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Data Matters
Cybersecurity, Privacy, Data Protection, Artificial Intelligence, Internet Law, and Policy
SEC Proposes Sweeping New Rules on Use of Data Analytics by Broker-Dealers and Investment Advisers
On July 26, 2023, the U.S. Securities and Exchange Commission (SEC or Commission) proposed new rules for broker-dealers (Proposed Rule 15(1)-2) and investment advisers (Proposed Rule 211(h)(2)-4) on the use of predictive data analytics (PDA) and PDA-like technologies in any interactions with investors.1 However, as discussed below, the scope of a “covered technology” subject to the rules is much broader than what most observers would consider to constitute predictive data analytics. The proposal would require that anytime a broker-dealer or investment adviser uses a “covered technology” in connection with engaging or communicating with an investor (including exercising investment discretion on behalf of an investor), the broker-dealer or investment adviser must evaluate that technology for conflicts of interest and eliminate or neutralize those conflicts of interest. The proposed rules would apply even if the interaction with the investor does not rise to the level of a “recommendation.”
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W. Hardy Callcott
San Francisco
wcallcott@sidley.com
Jay G. Baris
New York
jbaris@sidley.com
James Brigagliano
Benson R. Cohen
New York
brcohen@sidley.com
Ranah Esmaili
Washington, D.C.
resmaili@sidley.com
Nathan J. Greene
New York
ngreene@sidley.com
Laurin Blumenthal Kleiman
Michael D. Wolk
Chuck Daly
New York, Boston
cdaly@sidley.com
U.S. SEC Public Company Cybersecurity Disclosure Regulation Finalized With Swift Effective Date
On July 26, 2023, the U.S. Securities and Exchange Commission finalized its rule on Cybersecurity Risk Management, Strategy, Governance, and Incident Disclosure by Public Companies (the Final Rule), which will become effective 30 days following publication in the Federal Register. The Final Rule applies to all public companies subject to the reporting requirements of the Securities Exchange Act of 1934, including foreign private issuers, smaller reporting companies, and business development companies, and will require disclosure of material cybersecurity incidents on Form 8-K and Form 20-F and periodic disclosure of cybersecurity risk management, strategy, and governance in annual reports on Form 10-K and Form 20-F.
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Sonia Gupta Barros
Washington, D.C.
sbarros@sidley.com
Colleen Theresa Brown
Washington, D.C.
ctbrown@sidley.com
Paul L. Choi
Chicago
pchoi@sidley.com
Stephen L. Cohen
Washington, D.C., Boston, ...
scohen@sidley.com
John P. Kelsh
Chicago
jkelsh@sidley.com
David Lashway
Washington D.C.
dlashway@sidley.com
Geeta Malhotra
Chicago
gmalhotra@sidley.com
Lara Mehraban
New York
lmehraban@sidley.com
Alan Charles Raul
Washington, D.C., New York
Andrea L. Reed
Chicago
andrea.reed@sidley.com
Michele L. Aronson
Sasha Hondagneu-Messner
New York
shondagneumessner@sidley.com
U.S. Congressional Leaders Introduce Two Landmark Bills to Create a Digital Assets Regulatory Scheme
This week, two committees in the House of Representatives will mark up legislation intended to clarify the regulatory framework applicable to digital assets in the United States. Earlier this month, leaders in the U.S. Senate also introduced legislation to establish a comprehensive and unified regulatory scheme for digital assets and digital asset derivatives.1 Both the House and Senate bills seek to integrate the regulation of digital assets and digital asset derivatives into the existing U.S. regulatory framework — primarily that of the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) — rather than create a standalone framework, but both bills face significant barriers to enactment.
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Michael E. Borden
Washington, D.C.
mborden@sidley.com
Lilya Tessler
Dallas, Miami
ltessler@sidley.com
David E. Teitelbaum
Washington, D.C.
dteitelbaum@sidley.com
Kate Lashley
Miami, New York
klashley@sidley.com
Robert C. Uhl
Dallas
ruhl@sidley.com
Singapore PDPC Consultation on New Guidance for Use of Personal Data in AI Systems
On July 18, 2023, Singapore’s data protection authority published proposed guidelines on the use of personal data in artificial intelligence (AI) systems. The guidelines will be up for public consultation until August 31, 2023, and aim to address how Singapore’s privacy laws will apply to organizations which develop or deploy AI systems. The draft guidelines underscore the significance placed by the privacy regulator on the need to ensure personal data protection, without discouraging organizations from responsibly using AI systems in their businesses. Accordingly, organizations interested in using AI can use the guidelines for insight into what privacy expectations lie in store once the guidelines are finalized.
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Yuet Ming Tham
Singapore, Hong Kong
ytham@sidley.com
Shu Min Ho
Singapore
shumin.ho@sidley.com
Sam Johnson
Margaret Huang
Singapore
margaret.huang@sidley.com
Nicole Ann Lim
Singapore
nicole.lim@sidley.com
Webinar Recording: The Finalization of the EU-U.S. Data Privacy Framework
On July 13, Sidley and OneTrust DataGuidance hosted a webinar titled “The Finalization of the EU-U.S. Data Privacy Framework.” The discussion with key players in international data transfers included topics such as significant points and implications of the European Commission Adequacy Decision for the Data Privacy Framework, what organizations should know about the Framework’s Principles, consideration of factors and logistics for signing up for the Framework (including interplay with current Privacy Shield membership), next steps in the EU and UK processes, and other internal data transfer developments, including adequacy decision for the UK-U.S. Data Bridge.
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Data Matters Contributors
sidleyprivacyblog@sidley.com
Cybersecurity and Environmental Fraud Top Priorities of U.S. Commodity Futures Trading Commission Division of Enforcement
Just before Americans began their Fourth of July holiday, the U.S. Commodity Futures Trading Commission (CFTC) Division of Enforcement Director announced that the division has established two key task forces: the Cybersecurity and Emerging Technologies and the Environmental Fraud Task Force.1 Both task forces will be staffed with attorneys and investigators across the Division of Enforcement with the goal of serving as subject matter experts and prosecuting cases. As a result, CFTC registrants should be prepared for heightened focus on cybersecurity and environmental fraud, particularly in the derivatives and relevant spot markets.
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Paul M. Tyrrell
Boston
ptyrrell@sidley.com
Jennifer B. Seale
Washington, D.C.
jseale@sidley.com
Steven E. Sexton
Chicago
ssexton@sidley.com
Casey Khan
Houston
ckhan@sidley.com
FTC’s New Biometric Policy Statement Articulates New Governance Standards and an Expansive View of Biometric Data
On May 18, 2023, the Federal Trade Commission (“FTC”) issued its 2023 Policy Statement on Biometric Information and Section 5 of the FTC Act (the “Policy Statement”) describing the agency’s concerns about these fast-proliferating technologies and articulating a set of compliance obligations for businesses that develop or use biometric technologies. To address potential risks of bias, discrimination, and security associated with the collection or use of biometric information, the FTC wants businesses to, among other things, conduct pre-release risk assessments evaluating the potential for bias and other potential consumer harms, assess these risks on an ongoing basis, and evaluate and potentially audit third parties with access to a business’s biometric data.
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Colleen Theresa Brown
Washington, D.C.
ctbrown@sidley.com
Sheri Porath Rockwell
Century City
sheri.rockwell@sidley.com
Carly R. Owens
Garrett Lance
Washington, D.C.
glance@sidley.com
Stephanie Y. Lim
New York
stephanie.lim@sidley.com
EU-U.S. Adequacy Once Again
On July 10, 2023, the European Commission issued its Final Implementing Decision granting the U.S. adequacy (“Adequacy Decision”) with respect to companies that subscribe to the EU-U.S. Data Privacy Framework (“DPF”).
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Alan Charles Raul
Washington, D.C., New York
William RM Long
London
wlong@sidley.com
Maarten Meulenbelt
Brussels
mmeulenbelt@sidley.com
Lauren Kitces
Washington, D.C.
lkitces@sidley.com
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