Privacy & Information Security Law Blog

On May 26, 2016, the European Parliament approved a resolution calling for the European Commission to reopen negotiations with U.S. authorities on the EU-U.S. Privacy Shield (“Privacy Shield”), and to implement the recommendations of the Article 29 Working Party (“Working Party”) on the draft Privacy Shield adequacy decision.

The Working Party had previously published its recommendations in an Opinion regarding the draft decision issued by the European Commission on adequacy of the protection provided by the Privacy Shield. In the Opinion, the Working Party highlighted a number of key issues concerning access to European personal data by law enforcement and government agencies, and also recommended a number of changes to ensure that European citizens’ data are adequately protected.

As we previously reported, the Supreme Court’s decision in Spokeo v. Robins has been nearly universally lauded by defense counsel as a new bulwark against class actions alleging technical violations of federal statutes. It may be that. But Spokeo also poses a significant threat to defendants by defeating their ability to remove exactly the types of cases that defendants most want in federal court. The decision circumscribes the federal jurisdiction, with all its advantages, that defendants have enjoyed under Class Action Fairness Act (“CAFA”) for the past decade.

On May 25, 2016, Max Schrems stated that the Irish Data Protection Commissioner (the “DPC”) is expected to bring legal proceedings before the Irish courts concerning international data transfers under EU Standard Contractual Clauses.

In an unofficial statement to the Irish press, a representative of the DPC confirmed the DPC’s intention to seek declaratory relief in the Irish High Court and to recommend that the case be referred to the Court of Justice of the European Union (“CJEU”) for a preliminary ruling.

Read our previous entry on the Schrems ruling of the CJEU.

Hunton ...

On May 24, 2016, the UK Information Commissioner’s Office (“ICO”) published priorities for preparing for the EU General Data Protection Regulation (“GDPR”).

The ICO’s priorities for issuing guidance to assist organizations with GDPR preparation are split into three phases.

On May 23, 2016, half of the EU Member States sent a letter to the European Commission and the Netherlands (which holds the rotating presidency), seeking the removal of barriers to the free flow of data both within and outside the EU to benefit the EU from new data-driven technologies, according to Reuters and EurActive.com.

On May 19, 2016, the U.S. Department of Commerce’s National Telecommunications and Information Administration (“NTIA”) announced that its multistakeholder process to develop best practices to address privacy, transparency and accountability issues related to private and commercial use of unmanned aircraft systems (“UAS”) had concluded with the group reaching a consensus on a best practices document. As we previously reported, the NTIA announced in March 2015 the multistakeholder process in response to a Presidential Memorandum issued by the White House in February 2015, which directed NTIA to facilitate discussion between private sector entities to develop standards for commercial UAS use.

Recently, Aegerion Pharmaceuticals announced that it will enter into several settlements and plead guilty to two misdemeanors in connection with alleged violations of HIPAA, drug marketing regulations and securities laws. The criminal charges stem from the company’s marketing of a cholesterol drug called Juxtapid. Aegerion allegedly failed to comply with risk evaluation and management strategies and marketed Juxtapid (which is labeled with a warning about liver toxicity) without proper directions for use. 

On May 17, 2016, the European Council adopted its position at first reading of the Network and Information Security Directive (the “NIS Directive”). The NIS Directive was proposed by the European Commission on February 7, 2013, as part of its cybersecurity strategy for the European Union, and is designed to increase cooperation between EU Member States on cybersecurity issues.

The NIS Directive will impose security obligations on “operators of essential services” in critical sectors and “digital service providers.” These operators will be required to take measures to manage cyber risks and report major security incidents.

On May 16, 2016, the United States Supreme Court issued a decision in Spokeo Inc. v. Thomas Robins, holding 6-2 that the Ninth Circuit’s ruling applied an incomplete analysis when it failed to consider both aspects of the injury-in-fact requirement under Article III. Writing for the Court, Justice Samuel Alito found that a consumer could not sue Spokeo, Inc., an alleged consumer reporting agency that operates a “people search engine,” for a mere statutory violation without alleging actual injury.

As we previously reported, the Federal Aviation Administration’s (“FAA’s”) proposed “small drone rule” nears completion of the interagency review process, but one potential stumbling block has been removed, at least for now. On Tuesday, May 10, 2016, the U.S. Court of Appeals for the D.C. Circuit denied a request by the Electronic Privacy Information Center (“EPIC”) to review the FAA’s decision not to include privacy provisions in its Notice of Proposed Rulemaking for the Operation and Certification of Small Unmanned Aircraft Systems (“NPRM”), as well as its denial of an EPIC petition to the same effect. The court decided that there were no reasonable grounds for EPIC’s delay in filing for review of the FAA’s denial of EPIC’s 2012 petition that sought to cause the FAA to promulgate privacy regulations pertaining to drones. The court further concluded that EPIC’s challenge to the NPRM itself is premature, as the rule is not yet final.

On May 12, 2016, the Advocate General (“AG”) of the Court of Justice of the European Union (“CJEU”) issued an opinion stating that Internet Protocol (“IP”) addresses are personal data and data protection law should apply to IP addresses. Specifically, the AG urged the CJEU to rule that a dynamic IP address is personal data to the extent that an Internet access provider has additional data that in combination with the IP address would allow for the re-identification of the user.

On May 9, 2016, the Federal Trade Commission announced it had issued Orders to File a Special Report (“Orders”) to eight mobile device manufacturers requiring them to, for purposes of the FTC’s ongoing study of the mobile ecosystem, provide the FTC with “information about how [the companies] issue security updates to address vulnerabilities in smartphones, tablets, and other mobile devices.” The FTC’s authority to issue such Orders comes from Section 6(b) of the FTC Act.

On March 16, 2016, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP co-hosted a one-day workshop in Amsterdam, Netherlands, together with the Dutch Ministry of Security and Justice, to kick off CIPL’s new long-term project on the implementation of the EU General Data Protection Regulation (“GDPR”).

Recently, cybersecurity has become an agenda item for many health care boards and C-level executives. Security is a complex topic and often these senior leaders are poorly informed about the risks their organizations face and the measures needed to address them. Hunton & Williams LLP and The Advisory Board Company will host a webinar on How to Discuss Cybersecurity with Your C-Suite and Board of Directors on May 19, 2016, at 3:00 p.m. Join this webinar to gain insight and advice on how to have a productive conversation about security and risk with the most senior leaders in a health care ...

On May 3, 2016, the Federal Aviation Administration (“FAA”) announced the establishment of a Drone Advisory Committee (“DAC”) intended to increase transparency and collaboration between the FAA and key stakeholders in the ongoing effort to develop and implement an overall integration strategy for Unmanned Aircraft Systems (“UAS”).

On May 4, 2016, the Federal Trade Commission issued a press release announcing its recent settlement with the hand-held vaporizers manufacturer, Very Incognito Technologies, Inc. (“Vipvape”). The FTC had charged Vipvape with falsely claiming that it was a certified company under the Asia-Pacific Economic Cooperation (“APEC”) Cross-Border Privacy Rules (“CBPR”) framework. The settlement prohibits Vipvape from misleading consumers about its participation in any privacy and security certification program, including the APEC CBPR framework. This is the first CBPR-related case taken up by the FTC.

On May 4, 2016, the EU General Data Protection Regulation (“GDPR”) was published in the Official Journal of the European Union.

Following the European Parliament’s vote to adopt the GDPR on April 14, 2016, and the signing of the final draft on April 27, 2016, the GDPR will enter into force 20 days following its publication in the Official Journal of the European Union. Its provisions will be directly applicable in all EU Member States two years after this date, on May 25, 2018.

After four years of drafting and negotiations, the GDPR finally replaces and harmonizes the existing EU ...

On April 26, 2016, Korean law firm Bae, Kim & Lee LLC released a Privacy News Alert outlining amendments to Korea’s Personal Information Protection Act (“PIPA”) and the Act on the Promotion of IT Network Use and Information Protection (“IT Network Act”). According to Tae Uk Kang, partner at Bae, Kim & Lee and author of the alert, these amendments to PIPA and the IT Network Act “reflect the general trend concerning the Korean data privacy policy, which is intended to achieve more stringent regulation (and sanctions) of processing personal information.”

Recently, the Council of Institutional Investors (“CII”) issued a guide to shareholder engagement on cyber risk. The guide is intended to enable shareholders to ask appropriate questions of boards to gauge whether companies are taking proper steps to mitigate cyber risk. The guide poses the following five questions:

• How are the company’s cyber risks communicated to the board, by whom and with what frequency?
• Has the board evaluated and approved the company’s cybersecurity strategy?
• How does the board ensure that the company is organized appropriately to address cybersecurity risks? Does management have the skill sets it needs?
• How does the board evaluate the effectiveness of the company’s cybersecurity efforts?
• When did the board last discuss whether the company’s disclosure of cyber risk and cyber incident is consistent with SEC guidance?