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National Security

20 May 2016

Council Adopts EU-wide Cybersecurity Directive

On May 17, 2016, the European Council formally adopted the Network and Information Security Directive (the “NIS Directive“) at first reading. According to the Council press release, the NIS Directive is meant to increase cooperation among EU Member States on the vital issues of cybersecurity.

The NIS Directive was first proposed by the European Commission in 2013 as part of the EU’s Cyber Security Strategy. The formal adoption of the NIS Directive by the Council follows on from the political agreement reached in December 2015.  It must now be approved by the Parliament at second reading. The NIS Directive is expected to enter into force in August 2016, after which Member States will have 21 months to implement it into their national laws.

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09 March 2016

The EU-U.S. Privacy Shield Is a Victory for Common Sense and Transatlantic Good Will

*This post originally appeared in the Council on Foreign Relations’ Net Politics Blog on March 1, 2016.

When the Court of Justice of the European Union (CJEU) struck down Safe Harbor last year, it did so on the basis that the European Commission had not determined whether European data transferred to the United States enjoyed the same protections as in the European Union. Despite the fact a recent Sidley Austin report found that many U.S. privacy protections are essentially equivalent—if not stronger—than the European Union’s in national security matters and comparable in other areas, the Commission clearly needed to replace Safe Harbor with something else to satisfy the CJEU and domestic privacy activists.

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07 March 2016

Technology Companies Should Prepare for Implications of China’s New Anti-Terrorism Law

On January 1, 2016, China’s National People’s Congress Standing Committee enacted the new Anti-Terrorism Law (反恐怖主义法) that gives broad powers to the Chinese authorities to access and handle data held by telecommunications operators and internet providers (together, “Technology Companies”).  This law provides a legal framework to compel Technology Companies to cooperate and assist the Chinese authorities to combat the threat of “terrorism.”

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29 February 2016

Having an Open and Honest Debate About Security

*This post originally appeared in Lawfare on February 25, 2016.

Let’s not pretend that that the outcome the Justice Department seeks in the Apple case is limited to only a single case and just this particular phone.

This unquestionably involves a special case. Because of the specter of an ISIS connection, the San Bernardino attacks send chills down the spine of every American. The ISIS connection makes this case different from other cases of homegrown radicalization. And the actual owner of the iPhone has consented to the search.

It is these special characteristics that make the San Bernardino case a compelling vehicle for the FBI to press its concerns about end-to-end encryption on devices and apps.  … [Read More]

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10 February 2016

President Takes Action On Cybersecurity

President Obama today unveiled a “Cybersecurity National Action Plan.” The administration’s proposed budget includes $19 billion for cybersecurity spending, $3 billion of which will be devoted to updating agency systems. The plan includes the creation of a Federal Chief Information Security Officer to guide the implementation of increased security across the federal government and reside within the Office of Management and Budget. President Obama also issued two executive orders. The first establishes the Commission on Enhancing National Cybersecurity within the Department of Commerce to be composed of technology, national security, and business leaders. The Commission is charged with developing by December 1, 2016 “detailed recommendations to strengthen cybersecurity in both the public and private sectors.” The second requires the establishment of a Senior Agency Official for Privacy at each agency and creates the Federal Privacy Council as “the principal interagency forum to improve the Government privacy practices of agencies and entities acting on their behalf.” The OMB Director will be chair of the Federal Privacy Council, which will have the focus of coordinating internal agency policies.

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25 January 2016

Essentially Equivalent: A Comparison of the Legal Orders for Privacy and Data Protection in the European Union and United States

In a milestone decision on transatlantic data protection, the Court of Justice of the European Union (CJEU) issued its judgment in the Schrems case, declaring the Commission decision on the EU-U.S. Safe Harbor agreement invalid. The CJEU declared that such a decision requires a finding that the level of protection of fundamental rights and freedoms in the laws and practices of the third country is “essentially equivalent” to that guaranteed within the EU. Given the CJEU’s decision, the Commission and data protection authorities are now called upon to examine the legal order in the U.S. and compare its level of protection to that within the EU.

This report provides a roadmap and resource for this comparison. Following the analysis laid out by the CJEU in Schrems, it shows how privacy values deeply embedded in U.S. law and practice have resulted in a system of protection of fundamental rights and freedoms that meets the test of essential equivalency.

Click here to view the executive summary.

Click here to view the full report.

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11 January 2016

Top Ten Data Protection and Privacy Issues to Watch in 2016

*This post originally appeared in Law360 on January 7, 2016.

While 2015 was a big year in data, 2016 may prove to be even bigger.  Many hot button and game changing topics are being debated in legislative bodies and campaign trails, regulators are focused, and privacy-related litigation continues to rise. Below, we count down the top ten cybersecurity, data protection and privacy issues to watch in 2016.

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06 January 2016

OFAC issues Cyber-Related Sanctions Regulations

In the aftermath of the cyber attack on the Office of Personnel Management and the significant loss of corporate intellectual property, the U.S. government has announced new tools to respond to and to deter such harmful attacks.  On December 31, 2015, the Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) issued new U.S. Cyber-Related Sanctions Regulations, set forth in 31 C.F.R. § 578 (“Cyber-Related Sanctions Regulations”).  The Cyber-Related Sanctions Regulations are designed to implement Executive Order 13694, which targets perpetrators of malicious cyber-activities (e.g., hacking and Distributed Denial of Service (DDoS) attacks) as well as those who support such activities and certain recipients and users of stolen trade secrets.  For a more detailed discussion of E.O. 13694, which was issued by President Obama on April 1, 2015, see our previous alert.

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23 December 2015

Cybersecurity and Government “Help” – Engaging with DOJ, DHS, FBI, Secret Service, and Regulators

In this two-part article, the authors provide an overview of government cybersecurity resources, and encourage companies to consider whether and when it makes sense to take advantage of this assistance. The first part, which appeared in the October 2015 issue of Pratt’s  Privacy  & Cybersecurity Law Report, introduces the jurisdictional landscape and cybersecurity resources available from the Department of Justice and the Department of Homeland Security. This second part of the article discusses the cybersecurity resources available from the Federal Bureau of Investigation, the United States Secret Service, and regulators.

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08 December 2015

The FAST Act’s Cybersecurity and Privacy Provisions for the Electric Grid, Internet of Things, and Connected Cars

On Friday, December 4, President Obama signed the Fixing America’s Surface Transportation (“FAST”) Act, a $300 billion-plus highway and transportation law and the first comprehensive transportation spending law in a decade. Despite its title, the bill impacts a number of regulated sectors. Nestled within this 490-page law are 13 pages that pertain to cybersecurity and other protections for the electric grid. As detailed below, the FAST Act also includes a number of privacy and cybersecurity provisions relating to privacy notices by financial institutions as required by the Gramm Leach Bliley Act, event data records in vehicles, Internet of Things technologies, and connected cars.

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