By

Alan Charles Raul

15 July 2019

Crunch Time in California – CCPA Amendments Hotly Debated and (Some) Defeated – Employee Data Is Back, Reasonable Definition of Personal Information Is Gone (For Now), and More!

With less than three months to go before amendments to California’s far reaching data privacy law need to be signed into law, the CCPA landscape may be changing yet again, as several amendments debated in the state Senate Judiciary Committee on July 9th underwent significant modifications.  Eight proposed CCPA amendments were on the committee’s agenda, and several were hotly debated in an hours-long session that extended late into the night.  In the end, two of the bills had substantive modifications, another was stalled, one was defeated, and the rest made it out of the committee, with limited changes. Here we summarize the highlights.

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26 June 2019

Supreme Court Clarifies Broad Interpretation of FOIA Exemption for Confidential Commercial Information

In a very significant FOIA decision for business, Food Mktg. Inst. v. Argus Leader Media, decided on June 24, 2019, the Supreme Court reversed 45 years of understanding that Exemption 4 only protects confidential business information whose disclosure by the government would cause “substantial competitive harm.”

Relying on the plain meaning of words in the statute – rather than what the Court majority characterized as muddled legislative history – the Court found that the D.C. Circuit had engrafted a condition on the Exemption that is not supported by the text.  Rather, so long as the commercial or financial information obtained by the government is “private” or “secret” – the plain and ordinary meaning of “confidential” – it may be withheld from disclosure under FOIA.

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22 January 2019

Transfers of Personal Data from the EU to the U.S. in the Event of a Brexit ‘No-Deal’

The EU-U.S. Privacy Shield (“Privacy Shield”) enables the free-flow of personal data from the European Economic Area (“EEA”) to the U.S. Under the Privacy Shield, U.S. participant organisations commit to adhering to Privacy Shield principles, which include accountability for the onward transfer of personal data after receiving such data from EEA organisations, data integrity obligations and purpose limitations with respect to the personal data transferred. Privacy Shield participant organisations are also required to develop and maintain a Privacy Shield-compliant privacy policy which informs individuals of the organisation’s practices and procedures when handling personal data and explains the independent recourse mechanisms in place for individuals to address complaints with respect to the processing of their personal data.  (more…)

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03 January 2019

Spain’s New Data Protection Act Now in Force

When the GDPR came into effect on May 25, 2018, several European Member States had yet to put in place further implementing legislation.  And while the data protection world watches and eagerly digests each new interpretive guidance from data protection authorities, Member State legislation provides additional interpretive tones of harmony or discord in data protection across Europe.  After much delay and almost seven months after the EU’s General Data Protection Regulation (“GDPR”) came into force, the Organic Law 3/2018 on the Protection of Personal Data and Guarantee of Digital Rights (“LOPDGDD”) – which implements the GDPR in Spain – entered into force on 7 December 2018. (more…)

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03 December 2018

Privacy Legislation Could Provide Common Ground for the Newly Divided Congress

*This article first appeared in the Hill.com on November 19, 2018

With the House having now flipped, policy consensus in Congress is not likely to get any easier. But there is one subject around which countries, companies, consumers and, yes, even Congress is increasingly converging. That issue is privacy. The new privacy zeitgeist follows years of data breaches as well as new concerns about invisible data collection, political micro-targeting and manipulation, the proliferation of internet-connected devices, and a potential lack of transparency in the decisions that machines increasingly make about us.

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01 November 2018

Ohio Law Recognizes Safe Harbor in Data Breach Litigation

Companies with robust cybersecurity programs may still be vulnerable to attack. A new, first-of-its-kind law in Ohio now recognizes this fact. On November 1, 2018, the Ohio Data Protection Act (SB 220) establishes a safe harbor from state tort actions in data breach cases for entities that have developed an information security program with “administrative, technical, and physical safeguards for the protection of personal information and that reasonably conforms to an industry recognized cybersecurity framework.” Without establishing minimum cybersecurity standards, the Ohio law affords defendants an “affirmative defense” against state tort actions and establishes an important precedent that may serve as a model for other states and the federal government to follow. (more…)

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10 October 2018

California and Preemption

As one of the epicenters of the Information Age and largest state in the Nation, California’s regulatory decisions can have an outsize impact on the data economy.  Recently, the State has tried to use this pride of place to stamp its imprint on two important public debates.  First, on September 30, 2018, Governor Brown signed into law the California Internet Consumer Protection and Net Neutrality Act of 2018 (Senate Bill 822), which seeks to impose, as a matter of state law, net neutrality regulation even more restrictive than the federal regime the Federal Communications Commission (FCC) repealed earlier this year.  Second, earlier this year, California enacted (and then subsequently amended) the California Consumer Privacy of 2018, the broadest privacy law in the United States.  As laid out below, these enactments have sparked legal and policy debates over whether California should be able to set rules that could become de facto national standards or whether federal rules do or should preempt California’s efforts.  (more…)

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02 October 2018

The Trump Administration’s Approach to Data Privacy, and Next Steps

* This article originally appeared in Law360 on September 27, 2018.

On Sept. 25, 2018, the Trump administration proposed an approach and initiated a process to modernize U.S. data privacy policy.  The administration’s approach is “risk-based” rather than rule-based, and, as such, signals a willingness to move away from a privacy model of mandated notice and choice that has “resulted primarily in long, legal, regulator-focused privacy policies and check boxes.” Rather, the administration is proposing that U.S. privacy policy “refocus” on achieving desirable privacy “outcomes,” such as ensuring that users are “reasonably informed” and can “meaningfully express” their privacy preferences, while providing organizations with the flexibility to continuing innovating with cutting-edge business models and technologies.

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28 September 2018

Senate Hearing on Federal Privacy Law: Question is Not Whether But What Form

On September 26, the Senate Commerce Committee invited tech and telecom companies to the Hill to discuss safeguards for consumer data privacy. “The question,” noted Chairman John Thune, “is no longer whether we need a federal law to protect consumers’ privacy. The question is what shape that law should take.” The Senators and testifying witnesses expressed strong support for a comprehensive federal privacy law. (more…)

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25 September 2018

Movement Towards a Comprehensive U.S. Federal Privacy Law: Witnesses Prepare to Testify in Senate Hearing

The last six months have been busy ones for privacy watchers, with the entry into force of the GDPR and the enactment and amendment of the California Consumer Privacy Act.

An increasing number of eyes are now turning to the U.S. Congress to see how it will react to these developments, and Data Matters – and the privacy community generally – will thus be closely watching the Senate Committee on Commerce, Science, and Transportation on Wednesday, September 26, 2018, when it hosts a hearing titled “Examining Safeguards for Consumer Data Privacy.” (more…)

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