The past several days, the GDPR (the EU General Data Protection Regulation) took two significant steps towards adoption. On Friday, April 8, 2016, the European Council adopted the GDPR at first reading. Then today, Tuesday, April 12, 2016, the European Parliament’s Civil Liberties, Justice and Home Affairs Committee (the LIBE Committee) approved the GDPR by a 54-3 vote with one abstention. The European Parliament is due to vote on the GDPR in a second reading at a plenary session this coming Thursday. That will complete the legislative process for adoption of the GDPR. The final step will be for the GDPR to be published in the Official Journal of the EU which will likely take place in May 2016. After publication, the GDPR will apply two years after the date of publication, allowing companies and regulators a grace period to prepare. The interpretation of the GDPR will be shaped by guidance from the new European Data Protection Board.
Today, alleged extracts from the impending Article 29 Working Party Opinion on the adequacy of the Privacy Shield were leaked. These extracts indicate that a number of clarifications on the Privacy Shield documents will be required before the Working Party can confirm that the Privacy Shield, in its view, ensures a level of protection that is essentially equivalent to that in the EU. The full opinion is due to be published on Wednesday 13 April, and will form part of the package for consideration by the European Commission.
On March 24, Tennessee enacted a law amending its breach notification law, originally enacted in 2005. The new amendment requires businesses and government agencies to notify citizens affected by data breaches within 45 days of discovering the breach. Exceptions to the 45-day time limit will be allowed only when required for law enforcement purposes. The amendment also specifies that unauthorized access of information by employees of the business or agency that holds the information triggers the 45-day notification requirement.
*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.
On Wednesday, February 24, President Obama signed the Judicial Redress Act into law. “What it does in the simplest terms is makes sure that everybody’s data is protected in the strongest possible way with our privacy laws—not only American citizens, but also foreign citizens,” President Obama said at signing. “We take our privacy seriously. And along with our commitment to innovation, that’s one of the reasons that global companies and entrepreneurs want to do business here.” According to EU Commissioner Věra Jourová, “The signature of the Judicial Redress Act by President Obama is a historic achievement in our efforts to restore trust in transatlantic data flows . . . . It will strengthen privacy, while ensuring legal certainty for transatlantic data exchanges between police and criminal justice authorities. This is crucial to keep Europeans safe through efficient and robust cooperation between the EU and the U.S. in the fight against crime and terrorism.”
The Cybersecurity Act of 2015, which included the long anticipated Cybersecurity Information Sharing Act or CISA, was passed on December 18, 2015 to facilitate and encourage confidential two-way private sector sharing of cyberthreat information with the federal government. It also provided key liability shields for cyberthreat information sharing and network monitoring pursuant to the Act. Under the Cybersecurity Act, the Department of Homeland Security (DHS) was designated to coordinate the sharing and was tasked with developing guidelines to facilitate implementation within 90 days.
*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.
On December 18, President Obama signed into law an omnibus spending package for 2016 that included the Cybersecurity Act of 2015 (known in former versions as the Cybersecurity Information Sharing Act). After years of debate, the Cybersecurity Act establishes a framework to facilitate and encourage confidential two-way private sector sharing of cyberthreat information with the federal government and provides liability shields for cyberthreat information sharing, as well as for specific actions undertaken to defend or monitor corporate networks. The Cybersecurity Act also designates the Department of Homeland Security (DHS) to coordinate cyberthreat information sharing.
The Cybersecurity Act has important implications for cooperation among industry participants and with regulatory agencies in development of effective cybersecurity programs. Public-private cyberthreat information sharing is an important step to improve companies’ defenses and responses to the changing cyberthreat landscape. Though the Act is effective immediately, the attorney general and DHS secretary must release guidelines within 90 days.
After almost four years of intense negotiations, on 15 December 2015, an informal agreement on the proposed EU Data Protection Regulation was reached between the Council of Ministers and the European Parliament. An extraordinary meeting of the LIBE Committee is scheduled for 17 December 2015 for the 28 EU Member States to vote on the text. Final adoption of the Regulation is likely to be in early 2016.
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.