California, home to more than 40 million people and the 5th largest economy in the world, has passed the California Consumer Privacy Act (CCPA), its omnibus consumer privacy law. The law creates sweeping new requirements concerning the collection, maintenance, and tracking of information for both employees or customers who are residents of California. Many aspects of the implementation and enforcement are still being finalized by the California Attorney General. However, companies with employees or customers in California need to take stock of the information they are processing that could qualify as “personal information” for California residents, and they need to begin establishing mechanisms for compliance before the end of 2019.
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The CA Consumer Privacy Act: The NEW Elephant in the Room
Welcome to the California Consumer Privacy Act (CCPA) […as if we didn’t have enough to worry about with the GDPR!].
The bracketed, italicized text, albeit a bit cynical, is with little doubt, how many of us initially reacted to the news of a new data protection law, hailed as the standard in consumer privacy protection, in California. And while the effective date is supposed to be January of 2020, January of 2019 isn’t too early to starting getting ready for the new law.
To dispel the rumors, the CCPA is not “GDPR-lite.” Where it comes on the heels of the GDPR’s May 2018 enforcement date, it isn’t a mirror image of the GDPR, or even a “watered down” variant of it. Drafters of the CCPA did indeed look to the GDPR as a basis for some of data protection concepts, but they focused on existing California privacy laws as well.
California’s Consumer Privacy Act of 2018 – Get Ready for New GDPR Style Requirements in the US
At the end of June, the California legislature passed its Bill 375, the California Consumer Privacy Act of 2018. The Act contains a number of concepts that would be familiar to those who are working to bring their companies and organizations into compliance with GDPR. The new law defines a category of “Personal Information” that
BIPA: Plaintiff’s New Cash Cow
Since its enactment a decade ago, the Illinois Biometric Information Privacy Act (BIPA) has seen a recent spike in attention from employees and consumers alike. This is due, in large part, to the technological advancements that businesses use to service consumers and keep track of employee time.
What Is The BIPA?
Intending to protect consumers,
Seyfarth Launches New Carpe Datum Law Blog
Seyfarth Shaw is pleased to announce the launch of Carpe Datum Law, a one-stop resource for legal professionals seeking to stay abreast of fast-paced developments in eDiscovery and information governance, including data privacy, data security, and records and information management. Seyfarth’s eDiscovery and Information Governance (eDIG) practice group created Carpe Datum Law to serve
Phishing: Data Breach Is “Chalkdust Torture”
Cross Posted from California Peculiarities Employment Law Blog
Hernandez v. Sprouts Farmers Market, Inc., a case stemming from a phishing scam, emphasizes the need for California employers to implement comprehensive data protection and data breach notification policies and practices for personal employee information under the CDPA.
A story of a company suffering a data breach tops newspaper headlines almost daily. So how can you stay out of the “fuego,” and stay compliant with California laws about your employees’ and customers’ data?
California’s Data Protection Act—“Army Of One”
In 2003 California passed the nation’s first data breach notification statute: the CDPA. Since then, over 30 states have enacted similar statutes, but California remains the national leader in privacy and data security standards.
The CDPA mandates that any business that “owns or licenses personal information about a California resident shall implement and maintain reasonable security procedures and practices appropriate to the nature of the information, to protect the personal information from unauthorized access, destruction, use, modification, or disclosure.” And it requires a company to notify affected individuals of a data breach “in the most expedient time possible and without unreasonable delay.”
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Monitoring Employee Communications: A Brave New World
Cross Posted from Employment Law Lookout
Over the last decade, communication via email and text has become a vital part of how many of us communicate in the workplace. In fact, most employees could not fathom the idea of performing their jobs without the use of email. For convenience, employees often use one device for both personal and work-related communications, whether that device is employee-owned or employer-provided. Some employees even combine their personal and work email accounts into one inbox (which sometimes results in work emails being accidentally sent from a personal account). This blurring of the lines between personal and work-related communications creates novel legal issues when it comes to determining whether an employer has the right to access and review all work-related communications made by its employees.
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Safe Harbor 2.0 – Is It Happening?
It is the beginning of 2016, and American companies are anxiously awaiting news of whether or not a new “Safe Harbor 2.0” will emerge. In October of 2015, the European Court of Justice declared invalid Safe Harbor 1.0 in the Schrems decision. This had an immediate effect on any American company collecting personal data from the EU by removing the legal basis for this kind of data transfer. As of October 2015, consumer, client, and even employee data cannot be legally transferred to the US under the Safe Harbor Framework.
Fortunately, the data protection regulators (“DPAs”)recognized the turmoil this decision created within the business community on both sides of the Atlantic. As a result, the Article 29 Working Party (which is the convention of DPAs from each of the EU Member States) issued an enforcement moratorium on enforcement actions until the end of January 2016, so that they could assess the effectiveness of data transfer tools available. As part of this moratorium, the Working Party called on “…Member States and European institutions to open discussions with U.S. authorities in order to find legal and technical solutions”; and that the “current negotiations around a new Safe Harbor could be part of the solution.”
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Defense Contractors – Under the DOD’s Interim Rule, It Is Time Once Again To Update Your Data Breach Response Plans
In an interim final rule published on October 2, another layer has been added to the compliance landscape for defense contractors. In addition to complying with breach notification requirements in as many as 47 different states in the event of a breach involving personally identifiable information, Department of Defense contractors now have to comply with the rapid notification rules issues by DOD in the even of a cyber incident involving covered defense information. These rules are noteworthy in that they require DOD contractors to report cyber incidents within 72 hours of discovering the incident. Most state breach notification statutes do not require that individuals be notified of a breach within a specific number of days and the few state statutes that do have such a requirement contain a much more lenient timeframe of 45 to 90 days.
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Safe Harbor – Not so Safe After Schrems
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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