On December 14, 2018, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) published in the Federal Register a request for information (RFI) titled “Modifying HIPAA Rules to Improve Coordinated Care.” The RFI seeks public input on a broad range of potential reforms to Health Insurance Portability and Accountability Act (HIPAA) regulations with a focus on enhancing care coordination. Though only a preliminary step on the path to potential regulatory reform, the RFI’s scope is significant, as is the opportunity it affords stakeholders interested in sharing early input as HHS considers reforms to key health information privacy requirements. (more…)
*This article first appeared in the Hill.com on November 19, 2018
With the House having now flipped, policy consensus in Congress is not likely to get any easier. But there is one subject around which countries, companies, consumers and, yes, even Congress is increasingly converging. That issue is privacy. The new privacy zeitgeist follows years of data breaches as well as new concerns about invisible data collection, political micro-targeting and manipulation, the proliferation of internet-connected devices, and a potential lack of transparency in the decisions that machines increasingly make about us.
On November 23, 2018, the European Data Protection Board (“EDPB”) published draft guidelines seeking to clarify the territorial scope of the GDPR (“Guidelines”). The Guidelines have been eagerly awaited, particularly by controllers and processors outside of the EU looking for confirmation as to whether or not the EU data protection rules apply to them. The Guidelines largely reaffirm prior interpretations of the GDPR’s territorial application under Article (3)(1), and offer essential guidance with respect to the GDPR’s – heavily debated – extraterritorial application under Article (3)(2). The GDPR applies to companies established in the EU as well as companies outside of the EU that are “targeting” individuals in the EU (by offering them products or services) or monitoring their behavior (as far as that behavior takes place in the EU).
The proposed Guidelines are open for public consultation until January 18, 2019. It remains to be seen whether and how any outstanding issues will have been addressed upon conclusion of the consultation. (more…)
The fifth edition of The Privacy, Data Protection and Cybersecurity Law Review takes a look at the evolving global privacy, data protection and cybersecurity landscape in a time when mega breaches are becoming more common, significant new data protection legislation is coming into effect, and businesses are coming under increased scrutiny from regulators, Boards of Directors and their customers. Several lawyers from Sidley’s global Privacy and Cybersecurity practice have contributed to this publication. (more…)
The U.S. Department of Commerce, Bureau of Industry and Security (BIS) has published an advance notice of proposed rulemaking (ANPRM) initiating a 30-day public comment process regarding export controls for certain emerging technologies. The notice launches the implementation of a key provision of the Export Control Reform Act of 2018 (ECRA), part of the National Defense Authorization Act for fiscal year 2019 (NDAA). In the ECRA, Congress authorized BIS to establish controls on the export, reexport and transfer (in country) of “emerging and foundational technologies.” The ANPRM, including a list of the 14 proposed representative technology categories and subcategories subject to review, can be found here. Our prior updates on the NDAA and ECRA can be found here.
The Administration is preparing to release a Request for Information (“RFI”) on potential modifications to Health Insurance Portability and Accountability Act (HIPAA) rules. The draft RFI was recently submitted by the Department of Health and Human Services (“HHS”) to the White House’s Office of Management and Budget (“OMB”) for pre-release review.
The results of Tuesday’s midterm elections were notable for several reasons, and not just in the races at the top of the ticket — there were also significant changes in the state Attorney General ranks. Forty jurisdictions (including Guam, Virgin Islands and the District of Columbia) had Attorney General candidates on their ballots, including open races in 13 jurisdictions. It was a somewhat strong showing for Democrats, who picked up open seats in Colorado (Phil Weiser), Michigan (Dana Nessel) and Nevada (Aaron Ford). In addition, Democrat Josh Kaul defeated incumbent Republican Brad Schimel in Wisconsin. Overall, there are 14 new Attorneys General. A chart at the end of this Update lists the results of all of Attorney General elections. (more…)
On November 1, 2018, following a rising tide of speculation, the Hong Kong regulator Securities and Futures Commission (SFC) announced a series of initiatives to regulate digital assets for the first time (and, apparently, without the need for any kind of legislative approval or backing). The initiatives, discussed below, take effect immediately. For purposes of the new regime, the SFC refers to “virtual assets” broadly defined to include initial coin offerings (ICOs), digital tokens (such as digital currencies, utility tokens or security or asset-backed tokens) and any other virtual commodities, cryptoassets and other assets of essentially the same nature (together “digital assets” herein as commonly understood in the industry). (more…)
Rapid advances in automation have the potential to disrupt a number of sectors, perhaps none more so than the automobile industry. The U.S. Department of Transportation (DOT) has accordingly announced its intention to take “active steps to prepare for the future by engaging with new technologies to ensure safety without hampering innovation.” Most recently, on October 4, 2018, DOT issued Preparing for the Future of Transportation: Automated Vehicles 3.0 (AV 3.0), its third round of guidance on the topic. Like its 2017 predecessor, “Automated Driving Systems 2.0: A Vision for Safety,” AV 3.0 emphasizes the development of voluntary, consensus-based technical standards and approaches while noting that there are cross-cutting policy issues where federal leadership may be necessary. AV 3.0 also builds on its predecessors by emphasizing that it reflects the view of all of DOT’s operating administrations; by providing much more detailed guidance on the development and testing of automated vehicle technologies; and by announcing some specific regulatory steps DOT plans to take in the near future. (more…)
Companies with robust cybersecurity programs may still be vulnerable to attack. A new, first-of-its-kind law in Ohio now recognizes this fact. On November 1, 2018, the Ohio Data Protection Act (SB 220) establishes a safe harbor from state tort actions in data breach cases for entities that have developed an information security program with “administrative, technical, and physical safeguards for the protection of personal information and that reasonably conforms to an industry recognized cybersecurity framework.” Without establishing minimum cybersecurity standards, the Ohio law affords defendants an “affirmative defense” against state tort actions and establishes an important precedent that may serve as a model for other states and the federal government to follow. (more…)