On June 28, 2018, California Gov. Jerry Brown signed into law the California Consumer Privacy Act of 2018 (AB 375). According to the bill’s author, it was consciously designed to emulate the new European General Data Protection Regulation (GDPR) that went into effect on May 25, and if and when it goes into effect, it would constitute the broadest privacy law in the United States. It is intended to give consumers more transparency regarding and control over their data and establishes highly detailed requirements for what companies that collect personal data about California residents must disclose. (more…)
*UPDATE: The ballot initiative has been replaced by a new California law, AB 375. Please see California Enacts Broad Privacy Protections Modeled on GDPR for more information.
On June 25, 2018, California Secretary of State Alex Padilla announced that a potentially significant privacy initiative is eligible for the Nov. 6 general election ballot. If passed, the ballot initiative — the California Consumer Privacy Act (CCPA) — would immediately make sweeping changes to California’s privacy laws. This initiative would likely create a de facto national standard on transparency around third-party sharing as well as consumer rights to restrict data sharing and could affect many business models that depend on data monetization to offer a free good or service. Many see the law as having echoes of the new European General Data Protection Regulation (GDPR) that went into effect on May 25. If voters pass the initiative, it would go into effect shortly after the election — providing little time to develop an extensive internal regulatory program, yet providing immediate exposure to penalties for failures to have those extensive compliance processes in operation. (more…)
On 11 June 2018, members of a Committee within the European parliament (“MEPs”) narrowly voted in favour of suspending the EU-U.S. Privacy Shield (“Privacy Shield”), an agreement that facilitates the transfer of personal data of EU data subjects to the U.S., unless the U.S. government fully complies with the Privacy Shield data protection requirements by 1 September 2018. Although the resolution is only a draft and has no legal effect, it reflects continued European concerns surrounding Privacy Shield. (more…)
In recent years, the Federal Trade Commission has increasingly exercised its enforcement authority to target deceptive and unfair information security practices. During this time, enforcement actions have targeted companies for failing to honor their promises to implement “reasonable” or “industry standard” security practices, defend against well-known security threats, put in place basic security measures, or take many other basic data security steps. And despite challengers arguing that the FTC provided insufficient notice before pursuing these actions or that the actions otherwise exceeded the FTC’s Section 5 enforcement authority, the Commission generally has a track record of successfully defending its prerogatives. (more…)
The Telephone Consumer Protection Act (TCPA) bar has been reeling ever since the U.S. Court of Appeals for the D.C. Circuit overturned a couple of key Federal Communications Commission (FCC) rules in ACA International v. FCC, including the FCC’s overbroad interpretation of the definition of an autodialer. However, the ruling still left several key provisions in place that facilitate the potential for significant liability and sow uncertainty for everyday business and compliance operations. Now the commission has issued a public notice seeking input about how it should interpret the TCPA. Comments are due June 13, 2018, with replies due June 28. (more…)
On May 8, Georgia Governor Nathan Deal announced that he was vetoing Senate Bill 315 (“SB 315” or “the bill”), cybersecurity legislation that would have expanded the criminalization of “unauthorized computer access” to capture, in addition to traditional hacking, activity that opponents warned is necessary to robust private and public sector cyber defense. In his veto statement, Governor Deal commented that parts of SB 315 “have led to concerns regarding national security implications and other potential ramifications” that caused him to conclude that “while intending to protect against online breaches and hacks, SB 315 may inadvertently hinder the ability of government and private industries to do so.” (more…)
For defense contractors, January 1, 2018 brought with it not only a new year, but also a new era – an era in which contractors must comply with the entire set of more detailed cybersecurity requirements under Defense Federal Acquisition Regulation Supplement (DFARS) 252.204-7012. As we have flagged before on Data Matters, this DFRAS provision applies to all Department of Defense (DOD) contracts (except for those involving commercial, off-the-shelf items) and places a number of substantial obligations on contractors, including that they comply with the security requirements in National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171, “Protecting Controlled Unclassified Information in Nonfederal Information Systems and Organizations,” and report certain cyber incidents to DOD. (more…)
Changes to data breach notification laws continue to pop up across the country this Spring. The latest comes from a new law signed by Arizona Governor Doug Ducey that amends the state’s data breach standards. Although much of the Arizona law has remained the same, the new law updates a few key provisions, including the definition of personal information, the requirements for the content of the data breach notice, the timing of notice, and the capping of penalties. (more…)
And then there were none. Alabama has joined the ranks of the other 49 states with breach notification requirements by enacting the Alabama Data Breach Notification Act of 2018 (the “Act”). The Act, which was signed into law by Alabama Governor, Kay Ivey on March 28, 2018, requires companies to provide Alabama residents with notification of a breach within 45 days of discovery. Notification is triggered by a determination of a breach that poses a risk of harm to impacted individuals. Alabama exempts from the definition of breach the good faith acquisition of sensitive personally identifying information by an employee or agent of a covered entity, unless the information is used for a purpose unrelated to the business or subject to further unauthorized use. Companies must notify the state AG in the same period if the breach requires notification of more than 1,000 “individuals” (defined as Alabama residents whose “sensitive personally identifiable information” was, or is reasonably believed to have been, accessed as a result of the breach). In addition, if more than 1,000 individuals are notified at a single time, companies must provide notice to consumer reporting agencies “without unreasonable delay.” Third parties who are contracted to process sensitive personally identifiable information must provide notice of a breach to the owner of that information within ten days of discovering the breach. Notice from a third party then triggers the 45-day notification period for the covered entity.