*Originally Published July 12, 2018 by Chambers and Partners Data Protection & Cyber Security 2018
There is a lot going on with privacy around the world. As discussed in the chapters of this book, significant new laws are being adopted or taking effect, important judicial decisions are being decided to interpret existing legal requirements, and citizens are contending with their own expectations about confounding new technologies and business models. It is not clear, however, that the public policy being developed in any country is a thoughtful reaction to the promises and perils of today’s digital economy, rather than a knee-jerk over-reaction to imagined harms and a handful of high-profile incidents. (more…)
On June 28, 2018, California Gov. Jerry Brown signed into law the California Consumer Privacy Act of 2018 (AB 375). According to the bill’s author, it was consciously designed to emulate the new European General Data Protection Regulation (GDPR) that went into effect on May 25, and if and when it goes into effect, it would constitute the broadest privacy law in the United States. It is intended to give consumers more transparency regarding and control over their data and establishes highly detailed requirements for what companies that collect personal data about California residents must disclose. (more…)
*UPDATE: The ballot initiative has been replaced by a new California law, AB 375. Please see California Enacts Broad Privacy Protections Modeled on GDPR for more information.
On June 25, 2018, California Secretary of State Alex Padilla announced that a potentially significant privacy initiative is eligible for the Nov. 6 general election ballot. If passed, the ballot initiative — the California Consumer Privacy Act (CCPA) — would immediately make sweeping changes to California’s privacy laws. This initiative would likely create a de facto national standard on transparency around third-party sharing as well as consumer rights to restrict data sharing and could affect many business models that depend on data monetization to offer a free good or service. Many see the law as having echoes of the new European General Data Protection Regulation (GDPR) that went into effect on May 25. If voters pass the initiative, it would go into effect shortly after the election — providing little time to develop an extensive internal regulatory program, yet providing immediate exposure to penalties for failures to have those extensive compliance processes in operation. (more…)
Although the prospect of federal legislation on data privacy remains uncertain, states appear to be stepping up the range of their activity on privacy and security. Washington State notably adopted a law on net neutrality and there is the prospect of a ballot initiative in California that would give individuals the right to know which categories of their or their children’s personal data have been collected or traded by businesses. Though Vermont is one of the smallest states, it has been active in privacy regulation and, on May 22, 2018, enacted the first state-level measure aimed at data brokers. (more…)
On May 8, Georgia Governor Nathan Deal announced that he was vetoing Senate Bill 315 (“SB 315” or “the bill”), cybersecurity legislation that would have expanded the criminalization of “unauthorized computer access” to capture, in addition to traditional hacking, activity that opponents warned is necessary to robust private and public sector cyber defense. In his veto statement, Governor Deal commented that parts of SB 315 “have led to concerns regarding national security implications and other potential ramifications” that caused him to conclude that “while intending to protect against online breaches and hacks, SB 315 may inadvertently hinder the ability of government and private industries to do so.” (more…)
Changes to data breach notification laws continue to pop up across the country this Spring. The latest comes from a new law signed by Arizona Governor Doug Ducey that amends the state’s data breach standards. Although much of the Arizona law has remained the same, the new law updates a few key provisions, including the definition of personal information, the requirements for the content of the data breach notice, the timing of notice, and the capping of penalties. (more…)
And then there were none. Alabama has joined the ranks of the other 49 states with breach notification requirements by enacting the Alabama Data Breach Notification Act of 2018 (the “Act”). The Act, which was signed into law by Alabama Governor, Kay Ivey on March 28, 2018, requires companies to provide Alabama residents with notification of a breach within 45 days of discovery. Notification is triggered by a determination of a breach that poses a risk of harm to impacted individuals. Alabama exempts from the definition of breach the good faith acquisition of sensitive personally identifying information by an employee or agent of a covered entity, unless the information is used for a purpose unrelated to the business or subject to further unauthorized use. Companies must notify the state AG in the same period if the breach requires notification of more than 1,000 “individuals” (defined as Alabama residents whose “sensitive personally identifiable information” was, or is reasonably believed to have been, accessed as a result of the breach). In addition, if more than 1,000 individuals are notified at a single time, companies must provide notice to consumer reporting agencies “without unreasonable delay.” Third parties who are contracted to process sensitive personally identifiable information must provide notice of a breach to the owner of that information within ten days of discovering the breach. Notice from a third party then triggers the 45-day notification period for the covered entity.
On March 21, Governor Daugaard of South Dakota signed SB 62, making South Dakota the 49th state to enact a data breach notification statute (leaving only Alabama without a state data breach law). South Dakota’s attorney general issued a statement after the law was signed, observing that the connected economy comes with “an increased risk of theft and fraud,” and “we need the tools to combat these breaches and thefts of our personal information.” (more…)
Companies that are subject to New York’s Cybersecurity Regulation are moving quickly to finalize their compliance obligations under the Cybersecurity Regulation, as the second “due date” quickly approaches – February 15, 2018. By August 28, 2017, Covered Entities were required to have a cybersecurity program in place, as well as a board (or senior officer) approved written cybersecurity policy and Chief Information Security Officer to help protect data and systems. They also became obligated to report cybersecurity events to the NYDFS. (more…)
This past year was marked by ever more significant data breaches, growing cybersecurity regulatory requirements at the state and federal levels and continued challenges in harmonizing international privacy and cybersecurity regulations. We expect each of these trends to continue in 2018.
As we begin this New Year, here is list of the top 10 privacy and cybersecurity issues for 2018: (more…)