data privacy

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In a landmark decision, a nine judge bench of the Supreme Court of India ruled today that privacy is a fundamental right protected by the Constitution of India.

Background

Due to the volume of cases brought before the Supreme Court of India, cases are generally heard by benches consisting of a subset of the ten justices of the Supreme Court. The question of whether there is a constitutionally protected right to privacy arose in a 2015 case brought before a three judge bench of the Indian Supreme Court challenging the legal validity of the Government of India’s Aadhaar program.  Under the Aadhaar program, the Unique Identification Authority of India (UIDAI), an Indian government authority, is charged to assign a twelve digit unique identification number (UID) to each of the over 1.3 billion residents of India.  Each resident’s UID is linked to certain biometric information of the resident including his/her photograph, fingerprints and iris scans.  The UIDs are used by the government for a variety of purposes including to eliminate fraud in connection with the dispensing of benefits under various government welfare programs.  The three judge bench in the Aadhaar case determined that to assess the case appropriately, a determination of whether the right to privacy is a fundamental right protected by the Constitution of India was required by a larger bench of Indian Supreme Court justices.  Given that the 1954 case of M.P. Sharma et al. v. Satish Chandra, District Magistrate, Delhi et al. holding that privacy is not a right guaranteed by the Indian Constitution was decided by an eight judge bench, a larger bench of nine Supreme Court justices was convened to determine whether the rationale of the M.P. Sharma judgment and others which similarly found that the Indian Constitution does not guarantee a right of privacy was based on “jurisprudential correctness.”  This bench of nine justices of the Indian Supreme Court listened to arguments presented over six long days spread over three weeks.

Whether it means taking a prominent role shaping data security for the Internet of Things, or addressing high profile breaches, the FTC has adopted an active position in policing data privacy and security. And, as data becomes increasingly digital in its form and protections, data security is of paramount importance for all types of intelligence—whether financial, medical, or otherwise sensitive.  The Commission’s emphasis on these areas has not slowed, even as the composition of the Bureau of Consumer Protection changes under a new administration.  The FTC’s actions over the past year reflect that Commission’s continued emphasis on data privacy and its recent data privacy settlements have provided companies with a trail of breadcrumbs from which they can extract lessons learned and help avoid potential FTC scrutiny.

We previously reported on the FCC’s 2016 Privacy Order, “Protecting the Privacy of Customers of Broadband and Other Telecommunications Services” impacting Internet service providers’ data privacy practices and obligations and the corresponding timeline for compliance. Intervening events, however, have made the rules imposed by the 2016 Privacy Order moot. On June 26, 2017, the FCC adopted a new order providing guidance on reinstating the pre-2016 Privacy Order regulations. This order was issued pursuant to a joint resolution of Congress under the Congressional Review Act, signed by the President on April 3, 2017, disapproving the FCC’s 2016 Privacy Order. As a result, the 2016 Privacy Order has “no force or effect.” FCC Chairman, Ajit Pai, stated that the purpose of the new order is to “simply make clear that the privacy rules that were in effect prior to 2016 are once again effective.”

The CJEU (the European Union Court of Justice) has handed down a decision which makes clear that general and indiscriminate retention of electronic communications is unlawful. National legislation of each European Member State should ensure that mass surveillance only occurs where it is strictly necessary in order to combat serious crime as well as terrorism and meets other stringent requirements.

The references were made by the Swedish and UK courts and concerned the interpretation of the Privacy and Electronic Communications Directive (Directive 2002/58/EC, as amended by Directive 2009/136/EC) (the “Directive”), in light of the rights granted by the Charter of Fundamental Rights of the European Union (the “Charter”), particularly, the right to privacy (Article 7) and the right to protection of personal data (Article 8), and the decision of the CJEU in Digital Rights Ireland (C‑293/12 and C‑594/12).

DataGuidance spoke with Cécile Martin, Special International Counsel at Proskauer Rose LLP, at the International Association of Privacy Professionals’ Conference in Brussels in November 2016. Cécile discussed the passing of the Digital Republic Bill and its implications for organizations, as well as the latest developments regarding employee monitoring in France and the upcoming changes with the GDPR.

On December 2, 2016, the Federal Communications Commission (“FCC”) published its Report and Order entitled “Protecting the Privacy of Customers of Broadband and Other Telecommunications Services” (the “Order”) as a final rule in the Federal Register, adopting rules applicable to Internet service providers (“ISPs”) intended to protect the privacy of broadband consumers. Despite the publication of the rules in the Federal Register, uncertainty remains regarding when ISPs must be in compliance with some of these newly established privacy obligations. Although the rules are effective January 3, 2017, the FCC has made exceptions to the January 3, 2017 effective date for provisions which have not yet been approved by the Office of Management and Budget (“OMB”).[1] This includes many of the operative provisions of the new rules regarding ISPs’ data collection and use. Once such provisions are approved by the OMB, notice will be published in the Federal Register announcing their approval and corresponding effective dates.

Despite the uncertainty regarding the effective dates of many sections, the publication of the Order puts ISPs on notice of the new rules, and ISPs should begin revising their practices so that they are able to meet the earliest possible effective dates. Here is what ISPs need to know regarding compliance with the new rules:

TalkTalk, a major UK telecoms company, has been fined £400,000 for a data breach after they were hacked. This is a record fine given by the ICO (the UK’s data protection authority).  Significantly the fine was imposed after a change of leadership this summer when Elizabeth Denham (previously the Information…

The dream of hack-proof communication just got a little closer to reality. On August 16, 2016, China launched the world’s first “quantum satellite,” a project the Chinese government hopes will enable it to build a communication system incapable of being hacked. Such a system, if perfected, would allow for encrypted communications between any two devices with absolute certainty that the encryption could not be broken, and with a built-in mechanism for alerting the sender/receiver if someone tried.