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The average American today generates more media than they did at any other point in history, and the ease with which our communications, photos, and videos are sent and stored digitally means most of us have more media stored in the cloud or on a single digital device than previous generations would have created in an entire lifetime. However, even as the amount of media we create and store has increased, the laws governing its search and seizure have failed to keep up. Under federal law and the laws of most states, the same information may be subject to different levels of protection from government authorities depending on whether that information is in the form of an e-mail stored in the cloud or a letter stored in a desk drawer.

California is attempting to change that equation. On October 8, 2015, Governor Jerry Brown signed into law the California Electronic Communications Privacy Act (CalECPA, SB 178), a sweeping bill

On April 23, 2015, Washington State Governor Jay Inslee signed into law a bill strengthening the state’s data breach notification law (amending Wash. Rev. Code §§ 19.255.010 and 42.56.590 and creating a new section). H.B. 1078 makes the following substantial changes to the existing law:

  1. Under the current law, businesses and agencies that own or license computerized data including personal information about a Washington resident must disclose any breach in the security of the system involving such personal information that is unencrypted. H.B. 1078 expands this requirement to include:
    • both computerized and hard copy data that contain personal information that is not “secured;” and
    • encrypted information when the person gaining unauthorized access to the data had access to the encryption key or an alternative means of deciphering the “secured” data. The amendment also provides a standard for encryption.

Traditionally, a person’s most valuable assets to be distributed upon death consisted of tangible items such as real property, cash, jewelry and personal effects of sentimental value like photographs and letters.  However, the advent of the digital age has brought a shift from file cabinets, mailmen and photo albums to cloud storage, e-mail accounts and online photo streams.  Today, virtually everyone has at least some assets that are not physical, but are stored as data and accessed via the Internet.  “Digital assets” may include, for example, text messages, instant messaging accounts, e-mails, documents, audio or video images and sounds, social media content, health insurance records, source code, software, databases, online bank accounts, blogs, and the user names and passwords necessary to access online accounts, among other things.  More specifically, consider a person’s PayPal or Venmo accounts, which might contain large sums of money, or Google, Yahoo, Facebook or Instagram accounts, which might contain letters, pictures, videos and other items of intrinsic value.  The steady growth of most individuals’ online presence has given rise to a novel legal issue – authority over administering the digital assets and accounts of an account holder upon death or disability. 

Over the past decade, the EU has made significant technological and legal strides toward the widespread adoption of electronic identification cards.  An electronic ID card, or e-ID, serves as a form of secure identification for online transactions – in other words, it provides sufficient verification of an individual’s identity to allow that person to electronically sign and submit sensitive documents such as tax returns and voting ballots over the Internet.  Many people see e-IDs as the future of secure identification since they offer the potential to greatly facilitate cardholders’ personal and business transactions, and the EU Commission has recognized this potential by drafting regulations meant to eliminate transactional barriers currently hindering the cards’ cross-border reach.  However, the increasingly widespread use of e-ID systems also gives rise to significant data security concerns.

The determination of the territorial scope of the current EU Directive n° 95/46 is still under dispute both before national Courts and the European Court of Justice (ECJ). This issue may soon become moot with the adoption of future data protection regulation, which may modify and expand the territorial scope of EU data privacy law, especially following the results of the recent vote of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs. The following is meant to help determine the current state of affairs regarding the issue of the territorial (and extraterritorial) scope of the future EU law following this vote of the European Parliament. 

Law Targets Sites and Mobile Apps Directed to Minors, Offers “Online Eraser”     

Likely to Have Nationwide Effect

On July 1st of this year, new amendments to the Children’s Online Privacy Protection Act Rule (COPPA Rule) came into effect, with perhaps the most pronounced changes being the expansion of COPPA…