and-marketing purposes. In a recent article published in Law360, Hunton & Williams partner, Torsten M. Kracht, and associate, Rachel E. Mossman, discuss how businesses already using these technologies need to keep abreast of new legislation that might affect the legality of their practices, and how businesses considering the implementation of these technologies should consult local rules and statutes before implementing biometric imaging.

On July 1, 2015, Connecticut’s governor signed into law Public Act No. 15-142, An Act Improving Data Security and Agency Effectiveness (the “Act”), that (1) amends the state’s data breach notification law to require notice to affected individuals and the Connecticut Attorney General within 90 days of a security breach and expands the definition of personal information to include biometric data such as fingerprints, retina scans and voice prints; (2) affirmatively requires all businesses, including health insurers, who experience data breaches to offer one year of identity theft prevention services to affected individuals at no cost to them; and (3) requires health insurers and contractors who receive personal information from state agencies to implement and maintain minimum data security safeguards. With the passing of the Act, Connecticut becomes the first state to affirmatively require businesses to provide these security services to consumers.

On July 10, 2015, the United States House of Representatives passed the 21st Century Cures Act (the “Act”), which is intended to ease restrictions on the use and disclosure of protected health information (“PHI”) for research purposes.

Legislators in New Hampshire and Oregon recently passed bills designed to protect the online privacy of students in kindergarten through 12th grade.

On June 11, 2015, New Hampshire Governor Maggie Hassan (D-NH) signed H.B. 520, a bipartisan bill that requires operators of websites, online platforms and applications targeting students and their families (“Operators”) to create and maintain “reasonable” security procedures to protect certain covered information about students. H.B. 520 also prohibits Operators from using covered information for targeted advertising. H.B. 520 defines covered information broadly as “personally identifiable information or materials,” including name, address, date of birth, telephone number and educational records, provided to Operators by students, their schools, their parents or legal guardians, or otherwise gathered by the Operators.

On April 28, 2015, the Florida House of Representatives passed a bill (SB 766) that prohibits businesses and government agencies from using drones to conduct surveillance by capturing images of private real property or individuals on such property without valid written consent under circumstances where a reasonable expectation of privacy exists.

On April 8, 2015, a New York Assemblyman introduced the Data Security Act in the New York State Assembly that would require New York businesses to implement and maintain information security safeguards. The requirements would apply to “private information,” which is defined as either:

• personal information consisting of any information in combination with one or more of the following data elements, when either the personal information or the data element is not encrypted: Social Security number; driver’s license number or non-driver identification card number; financial account or credit or debit card number in combination with any required security code or password; or biometric information;
• a user name or email address in combination with a password or security question and answer that would permit access to an online account; or
• unsecured protected health information (as that term is defined in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) Privacy Rule).

The House of Representatives passed two complimentary bills related to cybersecurity, the “Protecting Cyber Networks Act” (H.R. 1560) and the “National Cybersecurity Protection Advancement Act of 2015” (H.R. 1731). These bills provide, among other things, liability protection for (1) the use of monitoring and defensive measures to protect information systems, and (2) the sharing of cybersecurity threat information amongst non-federal entities and with the federal government. With the Senate having just recently overcome disagreement on sex trafficking legislation and the Attorney General nomination, that body is now expected to consider similar information sharing legislation entitled the “Cybersecurity Information Sharing Act” (S. 754) in the coming weeks. Assuming S. 754 also is passed by the Senate, the two Chambers of Congress will convene a Conference Committee to draft a single piece of legislation which will be then voted on by the House and Senate, before heading to the President’s desk. The White House has not committed to signing any resulting legislation, but has signaled some positive support.

On April 13, 2015, the Senate of Washington State unanimously passed legislation strengthening the state’s data breach law. The bill (HB 1078) passed the Senate by a 47-0 vote, and as we previously reported, passed the House by a 97-0 vote.

On March 27, 2015, the England and Wales Court of Appeal issued its judgment in Google Inc. v Vidal-Hall and Others. Google Inc. (“Google”) appealed an earlier decision by Tugendhat J. in the High Court in January 2014. The claimants were users of Apple’s Safari browser who argued that during certain months in 2011 and 2012, Google collected information about their browsing habits via cookies placed on their devices without their consent and in breach of Google’s privacy policy.

On March 4, 2015, the House of Representatives of Washington passed a bill (HB 1078), which would amend the state’s breach notification law to require notification to the state Attorney General in the event of a breach and impose a 45-day timing requirement for notification provided to affected residents and the state regulator. The bill also mandates content requirements for notices to affected residents, including (1) the name and contact information of the reporting business; (2) a list of the types of personal information subject to the breach; and (3) the toll-free telephone numbers and address of the consumer reporting agencies. In addition, while Washington’s breach notification law currently applies only to “computerized” data, the amended law would cover hard-copy data as well.

On February 27, 2015, the White House released a highly-anticipated draft of the Consumer Privacy Bill of Rights Act of 2015 (the “Act”) that seeks to establish baseline protections for individual privacy in the commercial context and to facilitate the implementation of these protections through enforceable codes of conduct. The Federal Trade Commission is tasked with the primary responsibility for promulgating regulations and enforcing the rights and obligations set forth in the Act.

On February 23, 2015, the Wyoming Senate approved a bill (S.F.36) that adds several data elements to the definition of “personal identifying information” in the state’s data breach notification statute. The amended definition will expand Wyoming’s breach notification law to cover certain online account access credentials, unique biometric data, health insurance information, medical information, birth and marriage certificates, certain shared secrets or security tokens used for authentication purposes, and individual taxpayer identification numbers. The Wyoming Senate also agreed with amendments proposed by the Wyoming House of Representatives to another bill (S.F.35) that adds content requirements to the notice that breached entities must send to affected Wyoming residents. Both bills are now headed to the Wyoming Governor Matt Mead for signing.

On February 12, 2015, the Office of the Privacy Commissioner of Canada released a research report entitled Privacy and Cyber Security - Emphasizing privacy protection in cyber security activities (the “Report”). The Report explores the interconnected relationship among cybersecurity, privacy and data protection, including common interests and challenges.

On February 13, 2015, at the White House’s Cybersecurity and Consumer Protection Summit at Stanford University, President Obama signed an executive order promoting private sector cybersecurity information sharing (“Executive Order”). Building on the current cybersecurity information sharing efforts of Information Sharing and Analysis Centers and groups such as the National Cyber-Forensics and Training Alliance, the new Executive Order emphasizes the need for private companies, non-profit organizations and government agencies to share information about cyber threats, vulnerabilities and incidents. Its purpose is to facilitate private-private and public-private cybersecurity information sharing while (1) protecting the privacy and civil liberties of individuals; (2) protecting business confidentiality; (3) safeguarding shared information; and (4) protecting the government’s ability to detect, investigate, prevent and respond to cyber threats.

On January 28, 2015, the Brazilian government issued the Preliminary Draft Bill for the Protection of Personal Data (Anteprojeto de Lei para a Proteção de Dados Pessoais) on a website specifically created for public debate on the draft bill. The text of the bill (in Portuguese) is available on the website. (http://participacao.mj.gov.br/)

On January 28, 2015, in connection with Data Protection Day, newly appointed European Data Protection Supervisor (“EDPS”) Giovanni Buttarelli spoke about future challenges for data protection. Buttareli encouraged the EU “to lead by example as a beacon of respect for digital rights,” and “to be at the forefront in shaping a global, digital standard for privacy and data protection which centers on the rights of the individual.” Buttarelli stressed that in the context of global technological changes, “the EU has to make existing data protection rights more effective in practice, and to allow citizens to more easily exercise their rights.”

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.

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.