Posting revised August 13, 2020
On July 2, 2020, Sidley partner Alan Raul, founder and co-head of Sidley’s Privacy and Cybersecurity practice, hosted Adam Klein, Chairman of the Privacy and Civil Liberties Oversight Board (“PCLOB” or “the Board”), for a Monitor-Side Chat.
The discussion focused largely on the Commission’s work since Mr. Klein became Chairman in October, 2018. Key topics of the chat included:
- Mission, Operation and Access of PCLOB
- Balancing Counter-Terrorism and Privacy
- Comparison of U.S. and Foreign Checks and Balances
- FISA Reform
- Emerging Technologies
(*As with all posts, this article is for informational purposes only; Sidley Austin LLP does not have offices in or practice law in Brazil; Felipe Saraiva is a former Sidley associate licensed to practice law in Brazil.)
The enactment of Law n. 13.709/2018 (the Brazilian Data Protection Law, or “LGPD”) in 2018 was followed by great enthusiasm from the general public in Brazil. Indeed, the comprehensive law has been viewed as a necessary measure for the country to join a select but growing group of nations in the systematic protection of individuals’ personal data.
Originally, the LGPD provided for a 12-month grace period for its enforcement; however, this term was subsequently extended to 24 months, as legislators understood the initial time frame wouldn’t give companies enough time to adapt. As previously analyzed in an article by these authors published on January 20, 2020, the LGPD’s provisions require a great deal of compliance effort from all organizations that are subject to the law.
In view of the current crisis caused by the spread of COVID-19, the compliance difficulties companies are facing, and the fact that the actual creation of the National Agency of Data Protection (“ANPD”) called for in the law is still pending, Brazilian legislators are further extending the LGPD’s grace period; these legislators now indicate that enforcement of the law’s general provisions are extended to May 3, 2021, while its legal sanctions would become enforceable as of August 1, 2021.
On June 25, 2020, Sidley partner, Alan Raul, founder and co-head of Sidley’s privacy and cybersecurity practice, hosted Bruno Gencarelli, head of International Data Flows and Protection at the European Commission, for a Monitor-Side Chat.
The discussion focused largely on the Commission’s report on two years of the GDPR which was issued on 24 June 2020. Key themes of the report include:
- EU data protection authorities (“DPAs”) should increase their efforts towards the adoption of a harmonised approach to responding to cross-border investigations;
- a call for greater resources to be given to DPAs by EU Member States to ensure the GDPR is sufficiently enforced;
- a need for greater consistency among EU Member States on interpretations of the GDPR in national laws in order to avoid unnecessary burdens on companies; and
- greater utilisation of the data portability right under the GDPR to ensure individuals have greater involvement in the digital economy by enabling them to switch between different service providers and make use of other innovative services.
The California Privacy Rights Act (CPRA), a proposed initiative to codify far-reaching amendments to the California Consumer Privacy Act (CCPA) and sometimes referred to as “CCPA 2.0”, is back in play and heading to the November 2020 ballot. A series of dramatic procedural twists and turns culminated with initiative backers successfully obtaining a writ of mandate directing the Secretary of State to direct counties to verify signatures for the ballot proposal by the June 25th Constitutional deadline. This verification involved each county conducting a random sample of the more than 800,000 signatures that proponents had submitted to place the initiative on the ballot.
Before the California court’s ruling, observers were skeptical that signatures could be verified before the deadline. Initiative proponents were almost two weeks behind the recommended schedule when they delivered signatures to be verified by California’s 58 counties. This meant counties had until June 26th to verify signatures — a day after the June 25th Constitutional deadline. Experience with other initiatives this year had shown that several large counties were waiting until the deadline to complete verifications, so proponents petitioned the court to push the deadline up by a day in order to meet the Constitutional deadline. The court agreed to do so, finding good cause existed to force counties to complete verifications a day early. And, as it happened, the extra time was not needed, as counties finished the count two days ahead of their initial deadline.
On June 1, 2020, California’s Office of the Attorney General (“AG”) moved one step closer to finalizing the California Consumer Privacy Act (“CCPA”) regulations when the AG submitted proposed final regulations for review and approval by California’s Office of Administrative Law (“OAL”). This submission signals the end of the AG’s CCPA regulation drafting process that began in early 2019. If the OAL approves the proposed final regulations, they will be finalized and enforceable by the AG, subject to any legal challenges.
On April 30, 2020, four Republican Senators announced plans to introduce the COVID-19 Consumer Data Protection Act. The four Senators, John Thune (R-S.D), Roger Wicker (R-Miss.), Jerry Moran (R-Kan.), and Marsha Blackburn (R-Tenn.), are all Members of the Commerce Committee, with Wicker the Committee’s chair.
According to the April 30 Senate press release regarding the COVID-19 Consumer Data Protection Act, the legislation would “provide all Americans with more transparency, choice, and control over the collection and use of their personal health, geolocation, and proximity data” for data processing related to fighting the COVID-19 pandemic. The press release also states that the bill would “hold businesses accountable to consumers if they use personal data to fight the COVID-19 pandemic.” Under the bill, covered purposes include “(1) collecting, processing, or transferring the covered data of an individual to track the spread, signs, or symptoms of COVID-19; (2) collecting, processing, or transferring the covered data of an individual to measure compliance with social distancing guidelines or other requirements related to COVID-19 that are required by federal, state, or local government order; (3) collecting, processing, or transferring the covered data of an individual to conduct contact tracing for COVID-19 cases.” (more…)
UPDATE: Soon after we published the post below, we learned that the sponsors of the California Privacy Rights Act (CPRA) – i.e., the ballot initiative that aimed to amend and significantly expand the California Consumer Privacy Act (CCPA) – intend to push forward with their attempt to get it on the ballot this year. On May 4th, the initiative’s sponsors, the Californians for Consumer Privacy, announced on Twitter they were submitting to counties across the state. Whether county election officials can verify the signatures in time to qualify for the November 2020 ballot remains to be seen. While conventional wisdom is that the recommended April deadline is an important one to make, the approval process may be different this year due to the COVID-19 pandemic and how it might affect the availability of resources to approve initiatives. We will continue to monitor this situation and provide updates on Data Matters as appropriate.
The California Privacy Rights Act (CPRA), the ballot initiative that aimed to amend and significantly expand the California Consumer Privacy Act (CCPA), including by creating the California’s very own data protection authority, the nation’s first, appears to be dead–at least for this ballot season.
Just as companies were starting to recover from their exertions to put in place California Consumer Privacy Act (“CCPA”) compliance programs before the law’s January 1, 2020 entry into force, the California Attorney General (“AG”) provided an early February surprise. CCPA watchers long expected that the AG would revise the CCPA regulations he initially proposed on October 10, 2019. But when the AG actually released his proposed regulations on February 7 – a proposal he subsequently modified slightly on February 10 – both the timing and breadth of the revisions were surprising. In short, the revisions were both sooner and more significant than expected.
*This article first appeared in Law360 on January 14, 2020.
After two years in the Brazilian Congress, the General Law of Data Protection was signed on Aug. 18, 2018, by then Brazilian President, Michel Temer, who also signed an executive order (Medida Provisória n. 869, from Dec. 27, 2018).
While much of the New Year attention has been focused on California due to the effective date of the California Consumer Privacy Act, a new Oregon law also went into effect on January 1, 2020 complicating compliance with data breach obligations. The law is unique among state data breach notification laws in that it imposes a direct obligation on vendors to provide regulatory notice to the state. It also requires vendors to provide notice to the data owner within 10 days. This new regulatory notice requirement may take some control away from data “owners” that typically manage (and often contractually demand sole control over) initial regulator communications with regard to incidents impacting their data. However, the new requirement may also incentivize service providers to take more responsibility for incident response.