A heightened risk for cyberattacks and data breaches calls for companies to remain diligent as they navigate a patchwork of federal, state, local and sector-specific privacy and data protection laws, regulations and guidance. For Financier Worldwide, Margaret A. Dale and Ryan P. Blaney deliver commentary on the evolving landscape and offer considerations for companies looking to enhance their controls and risk management processes.
The final version of the new standard contractual clauses (“SCCs”) were published by the European Commission on June 4, 2021. Many organizations that transfer or receive personal data originating in the European Economic Area (“EEA”) outside the EEA will be required to implement these SCCs with their customers, suppliers and affiliates by December 2022 to comply with the EU General Data Protection Regulation (“GDPR”). This is perhaps the most significant GDPR development since the passage of the GDPR. We had foreshadowed this impending development last week. Continue Reading
It has been reported that European Commission will publish the final versions of new forms of Standard Contractual Clauses (“SCCs”) shortly (even potentially within the next few days). The Commission published draft versions of these SCCs and the implementing Commission Decisions in December 2020. These new SCCs are, arguably, the most significant development in European data protection law since the coming into force of the EU General Data Protection Regulation (“GDPR”) in May 2018, which was three years ago this month. These new SCCs will replace prior versions of the SCCs, some of which date back to 2001 and pre-date the GDPR. We are closely monitoring developments in this area and will report on the new SCCs as soon as these are published. We expect the impact of these SCCs to be significant on organizations which are directly subject to the GDPR or which receive personal data from organizations that are subject to the GDPR. Continue Reading
Formally wading into the cybersecurity discussion for the first time, on April 14, 2021, the U.S. Department of Labor (DOL) posted on its website a suite of new guidance, including Tips for Hiring a Service Provider with Strong Cybersecurity Practices, Cybersecurity Program Best Practices, and Online Security Tips for Participants and Beneficiaries.
By way of background, cybersecurity has over the last decade become an area of critical importance to sponsors and administrators of employee benefit plans as well as plan participants. Put simply, this is because plans (which the DOL estimates hold $9.3 trillion in assets) are a prime target of cyberthieves, given that they typically hold significant amounts of sensitive participant data, often permit electronic access to funds (think 401(k) distributions) and rely on outside service providers, who provide additional access points for breach. This risk was only exacerbated by the COVID-19 shutdowns, where benefits personnel and their service providers quickly had to transition to working remotely and begin relying on electronic access more than ever before.
Illinois’ Biometric Information Privacy Act (“BIPA”) is alive and well as a potential breeding ground for litigation for tech companies. In the last month, two settlements have been announced in class actions where the plaintiffs alleged violations of BIPA in the U.S. District Court for the Northern District of Illinois. These settlements show that companies collecting biometrics should take care to ensure that their practices do not run afoul of BIPA’s requirements. Continue Reading
COVID-19, the California Consumer Privacy Act (CCPA) coming into force, and the invalidation of the EU-US Privacy Shield already made 2020 an especially active year for privacy and data security risks and obligations. Rounding out the year, December then brought discovery of the unprecedented Solarwinds cyberattack affecting government agencies, critical infrastructure entities and others.
Thus, looking ahead, organizations must keep up with the dynamic and increasing legal obligations governing privacy and data security, understand how they apply, monitor risks and attack trends, and manage their compliance to minimize exposure.
Read our Practical Law article for an overview of the past year’s privacy and data security legal developments and predictions for issue to look out for 2021.
A previous blog post discussed FTC Chairwoman Slaughter’s first priority as the newly designated chairwoman – the COVID-19 pandemic. The FTC’s second priority, racial equity, can be broken down into two sub issues. First, the FTC plans to investigate biased and discriminatory algorithms that target vulnerable communities. As the FTC acknowledges, the analysis of data can help companies and consumers, “as it can guide the development of new products and services, predict the preferences of individuals, help tailor services and opportunities, and guide individualized marketing.” Nonetheless, the FTC cautions companies to consider the below before making decisions based on the results of big data analysis.