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Action Items on Technology and Communication Policies in front of the Senate Commerce Committee

January 14, 2021 | Blog | By Christian Tamotsu Fjeld, Christopher Harvie

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The new 1,246-page Trade and Cooperation Agreement (TCA) between the United Kingdom and the European Union has ended the suspense over what restrictions will apply to the transfer of personal data between the EU and the UK now that the Brexit transition period has run its course.   As expected, the UK has chosen to allow UK personal data to be transferred to the EU freely on the basis that the EU’s GDPR provides adequate protection for the transferred data.  But the EU has not yet agreed that EU personal data can be transferred freely to the UK.  
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Vendor Management Fail: FTC Settles with Mortgage Analytics Company following Vendor Security Issues

January 11, 2021 | Blog | By Christopher Buontempo, Cynthia Larose

An oft-used business management concept is to “hire people smarter than you.” The concept also applies to hiring vendors – hire vendors that are better than you (especially when it comes to information security). Texas-based Ascension Data & Analytics LLC (Ascension), a technology and data analytics company used by the mortgage industry, did not utilize that concept in its vendor hiring process, and as a result, recently entered into a proposed settlement agreement with the Federal Trade Commission (FTC) following charges that it violated the Gramm-Leach-Bliley Act’s (GLBA) Safeguards Rule by failing to ensure that its third-party vendor adequately protected mortgage holder personal information.
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As businesses continue to work on compliance with the California Consumer Privacy Act (CCPA) and the multiple versions of regulations issued by the Attorney General’s Office, Attorney General Becerra has issued yet another set of proposed modifications to the regulations implementing the CCPA.  This fourth set of proposed modifications comes on the heels (and builds on) the third draft set of modifications issued in October.   That October revision had not been finalized after comments had been received. 
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Data Breaches Can Cost $$ – Plus Ongoing Obligations (ask Home Depot): Lessons and Takeaways

December 2, 2020 | Blog | By Cynthia Larose, Christopher Buontempo

The Home Depot, Inc. (“Home Depot”) recently entered into a multi-state Assurance of Voluntary Compliance with Attorneys General of 46 states and the District of Columbia (the “Settlement”) stemming from a massive 2014 data breach that exposed the payment card information of approximately 40 million Home Depot customers.  In addition to the steep penalty, Home Depot is required to undergo an extensive security overhaul.
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Senate Passes IoT Cybersecurity Bill by Unanimous Consent

November 18, 2020 | Blog | By Christian Tamotsu Fjeld, Christopher Harvie

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The European Commission has just published a consultation draft of the long-promised updated version of the Standard Contractual Clauses (SCCs).  The SCCs are the most commonly used legal mechanism for transferring personal data from the EEA to non-EEA countries (known as “third countries”).  In a nutshell, the new SCCs have finally caught up with the GDPR, which came into effect nearly two and a half years ago.  Once the Commission formally adopts the new SCCs, organizations will have a one-year grace period to transition from the old SCCs to the new SCCs.
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US companies and other organizations whose activities involve the use of personal information from Europe were unsettled by the EU Court of Justice’s July 2020 Schrems II decision that cast doubt on the lawfulness of transferring personal data from the EU to the US. The European Data Protection Board (EDPB) has now published its long-awaited guidance as to what it expects organizations to do to bolster protections for transfers of personal data. The new guidance imposes a very high burden on transferors and recipients of EU personal data.
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Voters in California have passed Proposition 24, commonly referred to as the California Privacy Rights Act of 2020 (“CPRA”).  Less than a year after the CCPA became effective, the voters’ approval of the CPRA will provide significant new rights to California consumers, create new compliance obligations for covered businesses, establish a new enforcement agency, and provide for data minimization and retention obligations, among other aspects. 
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US Health System Warned of Coordinated Ransomware Attacks

October 30, 2020 | Blog | By Dianne Bourque

US hospitals and healthcare facilities struggling to maintain normal operations during the COVID-19 emergency, were warned this week by the federal Cybersecurity and Infrastructure Agency (CISA), the Federal Bureau of Investigation (FBI) and the Department of Health and Human Services (HHS) of a “targeted and imminent cybercrime threat.” Specifically, CISA, FBI and HHS have credible information that malicious cyber actors are targeting hospitals and other health care providers with Trickbot malware, leading to ransomware attacks, data theft and significantly, the disruption of healthcare services during the pandemic.
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Earlier this week, the California Department of Justice unexpectedly released a third set of proposed modifications to the CCPA regulations. This move took place only two months after the California Attorney General’s Office “finalized” the long-awaited CCPA regulations. The latest changes relate to offline notices, “Do Not Sell My Personal Information” opt-out requests, authorized agent requests, and children’s information, as discussed below.
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California Governor Gavin Newsom has signed Assembly Bill 1281 (discussed here) to extend the California Consumer Privacy Act (CCPA) “exemptions” for business-to-business (B2B) and employee personal information.  The exemption was headed for a sunset on December 31, 2020 without legislative action, and this extension will continue through the end of 2022.  
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Kick the CCPA Compliance Program Back Into Gear

September 8, 2020 | Blog | By Cynthia Larose, Natalie Prescott

2020 “back to school” has a whole new meaning in the age of COVID-19.   Now, it is finally time for companies to take compliance with the California Consumer Privacy Act (“CCPA”) off the back burner and implement policies and procedures and processes.  The California Attorney General’s final regulations are in place and approved (“Final Regulations”), and ready for enforcement. 
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Last week, the plaintiffs in three related children’s privacy class actions sought preliminary approval of proposed settlements with sixteen defendants in those coordinated actions.  The matters—known as the Kiloo Action, the Disney Action, and the Viacom Action—are pending in the Northern District of California, case numbers 3:17-CV-04344-JD; 3:17-CV-4419-JD; 3:17-CV-4492-JD. 
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The California Legislature has passed AB-1281 over to the Governor’s desk, approving the continuation of an exemption for personal information collected in the employment context and certain information collected in the course of a business-to-business (B2B) transaction or about B2B-related personnel.  
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California Attorney General Becerra announced Friday afternoon that the Office of Administrative Law (OAL) had approved the final CCPA regulations his office submitted to the OAL in June, and that the review process is complete.   This means that the CCPA Regulations go into effect immediately. 
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The New York State Department of Financial Services (“NYDFS”) has announced its first enforcement action of NYDFS’ Cybersecurity Regulation, Part 500 of Title 23 (“Cybersecurity Regulation”) against First American Title Insurance Company (“First American”), a leading title insurance provider. 
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Practice Hero Privacy Cybersecurity Mintz
Organizations that transfer personal data from the European Union on the basis of the EU Commission-approved Standard Contractual Clauses (SCCs) may be breathing a sigh of relief on hearing that the SCCs have been upheld by the EU’s top court, the Court of Justice of the European Union in its decision in the Schrems II case.   However, the 5,378 US organizations that have certified to Privacy Shield will be deeply disappointed that the Court has invalidated Privacy Shield with immediate effect, just as it did Safe Harbor in 2015. 
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At present, the California Consumer Privacy Act (CCPA) has “temporary” (and limited) exemptions for the application of portions of the CCPA to personal data collected in the course of business-to-business transactions (Section 1798.145(o)) and that of employees and job applicants (Section 1798.145(h).   Both sections will sunset on January 1, 2021 without further action from the Legislature.
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Does your organization transfer personal data from the European Union to the US?  If so, keep an eye out for a key decision on July 16 from the EU’s top court, the Court of Justice of the European Union.  The Schrems II case presents a challenge to the validity of the Standard Contractual Clauses, EU Commission-approved contracts that are widely used to satisfy the GDPR’s requirements for exporting personal data from the EU to other countries. 
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