Privacy & Information Security Law Blog

On December 19, 2012, the European Commission announced its formal recognition of personal data protection in New Zealand. The European Commission approved New Zealand’s status as a country that provides “adequate protection”  of personal data under the European Data Protection Directive 95/46/EC. This determination means that personal information from Europe may flow freely to New Zealand.  Although the law in New Zealand has been modernized over the years, it is not new.  New Zealand will be celebrating the 25th anniversary of its data protection law in 2013. Furthermore, New Zealand has been very active in the development of international standards at the OECD and APEC, and has participated in initiatives such as the Global Accountability Project. New Zealand’s request to be deemed adequate has been pending for several years. This determination follows the positive Opinion of the Article 29 Working Party issued on April 4, 2011, concerning the level of protection under New Zealand’s law.

On November 22, 2012, the Brussels-based publication European Voice published an editorial by U.S. Department of Commerce General Counsel Cameron Kerry entitled Avoiding a Data Divide Between the US and the EU. The article notes the importance of continued collaboration between the European Union and the United States as both assess their respective privacy frameworks to ensure that any changes encourage enhanced trade and strong economic growth, but also contain robust protections for consumers. Mr. Kerry’s editorial emphasizes the need to foster global privacy ...

On November 26, 2012, the Department of Health and Human Services’ Office for Civil Rights (“OCR”) published guidance on the two methods for de-identifying protected health information (“PHI”) in accordance with the HIPAA Privacy Rule. The guidance, which was required by the Health Information Technology for Clinical and Economic Health (“HITECH”) Act, has been developed over several years by OCR in collaboration with healthcare entities and other industry experts and builds upon the discussions from a workshop on de-identification that took place in March 2010.

On December 5, 2012, at 1:00 p.m. EST, the U.S. Department of Commerce’s International Trade Administration (“ITA”) will be hosting a webinar to discuss data privacy issues. Webinar participants will hear from Commerce privacy experts on the Obama Administration’s privacy blueprint. There also will be an update on significant international data privacy developments such as the Asia-Pacific Economic Cooperation (“APEC”) forum’s work to implement the Cross-Border Privacy Rules (“CBPRs”) system and the U.S.-European Union and U.S.-Swiss Safe Harbor ...

On July 1, 2012, the Article 29 Working Party (the “Working Party”) adopted WP196 (the “Opinion”) setting out an analysis of the legal framework associated with cloud computing, as well as recommendations directed at both data controllers and data processors in the European Economic Area (the “EEA”). The Opinion identifies two data protection risks associated with the deployment of cloud computing services, namely: (1) lack of control over the data and (2) lack of information on data processing. Cloud computing and the range and geographical dispersion of the various parties involved also have raised significant uncertainty in terms of applicable law, which the Working Party previously analyzed in its Opinion 8/2010. Below is an overview of the different topics covered in the Opinion issued on July 1.

On May 8, 2012, the Federal Trade Commission announced a settlement agreement with the social networking service Myspace LLC (“Myspace”). The FTC alleged that Myspace’s practice of sharing users’ personal information with unaffiliated third-party advertisers conflicted with representations the company made in its privacy policy, and could allow those advertisers to obtain users’ names, publicly available information and information about their online browsing habits.

On March 23, 2012, the Article 29 Working Party (the “Working Party”) adopted an Opinion on the European Commission’s data protection law reform proposals, including the draft Regulation that is of particular importance for businesses. The Working Party’s Opinion serves as the national data protection authorities’ contribution to the legislative process before the European Parliament and the European Council.

On March 19, 2012, the European Commission hosted this year’s Safe Harbor Conference in Washington, D.C., to address the transfer of data from Europe to the United States. Although it appears the Safe Harbor framework will remain unchanged for the time being, it seems unlikely the United States will be considered adequate, or even interoperable, with the EU for purposes of cross-border data transfers.

The U.S. Department of Commerce has confirmed that the European Commission will host this year’s Safe Harbor Conference in Washington, D.C., on March 19, 2012. The venue marks a change from the tradition of previous sessions which have taken place in the host authority’s capital city (Washington, D.C. or Brussels). The Conference will follow the release of the European Commission’s draft revisions to the EU Data Protection Directive 95/46, which are expected on or around January 25, 2012. The widely leaked draft of the proposal does not contain language pertaining to the ...

On November 8, 2011, the Federal Trade Commission announced that the operator of skidekids.com, a social networking website that advertises itself as the “Facebook and Myspace for Kids,” has agreed to settle charges that he collected personal information from approximately 5,600 children without parental consent, in violation of the Children’s Online Privacy Protection Act (“COPPA”) Rule. The proposed settlement will bar future violations of COPPA and misrepresentations about the collection, use and disclosure of children’s information.

On September 15, 2011, the Federal Trade Commission released proposed amendments to the Children’s Online Privacy Protection Rule (“COPPA Rule” or “Rule”).  These revisions follow the FTC’s review of the COPPA Rule, which resulted in numerous comments from various groups and individuals, as well as a public round table that took place on June 2, 2010.  The proposed amendments reflect the FTC’s commitment to “helping to create a safer, more secure online experience for children” in the face of rapid technological change.

On April 26, 2011, the French Data Protection Authority (the “CNIL”) issued a press release unveiling its inspection goals for the coming year.  In a report adopted on March 24, 2011, the CNIL indicated that it intends to conduct at least 400 inspections in France (100 more than the 2010 goal), with a special focus on the following issues:

On April 12, 2011, U.S. Senators John Kerry (D-MA) and John McCain (R-AZ) introduced the Commercial Privacy Bill of Rights Act of 2011 (the “Act”) to “establish a regulatory framework for the comprehensive protection of personal data for individuals under the aegis of the Federal Trade Commission.”  The bill applies broadly to entities that collect, use, transfer or store the “covered information” of more than 5,000 individuals over a consecutive 12-month period.  Certain provisions of the bill would direct the FTC to initiate rulemaking proceedings within specified timeframes, but the bill also imposes requirements directly on covered entities.

On March 30, 2011, the Federal Trade Commission announced that Google agreed to settle charges that it used deceptive tactics and violated its own privacy promises to consumers when it launched its social network, Google Buzz, in 2010.  According to the FTC’s complaint (main document, exhibits), Google led Gmail users to believe that they could choose whether or not they wanted to join Google Buzz.  The options for declining or leaving Google Buzz, however, were ineffective.  For those who joined Google Buzz, the controls for limiting the sharing of their personal information were difficult to locate and confusing.  Furthermore, the FTC charged that Google violated its privacy policies by using information provided for Gmail for another purpose – social networking – without obtaining consumers’ permission in advance.  Finally, the FTC alleged that Google misrepresented that it was treating personal information from the European Union in accordance with the U.S.-EU Safe Harbor framework because it failed to give consumers notice and choice before using their information for a different purpose from that for which it was collected.

Reporting from Israel, legal consultant Dr. Omer Tene writes:

On January 31, 2011, the European Commission formally approved Israel’s status as a country providing “adequate protection” for personal data under the European Data Protection Directive.  The decision is restricted to automated international data transfers from the EU, as well as to non-automated data transfers that are subject to further automated processing in Israel.  It will allow unrestricted transfers of personal data from the EU to Israel, for example between corporate affiliates or from European companies to data centers in Israel.

On January 11, 2011, Michelle O’Neill, U.S. Department of Commerce Deputy Under Secretary for International Trade, held a briefing on her November 2010 meetings in Brussels with European data protection authorities.  She discussed a data protection and privacy forum that was convened in November at which she met with several high-level European regulators, including Jacob Kohnstamm, Viviane Reding and Peter Hustinx.  O’Neill mentioned “the right to be forgotten” as a current hot-button issue in Europe.  Commissioner Reding, who is firmly in charge of the reconsideration of the EU Data Protection Directive, focused on ensuring easier compliance with EU data protection rules and greater harmonization among Member States.  O’Neill stated that Peter Hustinx was encouraged by the work ongoing in the United States, including the “Green Paper” issued by the Department of Commerce.  He considers the various U.S. efforts a basis for further dialogue with U.S. authorities.  O’Neill noted that comments to the EU consultation are due January 15, 2011.  The Department of Commerce intends to file a response.

On December 10, 2010, Senior Advisor to U.S. Senator John Kerry (D-Mass.), Daniel Sepulveda, briefed the Centre for Information Policy Leadership at Hunton & Williams LLP (the “Centre”) members on Senator Kerry’s forthcoming privacy legislation.  The bill, which will be introduced next Congress, aims to establish a regulatory framework for the comprehensive protection of individuals’ personal data that authorizes rulemakings by the Federal Trade Commission.

The international group of data protection commissioners today admitted the U.S. Federal Trade Commission into membership.

Meeting at the 32nd International Conference of Data Protection and Privacy Commissioners in Jerusalem, the commissioners determined that the FTC had the requisite authority and independence to qualify for membership.

The decision has been a long time coming.  The U.S. has long sought to be recognized as a member of the data protection group.  Last year, the U.S. application was rejected at the international conference in Madrid.

On June 18, 2010, the data protection authority of the German federal state of Schleswig-Holstein published a press release and a comprehensive legal opinion on cloud computing.  The opinion provides an overview of cloud computing and discusses various practical and legal matters, including:

• Applicable law issues
• The legal basis for cloud computing and related processor and controller issues
• Problems associated with the possibility of third-party access
• The minimum requirements for data processor relationships and service provider contracts under the new German data protection law
• Technical and organizational security measures
• The legal landscape for clouds located outside the European Union

On April 29, 2010, German data protection authorities issued a resolution regarding the obligations of German data exporters with respect to U.S. data importers that have self-certified under the Safe Harbor program.  By requiring additional diligence when transferring data to Safe Harbor-certified entities, the resolution may appear to raise questions with respect to the European Commission’s decision that Safe Harbor certification is sufficient to demonstrate an adequate level of privacy protection.

Under a Washington law effective July 1, 2010, certain entities involved in payment card transactions may be liable to financial institutions for costs associated with reissuing payment cards after security breaches.  Designed to encourage the reissuance of payment cards as a means of mitigating harm caused by security breaches, Washington H.B. 1149 applies to three types of entities:  businesses, processors and vendors.  Under the law, a business is an entity that “processes more than six million credit card and debit card transactions annually, and who provides, offers, or sells goods or services to . . . residents of Washington.” A processor is any entity, other than a business, that “directly processes or transmits [payment card] account information for or on behalf of another person as part of a payment processing service.” A vendor is any “entity that manufactures and sells software or equipment that is designed to process, transmit, or store [payment card] account information or that maintains account information that it does not own.”

Every year since 2005, the United States, the European Commission and the Article 29 Working Party on Data Protection meet to review the latest developments in the U.S.-EU Safe Harbor Framework, as well as changes in privacy compliance, information security and data protection.  This year’s  International Conference on Cross Border Data Flows, Data Protection and Privacy occurs November 16 - 18 and features leading experts who will examine these issues and others, as well as changes made to the approval process for binding corporate rules.  Join our privacy professionals, Martin ...

On October 30, as reported by the Bureau of National Affairs (“BNA”), the Massachusetts Office of Consumer Affairs and Business Regulation stated that final amendments to its information security regulations had been filed with the Massachusetts Secretary of State.  The Standards for the Protection of Personal Information of Residents of the Commonwealth have been the subject of much commentary and a series of amendments as regulators seek to address concerns expressed by businesses over the stringent and specific nature of the regulations.  The most recent round of amendments was announced August 17, 2009.

On October 6, 2009, the Federal Trade Commission (“FTC”) announced proposed settlement agreements with six companies over charges that they falsely claimed membership in the U.S. Department of Commerce Safe Harbor program.  In six separate complaints, the FTC alleged that ExpatEdge Partners LLC, Onyx Graphics, Inc., Directors Desk LLC, Collectify LLC, and Progressive Gaitways LLC deceived consumers by representing that they maintained current certifications to the Safe Harbor program when such certifications had previously lapsed.  The terms of the proposed settlement agreements prohibit the companies from misrepresenting their membership in any privacy, security or other compliance program.  The six enforcement actions are significant as they mark a considerable uptick in the FTC’s enforcement related to the Safe Harbor program. The FTC recently brought its first enforcement action relevant to the program, which is detailed in our post titled FTC's First Safe Harbor Enforcement Action.

The Federal Trade Commission (“FTC”) has secured a temporary restraining order against a company that allegedly falsely claimed to have self-certified to the EU/U.S. Safe Harbor Program.  One count of the FTC's complaint claims that the company (named Balls of Kryptonite, LLC) misled consumers by inaccurately representing that it had self-certified to the U.S. Department of Commerce that it was Safe Harbor compliant.  While the FTC has not alleged a substantive violation of the Safe Harbor, this case is significant for two reasons.  First, it marks the first time the FTC has brought an enforcement action with respect to the Safe Harbor Program.  The court order prohibits the defendants from misrepresenting the extent to which they “are members of, adhere to, comply with, are certified by, are endorsed by, or otherwise participate in any privacy, security, or any other compliance program sponsored by any government or third party.”  Second, the FTC acted in concert with the UK Office of Fair Trading after consumers in the UK registered complaints with the FTC using a website established by 25 international consumer protection agencies to facilitate global consumer protection efforts.  This is the first time the FTC has used the U.S. SAFE WEB Act of 2006 to enforce consumer protection regulations against a U.S. company operating exclusively outside the United States.

On August 19, 2009, the Official Journal published guidelines issued by the French Data Protection Authority (Commission nationale de l’informatique et des libertés (the “CNIL”)) regarding transfers of personal data carried out in the context of U.S. discovery proceedings (the “Guidelines”). The CNIL’s publication comes in the wake of a recent increase in the volume of requests made to French-based companies involved in U.S. litigation to disclose information or documents for the purposes of civil pre-trial discovery.

On February 16, 2009, the US-Swiss Safe Harbor Framework, which is comparable to the EU-US Safe Harbor Framework, was adopted. The US-Swiss framework is intended to simplify the transfer of personal data by Swiss companies to American companies that are self-certified with the US Department of Commerce (DOC). Self-certified US companies are bound by the principles contained in the framework. They will automatically be considered as providing an adequate level of data protection under Swiss law.

Read more about EU data protection updates.

On February 11, 2009, the EU Article 29 Data Protection Working Party released its long-awaited Working Document (the “Working Document”) on reconciling U.S. civil discovery requirements with European data protection law. The guidelines the Working Document offers for data controllers highlight the challenges that multinational businesses face to comply with competing legal obligations in civil litigation.

On December 2, 2008, the European Court of Human Rights (ECHR) ruled in K.U. v. Finland that Article 8 of the European Convention on Human Rights requires national laws to protect individuals from serious online privacy infringements, but also that the national legal framework must allow for the identification and prosecution of offenders. This case involved an advertisement of a sexual nature, which was placed on an Internet dating site on behalf of the applicant, who was twelve years old at the time, without his knowledge ...