Using Data De-Identification to Protect Companies
Many companies hope to benefit from amassing large amounts of data by mining it for market insights, creating internal business models, and supporting strategic, data-driven decisions. But as companies collect and store increasingly enormous volumes of data, they may unknowingly take on significant legal risks, including potential violations of data privacy laws and increased exposure to U.S. litigation discovery obligations. One way that businesses can mitigate these risks is to de-identify the data they collect and store.
Developments in Cookie Regulation: French CNIL Declares Intent to Audit Websites for Cookie Compliance
On April 2, 2021 the French Data Protection Authority (the “Commission Nationale de l’Informatique et des Libertés” or “CNIL”) published its intent to start auditing websites for compliance with cookie regulations. This publication comes following a large number of developments and actions taken by the CNIL to further improve and guide organizations through cookie compliance. The CNIL had issued several recommendations, guidelines and cookie tools to raise awareness on the importance of this topic, with a final set of guidelines published on October 1, 2020 following public consultation rounds (“Cookie Guidelines”). The CNIL had determined that a 6-month grace period would apply following publication of the Cookie Guidelines. This grace period ended on April 1, 2021 and the CNIL now expects companies to be compliant with its recommendations and guidelines. The CNIL has confirmed that it may make use of the totality of its corrective powers to remedy non-compliance with the rules, including issuing (public) sanctions. In light of the increase in scrutiny on cookies in the EU (and the US pursuant to certain state laws), organizations with websites / platforms operating in the EU (and U.S.) may want to reconsider their cookie practices and start carrying out cookie audits.
Supreme Court Considers Injury and Typicality Questions in Case With Implications for Data Breach and Privacy Class Action Litigation
On March 30, 2021, the Supreme Court heard arguments in TransUnion LLC. v. Ramirez, a case in which Respondent Ramirez brought a class action lawsuit against Petitioner TransUnion, alleging that it incorrectly placed a flag on his credit report; the flag suggested that Ramirez was on a list of potential terrorists and criminals maintained by the U.S. Department of the Treasury’s Office of Foreign Assets Control (the “OFAC list”) because his name was similar to two individuals whose name were on that list. After Ramirez learned he had been flagged, he requested a copy of his credit report from TransUnion. TransUnion sent him a copy of his credit report, which did not include any reference to the OFAC list, and a second mailing indicating that his name was a potential match for a name on the OFAC list. Ramirez sued on behalf of himself and a class of over 8,000 individuals who received similar mailings, alleging that TransUnion violated the Fair Credit Reporting Act (“FCRA”) by (i) incorrectly flagging him as potentially appearing on the OFAC list and (ii) sending him the information about the potential match separately from his requested credit report, which he argued was confusing because the mailing regarding the OFAC list did not include FCRA-required information about how to dispute and correct the incorrect information.
UK Supreme Court: Serious Fraud Office Cannot Compel Foreign Companies to Produce Documents Held Abroad
Case: R (on the application of KBR, Inc) (Appellant) v Director of the Serious Fraud Office (Respondent) [2021] UKSC 2
On February 5, 2021, the UK Supreme Court ruled that the Serious Fraud Office (SFO) cannot compel foreign companies with no presence in the jurisdiction to produce documents held abroad using its powers under Section 2(3) of the Criminal Justice Act 1987 (CJA 1987).
After losing its ability to use European Investigation Orders to obtain evidence located in other EU member states due to Brexit, the judgment is a further setback for the SFO in terms of the extraterritorial reach of its investigative powers and may in certain circumstances affect its ability to investigate fully cross-border serious fraud cases. When seeking documents or electronic data held abroad from foreign companies that are not registered in the UK or do not carry on business there, the SFO will now have to rely on mutual legal assistance or an overseas production order (where such mechanisms are available).
However, the Supreme Court’s ruling will provide foreign companies with greater certainty regarding documents that may have to be produced to the SFO, particularly where production could be resisted in their own jurisdiction on grounds of privilege.
California Privacy Law Overhaul – Proposition 24 Passes
The results are in, and California voters have approved the California Privacy Rights Act (CPRA) which was listed on the ballot as Proposition 24. The law, most of which does not go into effect until January 1, 2023, will substantially overhaul and amend the California Consumer Privacy Act (CCPA) which went into effect just this year, on January 1, 2020, with final regulations issued just a few months ago, on August 14, 2020. And indeed, CCPA obligations continue to evolve, with proposed amendments to the regulations proposed by the Attorney General’s Office mid-October 2020.
An Early Recap of Privacy in 2020: A US Perspective
*This article was adapted from “Global Overview,” appearing in The Privacy, Data Protection and Cybersecurity Law Review (7th Ed. 2020)(Editor Alan Charles Raul), published by Law Business Research Ltd., and first published by the International Association of Privacy Professionals Privacy Perspectives series on September 28, 2020.
Privacy, like everything else in 2020, was dominated by the COVID-19 pandemic. Employers and governments have been required to consider privacy in adjusting workplace practices to account for who has a fever and other symptoms, who has traveled where, who has come into contact with whom, and what community members have tested positive or been exposed.
As a result of all this need for tracking and tracing, governments and citizens alike have recognized the inevitable trade-offs between exclusive focus on privacy versus exclusive focus on public health and safety.
Swiss Data Protection Authority Concludes Swiss-US Privacy Shield No Longer Valid for Swiss-US Transfers
Following the Court of Justice of the European Union’s (“CJEU”) decision in Data Protection Commissioner v Facebook Ireland Ltd and Maximillian Schrems (“Schrems II”), the Swiss Federal Data Protection and Information Commissioner (“FDPIC”) concluded in a position paper published on 8 September that the Swiss-US Privacy Shield no longer provides a valid mechanism for the transfer of personal data from Switzerland to the US.
Schrems II Fallout — Understanding Essential Equivalence and What Businesses Should Do Now
Schrems II — Legal Analysis
With the EU-U.S. Privacy Shield declared invalid as a result of the Schrems II decision, there will be an immediate impact on the future of international data flows and potentially for your business.
Join OneTrust DataGuidance, Sidley, and speakers from industry for a webinar taking a detailed look at the Schrems II decision and discussing what additional safeguards may be required for international transfers following the decision, as well as legal analysis into whether there is essential equivalence between U.S. and EU privacy protections.
EDPB Publishes FAQs on Recent Schrems II Judgment
On July 23, 2020, the European Data Protection Board (the “EDPB”) published a set of important responses to a set of 12 frequently asked questions put forward to supervisory authorities regarding the recent Court of Justice of the European Union (“CJEU”) decision in Case C-311/18 – Data Protection Commissioner v Facebook Ireland Ltd and Maximillian Schrems (“Schrems II”) (“FAQs”).
Below is a summary of the key take-aways from the EDPB’s FAQs, which is intended to address a range of topics including the lack of a grace period following the decision and the conditions surrounding the use of certain data transfer mechanisms:
The EU’s Highest Court Announces Significant Decision Regarding Cross-Border Data Flows: Invalidates EU-US Privacy Shield Program and Upholds Standard Contractual Clauses
In a decision with significant implications for international trade and cross-border data flows, the EU’s highest court – the Court of Justice of the European Union (“CJEU”) ruled on 16 July 2020 that a key legal mechanism (called the EU-US Privacy Shield program) used to enable transfers of personal data from the European Union (“EU”) was invalid, while also potentially requiring additional protections to be implemented when another key transfer mechanism (called Standard Contractual Clauses) is used. The case – Data Protection Commissioner v. Facebook Ireland, Max Schrems (“Schrems II”) – considered the validity of the EU-US Privacy Shield (“Privacy Shield”) program (a privacy certification made available for US organizations through an agreement between the European Commission and the US government) and Standard Contractual Clauses (“SCC”) (a form of international data transfer agreement made available for use by the European Commission).