Category

Online Privacy

09 October 2018

Highlighting the Chinese Cybersecurity Law

Former Department of Homeland Security Chief Privacy Officer Hugo Teufel III and Sidley’s Edward McNicholas addressed a packed room on Chinese Cybersecurity Law at the 2018 Privacy + Security Forum hosted at George Washington University.  The timely presentation highlighted how, with significant attention in the past few years focused on the GDPR, many have not fully appreciated the significant policy and legal developments coming out of Beijing.  In particular, China has been creating a materially different approach to cybersecurity which serves the central purpose of defending the Chinese notion of cyber sovereignty.  Much uncertainty remains about the newly-effective laws and regulations, but it is clear that foreign technology and other companies operating in China should rapidly focus on its significant restrictions on outbound data transfer, the expansive definitions of “important data”, as well as reviews of network equipment security. Their presentation is available here.

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02 October 2018

The Trump Administration’s Approach to Data Privacy, and Next Steps

* This article originally appeared in Law360 on September 27, 2018.

On Sept. 25, 2018, the Trump administration proposed an approach and initiated a process to modernize U.S. data privacy policy.  The administration’s approach is “risk-based” rather than rule-based, and, as such, signals a willingness to move away from a privacy model of mandated notice and choice that has “resulted primarily in long, legal, regulator-focused privacy policies and check boxes.” Rather, the administration is proposing that U.S. privacy policy “refocus” on achieving desirable privacy “outcomes,” such as ensuring that users are “reasonably informed” and can “meaningfully express” their privacy preferences, while providing organizations with the flexibility to continuing innovating with cutting-edge business models and technologies.

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28 September 2018

Senate Hearing on Federal Privacy Law: Question is Not Whether But What Form

On September 26, the Senate Commerce Committee invited tech and telecom companies to the Hill to discuss safeguards for consumer data privacy. “The question,” noted Chairman John Thune, “is no longer whether we need a federal law to protect consumers’ privacy. The question is what shape that law should take.” The Senators and testifying witnesses expressed strong support for a comprehensive federal privacy law. (more…)

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27 September 2018

Why it’s Unconstitutional for Politicians – Including the President – to Block People on Social Media

*This article first appeared in the Washington Post on September 26, 2018.

In a recent piece for Washington Post Outlook, Chris Fonzone and Josh Geltzer (from the Georgetown Law Center’s Institute for Constitutional Advocacy and Protection) explained why a legal case that began with a dispute between a Loudoun County supervisor and a constituent may help set a new standard for online interaction nationally:

A legal case that began with a dispute between a member of the Loudoun County Board of Supervisors and a constituent may help to set the rules for how government officials — up to and including President Trump — interact with the public online. A federal appeals court in Richmond will hear the case this week, and, while the stakes of the conflict may seem small at first — one man was banned for a day from an official’s Facebook page — it has potentially enormous First Amendment implications. (more…)

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25 September 2018

Movement Towards a Comprehensive U.S. Federal Privacy Law: Witnesses Prepare to Testify in Senate Hearing

The last six months have been busy ones for privacy watchers, with the entry into force of the GDPR and the enactment and amendment of the California Consumer Privacy Act.

An increasing number of eyes are now turning to the U.S. Congress to see how it will react to these developments, and Data Matters – and the privacy community generally – will thus be closely watching the Senate Committee on Commerce, Science, and Transportation on Wednesday, September 26, 2018, when it hosts a hearing titled “Examining Safeguards for Consumer Data Privacy.” (more…)

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15 August 2018

After LabMD, Questions Remain for the Healthcare Sector

*This article first appeared in the July 2018 issue of Digital Health Legal

Massive data breaches.  Threats to medical devices. The Internet of Persons.  Healthcare entities are all too familiar with the rising cyber threat.  But they are also familiar with the complex array of laws and regulations in the United States that attempt to address the threat and the potentially significant compliance costs and risks caused by that complexity.  The US Court of Appeals for the Eleventh Circuit’s recent and long-awaited decision in LabMD v. Federal Trade Commission, which trimmed the sails of one of the primary regulators of the healthcare information security landscape, may thus appear to some, at first blush, to be a necessary corrective. Yet closer inspection shows that the Eleventh Circuit’s decision raises more questions than it answers – and that its true implications will only become clear once we see how federal regulators, the courts, and perhaps Congress respond.

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02 July 2018

First Circuit’s Decision Provides Guidance on Creating Enforceable Website Terms and Conditions

On June 25, the United States Court of Appeals for the First Circuit in Cullinane v. Uber Technologies, Inc., __ F.3d __, 2018 WL 3099388 (1st Cir. 2018), evaluated the enforceability of arbitration provisions in online contracts. The First Circuit found Uber’s arbitration provision, which contained a class action waiver, unenforceable because Uber did not make its terms of service sufficiently conspicuous. Cullinane highlights the importance of obtaining customers’ affirmative consent to an online contract and reaffirms that conspicuousness of the arbitration agreement and the form of assent that retailers require from consumers remain paramount.
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30 May 2018

European Data Protection Board Releases Statement on the Revision of the ePrivacy Regulation

On 28 May 2018, the European Data Protection Board (the “EDPB”) released a statement on the revision of the ePrivacy Regulation (the “proposed Regulation”) and its impact on the protection of individuals in relation to the privacy and confidentiality of their communications. It is the first statement of substance by the EDPB since it was established by the EU General Data Protection Regulation on 25 May 2018.  The statement calls on the European Commission, Parliament and Council to work together to ensure a swift adoption of the proposed Regulation, which will replace the current ePrivacy Directive (the “Directive”).

(more…)

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24 May 2018

GDPR Day is Here!

Whether you are marking today with a glass of champagne, a shot of whiskey, or a hot cup of tea, today marks a significant day for privacy professionals world-wide.

Here’s to all of the privacy professionals who have put in so many hours to prepare for the GDPR, fully effective as of Friday May 25, 2018 at midnight in Brussels; that is 6 PM eastern on Thursday, May 24th for toasting purposes.

For business executives, policymakers, and consumers who have become aware of the GDPR in recent weeks and are interested in learning more, visit our GDPR resource page here.

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