Privacy & Information Security Law Blog

On March 1, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted a response to the new Brazilian data protection authority’s (Agência Nacional de Proteção de Dados, the “ANPD’s”) public consultation (in Portuguese) on the impact of the Brazilian data protection law (Lei Geral de Proteção de Dados, the “LGPD”) on small and medium-sized enterprises (“SMEs”), which will inform the ANPD’s upcoming special rules for SMEs.

On March 2, 2021, Virginia’s Governor, Ralph Northam, signed the Consumer Data Protection Act into law without any further amendments. In addition to California, Virginia is now the second state to enact major privacy legislation of general applicability in the U.S.

The concept of regulatory sandboxes has gained traction in the data protection community. Since the UK Information Commissioner’s Office (the “ICO”) completed its pilot program of regulatory sandboxes in September 2020, two European Data Protection Authorities (“DPAs”) have created their own sandbox initiatives following the ICO’s framework.

In the February 2021 issue of the Data Protection Leader, Hunton partner Dora Luo discusses China’s draft Personal Information Protection Law (“Draft PIPL”) (in Chinese) in the context of other comprehensive data protection frameworks, such as the EU General Data Protection Regulation (“GDPR”).

On February 19, 2021, the European Commission published a draft data protection adequacy decision relating to the UK. If the draft decision is adopted, organizations in the EU will be able to continue to transfer personal data to organizations in the UK without restriction, and will not need to rely upon data transfer mechanisms, such as the EU Standard Contractual Clauses, to ensure an adequate level of protection.

As we previously reported, significant data privacy bills, titled the Consumer Data Protection Act, are working their way through the Virginia legislature. If enacted, Virginia would be the second state to enact major data privacy legislation of general applicability.

On February 5, 2021, the state Senate of Virginia voted unanimously to approve Senate Bill 1392, titled the Consumer Data Protection Act, after the House of Delegates approved an identical House bill by an 89-9 vote. Each bill likely will be heard in committee next week by the opposite chamber, which provides additional opportunities to make amendments. Minor, clarifying amendments will likely be added in committee, but they are not expected to alter the main components of the bill. Virginia’s General Assembly will adjourn Sine Die on March 1, and legislators have until then to finalize the details of the legislation. Virginia’s Governor Ralph Northam would be in a position to sign the bill later in March. Notably, the Governor has line item veto authority, so the bill could also possibly be amended after it passes the General Assembly.

On February 10, 2021, representatives of the EU Member States reached an agreement on the Council of the European Union’s (the “Council’s”) negotiating mandate for the draft ePrivacy Regulation, which will replace the current ePrivacy Directive. The text approved by the EU Member States was prepared under Portugal’s Presidency and will form the basis of the Council’s negotiations with the European Parliament on the final terms of the ePrivacy Regulation.

On February 4, 2021, the French Data Protection Authority (the “CNIL”) announced (in French) that it sent letters and emails to approximately 300 organizations, both private and public, to remind them of the new cookie law rules and the need to audit sites and apps to comply with those rules by March 31, 2021.

This is an extraordinary and unprecedented time for the retail industry. Hunton Andrews Kurth’s 2020 Retail Industry Year in Review provides an in-depth analysis of the issues and challenges that retailers faced in the past year, and a look ahead at what they can expect in 2021. The Year in Review includes several articles authored by our privacy and cybersecurity lawyers, including on topics such as the cashier-less technology revolution, the California Privacy Rights Act of 2020 and “buy now, pay later” plans.

Read the full publication.

On January 19, 2021, the UK Information Commissioner’s Office (“ICO”) published its analysis of the application of the UK General Data Protection Regulation (the “UK GDPR”) to transfers from UK-based firms or branches that are registered, required to be registered or otherwise regulated by the U.S. Securities and Exchange Commission (“SEC”).

On January 26, 2021, BBB National Programs announced that it has been endorsed as an Accountability Agent for the APEC Cross-Border Privacy Rules (“CBPR”) and Privacy Recognition for Processors (“PRP”) systems. This makes BBB National Programs the seventh CBPR and PRP Accountability Agent worldwide and the first ever U.S. non-profit to be approved by APEC.

On January 18, 2021, the European Data Protection Board (“EDPB”) released draft Guidelines 01/2021 on Examples regarding Data Breach Notification (the “Guidelines”). The Guidelines complement the initial Guidelines on personal data breach notification under the EU General Data Protection Regulation (“GDPR”) adopted by the Article 29 Working Party in February 2018. The new draft Guidelines take into account supervisory authorities’ common experiences with data breaches since the GDPR became applicable in May 2018. The EDPB’s aim is to assist data controllers in deciding how to handle data breaches, including by identifying the factors that they must take into account when conducting risk assessments to determine whether a breach must be reported to relevant supervisory authorities and/or the affected data subjects.

On January 15, 2021, the European Data Protection Board (“EDPB”) and European Data Protection Supervisor (“EDPS”) adopted joint opinions on the draft Standard Contractual Clauses (“SCCs”) released by the European Commission in November 2020, for both international transfers (“International SCCs”) and controller-processor relationships within the EEA (“EEA Controller-Processor SCCs”). 

On December 16, 2020, the Committee of Experts within India’s Ministry of Electronics and Information Technology (MeitY) (the “Committee”) issued a revised report on the Non-Personal Data Governance Framework (the “NPDF”) for India (the “Revised Committee Report”).

On January 13, 2021, the FTC announced that fertility-app developer Flo Health, Inc. (“Flo”) agreed to a settlement over allegations that the company shared app users’ health information with third-party data analytics providers despite representations that Flo would keep such information private.

On January 12, 2021, in Wengui v. Clark Hill, PLC, et al., the United States District Court for the District of Columbia rejected a law firm defendant’s assertions of the attorney-client privilege and work product doctrine for forensic reporting and other related information associated with its outside counsel’s data breach investigation.

As reported on the Hunton Retail Law Resource blog, the Federal Trade Commission settled charges with mobile advertising company Tapjoy, Inc., on allegations that the company failed to provide promised rewards in exchange for completed activities such as the payment of money, disclosure of sometimes-sensitive personal information or registration for “free trial” marketing offers.

On January 11, 2021, the FTC announced that Everalbum, Inc. (“Everalbum”), developer of the “Ever” photo storage app, agreed to a settlement over allegations that the company deceived consumers about its use of facial recognition technology and its retention of the uploaded photos and videos of users who deactivated their accounts.

On January 10, 2021, New York City enacted a new biometrics ordinance that regulates the commercial use and sale of biometric identifier information.

The global privacy and cybersecurity team at Hunton Andrews Kurth has authored multiple chapters of the 2021 Data Protection & Privacy guide by Lexology’s Getting the Deal Through. Partner Aaron P. Simpson and practice chair Lisa J. Sotto served as contributing editors of the ninth edition of the annual guide, which provides summary and analysis in key areas of law, practice and regulation for 150 jurisdictions across the globe.

On December 24, 2020, the European Union and the United Kingdom reached an agreement in principle on the historic EU-UK Trade and Cooperation Agreement (the “Trade Agreement”). For data protection purposes, there is a further transition period of up to six months to enable the European Commission to complete its adequacy assessment of the UK’s data protection laws. For the time being, personal data can continue to be exported from the EU to the UK without implementing additional safeguards.

On December 15, 2020, the Federal Trade Commission announced a proposed settlement with Ascension Data & Analytics, LLC, a Texas-based mortgage industry data analytics company (“Ascension”), to resolve allegations that the company failed to ensure one of its vendors was adequately securing personal information of mortgage holders.

On December 9, 2020, the Senate Committee on Commerce, Science and Transportation held a hearing on the Invalidation of the EU-U.S. Privacy Shield and the Future of Transatlantic Data Flows. The hearing explored the policy issues that led to the Court of Justice of the European Union’s (“CJEU”) invalidation of the Privacy Shield framework in the Schrems II ruling. The hearing also discussed effects of the CJEU’s decision on U.S. businesses and what steps the U.S. government may take to develop a successor data transfer framework, including comprehensive federal privacy legislation.

On December 17, 2020, the UK Information Commissioner’s Office (“ICO”) published its Data Sharing Code of Practice (the “Code”), in accordance with its obligation to do so under the Data Protection Act 2018 (the “DPA”).

Hunton attorneys Dora Luo and Yanchen Wang recently published a new Guidance Note for OneTrust DataGuidance on China’s data protection laws.

On December 1, 2020, the Cyberspace Administration of China released draft rules on the “Scope of Necessary Personal Information Required for Common Types of Mobile Internet Applications” (the “Draft Rules”) (in Chinese).

On November 25, 2020, the European Commission published its Proposal for a Regulation on European Data Governance (the “Data Governance Act”). The Data Governance Act is part of a set of measures announced in the 2020 European Strategy for Data, which is aimed at putting the EU at the forefront of the data empowered society. The European Commission also released a Questions & Answers document and a Factsheet on European data governance.

On November 24, 2020, the European Parliament endorsed the new directive on representative actions for the protection of the collective interests of consumers (the “Collective Redress Directive”). The Collective Redress Directive requires all EU Member States to put in place at least one effective procedural mechanism allowing qualified entities to bring representative actions to court for the purpose of injunction or redress. The Collective Redress Directive was presented in April 2018 by the European Commission and is part of the European Commission’s New Deal for Consumers. The Collective Redress Directive was proposed as a response to several scandals related to breaches of consumers’ rights by multinational companies.

On November 24, 2020, a multistate coalition of Attorneys General announced that The Home Depot, Inc. (“Home Depot”) agreed to pay $17.5 million and implement a series of data security practices in response to a data breach the company experienced in 2014. The $17.5 million payment will be divided among the 46 participating states and the District of Colombia. We previously reported on a settlement Home Depot reached in 2017 to resolve a putative class action brought by financial institutions impacted by the 2014 data breach.

On December 3, 2020, Hunton Andrews Kurth will host a webinar on Machine Learning Hot Topics: Negotiating Global Data Protection and IP Terms. Join our Hunton speakers, Brittany Bacon, Tyler Maddry and Anna Pateraki, as they discuss key data protection and intellectual property considerations when drafting and negotiating global agreements involving machine learning (“ML”) services and engaging in new ML practices.

On November 18, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the Standing Committee of the National People’s Congress (“NPC”) of the People’s Republic of China on the Draft Personal Information Protection Law (“PIPL”).

On November 12, 2020, Chief Judge Nancy J. Rosenstengel of the U.S. District Court for the Southern District of Illinois rejected Apple Inc.’s (“Apple’s”) motion to dismiss a class action alleging its facial recognition software violates Illinois’ Biometric Information Privacy Act (“BIPA”). Judge Rosenstengel agreed with Apple, however, that the federal court lacks subject matter jurisdiction over portions of the complaint.

On November 9, 2020, the Federal Trade Commission announced it had entered into an consent agreement (the “Proposed Settlement”) with Zoom Video Communications, Inc. (“Zoom”) to settle allegations that the video conferencing provider engaged in a series of unfair and deceptive practices that undermined the security of its user base, which, according to the FTC, has grown from 10 million users in December 2019 to 300 million in April 2020 during the COVID-19 pandemic.

On October 27, 2020, the UK Information Commissioner’s Office (“ICO”) published a report following its investigation into data protection compliance in the direct marketing data broking sector, alongside its enforcement action against Experian. During the investigation, the ICO conducted audits of the direct marketing data broking businesses of the UK’s three largest credit reference agencies (“CRAs”) – Experian, Equifax and TransUnion – and found “significant data protection failures at each” that were “deeply embedded” within the businesses.

On October 21, 2020, China issued a draft of Personal Information Protection Law (“Draft PIPL”) for public comments. The Draft PIPL marks the introduction of a comprehensive system for the protection of personal information in China.

On November 2, 2020, the comment period for the Federal Acquisition Security Council’s (“FASC”) interim final rule (the “Interim Final Rule”) implementing the Federal Acquisition Supply Chain Security Act of 2018 (the “2018 Act”) will close.

On October 13, 2020, France’s highest administrative court (the “Conseil d’État”) issued a summary judgment that rejected a request for the suspension of France’s centralized health data platform, Health Data Hub (the “HDH”), currently hosted by Microsoft. However, the Conseil d’État recognized that there is a risk of U.S. intelligence services requesting the data and called for additional guarantees under the control of the French data protection authority (the “CNIL”).

The increasing development and use of AI technology is raising several compliance questions, particularly in the context of the EU General Data Protection Regulation (“GDPR”). The European Commission has already begun working on future AI legislation. Join us on October 14, 2020, for a webinar on Artificial Intelligence: Key Considerations for GDPR Compliance Today and Tomorrow.

On September 30, 2020, the Belgian Data Protection Authority (the “Belgian DPA”) released its 2019 Annual Report (the “Report”). Notably, 2019 was the year of the Belgian DPA’s first fines under the EU General Data Protection Regulation (the “GDPR”) and the release of the Belgian DPA’s 2019-2025 Strategic Plan.

On October 1, 2020, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) issued an advisory alerting companies of potential sanctions risks related to facilitating ransomware payments.  The five-page advisory states that ransomware victims who pay ransom amounts, and third-party companies that negotiate or pay ransom on their behalf, “not only encourage future ransomware payment demands but also may risk violating OFAC regulations.”

On September 18, 2020, the U.S. Department of Commerce (“Commerce”) announced detailed sanctions relating to the mobile applications WeChat and TikTok. These prohibitions were issued in accordance with President Trump’s Executive Orders issued on August 6, 2020, imposing economic sanctions against the platforms under the International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq.) and the National Emergencies Act (50 U.S.C. § 1601 et seq.). These orders, if they become fully effective, will (1) prohibit mobile app stores in the U.S. from permitting downloads or updates to the WeChat and TikTok mobile apps; (2) prohibit U.S. companies from providing Internet backbone services that enable the WeChat and TikTok mobile apps; and (3) prohibit U.S. companies from providing services through the WeChat mobile app for the purpose of transferring funds or processing payments to or from parties. The sanctions do not target individual or business use of the applications but are expected to degrade the ability of persons in the United States to use the apps for the purposes they were designed to serve.

On September 18, 2020, as confirmed by Brazilian firm Mattos Filho, Veiga Filho, Marrey Jr. e Quiroga Advogados, Brazil’s President signed a bill from Brazil’s Congress bringing the new Brazilian data protection law (Lei Geral de Proteção de Dados Pessoais, “LGPD”) into effect with a retroactive applicability date of August 16, 2020. The LGPD’s sanctions provisions will apply beginning August 1, 2021, based on a previous delay passed by Brazil’s legislature. As we previously reported, on August 26, 2020, Brazil’s Senate had unexpectedly rejected the ...

On September 9, 2020, the UK Information Commissioner’s Office (“ICO”) published an Accountability Framework, designed to assist organizations in complying with their accountability obligations under the EU General Data Protection Regulation (“GDPR”). The GDPR’s accountability principle requires that organizations both comply with their legal requirements under the GDPR, and also demonstrate their compliance. The ICO states that its Accountability Framework “supports the foundations of an effective privacy management programme.”

On September 9, 2020, Portland, Oregon became the first jurisdiction in the country to ban the private-sector use of facial recognition technology in public places within the city, including stores, restaurants and hotels. The city Ordinance was unanimously passed by the Portland City Council and will take effect on January 1, 2021. The City Council cited as rationale for the Ordinance documented instances of gender and racial bias in facial recognition technology, and the fact that marginalized communities have been subject to “over surveillance and [the] disparate and detrimental impact of the use of surveillance.”

On September 1, 2020, the Centre for Information Policy Leadership at Hunton Andrews Kurth (“CIPL”) and the Centro de Direito, Internet e Sociedade of Instituto Brasiliense de Direito Público (“CEDIS-IDP”) released a new paper (“Paper”) on the Top Priorities for Public and Private Organizations to Effectively Implement the New Brazilian General Data Protection Law (“LGPD”). This paper is part of their joint-project on effective implementation and regulation under the LGPD.

On September 8, 2020, the Swiss Data Protection Authority (the Federal Data Protection and Information Commissioner, “FDPIC”), announced in a position statement that it no longer considers the Swiss-U.S. Privacy Shield adequate for the purposes of transfers of personal data from Switzerland to the U.S. This decision follows the July 2020 ruling of the Court of Justice of the European Union (“CJEU”) in the Schrems II case, which invalidated the EU-U.S. Privacy Shield for EU-U.S. transfers of personal data. This ruling was considered as part of the annual review of the Swiss-U.S. Privacy Shield Framework by the FDPIC since, as Switzerland is not a member of the EU, it is not bound by the CJEU ruling.

On September 3, 2020, the Committee on Civil Liberties, Justice and Home Affairs (“LIBE Committee”) of the European Parliament held a meeting to discuss the future of EU-U.S. data flows following the Schrems II judgment of the Court of Justice of the European Union (the “CJEU”). In addition to Members of the European Parliament (“MEPs”), the meeting’s participants included Justice Commissioner Didier Reynders, European Data Protection Board (“EDPB”) Chair Andrea Jelinek and Maximilian Schrems. Importantly, Commissioner Reynders stated during the meeting that the new Standard Contractual Clauses (“SCCs”) might be adopted by the end of 2020, at the earliest.

UPDATE: On September 25, 2020, California Governor Gavin Newsom vetoed SB-980.

On August 31, 2020, the California Senate joined the Assembly in passing SB-980, as amended, a bill to establish the Genetic Information Privacy Act (the “Act”), which would require direct-to-consumer genetic testing companies to comply with certain privacy and data security provisions, including providing consumers with prescribed notice; obtaining consumers’ express consent regarding the collection, use and disclosure of genetic data; and enabling consumers to access and delete their genetic data. The bill is pending California Governor Gavin Newsom’s signature.

On August 30, 2020, the California legislature passed AB-1281. As background, the California Consumer Privacy Act of 2018 (“CCPA”) currently exempts from most of its requirements certain information collected in the HR context and certain information collected about B2B personnel. Each exemption is scheduled to sunset on January 1, 2021. As we previously reported, the California Privacy Rights Act (“CPRA”) ballot initiative, if passed during the state’s November 3, 2020 general election, would extend the CCPA’s HR and B2B exemptions to January 1, 2023 ...

Apple’s iOS 14, which was announced by Apple in June 2020 and is scheduled for official release later this year, will require that all apps receive affirmative (i.e., opt-in) user consent to (1) access an iPhone’s unique advertising identifier (Identifier for Advertisers, or “IDFA”) or (2) to "track" users.

On August 14, 2020, the California Attorney General announced that the California Office of Administrative Law (“OAL”) approved the final regulations issued under the California Consumer Privacy Act of 2018 (“CCPA”) and filed them with the California Secretary of State. As we previously reported, the California Attorney General submitted the draft regulations to the OAL on June 1, 2020, and requested that the regulations become effective on the same day they are filed with the Secretary of State. The OAL has complied with that request, and the regulations go into effect ...

Earlier this year, The Retail Equation, a loss prevention service provider, and Sephora were hit with a class action lawsuit in which the plaintiff claimed Sephora improperly shared consumer data with The Retail Equation without consumers’ knowledge or consent. The plaintiff claimed The Retail Equation did so to generate risk scores that allegedly were “used as a pretext to advise Sephora that attempted product returns and exchanges are fraudulent and abusive.”

On August 6, 2020, President Trump signed executive orders imposing new economic sanctions under the International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq.) and the National Emergencies Act (50 U.S.C. § 1601 et seq.) against TikTok, a video-sharing mobile application, and WeChat, a messaging, social media and mobile payments application. The orders potentially affect tens of millions of U.S. users of these applications and billions of users worldwide.

On August 5, 2020, the French Data Protection Authority (the “CNIL”) announced that it has levied a fine of €250,000 on French online shoe retailer, Spartoo, for various infringements of the EU General Data Protection Regulation (“GDPR”). This is the first penalty under the GDPR enforced by the CNIL as the lead supervisory authority (“Lead SA”) in cooperation with other EU supervisory authorities (“SAs”).

On August 10, 2020, European Commissioner for Justice Didier Reynders and U.S. Secretary of Commerce Wilbur Ross released a joint press statement (the “Statement”) following the ruling of the Court of Justice of the European Union (“CJEU”) in the Schrems II case.

On August 4, 2020, Senators Jeff Merkley (OR) and Bernie Sanders (VT) introduced the National Biometric Information Privacy Act of 2020 (the “bill”). The bill would require companies to obtain individuals’ consent before collecting biometric data. Specifically, the bill would prohibit private companies from collecting biometric data—including eye scans, voiceprints, faceprints and fingerprints—without individuals’ written consent, and from profiting off of biometric data. The bill provides individuals and state attorneys general the ability to institute legal proceedings against entities for alleged violations of the act.

The U.S. Department of Commerce has issued two new sets of FAQs in light of the Court of Justice of the European Union’s (“CJEU’s”) recent decision to invalidate the EU-U.S. Privacy Shield in Schrems II. We previously reported on the Schrems II ruling and its implication for businesses that transfer personal data to the U.S. The new FAQs from the Department of Commerce address the impact of the decision on the EU-U.S. Privacy Shield framework and the Swiss-U.S. Privacy Shield framework.

On July 23, 2020, the UK Information Commissioner’s Office (the “ICO”) published the first two reports of its Data Protection Regulatory Sandbox Beta phase (the “Beta phase”) involving projects by Jisc (a not-for-profit organization serving the higher and further education and skills sectors) and Heathrow Airport Ltd.

On July 16, 2020, the Court of Justice of the European Union (the “CJEU”) invalidated the EU-U.S. Privacy Shield Framework as part of its judgment in the Schrems II case (case C-311/18). In its judgment, the CJEU concluded that the Standard Contractual Clauses (the “SCCs”) issued by the European Commission for the transfer of personal data to data processors established outside of the EU are valid, but it struck down the Privacy Shield framework on the basis that the limitations on U.S. public authorities’ access to EU personal data were not sufficient for the level of protection in the U.S. to be considered equivalent to that ensured in the EU, and that the framework does not grant EU individuals actionable rights before a body offering guarantees that are substantially equivalent to those required under EU law.

On July 16, 2020, the Court of Justice of the European Union (the “CJEU”) issued its landmark judgment in the Schrems II case (case C-311/18). In its judgment, the CJEU concluded that the Standard Contractual Clauses (the “SCCs”) issued by the European Commission for the transfer of personal data to data processors established outside of the EU are valid. Unexpectedly, the Court invalidated the EU-U.S. Privacy Shield framework.

In one of the most important cases on global data transfers, the Court of Justice of the European Union (“CJEU”) will rule on the validity of the Standard Contractual Clauses (“SCCs”) in the Schrems II case (case C-311/18) on July 16, 2020. Invalidation of the SCCs would leave businesses scrambling to find an alternative data transfer mechanism. But there may be significant practical challenges for businesses even if the SCCs survive.

In a case that has garnered widespread interest, the Court of Justice of the European Union (“CJEU”) will deliver its judgment in the Schrems II case (case C-311/18) on July 16, 2020, determining the validity of the controller–to-processor Standard Contractual Clauses (“SCCs”) as a cross-border data transfer mechanism under the EU General Data Protection Regulation (“GDPR”). If the SCCs are invalidated, the judgment would deliver a significant blow to the numerous businesses that rely on them, leaving many scrambling to find a suitable alternative transfer mechanism. Even if the SCCs survive, they may become more cumbersome to use.

On July 9, 2020, the European Commission (the “Commission”) adopted a Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions entitled: “Getting ready for changes – Communication on readiness at the end of the transition period between the European Union and the United Kingdom” (the “Communication”).

On June 26, 2020, New Zealand Justice Minister Andrew Little announced that the bill to repeal and replace New Zealand’s existing Privacy Act 1993 (the “Privacy Bill”) had passed its third reading in Parliament. The Privacy Bill received royal assent on June 30, 2020.

The Civil Code of China (the “Civil Code”) was approved by the National People's Congress of China on May 28, 2020 and will take effect January 1, 2021. Part Four of the Civil Code explicitly stipulates that the “Right of Privacy” is one of the “Rights of Personality” covered therein and includes a chapter on “Privacy and Personal Information Protection,” which contains detailed provisions to protect privacy and personal information.

On July 1, 2020, the Dubai International Financial Centre (“DIFC”) Data Protection Law No. 5 of 2020 came into effect (“New DP Law”). Due to the current pandemic, a three-month grace period, running until October 1, 2020, has been provided for companies to comply. The New DP Law replaces DIFC Law No. 1 of 2007. The release of the New DP Law is, in part, an effort to ensure that the DIFC, a financial hub for the Middle East, Africa and South Asia, meets the standard of data protection required to receive an “adequacy” finding from the European Commission and the United Kingdom, meaning that companies may transfer EU/UK personal data to the DIFC without putting in place a transfer mechanism (such as Standard Contractual Clauses).

When compared to the EU or the U.S., China has lacked a comprehensive data protection and data security law that regulates in detail requirements and procedures relating to the collection, processing, control and storage of personal data. In recent years, China has seen developments on data protection both in legislation and in practice. Recently, another significant draft law on data security was issued by the Chinese legislative authority. On June 28 to June 30, 2020, the 20th Session of the 13th Standing Committee of the National People’s Congress of China (the “NPC”) deliberated on the draft of the Data Security Law (the “Draft”), and on July 3, published the Draft on the NPC’s official website for public comment. The public comment period for the Draft will end on August 16, 2020. It is expected that the Draft will be finalized within the year and that the regulatory requirements relating to data security eventually will be reflected in law in China.

Last month, in In re: Capital One Customer Data Security Breach Litigation, E.D. Va., No. 1:19-md-02915, U.S. Magistrate Judge John Anderson (the “Judge”) ordered Capital One Financial Corp. (“Capital One”) to disclose a forensic report to the plaintiffs in a lawsuit stemming from Capital One’s 2019 data breach. In doing so, the Judge rejected Capital One’s argument that the report is protected from disclosure to the plaintiffs by the work product doctrine.

The Italian Data Protection Authority (Garante per la protezione dei dati personali, “Garante”) recently announced that it levied a €600,000 fine on banking institution UniCredit for several violations of the Italian Personal Data Protection Code, in its pre-General Data Protection Regulation (“GDPR”) form.

On June 25, 2020, the European Commission launched a public consultation on the revision of the Directive on Security of Network and Information Systems (the “NIS Directive”). According to the Commission, a revision is needed because cybersecurity capabilities in EU Member States remain unequal despite progress made with the NIS Directive, and the level of protection in the EU is insufficient. In addition, the rapid digitalization of society has expanded the threat landscape and presents new challenges requiring adaptive and innovative responses.

On June 23, 2020, the German Federal Court of Justice (the Bundesgerichtshof, or “BGH”) issued a decision confirming the enforceability, in preliminary proceedings, of the order of the German Federal Cartel Office (the “Bundeskartellamt”) against Facebook’s data practices.

Zeyn Bhyat of ENSafrica reports that on June 22, 2020, it was announced that South Africa’s comprehensive privacy law known as the Protection of Personal Information Act, 2013 (the “POPIA”) will become effective on July 1, 2020. POPIA acts as the more detailed framework legislation supporting South Africa’s constitutional right to privacy.

On June 18, 2020, Senator Sherrod Brown (OH) released a discussion draft of a privacy bill entitled the Data Accountability and Transparency Act of 2020 (“the Bill”). The Bill would provide individuals with several new rights regarding their personal data; implement rules limiting how personal data is collected, used or shared; and establish a new federal agency called the Data Accountability and Transparency Agency to protect individuals’ privacy and enforce those rules.

On June 3, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP published its report, What Good and Effective Data Privacy Accountability Looks Like: Mapping Organizations’ Practices to the CIPL Accountability Framework (“Report”). The Report consolidates the findings of CIPL’s Accountability Mapping Project launched in September 2019, which is part of CIPL’s broader work on the central role of organizational accountability in data privacy.

We previously posted about the Tapplock, Inc. (“Tapplock”) settlement with the Federal Trade Commission (“FTC”) over allegations that the company violated Section 5 of the FTC Act by falsely claiming that its “smart locks” were secure. Earlier this month, the FTC voted 5-0 to approve the settlement.

On April 25, 2020, the Philippines National Privacy Commission (“NPC”) issued a statement that it is investigating several breach notifications it has received relating to the unauthorized disclosure of sensitive personal information of confirmed and suspected COVID-19 patients (the “Statement”).

On April 13, 2020, the New York Department of Financial Services (“NYDFS”) issued guidance (“April guidance”) to all New York State entities covered under NYDFS’s cybersecurity regulation regarding assessing and addressing heightened cybersecurity risks due to the COVID-19 pandemic. In asking regulated entities to address risks “appropriately,” the April guidance references NYDFS’s earlier March 10, 2020 guidance calling on regulated institutions to submit to the agency (within 30 days of the guidance) plans “to address operational risks posed by the outbreak of a novel coronavirus,” including “assessment[s] of potential increased cyber-attacks and fraud.”

On April 16, 2020, the European eHealth Network—a voluntary network connecting national authorities responsible for eHealth designated by EU Member States—published a common EU toolbox for the use of contact tracing and warning apps in response to the coronavirus pandemic (the “Toolbox”). The Toolbox is part of the common EU coordinated approach to using COVID-19 mobile apps, as set out in the European Commission’s Recommendation of April 8, 2020. The Toolbox was accompanied by guidance from the European Commission on data protection and privacy aspects of the use of such apps (the “Guidance”).

Elizabeth Denham, the UK Information Commissioner, has released an opinion in response to the joint effort announced by Apple Inc. (“Apple”) and Google LLC (“Google”) to enable the use of Bluetooth technology to help governments and health agencies reduce the spread of COVID-19 by building contact-tracing technology into iOS and Android smartphones. In the opinion, the Information Commissioner concludes that the "Contact Tracing Framework" (“CTF”) being developed supports data protection principles.

On April 14, 2020, the Indiana Attorney General’s office announced that the state had reached a settlement agreement with Equifax in connection with Equifax’s 2017 data breach. Under the terms of the settlement, Equifax will pay a $19.5 million penalty. Indiana previously elected not to participate in a July 2019 multistate and Federal Trade Commission settlement with Equifax regarding the same data breach.

On April 3, 2020, the Brazilian Senate approved Bill of Law (“PL 1179/2020”), which includes a number of emergency measures intended to address the COVID-19 pandemic. Importantly, one provision delays the effective date of the Brazilian Data Protection Law (Lei Geral de Proteção de Dados Pessoais, “LGPD”) until January 2021. Fines and sanctions for companies that fail to comply with the LGPD are now scheduled to become effective August 2021.

A Canadian maker of Internet-connected padlocks, Tapplock, Inc. (“Tapplock”), settled Federal Trade Commission (“FTC”) allegations that the company violated Section 5 of the FTC Act by falsely claiming that its “smart locks” were secure. The FTC alleged that Tapplock “did not take reasonable measures to secure its locks, or take reasonable precautions or follow industry best practices for protecting consumers’ personal information.” The FTC further alleged that Tapplock did not have a security program in place prior to security researchers discovering vulnerabilities in the design and function of the smart locks.

As of early April, hundreds of millions of workers around the world have been affected by “stay-at-home” or “station-in-place” orders issued by governments in response to the COVID-19 pandemic. To cope, transaction processors are shifting work out of their high-security delivery centers and into the spare bedrooms and home offices of their personnel. That shift creates security challenges that have chief information security officers’ (“CISOs’”) heads spinning. Specifically, special challenges are created when work-from-home (“WFH”) orders affect payment cardholder data that is subject to the Payment Card Industry’s Data Security Standard (“PCI DSS”).

On April 2, 2020, the French Data Protection Authority (the “CNIL”) published a press release highlighting the importance of the ISO/IEC 27701 standard for the protection of personal data. The CNIL reminds that this is an international standard that defines the management system and security measures that need to be implemented for the processing of personal data (“personally identifiable information” under the ISO/IEC 27701 standard), by extending the requirements of two well-known information security standards.

On March 21, 2020, the data security provisions of New York’s Stop Hacks and Improve Electronic Data Security Act (“SHIELD Act”) went into effect. The SHIELD Act requires any person or business owning or licensing computerized data that includes the private information of a resident of New York (“covered business”) to implement and maintain reasonable safeguards to protect the security, confidentiality and integrity of the private information.

On March 4, 2020, the UK Information Commissioner’s Office (“ICO”) fined the international airline Cathay Pacific Airways Limited (“Cathay Pacific”) £500,000 for failing to protect the security of its customers’ personal data. The fine was issued under the Data Protection Act 1998 (the “DPA”) and represents the maximum fine available. The ICO found that between October 2014 and May 2018, Cathay Pacific’s computer systems lacked appropriate security measures which led to customers’ personal details being exposed. Of the approximately 9.4 million customers affected worldwide, 111,578 were from the UK.

On March 1, 2020, the Provisions on the Governance of Network Information Content Ecology (the “Provisions”) took effect. The Provisions govern China’s network information content ecology—including content producers (the “Producers”), content service platforms (the “Platforms”), content service users (the “Users”), industry organizations and Departments of Cyberspace Administration at all levels.

At this point, most companies doing business in California are aware of the California Consumer Privacy Act (“CCPA”), and most have been bracing for the eventual onslaught of class action litigation to follow its passage.

The Securities and Exchange Commission’s (“SEC”) Office of Compliance Inspections and Examinations (“OCIE”) recently announced the publication of a report entitled “Cybersecurity and Resiliency Observations.” The report summarizes the observations gleaned from OCIE’s cybersecurity examinations of broker-dealers, investment advisers, clearing agencies, national securities exchanges and other SEC registrants.

2019 was the “Year of the CCPA” as companies around the world worked tirelessly to comply with the California Consumer Privacy Act of 2018 (“CCPA”). The CCPA aims to provide data privacy rights for California residents and imposes significant new requirements on covered businesses.

In a January 6, 2020 blog post, the Director of the Federal Trade Commission’s Bureau of Consumer Protection reflected on how the FTC has taken action over the past year to strengthen its orders in data security cases. These orders have been a subject of focus for the FTC: in June 2018, the 11th Circuit’s LabMD decision struck down an FTC data security order as unenforceably vague, and the FTC subsequently held a hearing in the course of the FTC’s Hearings on Competition and Consumer Protection in the 21st Century on how it could improve data security orders.

On November 18, 2019, the ranking members from four Senate Committees (Senator Maria Cantwell (WA) from Commerce, Senator Dianne Feinstein (CA) from Judiciary, Senator Sherrod Brown (OH), and Senator Patty Murray (WA) from Health, Education, Labor and Pensions) released a set of “core principles” for federal privacy legislation.

On November 7, 2019, the Office for Civil Rights (“OCR”) of the U.S. Department of Health and Human Services (“HHS”) announced a $1.6 million civil penalty imposed against the Texas Health and Human Services Commission (“TX HHSC”), a state agency, for violations of HIPAA Privacy and Security Rules in connection with the unauthorized disclosure of electronic protected health information (“ePHI”). The ePHI breach – which exposed names, addresses, Social Security numbers, and treatment information of at least 6,617 individuals – was first reported to OCR on June 11, 2015, by Texas’s Department of Aging and Disability Services (“DADS”).

On October 22, 2019, the drafting group of China’s National Information Security Standardization Technology Committee (“NISSTC”) released a third set of draft amendments to the Information Security Technology - Personal Information Security Specification (GB/T 35273 – 2017) (the “Updated Draft Specification”). The original Specification, first issued on December 29, 2017, became effective May 1, 2018, and saw earlier draft amendments on February 1, 2019 and June 25, 2019. The NISSTC received more than 400 public comments on the proposed June amendments. The latest draft amendment was issued without a public comment period.

On October 22, 2019, the Federal Trade Commission announced that, for the first time, it has brought a case against a developer of “Stalking” Apps. The agency alleges that Retina-X Studios, and its owner, James N. Johns, Jr., developed and marketed three apps that allowed purchasers to surreptitiously monitor the movements and online activities of users of devices on which the apps were installed without the knowledge or permission of the device’s user. The FTC also alleges that the app developer took steps to ensure that a device user would not be aware that the app had been installed, bypassing mobile device manufacturers’ security restrictions and leaving the device vulnerable to cybersecurity risks. The apps were marketed as tools for monitoring the behavior of employees and children. The FTC further alleges that the app developer issued policies that made inaccurate representations regarding the security of their online systems, which were recently found to have been hacked twice during earlier incidents.

On October 11, 2019, California Governor Gavin Newsom signed into law AB 1130, which expands the types of personal information covered by California’s breach notification law to include, when compromised in combination with an individual’s name: (1) additional government identifiers, such as tax identification number, passport number, military identification number, or other unique identification number issued on a government document commonly used to verify the identity of a specific individual; and (2) biometric data generated from measurements or technical analysis of human body characteristics (e.g., fingerprint, retina, or iris image) used to authenticate a specific individual. Biometric data does not include a physical or digital photograph unless used or stored for facial recognition purposes.

The U.S. Chamber’s Technology Engagement Center (“C_TEC”) and Center for Global Regulatory Cooperation (“GRC”) recently released a set of ten principles essential for attaining the full potential of AI technologies.

The principles, drafted with input from more than 50 Chamber member companies, stress the importance of creating a sensible and innovation-forward approach to addressing the challenges and opportunities presented by AI.

On September 23, 2019, the Office of the Privacy Commissioner of Canada (“OPC”) announced that it completed its consultation on transfers for processing and that the OPC’s current guidelines for processing personal data across borders remain unchanged. Under these guidelines, consent for transfers to data processors generally is not required.

On September 10, 2019, the French data protection authority (the “CNIL”) updated its existing set of questions and answers (“FAQs”) on the impact of a no-deal Brexit on data transfers from the EU to the UK and how controllers should prepare.