*This article was first published by Bloomberg Law in August 2019
Companies doing business with California consumers are impacted by the California Consumer Privacy Act (effective Jan. 1, 2020). The CCPA’s private right of action provision gives California residents the right to sue companies when their personal information is subject to unauthorized access and exfiltration, theft, or disclosure due to a company’s failure “to implement and maintain reasonable security procedures and practices.”
Under this provision, consumers may seek actual damages, declaratory or injunctive relief, and statutory damages, which begin at $100 and continue up to $750 “per consumer per incident.” The potential aggregated exposure through consumer class actions could be significant, and companies are searching for ways to mitigate private lawsuits.
The flurry of state legislative activity in the wake of the enactment of the California Consumer Protection Act (CCPA) continues with the New York legislature recently passing two bills to increase accountability for the processing of personal information. On July 25, 2019, Governor Cuomo signed the two bills into law, one which amended the state’s data breach notification law, and another that created additional obligations for data breaches at credit reporting agencies. Together, the new laws require the implementation of reasonable data security safeguards, expand breach reporting obligations for certain types of information, and require that a “consumer credit reporting agency” that suffers a data breach provide five years of identity theft prevention services for impacted residents. Meanwhile, the more comprehensive New York Privacy Act, which many viewed as even more expansive than the CCPA, failed to gather the necessary support in the most recent legislative session.
On June 20, 2019, the Federal Energy Regulatory Commission (“FERC”) approved a North American Electric Reliability Corp. (“NERC”) petition to adopt Reliability Standard CIP-008-6 to strengthen the reporting requirements for attempts to compromise the operation of the United States’ bulk electric system. The prior Critical Infrastructure Protection (“CIP”) Reliability Standards only required reporting where an incident compromised or disrupted one or more reliability tasks. The new standard applies to all registered entities subject to the CIP Reliability Standards.
Just a day after the ICO provided notice of its intention to fine British Airways £183m ($228m) over a separate breach (please see our blog post here), on Tuesday, July 9, 2019, the ICO released another statement of its intention to fine Marriott International, Inc. (“Marriott”) over £99m ($123m) in relation to a security incident affecting the Starwood reservation database which Marriott had acquired in 2016 and discovered in November 2018. The statement came in response to Marriott’s filing with the US Securities and Exchange Commission that the ICO intended to fine it for breaches of the GDPR.
Today we saw the ICO issue a notice of its intention to fine British Airways £183.39m for infringements of the GDPR – a record fine and the largest seen in the UK and the EU. The proposed fine relates to a cyber incident which BA notified to the ICO (as BA’s lead data protection authority, DPA) in September 2018. The incident involved the theft from the BA website and mobile app of personal data relating to customers over a two-week period. In terms of next steps, BA now has an opportunity to make representations to the ICO as to the proposed findings and sanction.
The 25th of May, 2019 marked a year since the EU General Data Protection Regulation (“GDPR”) came into force. For most in privacy, involvement with the GDPR has been ongoing for well over this year, but on the first anniversary of the GDPR we take an opportunity to look back and reflect on where we are now in relation to some key areas of interest including enforcement action, privacy litigation, breach notification and developing guidance from the European Data Protection Board (“EDPB”).
As the legislative session drew to a close, what once seemed like an inevitability suddenly looked unlikely. The Washington Privacy Act, SB 5376/HB1854, failed to make its way through the legislative process. The Bill’s sponsor, Sen. Reuven Carlyle, called the game on April 17, tweeting that despite the “unprecedented 46-1 vote” in the Senate, “[u]nfortunately, House failed to pass privacy legislation this year. We’re committed to 2020.” Nevertheless, the State of Washington did pass notable privacy legislation, albeit on a more narrow topic.
The Malaysia Personal Data Protection Act applies to all companies operating in Malaysia, as well as persons not established in Malaysia, if they use equipment in Malaysia for the processing of personal data otherwise than for the purposes of transit through Malaysia. (more…)
On 29 March 2019, the Belgian House of Representatives appointed a new Data Protection Commissioner and four directors to the executive committee of the Belgian Data Protection Authority (‘DPA’).
These are the first appointments to be made to the DPA since it replaced the previous Belgian Privacy Commission in anticipation of the EU GDPR. This is therefore the first time that executive roles have been officially filled in the context of the regulator’s expanded competence – including the DPA’s new power to impose administrative fines of up to €20,000,000 EUR or 4 percent of an undertaking’s worldwide annual revenues for certain infringements of the EU GDPR.
Singapore may soon mandate data breach notifications and data portability via amendments to the Singapore Personal Data Protection Act, or PDPA. The PDPA applies to all organizations that collect, use and disclose data in Singapore, and the PDPA has extraterritorial effect as it applies to all organizations collecting, using or disclosing personal data from individuals in Singapore (whether or not the company has a physical presence in Singapore).