Privacy & Cybersecurity

2021 could be another record year for new and pending privacy legislation, including laws either banning outright or placing limits on the use of technology involving biometric information.  Just this year, Portland, Oregon implemented a ban on facial recognition technology beginning January 1.  Although the New York State Legislature failed to pass a broad biometric privacy law for the third session in a row, New York City recently adopted its own biometrics privacy legislation that is set to take effect on July 9, 2021.

Many organizations around the world – and particularly companies in the United States – are directly affected by the EU Court of Justice’s July 2020 Schrems II decision casting doubt on the lawfulness of transferring personal data from the EU to countries where national security laws might permit authorities to gain access to the personal data.  (The Schrems II decision is discussed below; click here for a longer discussion of the case.)  The European Data Protection Board (EDPB) has just published the final form of its guidance as to what it expects organizations to do to assess risks and bolster protections for transfers of personal data.

The Mintz Privacy & Cybersecurity Blog will be providing regular updates of notable pending US state privacy laws.  Following our similar previous updates, this update checks in on the progression of those laws.   The most notable update is that Colorado is set to become the third US state to pass a comprehensive privacy law as the Colorado Privacy Act is on the governor’s desk and is expected to be signed. 

The new standard agreement for service providers (which we’ll refer to as the Controller-Processor SCCs) adopted by the European Commission on June 4th was understandably a bit overshadowed by the release on the same date of the Standard Contractual Clauses for data transfers.  But the new Controller-Processor SCCs, which organizations can use with their service providers to meet their GDPR Article 28 obligations, is another welcome addition to the EU’s small but growing library of standard documents. 

This alert covers the European Commission’s updated Standard Contractual Clauses (SCCs), the most commonly used legal mechanism for transferring personal data from the European Union to non-EEA countries

The European Commission has adopted (at long last) an updated version of the Standard Contractual Clauses (SCCs), bringing this popular data transfer mechanism in line with the GDPR – and, we hope, the Schrems II decision.  The SCCs are the most commonly used legal mechanism for transferring personal data from the EEA to non-EEA countries (known as “third countries”), so the new SCCs are very big news for organizations that transfer or receive personal data from the EEA (that is, the European Union plus Norway, Iceland and Liechtenstein).

As we come out of the COVID-19 pandemic, it appears that another type of infection is threatening business and ransomware continues to spread. 

Although the California Consumer Privacy Act (“CCPA”) went into effect on January 1, 2020 and over 100 class actions referencing the CCPA have been filed to date, very few class actions have actually made their way to court approval.  That is about to change.

The bills listed reflect a relatively active cybersecurity agenda for the 117th Congress.  As reflected in the proposed legislation, many Members are interested in focusing federal policy on matters such as supply chain security, cyber workforce training, and international competitiveness, particularly with China.  The most ambitious bill may be the Endless Frontiers Act, which would establish a Directorate for Technology and Innovation within the National Science Foundation and further establish regional hubs (i.e., partnerships between government, private, and academic stakeholders) to drive R&D and commercial innovation in key areas of technology.  Endless Frontiers could be the centerpiece of a legislative agenda to ramp up the U.S.’s technological competitiveness with China.  The Senate Commerce Committee was scheduled to mark-up the bill last Wednesday, but it was pulled after over 230 amendments were reportedly filed, and Members failed to garner a critical mass of bipartisan support.  The committee will likely work through the recess to seek bipartisan agreement for passage. 

In a previous update, we provided a comprehensive round-up of several notable pending US state privacy laws. We are checking-in on the progression of some of those laws in this further update. The next installment will update the remaining state laws in progress.

While the term “dark patterns” is not new, it has recently been getting a more attention, not least because the newly passed California Privacy Rights Act (“CPRA”) will regulate dark patterns. In this article, we will focus on what dark patterns are, how your business should be thinking about them, and how CPRA is approaching this issue.

The 117th Congress kicked off its First Session with, among other initiatives, oversight hearings on the SolarWinds cyber hack.  On February 23, the Senate Intelligence Committee held a hearing on the high profile, far-reaching breach; followed by a joint hearing on February 26 in the House of Representatives held by the Oversight and Reform and Homeland Security Committees.  At both hearings, Sudhakar Ramakrishna, President and CEO of SolarWinds, Kevin Mandia, CEO of FireEye, and Brad Smith, President and Chief Legal Officer of Microsoft, testified.  In addition, George Kurtz, the President and CEO of Crowdstrike, testified at the Senate Intelligence hearing, while Kevin Thompson, the former CEO of SolarWinds, testified in front of the joint House hearing.  Together, the hearings represent what will likely be the first of several congressional forays into the SolarWinds hack, including possible legislative initiatives to address future possible incidents and supply chain security.

On Tuesday, Virginia Governor Ralph Northam signed the Consumer Data Protection Act (“CDPA”) into law, making Virginia the second U.S. state after California to pass a comprehensive data privacy law. While not quite as expansive as the GDPR in every respect, the CDPA is a very broad-based privacy law that is on par with the California Consumer Privacy Act. Below, we break down some of its key elements.

In the recent SolarWinds hack, the routine task of downloading a software update turned into a cybersecurity nightmare for over 18,000 organizations including the Treasury Department, AT&T and up to 85% of Fortune 500 companies. New York has the SHIELD Act, a statute that requires that organizations select third party service providers “capable of maintaining appropriate cybersecurity safeguards”.

We summarized Virginia’s Consumer Data Protection Act (CDPA) in advance of its passage by the legislature and it now awaits Governor Ralph Northam’s signature.   This will make Virginia the second state (behind California) with a comprehensive state data privacy law.   There are some key differences between the Virginia CDPA and the California Consumer Privacy Act and Consumer Privacy Rights Act (CPRA).   We will have a full analysis of the Virginia CDPA next week, so watch this space. 

In a solid step forward for EU to UK personal data transfers, the European Commission has published its draft adequacy decision that will (if finally adopted) permit personal data to flow freely from the EU to the UK.

Based on what we are already seeing in terms of the impressive volume of state-level proposed privacy legislation in the early days of 2021, it appears that we may see a big year for US privacy law. Below is a sampling of where things stand in Virginia, Washington, New York, Minnesota, Oklahoma, Utah, and North Dakota.

Watch this webinar by Cynthia Larose and Susan Foster as they explore the key US national security laws that need to be taken into account, how to evaluate whether those laws potentially affect the personal data in question, potential risk mitigation measures, and how European data exporters and US data importers can work together to address these issues.

January 28 is known worldwide as “Data Privacy Day” or “Data Protection Day,” and it’s a good opportunity to remind everyone of some privacy basics – particularly as people are still working remotely and threats to information and security increase.   Privacy and data protection is no longer “nice to have”.  It is business imperative.

With a notably sharply worded opinion, the Fifth Circuit recently vacated over $4.3 million in penalties levied against the University of Texas M.D. Anderson Cancer Center (M.D. Anderson) by the Department of Health and Human Services (HHS) for a series of alleged HIPAA violations. The case stems from three separate incidents that occurred between 2012 and 2013. In two instances, M.D. Anderson workforce members lost unencrypted protected health information (PHI), while the third incident involved the theft of a faculty member’s laptop also containing unencrypted PHI. On appeal, the Fifth Circuit concluded that HHS’s civil monetary penalties order against M.D. Anderson was arbitrary, capricious, and contrary to law, vacating the penalties and pointedly criticizing the agency’s actions and arguments in this matter.

Beyond its harsh words for HHS, this opinion is notable for calling into question some longstanding HHS enforcement practices and interpretations of the HIPAA regulations. The opinion also makes clear that regulated entities should check the math when HHS levies a fine. Although limited in its precedential authority, the Fifth Circuit’s opinion, at the very least, gives HIPAA-regulated entities some new food for thought if faced with an HHS enforcement action.