EU Data Protection Regulation

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The European Union’s General Data Protection Regulation (the “GDPR”) goes into effect in a little over fourteen months and from a quick glance at our bullet points analysis you can see there is a lot to consider.  One crucial aspect you need to be thinking about now is how your organization collects and manages consents from individuals for processing their personal information.  Without a strong understanding of what valid consent means under the GDPR, before long you may find yourself holding valuable data that you are not able to process as you need to for your business.

To this end, the Information Commissioner’s Office (the “ICO”), the data protection authority for the UK, last week published a consultation draft of its GDPR consent guidance.  This is a practical resource meant to help organizations get to grips with the GDPR’s consent requirements and align their internal procedures and processing activities, as well as their customer-facing websites, marketing materials, and product infrastructure.   Although the UK ICO cannot speak for the other EU data protection authorities, they have a good track record of producing practical guidance set out in accessible language, which makes the ICO website a good first stop for US companies seeking to understand their obligations in the EU.  We encourage you to review this helpful resource and provide feedback to the ICO using their comment form by March 31.  We also offer this high-level snapshot of a few key points: Continue Reading It’s Not Too Early! ICO Guidance Regarding Consent Under GDPR

Since September, the Mintz Levin Privacy Webinar Series has focused on the upcoming EU General Data Protection Regulation (GDPR) to help businesses understand the reach and scope of the GDPR and prepare for the potentially game-changing privacy regulation. The GDPR will affect how US businesses handle and process personal data originating in the EU and may require changes to business process.

This week’s webinar will consider companies’ obligations to give individuals access to their data and to correct or erase it.  We will also explore the new data portability requirements.  The webinar will conclude with some suggestions on how to make these requirements less burdensome. We hope you can join us!

Registration link is here.

Since September, the Mintz Levin Privacy Webinar Series has focused on the upcoming EU General Data Protection Regulation (GDPR) to help businesses understand the reach and scope of the GDPR and prepare for the potentially game-changing privacy regulation. The GDPR will affect how US businesses handle and process personal data originating in the EU and may require changes to business process.

This week, we’ll explore the ways in which the Regulation creates new avenues for data transfers, and narrows others. In particular, we will consider sector-specific Commission decisions, privacy seals/certifications, the exception for non-repetitive, limited transfers, and the outlook for BCRs and Model Clauses. Make sure to join us for this important webinar!

Registration link is here.

It’s likely that 2017 will see still more data breaches and hacking stories, and companies should be looking closely at cybersecurity as a risk management issue, and not as an IT issue (we’ve been saying that for years ….).

One of the issues for 2017 will continue to be global changes in data protection laws, and how US companies operating in a global environment prepare for compliance with competing regulations.

To that end, we continue our ongoing series of webinars on the European Union’s General Data Protection Regulation (GDPR).

The upcoming webinar, the fifth in our GDPR Series, will explore the ways in which the Regulation creates new avenues for data transfers, and narrows others. In particular, we will consider sector-specific Commission decisions, privacy seals/certifications, the exception for non-repetitive, limited transfers, and the outlook for BCRs and Model Clauses.

Registration is online here.

 

For the past few months, the Mintz Levin Privacy Webinar Series has focused on the upcoming EU General Data Protection Regulation (GDPR) to help businesses understand the reach and scope of the GDPR and prepare for the potentially game-changing privacy regulation. The GDPR will affect how US businesses handle and process personal data originating in the EU and may require changes to business process.

This week, we’ll present a webinar examining the criteria that determines whether or not your organization needs to appoint a Data Protection Officer. We will discuss the role of the DPO, the significance of the “independence” requirement, and the qualifications required to hold the position. Make sure to join us for this important webinar!

Registration link is here.

 

Even president-elect Donald Trump has been the victim of a data breach. Several times actually. The payment card system for his Trump Hotel Collection was infected by malware in May 2014 and 70,000 credit card numbers were compromised by the time the hack was discovered several months later.  The hotel chain paid a penalty to the State of New York for its handling of that incident.  The hotel chain also experienced at least two additional breaches during this past year affecting various properties. From a business perspective, Mr. Trump certainly understands the high costs of cybersecurity in dollars and distraction. But from the Oval Office, it is far less clear what the Trump Administration might do to secure our country’s digital infrastructure and prosecute cybercriminals. Equally uncertain are Mr. Trump’s views on privacy rights and how his presidency might affect federal protections for personal information and cross-border transfers of data. We do not have a crystal ball, but offer some thoughts. Continue Reading The Cyber President? What To Expect From the Trump Administration On Cybersecurity And Privacy

For the next few months, the Mintz Levin Privacy Webinar Series is focusing on the upcoming EU General Data Protection Regulation (GDPR) to help businesses understand the reach and scope of the GDPR and prepare for the potentially game-changing privacy regulation.   The GDPR will affect how US businesses handle and process personal data originating in the EU and may require changes to business process.

Next week, we’ll present a webinar focusing on the data security and accountability requirements of the GDPR, including reviews and documentation of internal policies and procedures and data impact assessments.   We will also take a look at the onerous breach notification requirements and recommend actions that companies can take in advance to mitigate the need for breach notification.

Make sure to join us for this important webinar!

Registration link is here.

 

Not all the news coming out of Europe these days is about Brexit. In fact, the forces of unity and harmonization remain a top priority for European regulators hoping to combat digital security threats and create a safer and more secure environment for the entire online community.  To this end, on July 6, 2016, the European Parliament adopted the Network and Information Security (“NIS”) Directive in an effort to enhance cybersecurity and incident reporting at a national level across all of its member states (“NIS Directive”). This move followed an announcement the day before from the European Commission (the “Commission”) that it had launched a public-private initiative that will steer €1.8 billion of investment into cybersecurity by 2020.  Continue Reading EU Adopts Cybersecurity Directive: What US Companies Need to Know

 

US companies and policy makers will no doubt spend a good chunk of the day today considering the possible implications for them of yesterday’s UK vote for Brexit.  Mark Carney, Governor of the Bank of England, has issued a statement to calm the markets.  I will content myself with a much more modest statement to calm US companies who have been working hard to fill in the gap left by the demise of Safe Harbor and to prepare for the implementation of the GDPR in May 2018:  Brexit will have very little, if any, impact on the UK’s approach to data protection laws, at least in the medium term (say the next five years or so).

Why is that?  First and foremost, the UK has no interest in doing anything that would impede the flow of personal data between the UK and the rest of Europe.  The GDPR, like the current laws under the Data Protection Directive, provides a pathway of least resistance for data transfers: If a country’s laws “ensure[ ] an adequate level of protection” for the personal data, the Commission can issue an adequacy decision to allow data transfers to that country (without the need for model clauses or BCRs).  The most straightforward way for the UK to get an adequacy decision is to adopt and implement the GDPR (or at least all of the material parts of the GDPR) as part of its national legislation.

Second, of all the things that the UK will need to negotiate with the EU over the coming years, any quibbles that the UK may have about data protection legislation is likely to be low on the list, far behind passporting of banking services and new immigration arrangements.   The UK did have some concerns about the GDPR, as communicated by the ICO in its initial comments on the Commission’s early draft of the GDPR.  However, none of them were deal-breakers for the UK.

Third, as a practical matter, UK companies that are part of international corporate groups with a European presence would probably not make it a priority to push hard for UK legislation that eases their burden under UK law, while they still have to comply, in effect, with the GDPR with respect to their European operations (both of their affiliates and with regard to UK companies’ own sales into Europe).

Looking past the medium term, how might the UK’s approach change later on, once the key Brexit negotiations are finished?  The ICO did say a couple of weeks ago at a conference that it would consider other approaches, such as the data protection frameworks used in New Zealand or Australia, that meet EU adequacy requirements.  However, all of those existing frameworks will need to be reviewed again against the GDPR in order to keep their adequacy decisions in place, so those legal frameworks may look a lot more like the GDPR within a couple of years.

So until the ICO tells us otherwise, US companies working on preparing for the implementation of the GDPR should continue with that work even if their primary EU activities are only in the UK.  (And don’t forget that the actual exit is not taking place immediately.)

While it’s making few headlines, the European Commission is still working to finalize Privacy Shield, and it’s even possible that Privacy Shield will pass a key hurdle by the end of this month.  The Commission is still scrambling to address the concerns raised by the Article 29 Working Party and the European Data Protection Supervisor concerning the Privacy Shield arrangements that the Commission had negotiated with the US.  (The European Parliament has also criticized Privacy Shield.)  Some of the concerns raised so far have made it necessary for the Commission to negotiate further with the U.S. State Department.  And now the Commission is shortly to present a proposed final version of Privacy Shield to the Article 31 Committee, which represents the Member States.

If the Art. 31 Committee agrees with the Commission, Privacy Shield will be submitted to the College of the Commission for  formal adoption.  If the Art. 31 Committee does not endorse the Privacy Shield arrangements, the Commission will need to consider further how to proceed.  Also, the Council or Commission could intervene as permitted by the comitology procedure (which could result in more pressure on the Commission to negotiate further with the US).

News sources have speculated as to the status of the Article 31 negotiations (see here and here (scroll down)), but given the lack of specific information from the Commission on this point, it’s tough to tell what the real status is.  In any event, while we expect to have some more concrete news by the end of June as to the progress of Privacy Shield, it is unlikely that Privacy Shield will be formally adopted by then.

And it’s important to keep in mind that, as soon as Privacy Shield limps over the finish line (assuming it doesn’t succumb to death by a thousand objections), it will almost certainly face immediate litigation seeking to have the Court of Justice of the EU invalidate it.

PS – for those who’ve been wondering, Brexit (should it occur) is unlikely to result in the UK taking a divergent path from the EU on general data protection rules.