Data Privacy Laws

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A few months after the European Court of Justice ruled on May 13, 2014 that search engines are considered personal data controllers under the EU Data Protection Directive of 1995 and, as such, should provide data subjects with a right to be forgotten, a French Tribunal enforced this principle in X & Y v. Google France.

In a summary proceeding on September 16, 2014, the Paris Tribunal (Tribunal de Grande Instance) held that Google must erase from its search engine, under penalty of €1,000 per day, all links leading to defamatory content published on Facebook (see attached judgement: TGI Paris – Ordonnance du 16 septembre 2014).

The Article 29 Working Party, which is composed of representatives of DPA’s from every European country, has recently rendered an opinion (http://ec.europa.eu/justice/data-protection/article-29/documentation/opinion-recommendation/files/2014/wp223_en.pdf ) on data privacy issues surrounding the development of the “Internet of Things” (IoT), which includes wearable computing, quantified self devices, and domotics. Although such data is generated by “things” or devices, it is considered personal data because it may enable the life pattern of a specific individual to be discerned. After identifying the major privacy issues raised by such devices, the Article 29 Working Party made a series of recommendations to IoT stakeholders.

Data security seems to make headlines nearly every week, but last Friday, a new player entered the ring.  The Federal Communications Commission (“FCC”) took its first foray into the regulation of data security, an area that has been dominated by the Federal Trade Commission.  In its 3-2 vote, the FCC did not tread lightly – it assessed a $10 million fine on two telecommunications companies for failing to adequately safeguard customers’ personal information. 

A substantial rise in schools’ use of online educational technology products has caused educators to become increasingly reliant on these products to develop their curricula, deliver materials to students in real time, and monitor students’ progress and learning habits through the collection of data by third-party cloud computing service providers.  Unfortunately, with these advances come the data security concerns that go hand-in-hand with cloud computing—such as data breaches, hacking, spyware, and the potential misappropriation or misuse of sensitive personal information.  With the Family Educational Rights and Privacy Act (FERPA)—federal legislation enacted to safeguard the privacy of student data—in place for four decades, the education sector is ripe for new standards and guidance on how to protect students’ personal information in the era of cloud computing. California has tackled this issue head on, with the passage of two education data privacy bills by its legislature on August 30, 2014.  Senate Bill 1177 and Assembly Bill 1442 (together, the Student Online Personal Information Protection Act (SOPIPA)) create privacy standards for K-12 school districts that rely on third-parties to collect and analyze students’ data, and require that student data managed by outside companies remain the property of those school districts and remain within school district control.

In April, Microsoft tried to quash a search warrant from law enforcement agents in the United States (U.S.) that asked the technology company to produce the contents of one of its customer’s emails stored on a server located in Dublin, Ireland. The magistrate court denied Microsoft’s challenge, and Microsoft appealed. On July 31st, the software giant presented its case in the Southern District of New York where it was dealt another loss.

On July 23, 2014, the Massachusetts Attorney General announced a consent judgment with an out-of-state Rhode Island hospital, Women & Infants Hospital of Rhode Island (“WIH” or the “Hospital”), resolving a lawsuit against WIH for violations of federal and state information security and privacy laws involving the loss of over 12,000 Massachusetts residents’ sensitive patient health records.  The regulations and laws at issue were Mass. G.L. c. 93A, Mass. G.L. c. 93H and its implementing regulations codified at 201 C.M.R. 17.00 et. seq., as well as federal regulations under the Health Insurance Portability and Accountability Act (“HIPAA”).

In France, before implementing a whistleblowing process, a company must inform and consult with its employees’ representatives, inform its employees and notify the French Data Protection Agency (CNIL).

There are two possible ways to notify the CNIL of a whistleblowing system:

  1. request a formal authorization from the CNIL (this is quite burdensome and difficult to obtain), or
  2. opt for the standard whistleblowing authorization (AU-004).