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10 November 2016

BayLDA fines organisation for DPO appointment

The Bavarian State Commissioner for Data Protection (“BayLDA“) announced on October 20, 2016, that it had fined a company for appointing an IT manager as its data protection officer (“DPO“). Germany’s strict data protection laws mean that appointing a DPO has long been a requirement for some companies in Germany, whereas in most other EU Member States there will be no such requirement until the General Data Protection Regulation (“GDPR”) takes effect.

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08 November 2016

Applications to Intervene in Privacy Shield Challenge

Last week, we posted a brief account of the two challenges that have been filed in the General Court of the Court of Justice of the European Union challenging the Privacy Shield, first by Digital Rights Ireland in September and then by La Quadrature du Net last Monday.  Today, the Official Journal of the European Union published notice of the Digital Rights Ireland pleading, the first time it has been publicly available.

This posting means the clock has started running on applications to intervene.  Applications to intervene are due in 60 days, or January 6, 2016.   To establish a  right to intervene, an application must include a statement of the circumstances showing “an interest in the result” of  the case.

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04 November 2016

EU-U.S. Privacy Shield challenged in CJEU

Two legal challenges have been filed at the Court of Justice of the European Union (“CJEU”) against the European Commission’s adequacy decision on the EU-U.S. Privacy Shield. Privacy Shield was adopted on July 12, 2016 after the CJEU struck down the earlier Safe Harbour agreement in October 2015 over concerns about U.S. surveillance techniques.

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31 October 2016

ICO Updates Guidance on Privacy Notices

The EU Data Protection Directive requires that data be processed fairly, which includes providing individuals with certain information about how a business uses their data, for example, by way of a privacy notice.  These information requirements will be enhanced under the new EU Data Protection Regulation (“GDPR“), which will require many companies to review and amend their employee and customer notices, consents and policies (including privacy notices).

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28 October 2016

House of Lords Amends Investigatory Powers Bill to Recognise Privacy as a “Fundamental Priority”

Members of the UK House of Lords have amended the Investigatory Powers Bill to make privacy a fundamental concern by inserting the following in clause 1 –

“This Act sets out the extent to which certain investigatory powers may be used to interfere with privacy.”

The amendment, proposed by Lord Janvrin, a member of the UK parliament’s Intelligence and Security Committee (“ISC“), was approved on Tuesday 11 October 2016, after a debate in which many members highlighted the need for safeguards against disproportionate use of the Bill by public authorities.

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19 August 2016

NIST requests comments on cybersecurity in the digital economy to inform CENC recommendations

On August 10, 2016, the National Institute of Standards and Technology (“NIST”) issued a notice requesting public comment on the current and future state of cybersecurity in the digital economy.  The Request for Information (“RFI”) will serve to facilitate the work of the Commission on Enhancing National Cybersecurity (“CENC”) in delivering detailed cybersecurity recommendations for the public and private sectors pursuant to Executive Order 13718.  The February 2016 Executive Order created CENC to develop a plan of action for the next decade to strengthen cybersecurity in the public and private sectors and reinforce partnerships between federal, state and local governments and the private sector. The Executive Order directs the Commission and the Secretary of Commerce to work with NIST to carry out its mission.

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01 August 2016

Privacy Shield Now Available for Certification

From Monday August 1, 2016, companies will be able to self-certify under the EU-US Privacy Shield (www.privacyshield.gov). The Privacy Shield was adopted on July 12, 2016 and is intended as a replacement to the now invalidated Safe Harbor framework. Companies preparing to self-certify their adherence to the Privacy Shield Principles should carefully review the associated documentation to understand the new requirements and consider carrying out a gap analysis against their existing privacy program. This is particularly important given the potential for increased enforcement action from the US Federal Trade Commission against participating companies that fail to comply with the Principles. (more…)

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29 July 2016

FOIA Improvement Act of 2016: The Presumption of Openness” and Other Significant Changes

On June 30, 2016, President Obama signed the FOIA Improvement Act of 2016 (the Act). The Act adds provisions to the Freedom of Information Act (FOIA) that may assist requesters, as well as lead to increased disclosure. However, business records currently protected by existing interpretations of FOIA exemptions should continue to be protected despite these changes. The flagship change enacts the Obama Administration’s “presumption of openness” by codifying an already-existing executive branch policy that restricts an agency’s discretionary power to withhold documents to situations where disclosure would result in foreseeable harm. Other changes include a 25-year sunset provision for protection of privileged pre-decisional inter- or intra-agency memoranda under exemption 5; procedural changes intended to streamline requests and reduce delay; and increased emphasis on FOIA’s alternative dispute resolution services to assist requesters.

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26 July 2016

Second Circuit Sides With Microsoft; Data Exclusively Stored On Foreign Servers Not Subject to SCA Search Warrant

On July 14, 2016, the U.S. Court of Appeals for the Second Circuit issued a long-awaited decision that—to the surprise of many observers—rejected the government’s construction of the Stored Communications Act (SCA) and instead embraced a more restrictive view that Microsoft had advanced, backed by much of the tech industry and many privacy groups.  Microsoft Corp. v USA, In the Matter of a Warrant to Search a Certain E‐Mail Account Controlled and Maintained by Microsoft Corporation (2d Cir. July 14, 2016)( Docket No. 14‐2985).  (Sidley Austin LLP represented a number of amici in support of Microsoft before the Court of Appeals and District Court.) The decision holds that electronic communications that are stored exclusively on foreign servers cannot be reached by U.S. prosecutors under the SCA’s warrant provisions—not even where the warrant is served on a U.S. provider that can access the foreign-stored information, and deliver it to U.S. officials, by using computers and personnel based here in the United States.

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