privacy

Subscribe to privacy

Earlier this year, we reported on the potential breeding ground for litigation under Illinois’ Biometric Information Privacy Act (“BIPA”).  A recent decision from an Illinois state appellate panel on the different limitations periods that apply to BIPA provides guidance for companies faced with a BIPA lawsuit and the arguments they…

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.

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:

The European Parliament has approved the reformed General Data Protection Regulation (the “GDPR”). Given this is a Regulation (rather than a Directive), this legislation will apply automatically in every Member State (without need for additional domestic legislation) when it comes into force on May 25 2018.

Many of the requirements are similar to those set out in Directive 95/46/EC (the “EU Directive”), however there are certain key differences.  The table below summarises the key changes.

Unmanned Aircraft Systems (UAS), more commonly known as “Drones,” are soaring in popularity – the Federal Aviation Administration saw more than 300,000 drones registered in just the first 30 days since they introduced a registration system on December 21, 2015. Drones have the potential to be a truly transformative technology; they are already disrupting business models in economic sectors as diverse as shipping and photography, and their proliferation as consumer devices has barely begun to be realized. However, the quick adoption of this new technology raises serious issues of for privacy, civil rights and civil liberties.

The Federal Communication Commission’s (the “FCC”) landmark decision last year to reclassify Internet service providers (“ISPs”) as common carriers under Title II of the Communications Act of 1934 implicates policy issues that extend well beyond net neutrality.  Perhaps chief among them is the treatment of customer proprietary network information (“CPNI”) by broadband access providers.  The CPNI rules, which were adopted as part of the Telecommunications Act of 1996, were originally implemented to facilitate competition in the context of a landline telephone network, rather than address privacy concerns for broadband providers.  Yet as part of the FCC’s Open Internet Order (which is currently under legal challenge), these rules apply to broadband as well.