OCC Moves Forward with Proposal to Issue FinTech Charters

The Office of the Comptroller of the Currency (OCC) has confirmed its intention to explore issuing limited-purpose national bank charters to fintech firms engaged in banking activities — commonly called the “fintech charter.” Earlier this year, the OCC had signaled this possibility. Now, through the release of a policy paper titled “Exploring Special Purpose National Bank Charters for Fintech Companies” (FinTech Paper) and a speech by the Comptroller on Dec. 2, the OCC has taken a more formal step.

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FCA Outlines its Approach to Cybersecurity in Financial Services Institutions

A recent speech by the Financial Conduct Authority (“FCA”) Director of Specialist Supervision, Nausicaa Delfas, delivered at the Financial Times’ Cyber Security Summit, shows that the FCA, which is the leading financial services regulator in the United Kingdom, is taking the issue of cyber security seriously and that it believes new approaches are needed to combat the threat to financial services firms.

The FCA’s concerns are consistent with those being expressed by US banking regulators and the Group of Seven (G-7) industrial nations who agreed on a set of guidelines to combat cyber risks affecting global financial institutions.

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European Commission adopts its Work Programme for 2017; includes focus on Digital Single Market Strategy and General Data Protection Regulation

On October 25, 2016 the European Commission (the “Commission“) adopted its 2017 Work Programme (the “Work Programme”) which sets out what the Commission intends to do over the next 12 months. The Work Programme is the third to be presented under Jean-Claude Junker’s presidency of the Commission and will also be the first Work Programme to be adopted following consultation with the European Parliament (the “Parliament“) and the European Council (the “Council“).

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EU Court of Justice Confirms Protection of Confidential Business Information in Environmental Matters But Uncertainty Remains

On November 23, 2016, the Court of Justice of the European Union (CJEU) set aside a judgment by the lower General Court which could have set a dangerous precedent for the protection of business secrets and confidential business information (CBI) in environmental cases in the European Union. *

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Federal Court Grants LabMD’s Motion to Stay Enforcement of FTC’s Final Order

The U.S. Court of Appeals for the Eleventh Circuit has ordered the FTC to halt enforcement of its data security order against LabMD while LabMD challenges the action.

To recap the events leading up to this stay, a data security company allegedly obtained sensitive data from LabMD via a peer-to-peer file-sharing program.  Allegedly, after LabMD refused to purchase the company’s security products, it reported the alleged data security vulnerability to the FTC. The FTC accused LabMD of unfair practices in failing to provide reasonable and appropriate security for customers’ personal information, which was allegedly likely to cause harm to customers. In 2015, an Administrative Law Judge dismissed the case, finding that the FTC failed to prove LabMD’s practices were likely to cause substantial customer injury. In July 2016, upon appeal to the full Commission, the FTC reversed the ALJ decision. Although LabMD stopped operating in 2014, the FTC nevertheless ordered LabMD to implement several information security compliance measures because the Lab still maintains medical records. LabMD appealed to the Eleventh Circuit and filed a motion to stay the FTC’s order.

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China Adopts Cyber Security Law

On November 7, 2016, the Standing Committee of the National People’s Congress of China promulgated the Cyber Security Law of the People’s Republic of China (the “Cyber Security Law”) after three rounds of readings in June 2015, June and October 2016, respectively.  The Cyber Security Law will enter into force on June 1, 2017.  As early as July 1, 2015, the National Security Law of the People’s Republic of China was promulgated, expressly providing that the state shall “safeguard sovereignty and security of cyberspace in the state,” a theme that is reiterated and emphasized in Article 1 of the Cyber Security Law.  The introduction of the concept of “cyber space sovereignty” in the Cyber Security Law echoes the views of President Xi Jinping, who is also the head of the Office of the Central Leading Group for Cyberspace Affairs, and who has stated in February 2014 that “[n]o cyber safety means no national security.”  Critically, the Cyber Security Law may have global implications, as the Law applies to both Chinese and international businesses engaging in the construction, operation, maintenance or use of information networks in China.

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The Trump Agenda for Cybersecurity and Privacy

The future of privacy and cybersecurity under President-elect Trump – with a Republican-controlled House and Senate – is far from certain, but his campaign comments indicate an emphasis on robust cybersecurity, perhaps with more openness to both offensive as well as defensive initiatives.

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