California AG’s First Formal CCPA Opinion Directs Businesses to Disclose Internally-Generated Inferences and Expresses Skepticism Around Trade Secret Claims

In its first formal opinion interpreting the California Consumer Privacy Act (the “Opinion”), the California Attorney General (OAG) has expansively interpreted CCPA to mean that inferences created internally by a business, including those based on data that is not included in the definition of personal information, constitute “specific pieces” of personal information “collected by a business” which must be produced to consumers upon request.  The Opinion, which was issued on March 10, 2022 in response to a request for clarification submitted by Assemblyman Kevin Kiley, also addressed arguments that such inferences could constitute trade secrets and signaled the OAG’s unwillingness to accept “blanket assertions” that inferences constitute trade secrets or proprietary information, requiring instead that businesses explain why an inference constitutes a trade secret with greater particularity.  We highlight below some of the more instructive elements of the opinion that provide insight into potential future enforcement. (more…)

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Tech Forum Webinar: Data-Driven Technology Development— IP Ownership and Rights

As businesses across industries turn to artificial intelligence and machine learning for insights, data is driving innovation and technology development. Who owns the underlying data and the resulting technology? How can restrictions on data use limit the resulting technology applications?

Companies need to keep pace tracking and monitoring intellectual property ownership and rights in this fast-paced environment, without stifling innovation. During this webinar, we will explore how IP and technology licensing principles apply to data licensing, and trends we are spotting as we help companies navigate new deal structures.

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BIS Issues Long-Awaited Notice on Controls on Foundational Technologies, Adds New Entities to Entity List

The U.S. Department of Commerce, Bureau of Industry and Security (BIS) published an advance notice of proposed rulemaking (ANPRM) soliciting comments to identify foundational technologies essential to U.S. national security by October 26, 2020 (the Foundational Technologies ANPRM). The ANPRM is only one step in a multiyear process through which the U.S. government transforms the regulations restricting the availability of U.S.-sourced technology in the global marketplace.

This long-awaited ANPRM launches an intra-agency review process required under Section 1758 of the Export Control Reform Act of 2018 (ECRA), which Congress passed in the National Defense Authorization Act for Fiscal Year 2019 (2019 NDAA). ECRA directed BIS to identify and establish controls on the export, reexport, or transfer (in country) of emerging and foundational technologies essential to the national security of the United States. On November 19, 2018, BIS issued an ANPRM on identification of emerging technologies (the Emerging Technologies ANPRM), indicating that a separate notice for foundational technologies was forthcoming.

Today’s Foundational Technologies ANPRM can be found here. Sidley’s prior updates on ECRA and the Emerging Technologies ANPRM can be found here.1 Here we summarize five key takeaways from today’s notice.

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Highest European Court Confirms: No Presumption of Confidentiality Over Documents Submitted in Marketing Authorization Dossier

On January 22, 2020, the Court of Justice of the European Union (CJEU) found that there is not a general presumption of confidentiality over documents containing clinical and preclinical data provided to the European Medicines Agency (EMA) to support a marketing authorization application. However, the CJEU indicated that certain information may be protected if the interested party can specifically show that the disclosure will cause it harm. This is the first time the CJEU has ruled on this matter, upholding the EMA’s approach to handling access to documents requests.

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Supreme Court Clarifies Broad Interpretation of FOIA Exemption for Confidential Commercial Information

In a very significant FOIA decision for business, Food Mktg. Inst. v. Argus Leader Media, decided on June 24, 2019, the Supreme Court reversed 45 years of understanding that Exemption 4 only protects confidential business information whose disclosure by the government would cause “substantial competitive harm.”

Relying on the plain meaning of words in the statute – rather than what the Court majority characterized as muddled legislative history – the Court found that the D.C. Circuit had engrafted a condition on the Exemption that is not supported by the text.  Rather, so long as the commercial or financial information obtained by the government is “private” or “secret” – the plain and ordinary meaning of “confidential” – it may be withheld from disclosure under FOIA.

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Alan Charles Raul

Washington, D.C., New York

araul@sidley.com