On February 28, 2023, the European Data Protection Board (“EDPB”) adopted its Opinion 5/2023 (the “Opinion”) on the draft adequacy decision of the European Commission regarding the EU-U.S. Data Privacy Framework (“DPF”). The DPF aims to ensure that personal data transferred from the European Union to the U.S. receives an adequate level of protection. The
President Biden Signs Executive Order Implementing EU-U.S. Data Privacy Framework to Facilitate Cross-Border Data Transfers – Privacy Shield 2.0?
On October 7, 2022, President Biden signed an executive order implementing the EU-U.S. Data Privacy Framework. Announced in March, this framework replaces the Privacy Shield program that the EU Court of Justice invalidated in July 2020 with its Schrems II decision. That decision stated that the United States did not provide a level of…
California AG Interprets “Inferences” Under CCPA
The California Office of the Attorney General issued its first opinion interpreting the California Consumer Privacy Act (CCPA) on March 10, 2022, addressing the issue of whether a consumer has a right to know the inferences that a business holds about the consumer. The AG concluded that, unless a statutory exception applies, internally generated inferences…
California Approves Final CCPA Regulations
On August 14, 2020, California Attorney General Xavier Becerra released final implementing regulations for the California Consumer Privacy Act (CCPA). The CCPA became enforceable on July 1, 2020, and Becerra’s office submitted a final proposed draft of the regulations to the California Office of Administrative Law (OAL) on June 1, 2020. The Proposed Regulations have…
“Authorized Access”: The Supreme Court’s First Foray Into The Computer Fraud And Abuse Act
On April 20, 2020, the Supreme Court granted cert in Van Buren v. United States, to resolve an important circuit split over the meaning of “authorized access” under the Computer Fraud and Abuse Act (CFAA). This is the Court’s first foray into analyzing the precise contours of CFAA liability. Van Buren may have far-reaching…
Best Practices for Navigating Discovery of Mobile Data and Alternative Communication Tools in Today’s Digital World
E-Discovery no longer dominantly involves emails and shared drive documents. With the increasing prevalence of mobile devices in the workplace and new apps being developed daily, mobile data and other non-email communications are moving to the forefront of discovery. Times have changed, and attorneys have professional and ethical obligations to keep up. To effectively and competently represent clients, attorneys must stay apprised of how to work with these ever-changing forms of data – or get help from someone knowledgeable. To do so, we have set out some suggestions below organized around common stages of the discovery lifecycle of digital evidence.
Identification. In conducting custodian interviews, ask questions to target the data types the custodian works with. Start broadly by determining if the company has a BYOD policy and asking if they allow the use of personal devices for work purposes. Confirm which messaging tools they use for business purposes, with the understanding that people tend to play down such use. For each messaging application, ask how they are used and with whom they communicate. Discuss these same topics with your client’s IT team to better understand the company’s policies and capabilities for controlling the use of personal devices, as well as employees’ actual practices.…
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Court Rules Personal Privacy Interests May Impact Scope of Discovery for Text Messages
Increasing mobile device usage for routine business – such as through text messages and mobile applications like WhatsApp – is contributing to a new developing trend in E-Discovery: broad discovery requests for businesses to collect and produce data from their employees’ mobile phones.
The proliferation of electronic communication not only makes it imperative for organizations to have mechanisms in place to capture and preserve mobile text messages, but also raises new challenges about how to protect employee privacy. As more and more employees use their personal devices for business purposes (and vice-versa – employees using company-provided devices also for personal purposes), there is an increasing desire among employees to ensure their personal data is protected, even as the company produces other data required in discovery.
Courts have recognized this is an issue, and the law is evolving to strike a balance between the discoverability of relevant information and privacy protections from overly intrusive requests for text messages.
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California’s Landmark Privacy Law Now in Effect
On January 1, 2020, California’s landmark privacy law, the California Consumer Privacy Act (CCPA), took effect. The CCPA imposes various obligations on covered businesses and provides extensive rights to consumers with respect to controlling the collection and use of their personal information. While some companies have largely completed their CCPA compliance efforts, many others are still digesting the CCPA and draft proposed regulations, and taking steps to meet the CCPA’s myriad compliance obligations.
Confusion persists about how businesses can comply with certain provisions of the CCPA. In October 2019, the California Attorney General issued proposed regulations that provide guidance on a number of key areas, but the regulations are not yet final. If adopted, violations of the proposed regulations will be treated the same as violations of the CCPA itself, with the same penalties. We have summarized the proposed regulations in previous alerts:
- Proposed CCPA Regulations from California Attorney General Just Issued: Part I – An Analysis of Required Consumer Notice
- Proposed CCPA Regulations from California Attorney General: Part II – An Analysis of Handling Consumer Requests under the CCPA
- Proposed CCPA Regulations from California Attorney General: Part III – An Analysis of the Requirement to Verify Consumer Requests and Parental Consents
- Proposed CCPA Regulations from California Attorney General: Part IV – Service Providers & Financial Incentives
Comments on the proposed regulations can be viewed here.…
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What we can learn about joint controllership from the CJEU Fashion ID ruling
On 29 July 2019, the Court of Justice of the European Union (CJEU) issued a decision in the Fashion ID case, a case referred to it by a German court. In this blog post we will focus on what this case means with regard to joint controllership when you have social media plug-ins on your…
At the GDPR’s First Anniversary, the Impact on US Companies Grows
The European Union’s (“EU”) General Data Protection Regulation (“GDPR”) turned one year old on May 25th. European data protection regulators celebrated by continuing to work through a rising number of complaints and infractions, and by stepping up their monitoring for violations. US companies are directly in the crosshairs. Whether based in the EU or not, a company is potentially subject to the GDPR (and its stiff fines up to 4% of annual global revenue) if it offers goods or services to data subjects located in the EU, or monitors individuals’ online behavior or personal information in the EU. This means that a US company engaged in the common business practice of collecting data from its EU customers must assess and implement business practices to ensure GDPR compliance.
The US and EU engaged in approximately $1.3 trillion dollars in trade last year. With that level of economic activity, and accompanying data flows, many US companies should already have in place the basic structures for GDPR compliance. However, recent surveys suggest that a significant number of companies impacted by the GDPR are still grappling with compliance. In a recent Forrester Research study, “Security Through Simplicity,” over half of the responding IT decision-makers revealed that their companies had not yet carried out even basic GDPR compliance steps such as vetting third-party vendors, hiring data protection officers, training employees, setting up mechanisms for the “72-hour data breach notification” requirement, and collecting evidence and documenting efforts to address GDPR compliance risks. Further, only about 4,650 US companies are currently registered and self-certified with the EU-US Privacy Shield framework (compared to the over 100,000 mid- to large-sized companies in the US, according to business census data). Such certification goes a long way toward permitting a US company to receive certain EU data in a GDPR compliant manner.…
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