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Data Matters
Cybersecurity, Privacy, Data Protection, Artificial Intelligence, Internet Law, and Policy
U.S. Securities and Exchange Commission Proposes Three Rules Related to Cybersecurity, Reopens Comment for One Rule
On March 15, 2023, the U.S. Securities and Exchange Commission (SEC) proposed three rules related to cybersecurity and the protection of consumer information and reopened the comment period for a proposed cybersecurity rule for investment advisers and funds. This significant action would impose new cybersecurity requirements for several SEC-registered entities, including with respect to these entities’ policies, incident response and notification procedures, and cybersecurity risk management. This Sidley commentary and analysis discusses the key features of each proposal, including new requirements and differences among each of the proposals.
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Alan Charles Raul
Washington, D.C., New York
araul@sidley.com
Andrew P. Blake
Washington, D.C.
ablake@sidley.com
Colleen Theresa Brown
Washington, D.C.
cbrown@sidley.com
Charles A. Sommers
Washington, D.C.
csommers@sidley.com
Michele L. Aronson
Washington, D.C.
maronson@sidley.com
Sasha Hondagneu-Messner
New York
shondagneumessner@sidley.com
Casey Grant
Philip Robbins
New U.S. FDA Draft Guidance Outlines Path To Faster Modification of AI/ML-Enabled Devices
The U.S. Food and Drug Administration (FDA or Agency) has issued new draft guidance on “Marketing Submission Recommendations for a Predetermined Change Control Plan for Artificial Intelligence/Machine Learning (AI/ML)-Enabled Device Software Functions”1 that discusses a “science-based approach to ensuring that AI/ML-enabled devices can be safely, effectively, and rapidly modified, updated, and improved in response to new data.”2 This approach should offer more certainty to industry as FDA’s stated goal is to allow AI/ML-enabled devices to be modified faster in accordance with FDA requirements while being “built to adapt to the data and needs of individual health care facilities” and “adapt to deliver treatments according to individual users’ particular characteristics and needs.”3 Those wishing to comment on the draft guidance should note that the comment period closes on July 3, 2023.
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Deeona R. Gaskin
Washington D.C.
dgaskin@sidley.com
Rebecca K. Wood
Washington, D.C.
rwood@sidley.com
Atiq Chowdhury
Eliza Lawless
UK’s OfCom to Publish Guidance on Illegal Content Risk Assessments in Light of Online Safety Bill
The UK’s Online Safety Bill (“Bill”), once legislated, will impose duties of care on providers of digital services, social media platforms and other online services to make them responsible for content generated and shared by their users and to mitigate the risk of harm arising from illegal content, and if services are deemed accessible by children, a duty to protect children from harm. As currently drafted, the Bill applies to any service or site that has users in the UK, or targets the UK as a market, even if it is not based in the country. The Bill is currently at the Committee Stage of the legislative process. Although the Bill is expected to receive Royal Assent during 2023, the timeline as to when the provisions will come into force is still unclear.
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William RM Long
London
wlong@sidley.com
Denise Kara
Fjolla Lushta
London
flushta@sidley.com
Chambers 2023 Global Practice Guides for Data Protection & Privacy and Cybersecurity Available
The updated 2023 Chambers Global Practice Guides for Data Protection & Privacy and Cybersecurity, edited by Alan Charles Raul, are available now, covering important developments across the globe and offering insightful legal commentary for businesses.
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Alan Charles Raul
Washington, D.C., New York
araul@sidley.com
William RM Long
London
wlong@sidley.com
Eleanor Dodding
London
edodding@sidley.com
João D. Quartilho
Subhalakshmi Kumar
Equal Employment Opportunity Commission Looks at AI
2023 is rapidly becoming the year of AI policy and regulation. A particular focus of regulatory concern relates to AI impacts on employees, and the U.S. Equal Employment Opportunity Commission (EEOC) is not sitting on the sidelines. On January 31, 2023, the EEOC held a public hearing to examine the use of automated systems, including artificial intelligence (AI), in employment decisions. This hearing, titled “Navigating Employment Discrimination in AI and Automated Systems: A New Civil Rights Frontier,” continues the work of the Artificial Intelligence and Algorithmic Fairness Initiative, which was launched in 2021 by the EEOC. Through this initiative, the EEOC has already published a guidance titled “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees.” Below are a few high-level takeaways from the hearing:
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Wendy M. Lazerson
Palo Alto, San Francisco
wlazerson@sidley.com
Sheri Porath Rockwell
Century City
sheri.rockwell@sidley.com
Sasha Hondagneu-Messner
New York
shondagneumessner@sidley.com
UK GDPR Reform Is Back! Department of Science, Innovation and Technology Introduces New Data Protection and Digital Information Bill
On 8 March 2023, the newly created Department of Science, Innovation and Technology (“DSIT”) introduced the Data Protection and Digital Information (No. 2) Bill. The “Bill” is in substance a re-introduction of the previous Data Protection and Digital Information Bill which was withdrawn from Parliament on the same day as the new Bill was published. The Bill, which has been hailed by the UK Government as one that will “save billions” and “cut down pointless paperwork” is the UK’s latest attempt to create a more streamlined piece of data protection legislation for the UK whilst still “ensur[ing] data adequacy.” The Information Commissioner’s Office (“ICO”) also welcomed the re-introduction of the Bill, with the Commissioner stating that he would “support [the Bill’s] ambition.” While much of the Bill remains the same as its previous iteration, we set out the key provisions and notable amendments below.
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William RM Long
London
wlong@sidley.com
Francesca Blythe
London
fblythe@sidley.com
Subhalakshmi Kumar
Fjolla Lushta
London
flushta@sidley.com
Biden Administration Announces National Cybersecurity Strategy
On March 1, 2023, the Biden administration announced its long-awaited National Cybersecurity Strategy. The strategy is part of the administration’s efforts to bolster and modernize public and private responses to cybersecurity threats.
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Alan Charles Raul
Washington, D.C., New York
araul@sidley.com
Lauren Kitces
Washington, D.C.
lkitces@sidley.com
Vishnu Tirumala
Washington, D.C.
vtirumala@sidley.com
UK’s New Pro-innovation Approach to Regulating Digital Technologies
On 15 March 2023, the UK Government published, alongside its Spring Budget, a report on the Pro-innovation Regulation of Technologies Review (the “Report”). The Report was led by the government’s Chief Scientific Advisor and National Technology Officer, Sir Patrick Vallance, who was tasked with “bringing together the best minds to advise how the UK can better regulate emerging technologies, enabling their rapid and safe introduction.” In response, the UK Government has accepted all of the Report’s recommendations, and set out some next steps for their implementation.
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Patrick J. Harrison
London
pharrison@sidley.com
Monika Zdzieborska
London
mzdzieborska@sidley.com
Fiona Shajko
London
fshajko@sidley.com
Uvini Edirisinghe
London
uedirisinghe@sidley.com
Alex Harper
London
alex.harper@sidley.com
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Francesca Blythe
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Colleen Theresa Brown
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Sharon R. Flanagan
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David A. Gordon
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Tomoki Ishiara
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David C. Lashway
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William RM Long
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Joan M. Loughnane
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Geeta Malhotra
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Rollin A. Ransom
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Alan Charles Raul
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Jennifer B. Seale
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