The annual conference of the world’s data protection regulators is a three day exercise, with half of the conference being “closed door” for the regulators only, and the other half being a series of side meetings and presentations, which report out to interested attendees the results of the closed door meetings. This is a good meeting to gain insight in the next year’s trends in data protection regulation and enforcement across the globe. While this conference happens every year, the events in the European Court of Justice and the impending completion of the new General Data Protection Regulation (“GDPR”) made this year’s conference particularly interesting. Here are some of the insights which were developed during the conference:
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Today the European Court of Justice (“ECJ”) issued its Judgment in the Schrems case, and in doing so, added another tremor to the ongoing seismic shift related to cross-border privacy law. The two major elements of today’s Judgment are: 1) that Commission Decision 2000/520/EC  of 26 July 2000 of the adequacy of the protection provided by the US Safe Harbor Framework (the “Safe Harbor Decision”) is invalid, and 2) even if the Safe Harbor Decision were otherwise valid, no decision of the Commission can reduce the authority of a national data protection authority to enforce data protection rights as granted by Article 28 of Directive 95/46/EC (the “DP Directive”).

Clearly, the first element brings a more immediate concern for all the companies participating in the Safe Harbor framework. However, the second element will have much longer term consequences for the stability of US-EU commerce and privacy law.
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With the recent uptick in the U.S. of lawsuits filed as a result of a data breaches, state legislators in the U.S. have been busy updating the many different state laws that dictate how a company must respond if they have been hacked and personal information has been compromised. With no comprehensive federal law that sets forth a uniform compliance standard, companies operating in the U.S. must comply with a patchwork of 47 different states laws that set forth a company’s obligations in the event of a data breach.

Additionally, the trend is to have more than just notice requirements. Now companies have to develop proactive steps they must take to avoid a data breach in the first place. We first saw this with the Massachusetts law, and the model is expanding.


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On July 21, 2014, Russia adopted Federal Law No. 242-FZ, “On Amendments to Certain Legislative Acts of the Russian Federation for Clarification of the Procedure of Personal Data Processing in Information and Telecommunication Networks” (“Federal Law No. 242-FZ”), which introduces a number of changes to existing Russian data protection laws. Specifically, it amends Federal Law No. 152-FZ, “On personal data,” by establishing a localization requirement for personal data processing.

Effective Date

What makes Federal Law No. 242-FZ important is its effective date. It was initially scheduled to come into force on September 1, 2016. However, on December 31, 2014, Federal Law No. 526-FZ was enacted, which changed the effective date of Russia’s Data Localization Law to September 1, 2015.
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With the FTC’s 2015 report “Internet of Things: Privacy & Security in a Connected World” (“Report”) the idea that more than just computers and phones are able to connect to the Internet. In fact, the Report states that the “IoT explosion is already around us.” This is true, and the Report goes on to describe some of the more interesting things that can be connected to the Internet which most of us don’t think about (e.g. smart health trackers, smoke detectors, and light bulbs). However, how vast is the actual IoT? And what does that mean to businesses?
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The plethora of security incidents in the news have once again put security front and center of the international agenda. Predictably, this has triggered a number of responses from governments around the world. Some of these responses seem to have been ill-considered. However, one of the more comprehensive responses came out of the US President’s address to the Federal Trade Commission last week. A series of laws were proposed to address the increasing risks which are confronting individual security and privacy rights.

The President’s remarks at the FTC gives some valuable insight into where the US regulatory environment may end up in the next year or so. As a part of this analysis, one should focus on two very different agendas: Privacy and Security. These issues, while similar, are very different. Case in point, the UK PM’s comment around banning encryption could well result in increased security. However, it will absolutely damage individual privacy (and arguably also damage commercial security).
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The French Answer to Flexible Working

Ever since the first laws on the 35-hour week were enacted over fifteen years ago, monitoring working time has been a headache for employers in France. With the introduction of new technology and mobile devices, the situation has worsened. The French approach to flexible working is to reaffirm that employees have the right to privacy and in some sectors the obligation to disconnect, as recently shown by the CNIL, the French Data Privacy Watchdog and the SYNTEC Federation.
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While the Supreme Court has taken some heat in the past for seeming to misunderstand technology and how it impacts the normal person’s life, with Riley v. California the Court demonstrated not only an unexpected fluency with how mobile phone technology has evolved, but also with how it has caused our daily sphere of privacy

The White House released a set of reports this month on Big Data and the privacy implications of Big Data. While a number of folks have been discussing the President’s Council of Advisors on Science & Technology (“PCAST”) report, I would offer that the Office of Science and Technology Policy (“OSTP”) report needs to be read in conjunction with the PCAST report. They do two different things. One is a report on the technical state of affairs, and the other is more of a policy direction piece, which is driven by the technologically-oriented findings. Various points-of-view have been put forth as to the relative merits of each report, but there seems to be an important element missing from both reports. Both reports discuss the need for policy decisions to be based on context and on desired outcomes. Unfortunately, neither report really gives a good taxonomy around the informatics ecosystem to allow for a clear path forward on “context” and “desired outcomes”. What I mean by this is best summed up in the comment in the PCAST report which states: “In this report, PCAST usually does not distinguish between “data” and “information”.”. “Data” and “Information” are very different things, and one really can’t have a coherent policy discussion unless the distinction between the two is recognized and managed.
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To continue my prior post on the Article 29 Working Party’s Opinion 6/2014, it is important to take a closer look at the specifics of the notion of a Controller’s “Legitimate Interests”

Unlike all the other criteria for lawful processing, Article 7(f) is the only one which specifically articulates the idea that commercial interests should have weight in the calculus of “fair and lawful” processing. In each of the other criteria, if the criteria is met, the grounds for processing are considered a priori legitimate. In Article 7(f), each purpose for processing will need to have the balancing test engaged. This is going to require a bit more analysis than the other criteria. However, because of the fact that this analysis is internal to the business, it may well be less onerous than other options would be (e.g. having the DPA opine as to the legitimacy of the processing).
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