On November 23, 2018, the European Data Protection Board (“EDPB”) published its long-awaited draft guidelines on the extraterritorial application of the EU General Data Protection Regulation (“GDPR”) (the “Guidelines”). To date, there has been a degree of uncertainty for organizations regarding the scope of the GDPR’s application outside of the EU. While the Guidelines provide some clarity on this issue, questions will remain for non-EU controllers and processors. Importantly, these Guidelines are only in draft form and are open for consultation until January 18, 2019, which will give organizations an opportunity to provide comments and raise additional questions in an effort to obtain further clarification from the EDPB on these important scoping questions.
On October 19, 2018, European Commissioner for Justice, Consumers and Gender Equality Věra Jourová and U.S. Secretary of Commerce Wilbur Ross issued a joint statement regarding the second annual review of the EU-U.S. Privacy Shield framework, taking place in Brussels beginning October 18. The statement highlights the following: Continue Reading EU and U.S. Regulators Issue Joint Statement on the Status of the Second Annual EU-U.S. Privacy Shield Review
On September 30, 2018, the U.S., Mexico and Canada announced a new trade agreement (the “USMCA”) aimed at replacing the North American Free Trade Agreement. Notably, the USMCA’s chapter on digital trade recognizes “the economic and social benefits of protecting the personal information of users of digital trade” and will require the U.S., Canada and Mexico (the “Parties”) to each “adopt or maintain a legal framework that provides for the protection of the personal information of the users[.]” The frameworks should include key principles such as: limitations on collection, choice, data quality, purpose specification, use limitation, security safeguards, transparency, individual participation and accountability. Continue Reading APEC Cross-Border Privacy Rules Enshrined in U.S.-Mexico-Canada Trade Agreement
On September 27, 2018, the Federal Trade Commission announced a settlement agreement with four companies – IDmission, LLC, (“IDmission”) mResource LLC (doing business as Loop Works, LLC) (“mResource”), SmartStart Employment Screening, Inc. (“SmartStart”), and VenPath, Inc. (“VenPath”) – over allegations that each company had falsely claimed to have valid certifications under the EU-U.S. Privacy Shield framework. The FTC alleged that SmartStart, VenPath and mResource continued to post statements on their websites about their participation in the Privacy Shield after allowing their certifications to lapse. IDmission had applied for a Privacy Shield certification but never completed the necessary steps to be certified. Continue Reading Four Companies Settle FTC Allegations Regarding False EU-U.S. Privacy Shield Certifications
Recently, the UK Information Commissioner’s Office (“ICO”) fined credit rating agency Equifax £500,000 for failing to protect the personal data of up to 15 million UK individuals. The data was compromised during a cyber attack that occurred between May 13 and July 30, 2017, which affected 146 million customers globally. Although Equifax’s systems in the U.S. were targeted, the ICO found the credit agency’s UK arm, Equifax Ltd, failed to take appropriate steps to ensure that its parent firm, which processed this data on its behalf, had protected the information. The ICO investigation uncovered a number of serious contraventions of the UK Data Protection Act 1998 (the “DPA”), resulting in the ICO imposing on Equifax Ltd the maximum fine available. Continue Reading UK ICO Fines Equifax for 2017 Breach
On September 5, 2018, the European Commission (the “Commission”) announced in a press release the launch of the procedure to formally adopt the Commission’s adequacy decision with respect to Japan. Continue Reading EU Begins Formal Approval for Japan Adequacy Decision
Recently, the Department of Commerce updated its frequently asked questions (“FAQs”) on the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks (collectively, the “Privacy Shield”) to provide additional clarification on a wide range of topics, including transfers of personal information to third parties, the application of the Privacy Shield Principles to data processors, and the relation of the Clarifying Lawful Overseas Use of Data Act (“CLOUD Act”) to the Privacy Shield. Certain key insights from the updated FAQs are outlined below:
- Data processors. When responding to individuals seeking to exercise their rights under the Privacy Shield Principles, the FAQs state that a processor should respond pursuant to the instructions of the EU data controller. For example, in order to comply with the Choice Principle, a Privacy Shield-certified organization acting as a processor could, pursuant to the EU controller’s instructions, put individuals in contact with the controller that provides a choice mechanism or offer a choice mechanism directly.
- Onward transfers. The FAQs also provide additional guidance for organizations preparing to come into compliance with the Accountability for Onward Transfer Principle. For example, the FAQs state that organizations may use contracts that fully reflect the requirements of the relevant standard contractual clauses adopted by the European Commission to fulfill the Accountability for Onward Transfer Principle’s contractual requirements.
- CLOUD Act. The FAQs state that the CLOUD Act, which involves data transfers for law enforcement purposes, does not conflict with the Privacy Shield, which is unaffected by the enactment of the law.
View the full Privacy Shield FAQs.
On July 10, 2018, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP submitted formal comments to the European Data Protection Board (the “EDPB”) on its draft guidelines on certification and identifying certification criteria in accordance with Articles 42 and 43 of the GDPR (the “Guidelines”). The Guidelines were adopted by the EDPB on May 25, 2018, for public consultation. Continue Reading CIPL Submits Comments to EDPB’s Draft Guidelines on Certification and Identifying Certification Criteria in Accordance with Articles 42 and 43 GDPR
On July 17, 2018, the European Union and Japan successfully concluded negotiations on a reciprocal finding of an adequate level of data protection, thereby agreeing to recognize each other’s data protection systems as “equivalent.” This will allow personal data to flow safely between the EU and Japan, without being subject to any further safeguards or authorizations. Continue Reading EU and Japan Agree on Reciprocal Adequacy
During the week of June 25, 2018, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP hosted its annual executive retreat in San Francisco, California. The annual event consisted of a closed pre-retreat session for CIPL members, a CIPL Panel at the APPA Forum Open session followed by a CIPL reception and dinner and a special all day workshop with data protection commissioner members of the Asia Pacific Privacy Authorities (“APPA”) on Accountable AI. Continue Reading CIPL Hosts Special Executive Retreat with APPA Privacy Commissioners on Accountable AI