Privacy & Information Security Law Blog

California marked the end of the 2019 legislative session this past Friday, September 13, by passing five out of six pending bills to amend the California Consumer Privacy Act of 2018 (“CCPA”). The bills – AB-25, AB-874, AB-1146, AB-1355 and AB-1564 – now head to California Governor Newsom’s desk for signature, which must occur by October 13 for the bills to be signed into law. The only pending bill not to pass was AB-846, which would have addressed the law’s application to customer loyalty programs; it was ordered to the inactive file at the request of Senator Jackson.

On September 6, 2019, the National Institute of Standards and Technology (“NIST”) released a preliminary draft of its Privacy Framework: A Tool for Improving Privacy Through Enterprise Risk Management (“Privacy Framework”).

There are six bills pending before the California legislature that would amend the California Consumer Privacy Act of 2018 (“CCPA”). These bills could significantly alter the law’s application and associated compliance obligations, including with respect to HR data, B2B customer data, loyalty programs and the definition of “personal information.” As of September 12, three bills have passed out of the California Senate and are pending before the Assembly for a concurring vote: AB 874, AB 1146 and AB 1564. The California legislature must vote on all pending CCPA ...

As an update to our previous blog posts, the FTC announced that it and the New York Attorney General reached a $170 million agreement with Google to resolve allegations that the company violated COPPA through its YouTube platform. Under the agreement, Google will pay $136 million to the FTC and $34 million to New York. The FTC voted 3-2 to authorize the action.

As an update to our previous blog post, according to media reports, Google has reached a settlement with the FTC in the range of $150 to $200 million over the agency’s investigation into the company’s alleged violations of COPPA through its YouTube platform. The settlement has not been announced by the FTC or Google, and the details of the settlement have not been made publicly available. These reports follow Google’s announcement earlier this week that it has created a separate YouTube Kids site, which will include different content for different age groups. This news also ...

On August 15, 2019, the UK Information Commissioner’s Office (“ICO”) announced that it had launched an investigation into the use of live facial recognition technology at the King’s Cross development in London. This follows a letter sent by the mayor of London, Sadiq Khan, to the owner of the development inquiring as to whether the use of the software was legal. The company responsible for the technology said it was used for the purposes of public safety.

On August 8, 2019, the United States Court of Appeals for the Ninth Circuit allowed a class action brought by Illinois residents to proceed against Facebook under the Illinois Biometric Information Privacy Act (“BIPA”) (740 ICLS 14/1, et seq.).

On August 2, 2019, New Hampshire Governor Chris Sununu signed into law SB 194 (the “Bill”), which requires insurers licensed in the state (“licensees”) to put in place data security programs and report cybersecurity events. Although the Bill takes effect January 1, 2020, licensees have one year from the effective date to implement relevant cybersecurity requirements and two years from the effective date to ensure that their third-party vendors also implement appropriate safeguards to protect and secure the information systems and nonpublic information accessible to, or held by, the third-party service providers.

On July 29, 2019, the Court of Justice of the European Union (the “CJEU”) released its judgment in case C-40/17, Fashion ID GmbH & Co. KG vs. Verbraucherzentrale NRW eV. The Higher Regional Court of Düsseldorf (Oberlandesgericht Düsseldorf) requested a preliminary ruling from the CJEU on several provisions of the former EU Data Protection Directive of 1995, which was still applicable to the case since the court proceedings had started before the implementation of the EU General Data Protection Regulation (“GDPR”).

On July 25, 2019, New York Governor Andrew Cuomo signed into law Senate Bill S5575B (the “Bill”), an amendment to New York’s breach notification law (the “Act”). The Bill expands the Act’s definition of “breach of the security of the system” and the types of information (i.e., “private information”) covered by the Act, and makes certain changes to the Act’s requirements for breach notification.

On July 23, 2019, New York City Council members introduced Int. 1632-2019 (the “Bill”), an amendment to the administrative code of New York City that would prohibit telecommunications carriers and mobile applications from sharing a customer’s location data if such data was collected from a device in the five boroughs.

In addition to Facebook’s record-breaking Federal Trade Commission penalty and settlement order, on July 24, 2019, the Securities and Exchange Commission announced charges against Facebook for inadequate and misleading disclosures over its privacy practices. Facebook, without admitting or denying the SEC’s allegations, has agreed to the entry of a final judgment ordering a fine of $100 million.

As previously reported on July 12, 2019, Facebook will pay a $5 billion penalty to the Federal Trade Commission to resolve a privacy probe into whether Facebook violated a prior FTC consent decree requiring the company to better protect user privacy. The $5 billion penalty is the largest imposed on any company for violating consumers’ privacy – nearly 20 times the largest privacy or data security penalty to date.

According to media reports, the Federal Trade Commission has approved a multimillion dollar fine as part of a settlement with Google related to the FTC’s investigation into YouTube’s children’s data privacy practices. The FTC found that, in violation of COPPA, Google had failed to adequately protect children under 13 who used the video-streaming service and improperly collected their data.

The UK Information Commissioner’s Office (“ICO”) published its 2018-19 Annual Report on July 9, 2019. This is the first Annual Report published by the ICO since the EU General Data Protection Regulation (“GDPR”) took effect on May 25, 2018.

According to media reports, the Federal Trade Commission has approved a roughly $5 billion settlement with Facebook, Inc. to resolve a privacy probe investigating whether Facebook had violated a prior FTC consent decree requiring the company to better protect user privacy. The investigation followed reports that Cambridge Analytica improperly accessed the personal data of 87 million Facebook users.

On July 11, 2019, Washington Attorney General Bob Ferguson announced that his office had entered into a consent decree and $10 million settlement with Premera Blue Cross (“Premera”) that stems from a 2014-2015 breach that affected more than 11 million individuals. The settlement, which includes a payment of roughly $5.4 million to Washington state and $4.6 million to a coalition of 29 other state Attorneys General (the “Multistate AGs”), is one of the largest ever for a breach involving protected health information (“PHI”) and comes just one month after another notable HIPAA settlement involving a similar coalition of state AGs.

On June 14, 2019, the United States Court of Appeals for the Ninth Circuit affirmed summary judgment in favor of Facebook, holding that the company did not violate the Illinois Biometric Information Privacy Act (“BIPA”) (740 ICLS ¶¶ 15, 20).

On July 2, 2019, the Federal Trade Commission announced a case involving the operator of an online rewards website who allegedly failed to take reasonable steps to secure consumers’ personal data.

On June 19, 2019, the National Institute of Standards and Technology (“NIST”) issued its draft SP 800-171B guidelines (the “draft”), which outlines enhanced measures to protect controlled unclassified information (“CUI”) held by government contractors.

Today marks one year since the California Consumer Privacy Act of 2018 (“CCPA”) was passed and signed into law. The CCPA signals a dramatic shift in the data privacy regime in the United States, imposing on covered businesses the most prescriptive general privacy rules in the nation. In addition, the past year has seen a legislative explosion in the form of similar proposed state laws and potential federal data privacy legislation.

Given the value of personal information as a significant corporate asset, companies seeking to acquire or merge with another business should focus carefully on the data they will obtain as a result of the transaction. In addition, as cybersecurity attacks continue unabated, companies must carefully evaluate how personal information maintained by a potential target is protected. In a recent article published by Bloomberg Law, Hunton Andrews Kurth partner Lisa J. Sotto and counsel Ryan P. Logan discuss how legal frameworks involving U.S. federal and state law, the EU General Data Protection Regulation, antitrust law and other relevant legal regimes may affect how a company can use personal information following a transaction. The article also addresses key questions companies should ask during the due diligence process, how answers to those questions impact the deal documents and offers post-closing strategies companies should consider.

Texas Governor Greg Abbott recently signed into law HB 4390 (the “Bill”), which amends the state’s data breach notification law and creates an advisory council tasked with studying and developing recommendations regarding data privacy legislation.

On June 14, 2019, the Federal Trade Commission announced that it has taken action against a number of companies that allegedly misrepresented their compliance with the EU-U.S. and Swiss-U.S. Privacy Shield frameworks (collectively, the “Privacy Shield”) and other international privacy agreements.

Maryland Governor Larry Hogan recently signed into law House Bill 1154 (the “Bill”), which amends the state’s data breach notification law. Among other obligations, the amendments expand the required actions a business must take after becoming aware of a data security breach.

On June 12, 2019, Hunton Andrews Kurth and its Centre for Information Policy Leadership (“CIPL”) hosted a roundtable discussion in the firm’s Brussels office on the update of the EU Standard Contractual Clauses for international data transfers (“SCCs”). More than 30 privacy leaders joined together to discuss the challenges of the current SCCs and provide their insights on the updated versions. Hunton partner David Dumont led the discussion, while CIPL President Bojana Bellamy illuminated CIPL’s work in this area. The session also featured Cristina Monti, Policy Officer in the International Data Flows and Protection Unit of the EU Commission DG Justice and Consumers.

On May 30, 2019, the UK Information Commissioner’s Office (“ICO”) published its reflections on the year that has passed since the implementation of the EU General Data Protection Regulation (“GDPR”), together with a blog post by Elizabeth Denham, the UK Information Commissioner.

On June 6, 2019, the French Data Protection Authority (the “CNIL”) announced that it levied a fine of €400,000 on SERGIC, a French real estate service provider, for failure to (1) implement appropriate security measures and (2) define data retention periods for the personal data of unsuccessful rental candidates.

On May 28, 2019, the Cyberspace Administration of China (“CAC”) released draft Data Security Administrative Measures (the “Measures”) for public comment. The Measures, which, when finalized, will be legally binding, supplement the Cybersecurity Law of China (the “Cybersecurity Law”) that took force on June 1, 2017, with detailed and practical requirements for network operators who collect, store, transmit, process and use data within Chinese territory. The Measures likely will significantly impact network operators’ compliance programs in China.

On May 24, 2019, Oregon Governor Kate Brown signed Senate Bill 684 (the “Bill”) into law. The Bill, which takes effect January 1, 2020, amends the Oregon Consumer Identity Theft Protection Act (“OCITPA”) by enhancing the breach notification requirements applicable to third-party vendors.

On May 27, 2019, the Illinois General Assembly voted 79-32 to approve Senate Bill 1624, an amendment to the Personal Information Protection Act (“PIPA”). The bill’s sponsor, Senator Suzy Glowiak (D), expects Illinois Governor J.B. Pritzker (D) to sign the bill into law in short order. The amendment had already unanimously passed the state Senate last month.

On May 28, 2019, a federal jury returned a verdict awarding $1,000 to each of the roughly 68,000 class members whose criminal history was made publicly available online. The jury found that Bucks County willfully violated Pennsylvania’s Criminal History Records Information Act (“CHRIA”) and awarded the statutory minimum to each of the class members. As a result, Bucks County could pay up to $68 million in punitive damages.

On May 24, 2019, the Cyberspace Administration of China (the “CAC”), together with eleven other relevant government authorities, jointly released the draft Cybersecurity Review Measures for public comment. The deadline for public comment is June 24, 2019.

On May 27, 2019, Thailand’s Personal Data Protection Act B.E. 2562 (A.D. 2019) (the “PDPA”), which was passed by the National Legislative Assembly on February 28, 2019, was finally published in the Government Gazette, and thus became effective on May 28, 2019. Although now effective, the main operative provisions concerning personal data protection (including requests for data subjects’ consent; collection/use and disclosure of personal data; rights of data subjects; complaints; civil liabilities and penalties) will not come into force until one year after their ...

On May 10, 2019, New Jersey Governor Phil Murphy signed into law a bill that amends New Jersey’s data breach notification law to expand the definition of personal information to include online account information. The amendment goes into effect September 1, 2019.

On May 6, 2019, the U.S. Department of Health and Human Services’ Office for Civil Rights (“OCR”) announced that it had entered into a resolution agreement and $3 million settlement with Touchstone Medical Imaging (“Touchstone”). The settlement is the first OCR HIPAA enforcement action in 2019, following an all-time record year of HIPAA enforcement in 2018.

On April 26, 2019, the U.S. Department of Health and Human Services (“HHS”) Office for Civil Rights announced reductions in available penalties for three out of four tiers of privacy and security violations set forth in the HITECH Act, based on the severity of the violation. Previously, all four tiers of violation were subject to a maximum annual civil monetary penalty of $1.5 million. The revised regime provides for maximum civil penalties of $25,000 for the lowest tier of violation (i.e., unknowing violations), $100,000 for the second tier of violation (i.e., violations where ...

At its annual conference, CYBERUK, the National Cyber Security Centre (the “NCSC”), pledged not to pass on confidential information about cyberattacks to the UK Information Commissioner’s Office (the “ICO”) without the consent of the affected organization. This commitment is an attempt to reassure organizations, encouraging them to report and seek assistance in the event of a cybersecurity incident.

On April 11, 2019, the People’s Republic of China’s Network Security Bureau of the Ministry of Public Security, the Beijing Network Industry Association and the Third Research Institution of the Ministry of Public Security jointly released a “Guide to Protection of Security of Internet Personal Information (the “Guide”). The Guide presents itself as a reference, rather than a legally-enforceable regulation, but how it will interact with cybersecurity-related law, regulations and standards in practice remains to be seen.

On April 25, 2019, the Belgian Data Protection Authority (the “Belgian DPA”) published its Annual Activity Report for 2018 (the “Annual Report”), highlighting the main developments and accomplishments of the past year.

On April 15, 2019, the UK Information Commissioner’s Office (the “ICO”) issued for public consultation a draft code of practice, “Age Appropriate Design,” that will regulate the provision of online services likely to be accessed by children in the UK. Given the extraterritorial reach of the UK Data Protection Act 2018, organizations based outside of the UK may be subject to the code, which is expected to take effect by the end of 2019. The deadline for responding to the public consultation is May 31, 2019.

On April 22, 2019, Washington state legislators voted to send HB 1071 (the “Bill”) to Governor Jay Inslee for consideration. The Bill was requested by Attorney General Ferguson and would strengthen Washington’s data breach law. The request to amend the current law followed Attorney General Ferguson’s third annual Data Breach Report, which found that data breaches affected nearly 3.4 million Washingtonians between July 2017 and July 2018.

On April 17, 2019, the Dutch Data Protection Authority, the Autoriteit Persoonsgegevens (the “Dutch DPA”) issued six recommendations (in Dutch) for companies, to be taken into account when drafting privacy policies for the purpose of Article 24.2 of the EU General Data Protection Regulation (the “GDPR”). Article 24.2 of the GDPR provides the obligation for data controllers to implement privacy policies for accountability purposes, under certain criteria. The published recommendations follow the Dutch DPA’s investigation of companies’ privacy policies. The investigation focused on companies that process sensitive personal data, including health data and data related to individuals’ political beliefs. Alongside the recommendations, the Dutch DPA released a report (in Dutch) summarizing the investigation’s results.

On October 22, 2018, the UK Court of Appeal upheld the High Court’s decision that VM Morrison Supermarkets PLC (“Morrisons”) was vicariously liable for a data breach caused by a disgruntled former employee, despite Morrisons being cleared of any wrongdoing (VM Morrison Supermarkets PLC v Various Claimants). The case is important, given its potential “floodgate” effect on data breach class action claims in the UK. The Supreme Court has granted Morrisons permission to appeal the judgment on all grounds.

Hunton Andrews Kurth LLP is pleased to announce the launch of a dedicated site focused on the California Consumer Privacy Act of 2018 (“CCPA”), which serves as a resource for businesses to understand and prepare to comply with the CCPA. Transformative in nature, the CCPA will impact most businesses that process the personal information of California residents, and is likely to set the stage for a wider shift in standards on data privacy across the United States.

On April 9, 2019, the UK Information Commissioner’s Office (the “ICO”) levied one of its most significant fines under the Data Protection Act 1998 (the “DPA”) against pregnancy and parenting club Bounty (UK) Limited (“Bounty”), fining the company GBP 400,000. Bounty, which provides new and expectant mothers with information and offers for products and services, collects personal data online, via an app, and offline through hard copy cards. The company also offered a data broking service. Bounty came to the attention of the ICO as a “significant supplier” of personal data in the context of the ICO’s wider and ongoing investigation into the data broking industry.

On April 12, 2019, Senator Edward J. Markey (MA) introduced the Privacy Bill of Rights Act (the “Act”), comprehensive privacy legislation intended to protect individuals’ “personal information,” defined as “information that directly or indirectly identifies, relates to, describes, is capable of being associated with, or could reasonably be linked to, a particular individual.” This definition is substantially similar to the definition of “personal information” contained in the California Consumer Privacy Act of 2018. The Act also includes an enumerated list of examples that constitute “personal information” and specifically excludes certain publicly available information from the term.

On April 11, 2019, the French Data Protection Authority (the “CNIL”) launched an online public consultation regarding two new CNIL draft standards (“Referentials”) concerning the processing of personal data for (1) core HR management purposes and (2) the operation of a whistleblowing hotline.

On January 25, 2019, Nigeria’s National Information Technology Development Agency (“NITDA”) issued the Nigeria Data Protection Regulation 2019 (the “Regulation”). Many concepts of the Regulation mirror the EU General Data Protection Regulation (“GDPR”).

On March 14, 2019, the Dutch Data Protection Authority (Autoriteit Persoonsgegevens, the “Dutch DPA”) published a press release announcing its policy (in Dutch) for calculating administrative fines (the “Policy”).

The Dutch DPA has the power to impose administrative fines for violations of the EU General Data Protection Regulation (“GDPR”), the Dutch law implementing the GDPR, the Police Data Act, the Judicial Data and Criminal Records Act, the Telecommunications Act, the Electronic Identification, Authentication and Trust Services (eIDAS) Regulation and the General Administrative Law Act.

On February 28, 2019, Thailand’s National Legislative Assembly finally approved and endorsed the draft Personal Data Protection Act (the “PDPA”), which will now be submitted for royal endorsement and subsequent publication in the Government Gazette. Publication is anticipated to occur within the next few weeks.

On February 22, 2019, California state senator Hannah Beth-Jackson introduced a bill (SB-561) that would amend the California Consumer Privacy Act of 2018 (“CCPA”) to expand the Act’s private right of action and remove the 30-day cure period requirement for enforcement actions brought by the State Attorney General. The bill would not change the compliance deadline for the CCPA, which remains January 1, 2020. California Attorney General Xavier Becerra supports the amendment bill, characterizing it as “a critical measure to strengthen and clarify the CCPA.”

At its plenary meeting on February 13, 2019, in Brussels, the European Data Protection Board (“EDPB”) adopted an Information Note on Data Transfers under the GDPR in the Event of a No-Deal Brexit, and an Information Note on BCRs for Companies Which Have ICO as BCR Lead Supervisory Authority.

The European Commission has issued an EU-wide recall of the Safe-KID-One children’s smartwatch marketed by ENOX Group over concerns that the device leaves data such as location history, phone and serial numbers vulnerable to hacking and alteration. The watch is equipped with GPS, a microphone and speaker, and has a companion app that grants parents oversight of the child wearer. According to a February 1, 2019 alert posted on the EU's recall and notification index for nonfood products, flaws in the product could permit malicious users to send commands to any Safe-KID-One watch ...

In January 2019, Hunton Andrews Kurth celebrates the 10-year anniversary of our award-winning Privacy and Information Security Law Blog. Over the past decade, we have worked hard to provide timely, cutting-edge updates on the ever-evolving global privacy and cybersecurity legal landscape. Ten Years Strong: A Decade of Privacy and Cybersecurity Insights is a compilation of our blog’s top ten most read posts over the decade, and addresses some of the most transformative changes in the privacy and cybersecurity field.

Read Ten Years Strong: A Decade of Privacy and Cybersecurity ...

On January 22, 2019, the European Data Protection Board (“EDPB”) issued a report on the Second Annual Review of the EU-U.S. Privacy Shield (the “Report”). Although not binding on EU or U.S. authorities, the Report provides guidance to regulators in both jurisdictions regarding implementation of the Privacy Shield and highlights the EDPB’s ongoing concerns with regard to the Privacy Shield. We previously blogged about the European Commission’s report on the second annual review of the Privacy Shield, and the joint statement of the European Commission and Department of Commerce regarding the second annual review.

The Illinois Supreme Court ruled today that an allegation of “actual injury or adverse effect” is not required to establish standing to sue under the Illinois Biometric Information Privacy Act, 740 ILCS 14 (“BIPA”). This post discusses the importance of the ruling to current and future BIPA litigation.

On January 21, 2019, the French Data Protection Authority (the “CNIL”) imposed a fine of €50 million on Google LLC under the EU General Data Protection Regulation (the “GDPR”) for its alleged failure to (1) provide notice in an easily accessible form, using clear and plain language, when users configure their Android mobile device and create a Google account, and (2) obtain users’ valid consent to process their personal data for ad personalization purposes. The CNIL’s enforcement action was the result of collective actions filed by two not-for-profit associations. This fine against Google is the first fine imposed by the CNIL under the GDPR and the highest fine imposed by a supervisory authority within the EU under the GDPR to date.

On January 23, 2019, the European Commission announced that it has adopted its adequacy decision on Japan (the “Adequacy Decision”). According to the announcement, Japan has adopted an equivalent decision and the adequacy arrangement is applicable with immediate effect.

Hundreds of contractors and subcontractors with connections to U.S. electric utilities and government agencies have been hacked, according to a recent report by the Wall Street Journal. The U.S. government has linked the hackers to a Russian state-sponsored group, sometimes called Dragonfly or Energetic Bear. The U.S. government alerted the public that the hacking campaign started in March 2016, if not earlier, although many of its victims were unaware of the incident until notified by the Federal Bureau of Investigation and Department of Homeland Security, the Wall Street Journal reports.

On January 15, 2019, the UK House of Commons rejected the draft Brexit Withdrawal Agreement negotiated between the UK Prime Minister and the EU by a margin of 432-202. While the magnitude of the loss sets in motion a process which could potentially have resulted in an early general election being held, on January 16 a majority of British Members of Parliament rejected a vote of no confidence in Theresa May’s government.

As we previously reported in February 2017, an Illinois federal judge denied a motion to dismiss two complaints brought under the Illinois Biometric Information Privacy Act, 740 ILCS 14 (“BIPA”) by individuals who alleged that Google captured, without plaintiff’s consent, biometric data from facial scans of images that were uploaded onto Google Photos. The cases subsequently were consolidated, and on December 29, 2018, the Northern District of Illinois dismissed the case on standing grounds, finding that despite the existence of statutory standing under BIPA, neither plaintiff had claimed any injury that would support Article III standing.

On January 10, 2019, Massachusetts Governor Charlie Baker signed legislation amending the state’s data breach law. The amendments take effect on April 11, 2019.

The U.S. Department of Health and Human Services (“HHS”) recently announced the publication of “Health Industry Cybersecurity Practices: Managing Threats and Protecting Patients” (the “Cybersecurity Practices”). The Cybersecurity Practices were developed by the Healthcare & Public Health Sector Coordinating Councils Public Private Partnership, a group comprised of over 150 cybersecurity and healthcare experts from government and private industry.

On December 27, 2018, the French Data Protection Authority (the “CNIL”) announced that it imposed a fine of €250,000 on French telecom operator Bouygues Telecom for failing to protect the personal data of the customers of its mobile package B&YOU.

On December 21, 2018, the Irish Data Protection Commission (the “DPC”) published preliminary guidance on data transfers to and from the UK in the event of a “no deal” Brexit (the “Guidance”). The Guidance is relevant for any Irish entities that transfer personal data to the UK, including Northern Ireland.

On December 20, 2018, the French data protection authority (the “CNIL”) announced that it levied a €400,000 fine on Uber France SAS, the French establishment of Uber B.V. and Uber Technologies Inc., for failure to implement some basic security measures that made possible the 2016 Uber data breach.

The Agency of Access to Public Information (Agencia de Acceso a la Información Pública) (“AAIP”) has approved a set of guidelines for binding corporate rules (“BCRs”), a mechanism that multinational companies may use in cross-border data transfers to affiliates in countries with inadequate data protection regimes under the AAIP.

On November 23, 2018, both Australia and Chinese Taipei joined the APEC Cross-Border Privacy Rules (“CBPR”) system. The system is a regional multilateral cross-border transfer mechanism and an enforceable privacy code of conduct and certification developed for businesses by the 21 APEC member economies.

In connection with its hearings on data security, the Federal Trade Commission hosted a December 12 panel discussion on “The U.S. Approach to Consumer Data Security.” Moderated by the FTC’s Deputy Director for Economic Analysis James Cooper, the panel featured private practitioners Lisa Sotto, from Hunton Andrews Kurth, and Janis Kestenbaum, academics Daniel Solove (GW Law School) and David Thaw (University of Pittsburgh School of Law), and privacy advocate Chris Calabrese (Center for Democracy and Technology). Lisa set the stage with an overview of the U.S. data security framework, highlighting the complex web of federal and state rules and influential industry standards that result in a patchwork of overlapping mandates. Panelists debated the effect of current law and enforcement on companies’ data security programs before turning to the “optimal” framework for a U.S. data security regime. Among the details discussed were establishing a risk-based approach with a baseline set of standards and clear process requirements. While there was not uniform agreement on the specifics, the panelists all felt strongly that federal legislation was warranted, with the FTC taking on the role of principal enforcer.

On December 4, 2018, the Federal Trade Commission published a notice in the Federal Register indicating that it is seeking public comment on whether any amendments should be made to the FTC’s Identity Theft Red Flags Rule (“Red Flags Rule”) and the duties of card issuers regarding changes of address (“Card Issuers Rule”) (collectively, the “Identity Theft Rules”). The request for comment forms part of the FTC’s systematic review of all current FTC regulations and guides. These periodic reviews seek input from stakeholders on the benefits and costs of specific FTC rules and guides along with information about their regulatory and economic impacts.

On November 9, 2018, Serbia’s National Assembly enacted a new data protection law. The Personal Data Protection Law, which becomes effective on August 21, 2019, is modeled after the EU General Data Protection Regulation (“GDPR”).

The Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP recently submitted formal comments to the U.S. Department of Commerce’s National Telecommunications and Information Administration (“NTIA”) in response to its request for public comments on developing the administration’s approach to consumer privacy.

On November 20, 2018, the Illinois Supreme Court heard arguments in a case that could shape future litigation under the Illinois Biometric Information Privacy Act (“BIPA”). BIPA requires companies to (i) provide prior written notice to individuals that their biometric data will be collected and the purpose for such collection, (ii) obtain a written release from individuals before collecting their biometric data and (iii) develop a publicly available policy that sets forth a retention schedule and guidelines for deletion once the biometric data is no longer used for the purpose for which it was collected (but for no more than three years after collection). BIPA also prohibits companies from selling, leasing or trading biometric data.

On November 9, 2018, the European Commission (“the Commission”) submitted comments to the U.S. Department of Commerce’s National Telecommunications and Information Administration (“NTIA”) in response to its request for public comments on developing the administration’s approach to consumer privacy.

On November 8, 2018, Privacy International (“Privacy”), a non-profit organization “dedicated to defending the right to privacy around the world,” filed complaints under the GDPR against consumer marketing data brokers Acxiom and Oracle. In the complaint, Privacy specifically requests the Information Commissioner (1) conduct a “full investigation into the activities of Acxiom and Oracle,” including into whether the companies comply with the rights (i.e., right to access, right to information, etc.) and safeguards (i.e., data protection impact assessments, data protection by design, etc.) in the GDPR; and (2) “in light of the results of that investigation, [take] any necessary further [action]... that will protect individuals from wide-scale and systematic infringements of the GDPR.”

On November 6, 2018, the French Data Protection Authority (the “CNIL”) published its own guidelines on data protection impact assessments (the “Guidelines”) and a list of processing operations that require a data protection impact assessment (“DPIA”). Read the guidelines.

On October 23, 2018, the parties in the Yahoo! Inc. (“Yahoo!”) Customer Data Security Breach Litigation pending in the Northern District of California and the parties in the related litigation pending in California state court filed a motion seeking preliminary approval of a settlement related to breaches of the company’s data. These breaches were announced from September 2016 to October 2017 and collectively impacted approximately 3 billion user accounts worldwide. In June 2017, Yahoo! and Verizon Communications Inc. had completed an asset sale transaction, pursuant to which Yahoo! became Altaba Inc. (“Altaba”) and Yahoo!’s previously operating business became Oath Holdings Inc. (“Oath”). Altaba and Oath have each agreed to be responsible for 50 percent of the settlement.

On November 1, 2018, Senator Ron Wyden (D-Ore.) released a draft bill, the Consumer Data Protection Act, that seeks to “empower consumers to control their personal information.” The draft bill imposes heavy penalties on organizations and their executives, and would require senior executives of companies with more than one billion dollars per year of revenue or data on more than 50 million consumers to file annual data reports with the Federal Trade Commission. The draft bill would subject senior company executives to imprisonment for up to 20 years or fines up to $5 million, or both, for certifying false statements on an annual data report. Additionally, like the EU General Data Protection Regulation, the draft bill proposes a maximum fine of 4% of total annual gross revenue for companies that are found to be in violation of Section 5 of the FTC Act.

Effective October 1, 2018, Connecticut law requires organizations that experience a security breach affecting Connecticut residents’ Social Security numbers (“SSNs”) to provide 24 months of credit monitoring to affected individuals. Previously, Connecticut law required entities to provide 12 months of credit monitoring for breaches affecting SSNs.

On October 29, 2018, the Office of the Privacy Commissioner of Canada (the “OPC”) released final guidance (“Final Guidance”) regarding how businesses may satisfy the reporting and record-keeping obligations under Canada’s new data breach reporting law. The law, effective November 1, 2018, requires organizations subject to the federal Personal Information Protection and Electronic Documents Act (“PIPEDA”) to (1) report to the OPC breaches of security safeguards involving personal information “that pose a real risk of significant harm” to individuals; (2) notify affected individuals of the breach; and (3) keep records of every breach of security safeguards, regardless of whether or not there is a real risk of significant harm.

Recently, the U.S. Department of Health and Human Services’ Office for Civil Rights (“OCR”) entered into a resolution agreement and record settlement of $16 million with Anthem, Inc. (“Anthem”) following Anthem’s 2015 data breach. That breach, affecting approximately 79 million individuals, was the largest breach of protected health information (“PHI”) in history.

As reported on the Blockchain Legal Resource, California Governor Jerry Brown recently signed into law Assembly Bill No. 2658 for the purpose of further studying blockchain’s application to Californians. In doing so, California joins a growing list of states officially exploring distributed ledger technology.

Vizio, Inc. (“Vizio”), a California-based company best known for its internet-connected televisions, agreed to a $17 million settlement that, if approved, will resolve multiple proposed consumer class actions consolidated in California federal court. The suits’ claims, which are limited to the period between February 1, 2014 and February 6, 2017, involve data-tracking software Vizio installed on its smart TVs. The software allegedly identified content displayed on Vizio TVs and enabled Vizio to determine the date, time, channel of programs and whether a viewer watched live or recorded content. The viewing patterns were connected to viewer’s IP addresses, though never, Vizio emphasized in its press release announcing the proposed settlement, to an individual’s name, address, or similar identifying information. According to Vizio, viewing data allows advertisers and programmers to develop content better aligned with consumers’ preferences and interests.  

The U.S. Department of Commerce’s National Institute of Standards and Technology recently announced that it is seeking public comment on Draft NISTIR 8228, Considerations for Managing Internet of Things (“IoT”) Cybersecurity and Privacy Risks (the “Draft Report”). The document is to be the first in a planned series of publications that will examine specific aspects of the IoT topic.

Recently, the French Data Protection Authority (“CNIL”) published its initial assessment of the compatibility of blockchain technology with the EU General Data Protection Regulation (GDPR) and proposed concrete solutions for organizations wishing to use blockchain technology when implementing data processing activities.

On September 28, 2018, California Governor Jerry Brown signed into law two identical bills regulating Internet-connected devices sold in California. S.B. 327 and A.B. 1906 (the “Bills”), aimed at the “Internet of Things,” require that manufacturers of connected devices—devices which are “capable of connecting to the Internet, directly or indirectly,” and are assigned an Internet Protocol or Bluetooth address, such as Nest’s thermostat—outfit the products with “reasonable” security features by January 1, 2020; or, in the bills’ words: “equip [a] device with a reasonable security feature or features that are appropriate to the nature and function of the device, appropriate to the information it may collect, contain, or transmit, and designed to protect the device and any information contained therein from unauthorized access, destruction, use, modification, or disclosure[.]”

On September 26, 2018, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP submitted formal comments to the Indian Ministry of Electronics and Information Technology on the draft Indian Data Protection Bill 2018 (“Draft Bill”).

As reported in BNA Privacy Law Watch, the Office of the Privacy Commissioner of Canada (the “OPC”) is seeking public comment on recently released guidance (the “Guidance”) intended to assist organizations with understanding their obligations under the federal breach notification mandate, which will take effect in Canada on November 1, 2018. 

On September 7, 2018, the New Jersey Attorney General announced a settlement with data management software developer Lightyear Dealer Technologies, LLC, doing business as DealerBuilt, resolving an investigation by the state Division of Consumer Affairs into a data breach that exposed the personal information of car dealership customers in New Jersey and across the country. The breach occurred in 2016, when a researcher exposed a gap in the company’s security and gained access to unencrypted files containing names, addresses, social security numbers, driver’s license numbers, bank account information and other data belonging to thousands of individuals, including at least 2,471 New Jersey residents.

On September 4, 2018, the Department of Commerce’s National Institute of Standards and Technology (“NIST”) announced a collaborative project to develop a voluntary privacy framework to help organizations manage privacy risk. The announcement states that the effort is motivated by innovative new technologies, such as the Internet of Things and artificial intelligence, as well as the increasing complexity of network environments and detail of user data, which make protecting individuals’ privacy more difficult. “We’ve had great success with broad adoption of the NIST Cybersecurity Framework, and we see this as providing complementary guidance for managing privacy risk,” said Under Secretary of Commerce for Standards and Technology and NIST Director Walter G. Copan.

On September 5, 2018, the Law of 30 July 2018 on the Protection of Natural Persons with regard to the Processing of Personal Data (the “Law”) was published in the Belgian Official Gazette.

This is the second step in adapting the Belgian legal framework to the EU GDPR after the Law of 3 December 2017 Creating the Data Protection Authority, which reformed the Belgian Data Protection Authority.

The Law is available in French and Dutch.

On September 5, 2018, the European Commission (the “Commission”) announced in a press release the launch of the procedure to formally adopt the Commission’s adequacy decision with respect to Japan.

On August 3, 2018, Ohio Governor John Kasich signed into law Senate Bill 220 (the “Bill”), which provides covered entities with an affirmative defense to tort claims, based on Ohio law or brought in an Ohio court, that allege or relate to the failure to implement reasonable information security controls which resulted in a data breach. According to the Bill, its purpose is “to be an incentive and to encourage businesses to achieve a higher level of cybersecurity through voluntary action.” The Bill will take effect 90 days after it is provided to the Ohio Secretary of State ...

On August 6, 2018, the Federal Trade Commission published a notice seeking public comment on whether the FTC should expand its enforcement power over corporate privacy and data security practices. The notice, published in the Federal Register, follows FTC Chairman Joseph Simons’ declaration at a July 18 House subcommittee hearing that the FTC’s current authority to do so, under Section 5 of the FTC Act, is inadequate to deal with the privacy and security issues in today’s market.

On July 27, 2018, the Justice BN Srikrishna committee, formed by the Indian government in August 2017 with the goal of introducing a comprehensive data protection law in India, issued a report, A Free and Fair Digital Economy: Protecting Privacy, Empowering Indians (the “Committee Report”), and a draft data protection bill called the Personal Data Protection Bill, 2018 (the “Bill”). Noting that the Indian Supreme Court has recognized the right to privacy as a fundamental right, the Committee Report summarizes the existing data protection framework in India, and recommends that the government of India adopt a comprehensive data protection law such as that proposed in the Bill.

In its most recent cybersecurity newsletter, the U.S. Department of Health and Human Services’ Office for Civil Rights (“OCR”) provided guidance regarding identifying vulnerabilities and mitigating the associated risks of software used to process electronic protected health information (“ePHI”). The guidance, along with additional resources identified by OCR, are outlined below:

On June 27, 2018, the Ministry of Public Security of the People’s Republic of China published the Draft Regulations on the Classified Protection of Cybersecurity (网络安全等级保护条例（征求意见稿）) (“Draft Regulation”) and is seeking comments from the public by July 27, 2018.

On July 17, 2018, the European Union and Japan successfully concluded negotiations on a reciprocal finding of an adequate level of data protection, thereby agreeing to recognize each other’s data protection systems as “equivalent.” This will allow personal data to flow safely between the EU and Japan, without being subject to any further safeguards or authorizations. 

On July 12, 2018, two U.S. Senators sent a letter to the Federal Trade Commission asking the agency to investigate the privacy policies and practices of smart TV manufacturers. In their letter, Senators Edward Markey (D-MA) and Richard Blumenthal (D-CT) note that smart TVs can “compile detailed profiles about users’ preferences and characteristics” which can then allow companies to personalize ads to be sent to “customers’ computers, phones or any other device that shares the smart TV’s internet connection.”