Qualifying businesses have another year to complying with certain, major provisions of the CCPA. The CCPA, or the California Consumer Privacy Act of 2018, is a California law that gives California consumers, defined broadly to encompass all California residents, certain rights with respect to their personal information. Namely, it gives consumers the right to know about the personal information that businesses collect about them; the right to know what businesses do with that information; and, the right opt out of the sale of certain personal information if a business sells that personal information. In turn, qualifying businesses that do business in California must institute certain policies, practices, and methods that allow consumers to effectuate those rights. Continue Reading
One Cross-Border Mechanism Invalid, Another Upheld: Thoughts after the CJEU’s Schrems II Decision
On July 16, 2020, the Court of Justice of the European Union (CJEU) invalidated Decision 2016/1250 on the adequacy of the protection provided by the EU-US Privacy Shield, ruling, among other things, that U.S. domestic law governing law enforcement access to transferred data does not satisfy the GDPR’s requirements because, as the Court stated, U.S. surveillance programs are not limited to “what is strictly necessary to achieve the legitimate objective in question”. In a separate portion of the opinion, however, the CJEU upheld as valid Commission Decision 2010/87 on standard contractual clauses (SCCs) for the transfer of personal data to processors established in third countries. This is the second ruling (known commonly as “Schrems II”) by the CJEU overturning an established mechanism to transfer personal data from the EU to the U.S. Indeed, only five years ago the CJEU issued its “Schrems I” decision invalidating the long-standing EU-U.S. Safe Harbor, which had been a method to transfer data across the Atlantic without running afoul of the EU Data Protection Directive, a predecessor of the GDPR. Continue Reading
CCPA: California Attorney General Releases Final Proposed Regulations
On June 1, 2020, the California Attorney General’s office released the third and final set of CCPA proposed regulations (available here). Below, we provide information about the final proposed regulations and enforcement actions. Continue Reading
Cybersecurity: SEC and Other Regulators
In today’s world, cybersecurity breaches and threats are pervasive concerns for any business entity, without exception. Working from home arrangements due to COVID-19 constraints only magnify the risk and create further vulnerabilities for companies. Companies should be aware of (1) the key cyber threats they face, (2) the consequences of a breach, and (3) the statutory and regulatory framework governing cybersecurity. Cybersecurity breaches are unique in that an entity can both be the victim of the breach and still be found to have a degree of responsibility. Fortunately, there are precautionary measures that companies can implement to help prevent a breach and to mitigate the scope and damage of a breach if one were to occur. We will elaborate on the steps to take to guard against a breach and how to effectively respond to a breach in a forthcoming post.
Read the full post on Proskauer’s Minding Your Business blog.
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French DPA Issues Guidance Surrounding Practice of Web Scraping
On April 30, 2020, the French data protection authority, the CNIL, published a guidance surrounding considerations behind what it calls “commercial prospecting,” meaning scraping publicly available website data to obtain individuals’ contact info for purposes of selling such data to third parties for direct marketing purposes. The guidance is significant in two respects. First, it speaks to the CNIL’s view of this activity in the context of the GDPR and privacy concerns. Second, beyond the context of direct marketing related privacy issues, the guidance lays out some guiding principles for companies that conduct screen scraping activities or hire outside vendors to collect and package such data. Continue Reading
Trends in Privacy and Data Security
Privacy and cybersecurity remain top priorities for regulators and companies alike, as the threats posed by large-scale data breaches and other cyber incidents show no signs of waning. Companies and their counsel must monitor privacy and data security-related enforcement trends, new laws and regulations, and key emerging issues to mitigate risks and minimize potential liability.
Read our Practical Law article for an overview of recent privacy and data security legal developments (pre COVID-19).
FTC Issues New Guidance on Artificial Intelligence Technology
In the largest piece to come out of the FTC’s new focus on emerging technologies, the FTC Bureau of Consumer Protection issued new guidance on the use of artificial intelligence (“AI”) and algorithms. The guidance follows up on a 2018 hearing where the FTC explored AI, algorithms, and predicative analysis. As the FTC recognizes, these technologies already pervade the modern economy. They influence consumer decision making – from what video to watch next, to what ad to click on, or what product to purchase. They make investment decisions, credit decisions, and, increasingly, health decisions, which has also sparked the interest of State Attorneys General and the Department of Health & Human Services. But the promise of new technologies also comes with risk. Specifically, the FTC cites an instance in which an algorithm designed to allocate medical interventions ended up funneling resources to healthier, white populations.
