Article 31 Committee approves Privacy Shield; House Cuts FCC Funding Over Attempted Broadband Privacy Regulations; No Charges for Clinton in Data Security Probe; European Commission launches public-privacy partnership on cybersecurity; European Parliament adopts NIS Directive; Privacy Code of Conduct for mHealth app providers finalized; French parliament about to make French Privacy act more severe; Russia introduces new data retention obligations.

Article 31 Committee approves Privacy Shield

On July 8, 2016, the Article 31 Committee has finally given its support for the adoption of the “EU-U.S. Privacy Shield”, the new framework for cross-Atlantic data transfers.

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House Defunds FCC’s Data Privacy Efforts for Broadband Providers

On July 7, the House of Representatives voted to cut off funding for the FCC’s proposed privacy regulations of broadband service providers. The measure, attached as an amendment to the 2017 Financial Services and General Government Appropriations Bill, cut the FCC’s funding by more than 17%. Calling the FCC’s proposed rules “extreme,” Rep. Marsha Blackburn (R-TN), the amendment’s author, claimed the measure was necessary to reassert the Federal Trade Commission’s status as the go-to federal data privacy regulator. The FCC, Rep. Blackburn asserted, “simply doesn’t have the requisite technical expertise to regulate privacy.”

The proposed regulations, which the FCC announced in March 2016, would require ISPs to disclose how data regarding customers’ online activities could be collected and recorded. These proposed rules represented the FCC’s first major attempt to regulate broadband providers in the aftermath of the agency’s February 2015 decision to treat broadband as a public utility. Several broadband providers had expressed public reservations about the FCC’s proposed rulemaking and actively lobbied legislators to act. The bill, which passed in a 239-185 vote, next heads to the Senate for consideration.

Continue Reading Privacy & Cybersecurity Weekly News Update- Week of July 3

Adoption of Privacy Shield expected in early July; Federal Court limits VPPA liability; Belgian Court overturns Facebook fine; FTC robocall crackdown; A rare HIPAA criminal conviction; UK’s ICO fines Brexit campaigners for mass text messages; House report calls for national encryption commission.

European Commission expects adoption of Privacy Shield for beginning of July

European officials are hoping to finally formalize the “EU-U.S. Privacy Shield”, the cross-Atlantic data transfer pact aiming at replacing the formerly invalidated “U.S.-EU Safe Harbor” Framework, on July 5. The initial draft agreement has been amended to include new explanations of U.S. governmental entities and further limitations on the bulk collection of data and mass surveillance. The European Commission is now confident that also the Article 31 Committee will give its approval to the draft framework.

Many European Privacy regulators and EU bodies, such as the European Parliament and the European Data Protection Supervisor, had argued that the initial draft did not sufficiently protect the fundamental rights of European data subjects. The revised version now “only” allows bulk collection “exceptionally”, where targeted collection is “not feasible”, although it remains open how ‘feasibility’ should be determined.

Continue Reading Privacy & Cybersecurity Weekly News Update- Week of June 26

Brexit effect on EU and UK Privacy rules; EU and U.S. to strengthen ‘Privacy Shield’; Ponemon Study on Healthcare Data Security; Mobile ad provider fined for deceptive conduct FTC comments on the Internet of Things

Brexit – what does it mean for EU and UK Privacy rules?

On June 23, 2016, the population of Great Britain in a historical referendum voted to leave the European Union with a majority of 52% vs 48%.  Although this decision does not have immediate impact on the membership of the United Kingdom in the EU (the UK is still a Member of the European Union and will remain so until at least 2018, see also FAQ on the further procedure by the European Commission), waves of discussion are rising high, among others about the future of UK Privacy laws and the implementation of the General Data Protection Regulation (GDPR).

In a statement of June 24, 2016, the UK’s Data Protection Authority (ICO) has stressed that “the Data Protection Act remains the law of the land irrespective of the referendum.” This means that on the short term, in principle nothing will change. This also applies with regard to the ongoing EU reform, as a result of which the GDPR will enter into force on May 25, 2018, and thus in any event before the earliest possible day for a definite exit of the UK out of the European Union.  It will therefore – at least for a short period of time – also apply to UK businesses.

What will certainly have an impact, however, is the moment in which the UK factually leaves the European Union. Although the ICO has stressed that it aims to stay as close to European Privacy laws as possible also post-Brexit, this situation would have an immediate impact on businesses sending data to the UK.  As soon as the UK would be no longer part of the European Union, due to the absence of an ‘Adequacy Decision’ of the European Commission relating to the UK, companies would have to put in place other transfer mechanisms such as Standard Contractual Clauses or Binding Corporate Rules, in order to lawfully continue to transfer personal data from European countries to the UK as soon as the exit is completed. This could only be avoided if the UK would guarantee an adequate level of Data Protection standards, which would have to be acknowledged by the European Commission.

The ICO has made its position clear: “Having clear laws with safeguards in place is more important than ever given the growing digital economy, and we will be speaking to government to present our view that reform of the UK law remains necessary.”

Continue Reading Privacy & Cybersecurity Weekly News Update- Week of June 20, 2016

EU-U.S. Agreement on Law Enforcement Data; European Data Protection Supervisor Criticizes Privacy Shield; House Members Criticize FCC Privacy Proposal; NHTSA Targets Automotive Cybersecurity; Yahoo Releases National Security Letters; CareFirst Data Breach Lawsuit Dismissed; FDA Guidance on Data Protection in Investigations

EU and U.S. sign Umbrella Agreement on Law Enforcement Data

On June 2, 2016, Vera Jourová, European Commissioner for Justice and Consumer Protection, Dutch minister Ard van der Steur and U.S. Attorney General Loretta E. Lynch signed the “Umbrella Agreement”, a deal between the U.S. and the EU “on the protection of personal information relating to the prevention, investigation, detection and prosecution of criminal offenses”. The agreement aims at enhancing the cooperation of the EU and the U.S. in criminal enforcement (including terrorism), while at the same time protecting personal data of European citizens, when transferred from the EU to the U.S. for criminal investigations.

The text of the agreement, which was negotiated over a long period due in part to a Court of Justice of the EU (ECJ) finding that European citizens lacked adequate rights of redress, includes provisions on purpose limitation, information security, data retention, rights of data subjects, breach notifications and onward transfers. A “fact sheet”-FAQ is available on the Commission’s website. Before the agreement can be finally concluded, the European Parliament will still need to give its consent.

European Data Protection Supervisor criticizes “EU-U.S. Privacy Shield”

On May 30, the European Data Protection Supervisor (EDPS), Giovanni Buttarelli, issued an opinion on the draft “EU-U.S. Privacy Shield (“Privacy Shield”), which is in line with the criticism previously raised by the Article 29 Working Party and the European Parliament.

Continue Reading Privacy & Cybersecurity Weekly News Update- Week of May 30, 2016

On Tuesday, the FTC simultaneously released a “Mobile Health App Interactive Tool” and “Best Practices,” to help mobile health app developers navigate the maze of federal regulation, including data privacy regulation.  The tool walks developers through a series of high level questions about the nature of their app, and uses the