Privacy & Information Security Law Blog

On October 7, 2016, the French Digital Republic Bill (the “Bill”) was enacted after a final vote from the Senate. The Bill aligns the French legal data protection framework with the EU General Data Protection Regulation (“GDPR”) requirements before the GDPR becomes applicable in May 2018.

This post has been updated. 

On October 27, 2016, the Federal Communications Commission (“FCC”) announced the adoption of rules that require broadband Internet Service Providers (“ISPs”) to take steps to protect consumer privacy (the “Rules”). According to the FCC’s press release, the Rules are intended to “ensure broadband customers have meaningful choice, greater transparency and strong security protections for their personal information collected by ISPs.” 

The National Highway Safety Administration (“NHTSA”) recently issued non-binding guidance that outlines best practices for automobile manufacturers to address automobile cybersecurity. The guidance, entitled Cybersecurity Best Practices for Modern Vehicles (the “Cybersecurity Guidance”), was recently previewed in correspondence with the House of Representatives' Committee on Energy and Commerce (“Energy and Commerce Committee”).

Recently, the Cyberspace Administration of China published for public comment a draft of the Regulations on the Online Protection of Minors (“Draft Regulations”). The Draft Regulations are open for comment until October 31, 2016.

A recent update on the Court of Justice of the European Union’s (the “CJEU’s”) website has revealed that Digital Rights Ireland, an Irish privacy advocacy group, has filed an action for annulment against the European Commission’s adequacy decision on the EU-U.S. Privacy Shield (the “Privacy Shield”).

Hunton & Williams LLP is proud to announce our Privacy & Information Security Law Blog has been nominated in The Expert Institute’s 2016 Best Legal Blog Contest for Best AmLaw Blog of 2016. From all of the editors, lawyers and contributors that make our blog a success, we appreciate your continued support and readership, and ask that you please take a moment to vote for our blog!

The Privacy & Information Security Law Blog was ranked as the #1 Privacy & Data Security blog in LexBlog’s 2015 AmLaw 200 Blog Benchmark Report, and named PR News’ Best Legal PR Blog in 2011. It was noted that the ...

On October 21, 2016, the Vietnam e-Commerce and Information Technology Agency and APEC co-hosted an APEC Cross-Border Privacy Rules (“CBPR”) system capacity-building workshop in Da Nang, Vietnam, on the heels of last week’s bilateral affirmation of commitment between the U.S. and Japan to implement and expand the CBPR system. The workshop further signals the continuing growth of the CBPR system.

On October 25, 2016, the Federal Trade Commission released a guide for businesses on how to handle and respond to data breaches (the “Guide”). The 16-page Guide details steps businesses should take once they become aware of a potential breach. The Guide also underscores the need for cyber-specific insurance to help offset potentially significant response costs.

On October 18, 2016, the United States Court of Appeals for the Fifth Circuit held in Apache Corp. v. Great American Ins. Co., No 15-20499 (5th Cir. Oct. 18, 2016), that a crime protection insurance policy does not cover loss resulting from a fraudulent email directing funds to be sent electronically to the imposter’s bank account because the scheme did not constitute “computer fraud” under the policy.

Earlier this month, Hunton & Williams announced that Global Privacy and Cybersecurity partner Aaron P. Simpson has switched to London from the firm’s New York office. He will continue his work on behalf of clients as a leader of the firm’s Global Privacy and Cybersecurity practice.

Earlier this month, at a meeting of the Article 31 Committee, the European Commission (“Commission”) unveiled two draft Commission Implementing Decisions that propose amendments to the existing adequacy decisions and decisions on EU Model Clauses.

On October 19, 2016, the International Trade Administration issued a press release reaffirming the commitment of both the U.S. Department of Commerce and Japan’s Personal Information Protection Commission (the “PPC”) to continue implementation of the APEC Cross-Border Privacy Rules (“CBPR”) system in order to foster the protection of personal information transferred across borders. According to the press release, the PPC’s “recent decision to recognize the system as a mechanism for international data transfers in the implementing guidelines for Japan’s amended privacy law marks an important milestone for the development of the APEC CBPR system in Japan.” Going forward, both agencies also have committed to cooperate in raising awareness and encouraging other APEC member economies to implement the CBPR system.

On October 14, 2016, the National Highway Transportation Administration (“NHTSA”) indicated in a letter to Congress that it intends to issue new best practices on vehicle cybersecurity. This letter came in response to an earlier request from the House Committee on Energy and Commerce (“Energy and Commerce Committee”) that NHTSA convene an industry-wide effort to develop a plan to address vulnerabilities posed to vehicles by On-Board Diagnostics (“OBD-II”) ports. Since 1994, the Environmental Protection Agency has required OBD-II ports be installed in all vehicles so that they can be tested for compliance with the Clean Air Act. OBD-II ports provide valuable vehicle diagnostic information and allow for aftermarket devices providing services such as “good driver” insurance benefits and vehicle tracking. Because OBD-II ports provide direct access to a vehicle’s internal network; however, OBD-II ports are widely cited as the central vulnerability to vehicle cybersecurity.

On October 7, 2016, the Article 29 Working Party (the “Working Party”) published a summary of the discussions that took place at its “Fablab” workshop entitled GDPR/from concepts to operational toolbox, DIY, which took place on July 26, 2016, in Brussels.

Earlier this month, the Department of Health and Human Services’ Office for Civil Rights issued guidance (the “Guidance”) for HIPAA-covered entities that use cloud computing services involving electronic protected health information (“ePHI”).

On October 14, 2016, California Attorney General Kamala D. Harris announced the release of a publicly available online form that will enable consumers to report potential violations of the California Online Privacy Protection Act (“CalOPPA”). CalOPPA requires website and mobile app operators to post a privacy policy that contains certain specific content.

On October 19, 2016, the Court of Justice of the European Union (the “CJEU”) issued its judgment in Patrick Breyer v. Bundesrepublik Deutschland, following the Opinion of Advocate General Manuel Campos Sánchez-Bordona on May 12, 2016. The CJEU followed the Opinion of the Advocate General and declared that a dynamic IP address registered by a website operator must be treated as personal data by that operator to the extent that the user's Internet service provider ("ISP") has - and may provide - additional data that in combination with the IP address that would allow for the identification of the user.

On October 19, 2016, the Federal Deposit Insurance Corporation (“FDIC”), the Federal Reserve System (the “Fed”) and Office of the Comptroller of the Currency issued an advance notice of proposed rulemaking suggesting new cybersecurity regulations for banks with assets totaling more than $50 billion (the “Proposed Standards”).

Recently, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP, a privacy and information policy think tank based in Brussels, London and Washington, D.C., and Telefónica, one of the largest telecommunications company in the world, issued a joint white paper on Reframing Data Transparency (the “white paper”). The white paper was the outcome of a June 2016 roundtable held by the two organizations in London, in which senior business leaders, Data Privacy Officers, lawyers and academics discussed the importance of user-centric transparency to the data driven economy.

On October 11, 2016, Group of Seven (“G-7”) financial leaders endorsed the Fundamental Elements of Cybersecurity for the Financial Sector (“Best Practices”), a set of non-binding best practices for banks and financial institutions to address cybersecurity threats. The endorsement was motivated by recent large hacks on international banks, including the February 2016 theft of $81 million from the central bank of Bangladesh’s account at the New York Federal Reserve.

On October 13, 2016, Elizabeth Denham, the UK Information Commissioner, suggested that directors of companies who violate data protection laws should be personally liable to pay fines at a House of Commons Public Bill Committee meeting when discussing the latest draft of the Digital Economy Bill (the “Bill”). The Bill is designed to enable businesses and individuals to access fast, digital communications services, promote investment in digital communications infrastructure and support the “digital transformation of government.” Measures to improve the digital landscape contained in the Bill include the introduction of a new Electronic Communications Code and more effective controls to protect citizens from nuisance calls. More controversially, however, the Bill also contains provisions both enabling and controlling the sharing of data between public authorities and private companies.

A recent study from the National Institute of Standards and Technology (“NIST”) warns that an overabundance of computer security measures might actually lead users to engage in “risky computing behavior at work and in their personal lives.”

On October 27, 2016, the Federal Communications Commission (“FCC”) will vote on whether to finalize proposed rules (the "Proposed Rules”) concerning new privacy restrictions for Internet Service Providers (“ISPs”). The Proposed Rules, which revise previous versions introduced earlier this year, would require customers’ explicit (or “opt-in”) consent before an ISP can use or share a customer’s personal data, including web browsing and app usage history, geolocation data, children’s information, health information, financial information, email and other message contents and Social Security numbers.

On October 3, 2016, the Texas Attorney General announced a $30,000 settlement with mobile app developer Juxta Labs, Inc. (“Juxta”) stemming from allegations that the company violated Texas consumer protection law by engaging in false, deceptive or misleading acts or practices regarding the collection of personal information from children.

On October 4, 2016, the U.S. Department of Defense (“DoD”) finalized its rule implementing the mandatory cyber incident reporting requirements for defense contractors under 10 U.S.C. §§ 391 and 393 (the “Rule”). The Rule applies to DoD contractors and subcontractors that are targets of any cyber incident with a potential adverse impact on information systems and “covered defense information” on those systems.

Episode 3: Lessons Learned

In the third segment of our 3-part series with Lawline, Lisa J. Sotto, head of our Global Privacy and Cybersecurity practice at Hunton & Williams LLP, discusses the details of the post-mortem following a data breach and the role of boards of directors before, during and after a breach. “We always want to revisit our incident response plan…and make changes to incorporate the lessons learned from a cyber event,” Sotto says. “We seek to ensure senior leadership understands how to prevent these events from happening in the future.”

In September, the Centre for Information Policy Leadership (“CIPL”) held its second GDPR Workshop in Paris as part of its two-year GDPR Implementation Project. The purpose of the project is to provide a forum for stakeholders to promote EU-wide consistency in implementing the GDPR, encourage forward-thinking and future-proof interpretations of key GDPR provisions, develop and share relevant best practices, and foster a culture of trust and collaboration between regulators and industry.  

On October 3, 2016, at the Paris Motor Show, the French Data Protection Authority ("CNIL") reported on the progress of a new compliance pack on connected vehicles. The work was launched on March 23, 2016, and should be finalized in Spring 2017.

On September 27, 2016, Cloud Infrastructure Services Providers in Europe (“CISPE”) published its Data Protection Code of Conduct (the “Code”). CISPE, a relatively new coalition of more than 20 cloud infrastructure providers with operations in Europe, has focused the Code on transparency and compliance with EU data protection laws.

On September 23, 2016, the European Data Protection Supervisor (the “EDPS”) released Opinion 8/2016 (the “Opinion”) on the coherent enforcement of fundamental rights in the age of big data. The Opinion updates the EDPS’ Preliminary Opinion on Privacy and Competitiveness in the Age of Big Data, first published in 2014, and provides practical recommendations on how the EU’s objectives and standards can be applied holistically across the EU institutions. According to the EDPS, the Digital Single Market Strategy presents an opportunity for a coherent approach with respect to the application of EU rules on data protection, consumer protection, antitrust enforcement and merger control. In addition, the EDPS calls for greater dialogue and cooperation between data protection, consumer and competition authorities in order to protect the rights and interests of individuals, including the rights to privacy, freedom of expression and non-discrimination.