European Commission’s Public Consultation on Proposed EU Artificial Intelligence Regulatory Framework
On 19 February 2020, the European Commission published a white paper on the use of artificial intelligence (“AI”) in the EU (the “White Paper”). The White Paper forms part of the Commission President, Ursula Von der Leyen’s, digital strategy, one of the key pillars of her administration’s five year tenure, recognising that the EU has fallen behind the US and China with respect to the strategic deployment of AI. To tackle this problem, the Commission proposes a common EU approach to ‘speed up the uptake’ of AI in the EU, whilst also tackling the human and ethical implications of AI’s fast growing use in the EU, including the possible downsides of its use, such as opaque decision making and hidden, embedded gender and racial discrimination. In order to achieve a common EU approach to AI, and to create “trustworthy” AI that can rival developments in the US and China, the Commission proposes the creation of a regulatory framework for AI.
Privacy and Cybersecurity Roundtable: Monitor-Side Chat Series
These informal video chats, moderated by Sidley partner Alan Raul, are designed to help fill the COVID-19 induced privacy discussion drought. We look forward to hearing what is on the mind of key data protection and cybersecurity thought leaders from both public and private sectors. Each chat will be relatively brief, leaving some time to address participant questions via our virtual space. Please feel free to suggest any topics you would be interested to hear addressed by contacting dcevents@sidley.com.
In Midst of COVID-19 Pandemic, Senators Propose Privacy Bill Aimed At Businesses’ Use of Consumer Data
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…)
HHS Announces Exercise of Enforcement Discretion for Entities Engaged in COVID-19 Relief Efforts
Since COVID-19 was declared a pandemic, the U.S. Department of Health and Human Services (“HHS”) and its Office for Civil Rights (“OCR”) have taken a variety of steps to relax HIPAA restrictions particularly pertinent to the COVID-19 response.
First, as covered in an earlier posting, HHS took action to waive penalties and assure companies that it would exercise enforcement discretion with respect to the Privacy Rule’s application to telehealth services and certain limited communication activities related to COVID-19 treatment efforts. (more…)
Stay At Home Orders May Have Killed California’s Ballot Initiative to Expand CCPA [**Update – But Californians for Consumer Privacy Say Maybe Not**]
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.
Chambers 2020 Global Practice Guides for Data Protection & Privacy and Cybersecurity Available
The updated 2020 Chambers Global Practice Guides for Data Protection & Privacy and Cybersecurity, edited by Alan Charles Raul, are available, covering important developments across the globe and bringing expert legal commentary for businesses. Read the intros to each Guide here and here.
DoD Issues Cybersecurity Maturity Model Certification Version 1.0
On January 31, 2020, the Department of Defense released its latest version of the Cybersecurity Maturity Model Certification (“CMMC”) for defense contractors. Under the CMMC plan, DOD contractors will be required to obtain a cybersecurity rating from Level 1 through Level 5. Self-certification will not be permitted. Given the significant investment of industry resources the CMMC may require, the DOD eased some concerns by announcing that it would roll out the CMMC program out in stages. A new Defense federal Acquisition Regulation Supplement (“DFARS”) clause is expected in the spring of 2020, and CMMC requirements are anticipated to be included in certain limited Requests for Information released starting June 2020. Ultimately, all DOD contracts will include a minimum cybersecurity requirement by 2026. (more…)
A February 2020 Surprise: California Attorney General Proposes Significant Revisions to CCPA Regulations
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.
NIST Releases Version 1.0 of Privacy Framework to Help Organizations Manage Privacy Risks and Improve Protection of Personal Data
With issues around the collection and handling of personal data becoming the focus of increased scrutiny among regulators, policymakers, and consumers, interest has continued to grow among organizations to better understand and address privacy risk. Seeking to support innovation in the market and to accommodate the increasingly global nature of data processing ecosystems, the National Institute of Standards and Technology (“NIST”) released Version 1.0 of the NIST Privacy Framework: A Tool for Improving Privacy through Enterprise Risk Management (“NIST Privacy Framework”) on January 16, 2020. The recent publication aims to outline an adaptable approach to privacy risk for organizations of all sizes by providing a “framework for privacy management, not just a checklist of tasks.”
The NIST Privacy Framework is a voluntary tool intended to assist organizations in managing privacy risks that may arise due to system, product, or service operations that involve personal data, or in connection to new regulatory regimes such as the California Consumer Privacy Act (“CCPA”) and the European Union’s General Data Protection Regulation (“GDPR”). As noted in the Executive Summary, the NIST Privacy Framework is intended to “enable better privacy engineering practices that support privacy by design concepts and help organizations protect individuals’ privacy.” Notably, the Federal Trade Commission (“FTC”), recognized by many as the U.S. government’s top privacy watchdog, had applauded the preliminary draft of the NIST Privacy Framework in Fall 2019 – indicating that the finalized publication could potentially serve as a credible benchmark for organizations seeking to address privacy risk across the data processing lifecycle.
Treasury Releases New CFIUS Regulations
On January 13, 2020, the U.S. Department of the Treasury (Treasury) issued final and interim regulations implementing the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA), which expands the jurisdiction of the Committee on Foreign Investment in the United States (CFIUS) to review foreign investments and mitigate any potential national security concerns. While the final regulations largely track the proposed regulations issued on September 17, 2019, Treasury has made refinements and added several clarifying examples. See Sidley’s previous Update on the proposed regulations.
Following the structure of the proposed regulations, the final regulations were issued in two parts: one part covers investments in real estate, available here, while the other covers certain other investments in U.S. businesses, available here. Treasury simultaneously released a number of frequently asked questions on the proposed regulations, available here, and a fact sheet, available here.
The final CFIUS regulations will go into effect on February 13, 2020.