Privacy & Information Security Law Blog

On September 29, 2017 the French Data Protection Authority (CNIL) published a guide for data processors to implement the new obligations set by the EU General Data Protection Regulation (“GDPR”). The guidance addresses the extended scope of the GDPR and the new and direct obligations data processors will have when the GDPR comes into force on May 25, 2018. The guidance elaborates a three-step checklist for data processors:

On October 3, 2017, the Irish High Court referred a legal challenge to the validity of the EU Standard Contractual Clauses (“SCCs”) to the Court of Justice of the European Union (“CJEU”) for resolution. Max Schrems, who had previously successfully challenged the validity of the now defunct U.S.-EU Safe Harbor Program in the Schrems case, had brought a similar claim in relation to the SCCs, and had requested that the Irish Data Protection Commissioner (“DPC”) declare that the SCCs do not provide sufficient protection when personal data is transferred outside the EU to the US and thus are invalid. The Irish DPC declined to make such a ruling, but instead referred the case to the Irish High Court, and requested that the case be referred to the CJEU for a final decision on the validity of the SCCs.

Last week, the Centre for Information Policy Leadership (“CIPL”) and several privacy team members at Hunton & Williams LLP attended the 39th International Conference of Data Protection and Privacy Commissioners in Hong Kong (the “Conference”). The weeklong event hosted by Stephen Kai-yi Wong, Privacy Commissioner for Personal Data, Hong Kong was attended by over 3000 privacy professionals from data protection authorities (“DPAs”), industry and research sectors. CIPL hosted two events at the conference, as well as a joint roundtable with Hunton & Williams and Citibank, throughout the week.

On September 19, 2017, the French Data Protection Authority (“CNIL”) launched an online public consultation on two topics identified by the Article 29 Working Party (“Working Party”) in its 2017 action plan for the implementation of the EU General Data Protection Regulation (“GDPR”). These two topics are transparency and international data transfers.

On September 18, 2017, the European Commission (“Commission”) and U.S. Department of Commerce (“Department”) kicked off their first annual joint review of the EU-U.S. Privacy Shield (“Privacy Shield”).  To aid in the review, the Department invited a few industry leaders, including Hunton & Williams’ partner Lisa J. Sotto, who chairs the firm’s Global Privacy and Cybersecurity practice and the U.S. Department of Homeland Security’s Data Privacy and Integrity Advisory Committee, to speak about their experiences during the first year of the Privacy Shield.

On September 14, 2017, the UK Government introduced a new Data Protection Bill (the “Bill”) to Parliament. The Bill is intended to replace the UK’s existing Data Protection Act 1998 and enshrine the EU General Data Protection Regulation (the “GDPR”) into UK law once the UK has left the European Union. The GDPR allows EU Member States to enact, via national law, exemptions from the various provisions of the GDPR, which the Bill also seeks to implement.

On September 8, 2017, the Federal Trade Commission announced that it had settled charges against three companies for misleading consumers about their participation in the Privacy Shield framework. The FTC alleged that Decusoft, LLC, Tru Communication, Inc. and Md7, LLC violated the FTC Act by falsely claiming that they were certified to the EU-U.S. Privacy Shield, when in fact the three companies never completed the Privacy Shield certification process. In addition, Decusoft falsely claimed to be certified to the Swiss-U.S. Privacy Shield. This marks the first enforcement action brought by the FTC pursuant to the Privacy Shield.

On August 31, 2017, the National Information Security Standardization Technical Committee of China published four draft voluntary guidelines (“Draft Guidelines”) in relation to the Cybersecurity Law of China. The Draft Guidelines are open for comment from the general public until October 13, 2017.

On August 25, 2017, the FTC published the sixth blog post in its “Stick with Security” series. As we previously reported, the FTC will publish an entry every Friday for the next few months focusing on each of the 10 principles outlined in its Start with Security Guide for Businesses. This week’s post, entitled Stick with Security: Segment your network and monitor who’s trying to get in and out, illustrates the benefits of segmenting networks and monitoring the size and frequency of data transfers.

As reported in BNA Privacy Law Watch, on August 22, 2017, the Russian privacy regulator, Roskomnadzor, announced that it had issued an order (the “Order”), effective immediately, revising notice protocols for companies that process personal data in Russia. Roskomnadzor stated that an earlier version of certain requirements for companies to notify the regulator of personal data processing was invalidated by the Russian Telecom Ministry in July.

On August 24, 2017, APEC issued a statement on the renewed talks between APEC and the EU on creating interoperability between the APEC Cross-Border Privacy Rules (“CBPR”) and the EU data transfer mechanisms.

On August 18, 2017, the FTC published the fifth blog post in its “Stick with Security” series. As we previously reported, the FTC will publish an entry every Friday for the next few months focusing on each of the 10 principles outlined in its Start with Security Guide for Businesses. This week’s post, entitled Stick with Security: Store sensitive personal information securely and protect it during transmission, outlines steps businesses can take to secure sensitive data, including when it is in transit.

As reported in BNA Privacy & Security Law Report, on August 9, 2017, the Russian privacy regulator, Roskomnadzor, expanded its list of nations that provide sufficient privacy protections to allow transfers of personal data from Russia. Russian law allows data transfers to countries that are signatories to the Council of Europe’s Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (the “Convention”), and to certain other non-signatory countries deemed by Roskomnadzor to have adequate privacy protections based on relevant data protection laws, privacy regulators and penalties for privacy law violations.

On August 7, 2017, the UK Government’s Department for Culture, Media and Sport published a Statement of Intent setting out the planned reforms to be included in the forthcoming Data Protection Bill, which we previously reported is expected to be laid before the UK Parliament in early September.

On July 18, 2017, the European Union Committee of the UK’s House of Lords published its paper, Brexit: the EU data protection package (the “Paper”). The Paper urges the UK government to make good on its stated aim of maintaining unhindered and uninterrupted data flows between the UK and EU after Brexit, and examines the options available to ensure that this occurs. It warns that data flows have become so valuable to cross-border business that failure to establish an adequate framework could hamper EU-UK trade.

On July 27, 2017, Singapore submitted its notice of intent to join the APEC Cross-Border Privacy Rules (“CBPR”) system and the APEC Privacy Recognition for Processors System (“PRP”). Singapore would be the sixth member of the CBPR system, joining Canada, Japan, Mexico, the United States and the newest member, South Korea. The announcement was made by Dr. Yaacob Ibrahim, Minister for Communication and Information, at the Personal Data Protection Seminar 2017.

On July 26, 2017, the Court of Justice of the European Union (“CJEU”) declared that the envisaged EU-Canada agreement on the transfer of Passenger Name Records (“PNR Agreement”) interferes with the fundamental right to respect for private life and the right to the protection of personal data and is therefore incompatible with EU law in its current form. This marks the first instance where the CJEU has been asked to rule on the compatibility of a draft international agreement with the European Charter of Fundamental Human Rights.

The Article 29 Working Party (“Working Party”) recently issued its Opinion on data processing at work (the “Opinion”). The Opinion, which complements the Working Party’s previous Opinion 08/2001 on the processing of personal data in the employment context and Working document on the surveillance of electronic communications in the workplace, seeks to provide guidance on balancing employee privacy expectations in the workplace with employers’ legitimate interests in processing employee data. The Opinion is applicable to all types of employees and not just those under an employment contract (e.g., freelancers).

As companies in the EU and the U.S. prepare for the application of the EU General Data Protection Regulation (“GDPR”) in May 2018, Hunton & Williams’ Global Privacy and Cybersecurity partner Aaron Simpson discusses with Forcepoint the key, significant changes from the EU Directive that companies must comply with before next year. Accountability, expanded data subject rights, breach notification, sanctions and data transfer mechanisms are a few requirements that Simpson explores in detail. He reminds companies that, in the coming year, it will be very important to ...

On Monday, June 12, 2017, South Korea’s Ministry of the Interior and the Korea Communications Commission announced that South Korea has secured approval to participate in the APEC Cross-Border Privacy Rules (“CBPR”) system. South Korea had submitted its intent to join the CBPR system back in January 2017. South Korea will become the fifth APEC economy to join the CBPR system. The other four participants are Canada, Japan, Mexico and the United States.

On May 27, 2017, the National Information Security Standardization Technical Committee of China published draft guidelines on cross-border transfers pursuant to the new Cybersecurity Law, entitled Information Security Technology – Guidelines for Data Cross-Border Transfer Security Assessment (the “Draft Guidelines"). The earlier draft, Measures for the Security Assessment of Outbound Transmission of Personal Information and Critical Data (the “Draft Measures”), requires network operators to conduct “security assessments” when they propose to transfer personal information and “important information” to places outside of China. These “security assessments” are essentially audits of the cybersecurity circumstances surrounding the proposed transfer that are intended to produce an assessment of the risk involved. If the assessment indicates that the risk is too high, the transfer must be terminated.

On June 2, 2017, in preparation for the first annual review of the EU-U.S. Privacy Shield (“Privacy Shield”) framework, the European Commission has sent questionnaires to trade associations and other groups, including the Centre for Information Policy Leadership at Hunton & Williams LLP, to seek information from their Privacy Shield-certified members on the experiences of such organizations during the first year of the Privacy Shield. The EU Commission intends to use the questionnaire responses to inform the annual review of the function, implementation, supervision and enforcement of the Privacy Shield.

On June 1, 2017, the new Cybersecurity Law went into effect in China. This post takes stock of (1) which measures have been passed so far, (2) which ones go into effect on June 1 and (3) which ones are in progress but have yet to be promulgated.

On May 19, 2017, the Cyberspace Administration of China (“CAC”) issued a revised draft (the “Revised Draft”) of its Measures for the Security Assessment of Outbound Transmission of Personal Information and Critical Data. The original draft was issued in April 2017, and similar to the original draft, the Revised Draft does not have the impact of law; it does, however, provide an indication of how the CAC’s views on the Cybersecurity Law have evolved since the publication of the original draft. The Revised Draft was issued after the CAC received comments on the original draft from numerous parties.

On April 12, 2017, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP issued a discussion paper on Certifications, Seals and Marks under the GDPR and Their Roles as Accountability Tools and Cross-Border Data Transfer Mechanisms (the “Discussion Paper”). The Discussion Paper sets forth recommendations concerning the implementation of the EU General Data Protection Regulation’s (“GDPR’s”) provisions on the development and use of certification mechanisms. The GDPR will become effective on May 25, 2018. The EU Commission, the Article 29 Working Party, individual EU data protection authorities (“DPAs”) and other stakeholders have begun to consider the role of GDPR certifications and how to develop and implement them. CIPL’s Discussion Paper is meant as formal input to that process.

The Cybersecurity Law of China, which was passed in November of 2016, introduced a data localization requirement requiring “operators of key information infrastructure” to retain, within China, critical data and personal information which they collect or generate in the course of operating their business in China. If an entity has a genuine need resulting from a business necessity to transmit critical data or personal information to a destination outside of China, it can do so provided it undergoes a “security assessment.”

On March 21, 2017, Hunton & Williams is pleased to host an in-person seminar in its London office featuring seasoned cybersecurity practitioners. Drawing from deep experience in their respective fields, the panel members will discuss the implications of the EU General Data Protection Regulation’s breach notification obligations in the context of a state-of-the-art cyber attack simulation. In doing so, the panelists will share best practices to help protect organizations in the event of a cyber attack.

Hunton & Williams LLP, in coordination with the U.S. Chamber of Commerce, recently issued a series of recommendations to enhance the effectiveness of data privacy regulators. The report, Seeking Solutions: Attributes of Effective Data Protection Authorities, identifies seven key attributes of data protection authorities (“DPAs”) that contribute to effective data protection governance. The report also explores how the level of effectiveness varies based on differences in the structure, roles and resources of a DPA.

On February 20, 2017, the Article 29 Working Party (“Working Party”) issued a template complaint form and Rules of Procedure that clarify the role of the EU Data Protection Authorities (“DPAs”) in resolving EU-U.S. Privacy Shield-related (“Privacy Shield”) complaints.

On February 22, 2017, the Federal Trade Commission announced that it had reached settlement agreements (“the Proposed Agreements”) with three U.S. companies charged with deceiving consumers about their participation in the Asia-Pacific Economic Cooperation Cross-Border Privacy Rules (“APEC CBPR”) system. The three companies are Sentinel Labs, Inc. (which provides endpoint protection software), SpyChatter, Inc. (which markets a private messaging app) and Vir2us, Inc. (which distributes cybersecurity software). In separate complaints, the FTC alleged that each company falsely represented in its online privacy policy that it participated in the APEC CBPR program (“the Program”), when in fact none of the companies have ever been certified as required by the Program. The Program requires participants to undergo a review by an APEC-recognized accountability agent, whose review certifies that participants meet the Program’s standards. The Program is based on nine data privacy principles: preventing harm, notice, collection limitation, use choice, integrity, security safeguards, access and correction, and accountability.

As previously published on the Data Privacy Laws blog, Pablo A. Palazzi, partner at Buenos Aires law firm Allende & Brea, provides the following report.

Earlier this month, the Argentine Data Protection Agency (“DPA”) posted the first draft of a new data protection bill (the “Draft Bill”) on its website. Argentina’s current data protection bill was enacted in December 2000. Argentina was the first Latin American country to be recognized as an adequate country by the European Union.

On February 1, 2017, Matt Hancock, the UK Government Minister responsible for data protection, was questioned by the House of Lords committee on the UK’s implementation plan of the EU General Data Protection Regulation (“GDPR”) in the context of the UK’s looming exit from the EU. In responding to the questioning, Hancock revealed further details into the UK Government’s position on implementing the GDPR into UK law.

On February 2, 2017, the UK government published a white paper entitled The United Kingdom’s exit from and new partnership with the European Union (the “white paper”). The white paper strikes a conciliatory tone, making it clear that the UK intends to maintain close ties with the European Union and its 27 remaining Member States after Brexit. A large portion of the white paper is devoted to discussing the issues at the heart of the 2016 Brexit referendum, such as immigration controls, continuing trade with the EU and the protection of individuals’ rights conferred under EU law. Among the rights addressed is the free flow of personal data between the UK and the EU.

On January 25, 2017, President Trump issued an Executive Order entitled “Enhancing Public Safety in the Interior of the United States.” While the Order is primarily focused on the enforcement of immigration laws in the U.S., Section 14 declares that “Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.” This provision has sparked a firestorm of controversy in the international privacy community, raising questions regarding the Order’s impact on the Privacy Shield framework, which facilitates lawful transfers of personal data from the EU to the U.S. While political ramifications are certainly plausible from an EU-U.S. perspective, absent further action from the Trump Administration, Section 14 of the Order should not impact the legal viability of the Privacy Shield framework.

On January 17, 2017, the International Trade Administration (“ITA”) announced that South Korea formally submitted its intent to join the APEC Cross-Border Privacy Rules (“CBPR”) system. South Korea would be the fifth APEC economy to join the system, joining the United States, Mexico, Canada and Japan.

On January 16, 2017, the Article 29 Working Party (“Working Party”) published further information about its Action Plan for 2017, which sets forth the Working Party’s priorities and objectives in the context of implementation of the EU General Data Protection Regulation (“GDPR”) for the year ahead. The Action Plan closely follows earlier GDPR guidance relating to Data Portability, the appointment of Data Protection Officers and the concept of the Lead Supervisory Authority, which were published together by the Working Party on December 13, 2016.

On January 11, 2017, the Swiss Federal Data Protection and Information Commissioner announced that it has reached an agreement with the U.S. Department of Commerce on a new Swiss-U.S. Privacy Shield framework (the “Swiss Privacy Shield”), which will allow companies to legally transfer Swiss personal data to the U.S. The Swiss Privacy Shield will replace the U.S.-Swiss Safe Harbor framework, and according to the Swiss government’s announcement, will “apply the same conditions as the European Union, which set up a comparable system with the U.S. last summer,” referring ...

On January 10, 2017, the European Commission announced the final elements of its long-awaited “digital single market” strategy for Europe. The announcement includes two new proposed EU regulations as well as a European Commission Communication, as described below.

On November 30, 2016, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP issued a white paper on The One-Stop-Shop and the Lead DPA as Co-operation Mechanisms in the GDPR (the “White Paper”). The White Paper sets forth guidance and recommendations concerning the interpretation and implementation of the GDPR’s provisions relating to the One-Stop-Shop (“OSS”) and lead DPA, which will become effective on May 25, 2018.

On November 21, 2016, against the backdrop of the EU General Data Protection Regulation (“GDPR”) and Brexit, UK Information Commissioner Elizabeth Denham delivered a keynote speech at the Annual Conference of the National Association of Data Protection and Freedom of Information Officers. During the address, Denham discussed the UK ICO’s ongoing preparations for the GDPR, reiterating the government’s position that the GDPR will be implemented in the UK. 

On November 18, 2016, the Argentina Data Protection Agency (“DPA”) announced that it had issued DNPDP Disposition 60 –  a new regulation on international transfers of personal data (the “Regulation”). 

On November 9, 2016, the Centre for Information Policy Leadership (“CIPL”) at Hunton & Williams LLP and AvePoint released the results of a joint global survey launched in May 2016 concerning organizational preparedness for implementing the EU General Data Protection Regulation (“GDPR”). The GDPR replaces Directive 95/46/EC and will become applicable in May 2018.

Join us at the International Association of Privacy Professionals (“IAPP”) Data Protection Congress in Brussels, November 9-10, 2016.

On November 7, 2016, the Standing Committee of the National People’s Congress of China enacted the final Cybersecurity Law after it held its third reading of the draft Cybersecurity Law on October 31, 2016. The first draft of the Cybersecurity Law was published for comment more than a year ago, followed by the second draft in July this year. The final Cybersecurity Law will apply from June 1, 2017.

On October 31, 2016, the Standing Committee of the National People’s Congress of China held a third reading of the draft Cybersecurity Law (the “third draft”). As we previously reported, the second draft of the Cybersecurity Law was published for comment in June. The National People’s Congress has not yet published the full text of the third draft of the Cybersecurity Law.

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

On September 22, 2016, Korean law firm Bae, Kim & Lee LLC released a Legal Update outlining amendments to Korea’s Personal Information Protection Act (“PIPA”) and the Act on the Promotion of IT Network Use and Information Protection (“IT Network Act”).

On July 20, 2016, the French Data Protection Authority (“CNIL”) announced that it issued a formal notice to Microsoft Corporation (“Microsoft”) about Windows 10, ordering Microsoft to comply with the French Data Protection Act within three months.

Background

Following the launch of Microsoft’s new operation system, Windows 10, in July 2015, the CNIL was alerted by the media and political parties that Microsoft could collect excessive personal data via Windows 10. A group composed of several EU data protection authorities was created within the Article 29 Working Party to examine the issue and conduct investigations in their relevant EU Member States. The CNIL initiated its investigation and carried out seven online inspections in April and June 2016. The CNIL also questioned Microsoft on certain points of its privacy statement.

On July 26, 2016, Isabelle Falque-Pierrotin, the Chairwoman of the Article 29 Working Party of data protection regulators, announced that EU data protection regulators will not challenge the adequacy of the EU-U.S. Privacy Shield (“Privacy Shield”) for at least one year (i.e., until after summer 2017). The European Commission is scheduled to conduct a mandatory review of the adequacy of the Privacy Shield by May 2017.

On July 12, 2016, after months of negotiations and criticism, the EU-U.S. Privacy Shield (“Privacy Shield”) was officially adopted by the European Commission and the Department of Commerce. Similar to the Safe Harbor, companies must certify their compliance with the seven principles comprising the Privacy Shield to use the Shield as a valid data transfer mechanism. Hunton & Williams partner Lisa J. Sotto and associate Chris D. Hydak recently published an article in Law360 entitled “The EU-U.S. Privacy Shield: A How-To Guide.” In the article, Lisa and Chris detail the ...

On July 14, 2016, the Federal Trade Commission issued warning letters to 28 companies relating to apparent false claims of participation in the APEC Cross-Border Privacy Rules (“CBPR”).

The warning letters state that the companies’ websites represent APEC CBPR certification even though the companies do not appear to have undertaken the necessary steps to claim certification, such as a review and approval process by an APEC-recognized Accountability Agent.

On July 12, 2016, the EU Commissioner for Justice, Consumers and Gender Equality, Věra Jourová, and U.S. Secretary of Commerce Penny Pritzker announced the formal adoption of the EU-U.S. Privacy Shield (the “Privacy Shield”) framework, composed of an Adequacy Decision and accompanying Annexes.

On July 8, 2016, EU representatives on the Article 31 Committee approved the final version of the EU-U.S. Privacy Shield (“Privacy Shield”) to permit transatlantic transfers of personal data from the EU to the U.S.

On July 5, 2016, the Standing Committee of the National People’s Congress of the People’s Republic of China (the “Standing Committee”) published the full second draft of the Cybersecurity Law (the “second draft”). The publication of the second draft comes after the Standing Committee’s second reading of the draft on June 27, 2016. The public may comment on the second draft of the Cybersecurity Law until August 4, 2016.

On June 28, 2016, the UK Information Commissioner’s Office (“ICO”) released its Annual Report for 2015 -2016 (the “Report”).

According to the Report, the ICO has dealt with an increase in the number of data protection concerns, handling 16,388 complaints in total. Particularly noteworthy is the £130,000 fine imposed on Pharmacy 2U for breach of the fair processing requirements under the UK Data Protection Act 1998. Pharmacy 2U sold details of over 20,000 customers to a list marketing company without customers' knowledge or consent.

On June 30, 2016, a joint committee composed of representatives from both chambers of the French Parliament (“Joint Committee”) reached a common position on the French ‘Digital Republic’ Bill that rejects the data localization amendment previously approved by the French Senate, but significantly amends other aspects of the French Data Protection Act.

On June 27, 2016, the Standing Committee of the National People’s Congress of the People's Republic of China held a second reading of the draft Cybersecurity Law (the “second draft”). The law is aimed at strengthening the protection and security of key information infrastructure and important data in China. As we previously reported, the first draft of the Cybersecurity Law was published for comment almost a year ago, but the National People’s Congress has not published the full second draft of the Cybersecurity Law to date.

On June 29, 2016, Politico reported that it has obtained updated EU-U.S. Privacy Shield documents following the latest negotiations between U.S. and EU government authorities. Certain aspects of the prior Privacy Shield framework were criticized by the Article 29 Working Party, the European Parliament and the European Data Protection Supervisor.

With the EU General Data Protection Regulation (“GDPR”) enacted and due to come into force in May 2018, the Centre for Information Policy Leadership at Hunton & Williams and AvePoint have launched a global survey to enable organizations to benchmark their readiness for the GDPR. The survey focuses on the key areas of impact and change for organizations under the GDPR, such as consent, legitimate interest, data portability, profiling, privacy impact assessments, DPOs, data transfers and privacy management program.

On June 23, 2016, the UK held a referendum to decide upon its continued membership in the European Union. The outcome has resulted in the decision for the UK to withdraw its membership from the European Union. Despite the result, data protection standards are unlikely to be affected.

According to Bloomberg BNA, the EU-U.S. Privacy Shield framework could be approved by the European Commission in early July. The Privacy Shield is a successor framework to the Safe Harbor, which was invalidated by the European Court of Justice in October 2015. Certain provisions of the Privacy Shield documents, previously released by the European Commission on February 29, 2016, have been subjected to criticism by the Article 29 Working Party, the European Parliament and the European Data Protection Supervisor. According to Bloomberg BNA, the previously released draft adequacy decision, one of the Privacy Shield documents released on February 29, 2016, is expected to be modified.

On June 13, 2016, the U.S. government expressed its wish to join the legal proceedings brought by Max Schrems concerning the validity of international data transfers under EU Standard Contractual Clauses.

Along with the U.S. government, the Irish Business and Employers Confederation and the Business Software Alliance, an industry trade group, also informed Ireland’s High Court of their desire to be added to the case as amici curiae, or "friends of the court."

On May 30, 2016, the European Data Protection Supervisor (“EDPS”) released its Opinion (the “Opinion”) on the EU-U.S. Privacy Shield (the “Privacy Shield”) draft adequacy decision. The Privacy Shield was created to replace the previous Safe Harbor framework invalidated by the Court of Justice of the European Union (“CJEU”) in the Schrems decision.

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

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

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

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

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

Hunton ...

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

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

With the recent adoption of the EU General Data Protection Regulation (“GDPR”) and the significant changes it will require from organizations, AvePoint has joined forces with the Centre for Information Policy Leadership (“CIPL”), a global privacy policy think tank at Hunton & Williams LLP, to launch the first global survey to benchmark organizations’ readiness for the GDPR.

On April 14, 2016, after four years of drafting and negotiations, the long awaited EU General Data Protection Regulation (“GDPR”) has been adopted at the EU level. Following the EU Parliament’s Committee on Civil Liberties, Justice and Home Affairs’ vote earlier this week and the EU Parliament in plenary session, the GDPR is now officially EU law and will directly apply in all EU countries, replacing EU and national data protection legislation.

On April 13, 2016, the Article 29 Working Party (the “Working Party”) published its Opinion on the EU-U.S. Privacy Shield (the “Privacy Shield”) draft adequacy decision. The Privacy Shield was created to replace the previous Safe Harbor framework invalidated by the Court of Justice of the European Union (“CJEU”) in the Schrems decision. The Working Party also published a Working Document on the justification for interferences with the fundamental rights to privacy and data protection through surveillance measures when transferring personal data (European Essential Guarantees).

After much debate, the final version of the EU General Data Protection Regulation (“GDPR”) is expected to be adopted by the European Parliament this week and to take effect in early 2018. The GDPR will significantly change EU data protection law in several areas, affecting all businesses in the energy, financial, health care, real estate, manufacturing, retail, technology and transportation industries, among others. To assist in-house lawyers and privacy professionals with understanding the new GDPR and planning ahead for implementation, Hunton & Williams’ Privacy and Cybersecurity practice lawyers have released The EU General Data Protection Regulation, a Guide for In-House Lawyers covering these strategic areas:

On March 17, 2016, Bojana Bellamy, President of the Centre for Information Policy Leadership (“CIPL”), participated on a panel of experts at a hearing in front of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE Committee”) about the new EU-U.S. Privacy Shield for commercial transfers of EU personal data to the U.S.

On March 17, 2016, the Council of the European Union (the “Council”) published a Draft Statement (the “Statement”) regarding the Council’s position at first reading with respect to the adoption of the EU General Data Protection Regulation (“GDPR”). The Statement follows a political agreement on the draft GDPR reached by the Council on February 12, 2016.

On February 25, 2016, the Asia-Pacific Economic Cooperation (“APEC”) issued a press release announcing the decision by the Joint Oversight Panel of the APEC Electronic Commerce Steering Group to approve the Japan Institute for Promotion of Digital Economy and Community (“JIPDEC”) as a new “Accountability Agent” under the APEC Cross-Border Privacy Rules (“CBPR”) system. Along with TRUSTe, JIPDEC will now be able to independently assess the compliance of companies under the APEC CBPR system. With this approval, Japan is now a fully operational participant in the APEC CBPR system.

On February 29, 2016, the European Commission issued the legal texts that will implement the EU-U.S. Privacy Shield. These texts include a draft adequacy decision from the European Commission, Frequently Asked Questions and a Communication summarizing the steps that have been taken in the last few years to restore trust in transatlantic data flows.

The agreement in support of the new EU-U.S. transatlantic data transfer framework, known as the EU-U.S. Privacy Shield, was reached on February 2, 2016, between the U.S. Department of Commerce and the European Commission. Once adopted, the adequacy decision will establish that the safeguards provided when transferring personal data pursuant to the new EU-U.S. Privacy Shield are equivalent to the EU data protection standards. In addition, the European Commission has stated that the new framework reflects the requirements that were set forth by the Court of Justice of the European Union (the “CJEU”) in the recent Schrems decision.

On February 24, 2016, President Obama signed the Judicial Redress Act (the “Act”) into law. The Act grants non-U.S. citizens certain rights, including a private right of action for alleged privacy violations that occur in the U.S. The Act was signed after Congress approved an amendment that limits the right to sue to only those citizens of countries which (1) permit the “transfer of personal data for commercial purposes” to the U.S., and (2) do not impose personal data transfer policies that “materially impede” U.S. national security interests.

On February 23, 2016, the Federal Trade Commission announced that it reached a settlement with Taiwanese-based network hardware manufacturer ASUSTeK Computer, Inc. (“ASUS”), to resolve claims that the company engaged in unfair and deceptive security practices in connection with developing network routers and cloud storage products sold to consumers in the U.S.

On February 11, 2016, the Article 29 Working Party (the “Working Party”) issued a statement on the 2016 action plan for the implementation of the EU General Data Protection Regulation (the “Regulation”). The action plan outlines the priorities for the Working Party in light of the transition to a new legal framework in Europe and the introduction of the European Data Protection Board (the “EDPB”). Accompanying the statement is a document, Work Program 2016-2018, detailing the tasks of the Working Party’s subgroups during the transitional period between the adoption of the Regulation and its implementation.

On February 10, 2016, the U.S. House of Representatives passed the Judicial Redress Act, which had been approved by the Senate the night before and included a recent Senate amendment. The House of Representatives previously passed the original bill in October 2015, but the bill was sent back to the House due to the recent Senate amendment. The Judicial Redress Act grants non-U.S. citizens certain rights, including a private right of action for alleged privacy violations that occur in the U.S. The amendment limits the right to sue to only those citizens of countries that (1) permit the “transfer of personal data for commercial purposes” to the U.S., and (2) do not impose personal data transfer policies that “materially impede” U.S. national security interests. The bill now heads to President Obama to sign.

On February 3, 2016, the Article 29 Working Party (the “Working Party”) issued a statement on the consequences of the ruling of the Court of Justice of the European Union (the “CJEU”) in the Schrems case invalidating the European Commission’s Safe Harbor Decision.

On February 2, 2016, a new EU-U.S. transatlantic data transfer agreement was reached. Věra Jourová, European Commissioner for Justice, Consumers and Gender Equality, presented the new agreement to the European Commission (the “Commission”) today. According to the Commission’s press release, the new agreement will be called the EU-U.S. Privacy Shield.

On February 1, 2016, Věra Jourová, European Commissioner for Justice, Consumers and Gender Equality, told the European Parliament that an agreement on a new U.S.-EU Safe Harbor agreement has not yet been reached. Jourová indicated that an agreement is close, but additional work is needed to finalize it.

On January 28, 2016, the Centre for Information Policy Leadership (“CIPL”) held a special roundtable at Hunton & Williams’ Brussels office to examine the “essential equivalence” requirement for protection of data transfers to non-EU countries set by the Court of Justice of the European Union’s (“CJEU's”) Schrems decision. The roundtable brought together leading lawyers, corporate privacy officers, legal experts, regulators and policymakers to discuss the critical issues and impact of the new “essential equivalence” requirement for global data transfers set by the CJEU, and its relevance to the current EU-U.S. negotiations of a new Safe Harbor agreement.

According to Bloomberg BNA, Paul F. Nemitz, Director for Fundamental Rights and Union Citizenship at the Directorate-General Justice of the European Commission, said at a privacy conference that he hoped a new U.S.-EU Safe Harbor agreement would be reached by the evening of Monday, February 1, 2016.

On January 13, 2016, the Russian Data Protection Authority (Roscommandzor) released its plan for audits this year to assess compliance with Russia’s data localization law, which became effective on September 1, 2015. The localization law requires companies to store the personal data of Russians in databases located in Russia. The audit plan indicates that the Roscommandzor will audit large, multinational companies doing business in numerous jurisdictions and processing the personal data of Russian citizens ...

On January 28, 2016, the Senate Judiciary Committee passed the Judicial Redress Act (the “Act”), which would give EU citizens the right to sue over certain data privacy issues in the U.S. The Act passed after an amendment was approved which would condition EU citizens’ right to sue on EU Member States (1) allowing companies to transfer personal data to the U.S. for commercial purposes and (2) having personal data transfer policies which do not materially impede the national security interests of the U.S. The vote was initially set to take place on January 21, 2016, but was delayed.

On January 21, 2016, the Israeli Law, Information and Technology Authority (“ILITA”) announced that it would postpone for the time being any review or enforcement actions on data transfers from Israel to the United States that are based on the U.S.-EU Safe Harbor framework.

On January 21, 2016, a Senate Judiciary Committee vote on the Judicial Redress Act, which would give EU citizens the right to sue over certain data privacy issues in the U.S., has reportedly been postponed. As reported by Forbes, the vote may have been delayed due to amendments to the fifth paragraph of the bill, which deals with litigation pursuant to the act. The vote was initially scheduled for today.

On January 7, 2016, the European Data Protection Supervisor (the “EDPS”) published his Priorities for 2016. The EDPS Priorities consists of a cover note listing the strategic priorities of the EDPS in 2016 and a color-coded table listing the European Commission’s proposals that require the EDPS’ attention, per level of priority.

In line with the EDPS Strategy 2015-2019 unveiled in March 2015, the EDPS will set his focus on the following areas of strategic importance:

On December 17, 2015, the German Federal Diet (Bundestag) adopted a draft law introducing class action-like claims that will enable consumer protection associations to sue companies for violations of German data protection law.

On December 17, 2015, after three years of drafting and negotiations, the European Parliament and Council of the European Union reached an informal agreement on the final draft of the EU General Data Protection Regulation (the “Regulation”), which is backed by the Committee on Civil Liberties, Justice and Home Affairs.

On November 19, 2015, the French Data Protection Authority (“CNIL”) published guidance, including a set of frequently asked questions, to assist companies that are transferring personal data to the U.S. pursuant to the Safe Harbor framework.

In late October, the Brazilian Ministry of Justice (the “Ministry”) issued its revised Draft Bill for the Protection of Personal Data (“Draft Bill”). The Ministry released its preliminary draft in January 2015, and the Centre for Information Policy Leadership at Hunton & Williams LLP (“CIPL”) filed public comments to the draft on May 5, 2015.

On November 5, 2015, the White House released the proposed text of the Trans-Pacific Partnership Agreement (the “TPP”) containing a chapter on cross-border data transfers in the context of electronic commerce. In the chapter on Electronic Commerce, Chapter 14, the TPP includes commitments from participating parties to adopt and maintain a legal framework to protect personal information, and encourages cross-border data transfers to help facilitate business and trade.

On November 6, 2015, the European Commission published a communication and a Q&A document addressed to the European Parliament and European Council on the transfer of personal data from the EU to the U.S. under EU Data Protection Directive 95/46/EC (the “Directive”), following the decision by the Court of Justice of the European Union invalidating the European Commission’s Safe Harbor Decision.

On Monday, November 2, 2015, Hunton & Williams LLP’s Centre for Information Policy Leadership (“CIPL”) Senior Policy Advisor, Fred H. Cate, moderated an academic panel on The Data Dilemma: A Transatlantic Discussion on Privacy, Security, Innovation, Trade, and the Protection of Personal Data in the 21st Century. The event was sponsored by Indiana University and took place at the CIEE Global Institute in Berlin, Germany.

On November 3, 2015, John Murphy, Senior Vice President for International Policy at the U.S. Chamber of Commerce, testified about the Court of Justice of the European Union’s (“CJEU’s”) EU-U.S. Safe Harbor Decision at a joint hearing of the House Commerce and Communications and Technology Subcommittees.

On October 27, 2015, David Smith, the UK Deputy Commissioner of the Information Commissioner’s Office (“ICO”), published a blog post commenting on the ongoing Safe Harbor compliance debate in light of the Schrems v. Facebook decision of the Court of Justice of the European Union. His key message to organizations was, “Don’t panic.”

On Monday, October 26, 2015, EU Commissioner for Justice, Consumers and Gender Equality, Věra Jourová, gave a speech before the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE Committee”) on the recent ruling by the Court of Justice of the European Union (the “CJEU”) that invalidated the European Commission’s Safe Harbor Decision. The EU Commissioner welcomed the Article 29 Working Party’s statement and, in particular, its support for a new Safe Harbor framework by January 31, 2016. However, the EU Commissioner called for more clarity in the meantime. Accordingly, she announced that the European Commission will soon issue an explanatory document on the consequences of the CJEU’s ruling to provide guidance for businesses on international data transfers.

On October 27, 2015, the U.S. Senate passed S.754 - Cybersecurity Information Sharing Act of 2015 (“CISA”) by a vote of 74 to 21. CISA is intended to facilitate and encourage the sharing of Internet traffic information between and among companies and the federal government to prevent cyber attacks, by giving companies legal immunity from antitrust and privacy lawsuits. CISA comes in the wake of numerous recent, high-profile cyber attacks.