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The European Union’s General Data Protection Regulation (“GDPR”) is well known as the toughest privacy and security law in the world, as it has a wide reach and imposes heavy fines against those who violate its privacy and security standards (which are quite broad). The impact of the GDPR has already been felt in the United States since it went into effect in 2018, and now U.S. lawmakers in numerous states are moving to enact similar legislations. The California Consumer Protection Act (“CCPA”) was the first instance of the GDPR’s impact in the United States, as California put in place a statute and regulations that mirrored the GDPR in several respects. Now Virginia has set in motion what could be a year-long string of states enacting similar legislation. In particular, Washington and New York have proposed legislation following the framework of the CCPA. This article will compare the CCPA to the newly enacted and proposed privacy laws in the United States.
Continue Reading GDPR in the USA? New State Legislation Is Making This Closer to Reality

GDPR CalendarWhat Is GDPR?
The EU General Data Protection Regulation (GDPR),—described as “the most important change in data privacy regulation in 20 years”—becomes enforceable by law on May 25, 2018. After four years of preparation and debate, GDPR was approved by the EU Parliament in April 2016 to replace the Data Protection Directive 95/46/EC. According to the EUGDPR.org, the overarching purpose of GDPR is to “harmonize data privacy laws across Europe, to protect and empower all EU citizens data privacy and to reshape the way organizations across the region approach data privacy.” Expected to comply are organizations located within the EU; that offer goods or services to, or monitor the behavior of, EU data subjects; and all companies processing and holding the personal data of data subjects residing in the EU.Continue Reading 100 Days Until GDPR … Are You Ready?

As 2017 comes to a close and companies look to planning initiatives for 2018, there is one date that should be front and center for privacy professionals: May 25, 2018. That is the date that the EU’s General Data Protection Regulation (GDPR) goes into effect, meaning that any company dealing with EU consumer data needs to have a plan in place.  The GDPR has been looming for almost two years now (since its adoption on April 27, 2016), so hopefully most companies impacted by the regulation have already begun to implement compliance mechanisms. But if not, it’s not too late.

We have written previously in this space about what the scope of the GDPR requirements. The question now is what companies covered by the GDPR should be doing as they head into 2018. Here are some critical steps to make sure you are on track to ensure GDPR compliance:Continue Reading Getting Ready for GDPR Compliance in the New Year

The EU’s General Data Protection Regulation (679/2016/EU), the GDPR, comes into force across the EU on 25 May 2018. As it is being made by regulation the GDPR, unlike the existing Data Protection Directive (implemented into the UK by the Data Protection Act 1998), will have direct effect throughout the EU. National governments will have some limited scope to tailor certain of its provisions to their jurisdiction. However, the GDPR will significantly harmonise the current national data protection laws across the EU.

Notwithstanding Brexit, the UK government has indicated its intention to implement the GDPR in full. The UK regulator’s (the Information Commissioner’s Office) powers and ability to work seamlessly with other national EU regulators will form a negotiation point in the coming Brexit deal.
Continue Reading EU General Data Protection Regulation: A Summary for Non-EU Businesses

After nine months of intense negotiations and uncertainty, and despite ongoing criticisms from powerful data protection regulators, the new EU-U.S. Privacy Shield program went into effect this week as the U.S. Department of Commerce began accepting applications online. Some companies that are self-certifying their compliance have already submitted their documentation and many more are expected to do so in the coming days and weeks as they seek shelter under the replacement for the long-standing EU-U.S. Safe Harbor arrangement that was invalidated by the European Court of Justice last year.

Companies can now “sign up” for the Privacy Shield list, but they should not expect a rubber stamp from the Commerce Department just because they have self-certified. To ensure that their applications are approved, companies should take the following steps:

  • Confirm that they are eligible to participate—not all organizations are. Only companies subject to the jurisdiction of the FTC or the DOT may participate at this time
  • Develop a Privacy Shield-compliant privacy policy statement
  • Identify their independent recourse mechanism—under the new framework, self-certifying organizations must provide an independent recourse mechanism available to investigate unresolved complaints at no cost to the individual
  • Ensure that they have compliance verification mechanisms in place
  • Designate contacts within their organizations to serve as liaisons regarding the Privacy Shield
  • Review the information required to self-certify
  • Go online to www.privacyshield.gov to self-certify

Continue Reading Time to Raise Your Shield: The New EU-U.S. Framework Is Here

On April 5, 2016, the Fraud Section of the Criminal Division of the Department of Justice (“DOJ”) released an Enforcement Plan and Guidance (the “Plan”) regarding the Foreign Corrupt Practices Act (“FCPA”). The Plan contains three components designed to enhance the DOJ’s ability to detect and prosecute violations of the FCPA:  (1) a substantial increase in law enforcement resources; (2) increased coordination with foreign jurisdictions; and (3) implementation of a pilot program (the “Pilot Program”) offering substantial cooperation credit to companies that meet certain specified standards for “(1) voluntary self-disclosure of criminality, (2) full cooperation, and (3) remediation.”

One of the enumerated requirements for companies to achieve “full cooperation” (and thus earn maximum cooperation credit) under the Pilot Program is that companies must effectuate “[d]islcosure of overseas documents, the location in which such documents were found, and who found the documents.” This requirement comes with an exception for situations in which “such disclosure is impossible due to foreign law, including but not limited to foreign data privacy laws.”  The requirement and exception are followed by a note stating that:

Where a company claims that disclosure is prohibited, the burden is on the company to establish the prohibition. Moreover, a company should work diligently to identify all available legal bases to provide such documents.

Thus, companies seeking to avail themselves of the cooperation credit offered under the Pilot Program may find themselves trying to strike a delicate balance between compliance with foreign data privacy laws, such as those in the European Union that restrict the transfer of personal data, and compliance with the DOJ’s “full cooperation” requirement.
Continue Reading The Intersection of the Foreign Corrupt Practices Act and Data Privacy

Last week, the European Commission unveiled the latest documentation related to the EU-U.S. Privacy Shield intended to restore trust in transatlantic data transfer and establish a mechanism for U.S. companies to once again transfer data from the EU with confidence. We wrote last month about the initial announcement of the Privacy Shield but expressed caution…

Politicians in both the European Union and United States touted Tuesday’s agreement on a new “Privacy Shield” for EU-U.S. data transfers as a resolution to the data transfer quagmire that has faced companies since the EU-U.S. Safe Harbor was invalidated in October. While this new deal is a promising step in the right direction for companies that transfer data from the EU to the United States, there are still many questions about exactly what the requirements of the new Privacy Shield will be, how an American company can ensure compliance with those requirements and (perhaps most importantly) whether the European Court of Justice will validate the new rules.

Indeed, the deal heralded by politicians on both sides of the Atlantic appears to be only a high-level agreement—they expect to document the actual terms over the next few weeks (the Article 29 Working Party (WP29), the body made up of representatives of individual European Member States’ data protection authorities, has called for it to be fully documented by the end of February). Thus, we anticipate quite a bit more negotiation on the precise scope and language of the requirements. Meanwhile, WP29, which had been assessing data transfer mechanisms like standard contractual clauses and model contracts for possible flaws that would lead to enforcement actions, announced that it will not take enforcement actions based on its concerns about these mechanisms while it awaits the details of the new transfer deal.
Continue Reading Privacy Shield Offers Hope on EU-U.S. Data Transfer—For Now