DOCSLIB.ORG

What Does Enforcement Really Look Like?

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text

Load more

8 www.uslaw.org US LAW THE MAY 25 GDPR COMPLIANCE DEADLINE HAS PASSED What Does Enforcement Really Look Like? Batya F. Forsyth and Everett Monroe Hanson Bridgett LLP The European Union’s General Data as individual agencies and through their re- regularly collect personal data on a large Protection Regulation went into effect on constituted body, the European Data scale and those in a position to reveal inti- May 25, 2018. While very high-profile com- Protection Board. As the DPAs plan meet- mate details about a data subject’s life. plaints were lodged with some European ings and continue to discuss key issues, en- Meanwhile, non-EU organizations continue Data Protection Authorities (DPAs), the forcement has settled on the fundamentals to struggle with whether and how GDPR ap- agencies themselves have focused more on of the regulation. A particular focus is being plies to them, while DPAs prioritize provid- providing guidance for EU businesses, both paid to those industries where companies ing guidance to businesses in the EU. US LAW www.uslaw.org 9 GDPR succeeds the now defunct Data data processing activities that constitute a behavior," or by preventing EU users from Protection Directive that required EU mem- high risk to data subjects. Sweden's DPA has accessing their services altogether. ber states to pass laws to control how per- sent out enquiries to organizations that col- Many U.S. companies that were not sonal data could be collected and used. The lect and process more sensitive personal necessarily concerned about GDPR’s direct new regulation maintains much of the sub- data, seeking to determine whether those application are now receiving compliance stance of the original directive, but substan- organizations have appointed a data protec- inquiries from their EU business partners. tially increases penalties for violations, seeks tion officer as the GDPR requires of compa- Some companies have been expected to ac- to improve uniform application of rules nies handling large volumes of sensitive cept additional addendums to their service across the EU, and expands the territorial personal data. agreements requiring them to ensure that scope of the regulation to include non-EU So far, other DPAs seem more intent they will also agree to respect the rights of businesses offering goods and services to on providing guidance for compliance data subjects whose data is in their care, re- EU data subjects or monitor the behavior of rather than pursing enforcement. For ex- quiring them to agree to auditing and co- EU data subjects. ample, the United Kingdom's Information operation with EU data protection GDPR has multiple avenues of enforce- Commissioner's Office has published exten- authorities. Some U.S. contractors, in an ef- ment. The long-established national DPAs sively on compliance topics Collectively, fort to maintain some uniformity in com- are still empowered to bring actions in their DPAs have worked together through the mitments to their clients, have written their member countries. Additionally, individuals new organizing body, the European Data own forms that give effect to GDPR's con- may submit complaints to the DPAs to Protection Board (EDPB). The EDPB re- tractual assurances requirements. which the DPAs must review and respond. places the Data Protection Directive's While many organizations in the EU Individuals may also bring civil suits in EU Article 29 working party, and has been and the U.S. braced themselves for a wave member state courts for damages caused by granted more formal powers to address is- of lawsuits and severe enforcement actions, GDPR violations. Injured parties may also sues of GDPR interpretation with an eye to- it appears that serious enforcement has assign their legal rights to a non-profit or ward uniformity and consistency. In its first been limited to a small number of high-pro- civil society organization to bring suit col- meeting, the Board focused on revising and file cases. While DPAs do appear to want to lectively for a group of data subjects. adopting its previous guidance from the move companies towards compliance, it Private consumer complaints from EU Article 29 Working Party, and has issued seems for now that their current strategy is data subjects currently drive enforcement new guidelines regarding exceptions appli- much more focused on providing guidance activities within the European Union. The cable to international data transfers. and advice than it is on starting aggressive non-profit organization noyb (an acronym DPAs, individually or collectively, have enforcement campaign. Ultimately, this of "none of your business") filed the most not focused attention on GDPR's expansion gives all organizations that process personal prominent of these complaints, alleging of territorial scope. GDPR expanded its ter- data an additional opportunity to take a GDPR violations against Google, Facebook, ritorial scope to include businesses outside thoughtful approach to GDPR compliance and two of Facebook's subsidiaries, the EU offering goods and services to EU before enforcement begins in earnest. WhatsApp and Instagram. noyb's founder persons, and monitoring the behavior of and chairman, Max Schrems, was the persons in the EU. Because these territorial named party in the 2013 case Schrems v. scope provisions were not in the Data Batya Forsyth is the chair of Data Protection Commissioner that invali- Protection Directive, there is little guidance Hanson Bridgett's Litiga- dated the EU-U.S. Safe Harbor legal frame- on how DPAs plan to interpret that provi- tion Section and co-chair of work that Facebook used to transfer sion, and there has not yet been an attempt the Privacy, Data Security personal data from the European Union to to bring an enforcement action against a and Information Govern- the United States. Then, when Facebook company based on the new expanded ance group. She is a switched its compliance mechanisms for in- scope. Certified Information Privacy ternational data transfer to EU standard That uncertainty, combined with addi- Professional (US) with the contract clauses, Schrems challenged the tional legal responsibilities for EU busi- International Association of Privacy Professionals data transfers on that basis as well. nesses to ensure adequate protections for (IAPP.org). Batya counsels clients regarding pri- The core of noyb's current complaints personal data from their contractors and vacy policies, compliance issues, data breach re- is about consent—namely, that consent ob- vendors has drawn the most attention in the sponse and related insurance coverage issues, tained from data subjects for the use of United States. While there is reason to be- across multiple industries and jurisdictions. their data is invalid because it is a pre-con- lieve that GDPR's expanded scope is fo- dition for using the service at all. At least at cused on preventing the tracking of a user's Everett Monroe’s litigation first glance, this would appear to be con- web browsing activities across websites, the practice at Hanson Bridgett trary to guidance from DPAs providing that letter of the regulation is written broadly focuses on data privacy consent for processing personal data can- enough to include even innocuous behav- and intellectual property not be tied to the provision of a service that iors like keeping track of the items in a disputes and counseling, does not require that processing to func- user's online shopping cart or remembering two areas in which his tech- tion. the preferences of a user on a customizable nical background as an DPA-initiated enforcement actions webpage. As a result, many U.S. businesses electrical engineer join with against companies remain more limited in that may fall within that definition are tak- his legal experience to serve clients in a range scope with a focus on ensuring the protec- ing incremental steps to comply with GDPR. of complex matters. Everett is also an Adjunct tion of data subject rights from serious or In the alternative, some companies are im- Professor at the University of San Francisco, systemic harms. The Irish data protection plementing changes in order to avoid teaching Information Privacy Law. commissioner has announced its office will GDPR, either by disabling website technolo- prioritize enforcement towards large-scale gies that could be considered "monitoring.
Recommended publications
  • Reconciling Data Privacy and the First Amendment

    Reconciling Data Privacy and the First Amendment

    RECONCILING DATA PRIVACY AND THE FIRST AMENDMENT Neil M. Richards This Article challenges the First Amendment critique of data privacy regulaion- the claim that data privacy rules restrict the dissemination of truthful information and thus violate the FirstAmendment. The critique, which is ascendant in privacy discourse, warps legislative and judicial processes and threatens the consti- tutionalization of information policy. The First Amendment critique should be rejected for three reasons. First, it mistakenly equates privacy regulation with speech regulation. Building on scholarship examining the boundaries of First Amendment protection, this Article suggests that "speech restrictions" in a wide variety of commercial contexts have never triggered heightened First Amendment scru- tiny, refuting the claim that all information flow regulations fall within the First Amendment. Second, the critique inaccurately describes current First Amendment doctrine. To demonstrate this point, this Article divides regulations of information flows into four analytic categories and demonstrates how, in each category, ordinary doctrinal tools can be used to uphold the constitutionality of consumer privacy rules. Third, the critique is normatively unpersuasive. Relying on recent intellectual histories of American constitutional law, this Article argues that fundamental jurisprudentialreasons counsel against acceptance of the First Amendment critique. From the perspective of privacy law, there are striking parallels between the critique's advocacy of "freedom of information" and the discredited "freedom of contract" regime of Lochner. More importantly, from the perspective of First Amendment law, the critique threatens to obliterate the distinction between economic and political rights at the core of post-New Deal constitutionalism. Rejecting the FirstAmendment critique thus has real advantages.
  • Privacy Online: a Report to Congress

    Privacy Online: a Report to Congress

    PRIVACY ONLINE: A REPORT TO CONGRESS FEDERAL TRADE COMMISSION JUNE 1998 FEDERAL TRADE COMMISSION Robert Pitofsky Chairman Mary L. Azcuenaga Commissioner Sheila F. Anthony Commissioner Mozelle W. Thompson Commissioner Orson Swindle Commissioner BUREAU OF CONSUMER PROTECTION Authors Martha K. Landesberg Division of Credit Practices Toby Milgrom Levin Division of Advertising Practices Caroline G. Curtin Division of Advertising Practices Ori Lev Division of Credit Practices Survey Advisors Manoj Hastak Division of Advertising Practices Louis Silversin Bureau of Economics Don M. Blumenthal Litigation and Customer Support Center Information and Technology Management Office George A. Pascoe Litigation and Customer Support Center Information and Technology Management Office TABLE OF CONTENTS Executive Summary .......................................................... i I. Introduction ........................................................... 1 II. History and Overview .................................................... 2 A. The Federal Trade Commission’s Approach to Online Privacy ................. 2 B. Consumer Privacy Online ............................................. 2 1. Growth of the Online Market ...................................... 2 2. Privacy Concerns ............................................... 3 C. Children’s Privacy Online ............................................. 4 1. Growth in the Number of Children Online ............................ 4 2. Safety and Privacy Concerns ...................................... 4 III. Fair
  • Principles of Internet Privacy

    Principles of Internet Privacy

    Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 2000 Principles of Internet Privacy Fred H. Cate Indiana University Maurer School of Law, [email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/facpub Part of the Computer Law Commons, and the Law and Society Commons Recommended Citation Cate, Fred H., "Principles of Internet Privacy" (2000). Articles by Maurer Faculty. 243. https://www.repository.law.indiana.edu/facpub/243 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Principles of Internet Privacy FRED H. CATE* I. INTRODUCTION Paul Schwartz's InternetPrivacy and the State makes an important and original contribution to the privacy debate that is currently raging by be- ginning the process of framing a new and more useful understanding of what "privacy" is and why and how it should be protected.' The definition developed by Brandeis, Warren,2 and Prosser,3 and effectively codified by Alan Westin in 1967---"the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others"---worked well in a world in which most privacy concerns involved physical intrusions (usually by the government) or public disclosures (usually by the media), which, by their very nature, were comparatively rare and usually discovered.
  • Law, Technology, and Public Health in the COVID-19 Crisis

    Law, Technology, and Public Health in the COVID-19 Crisis

    Privacy in Pandemic: Law, Technology, and Public Health in the COVID-19 Crisis Tiffany C. Li* The COVID-19 pandemic has caused millions of deaths and disastrous consequences around the world, with lasting repercussions for every field of law, including privacy and technology. The unique characteristics of this pandemic have precipitated an increase in use of new technologies, including remote communications platforms, healthcare robots, and medical AI. Public and private actors alike are using new technologies, like heat sensing, and technologically influenced programs, like contact tracing, leading to a rise in government and corporate surveillance in sectors like healthcare, employment, education, and commerce. Advocates have raised the alarm for privacy and civil liberties violations, but the emergency nature of the pandemic has drowned out many concerns. This Article is the first comprehensive account of privacy in pandemic that maps the terrain of privacy impacts related to technology and public health responses to the COVID-19 crisis. Many have written on the general need for better health privacy protections, education privacy protections, consumer privacy protections, and protections against government and corporate surveillance. However, this Article is the first comprehensive article to examine these problems of privacy and technology specifically in light of the pandemic, arguing that the lens of the pandemic exposes the need for both wide-scale and small-scale reform of privacy law. This Article approaches these problems with a focus on technical realities and social * Visiting Clinical Assistant Professor, Boston University School of Law; Fellow, Yale Law School Information Society Project. The author thanks Tally Amir, Chinmayi Arun, Jack M.
  • The Right to Privacy in the Digital Age

    The Right to Privacy in the Digital Age

    The Right to Privacy in the Digital Age April 9, 2018 Dr. Keith Goldstein, Dr. Ohad Shem Tov, and Mr. Dan Prazeres Presented on behalf of Pirate Parties International Headquarters, a UN ECOSOC Consultative Member, for the Report of the High Commissioner for Human Rights Our Dystopian Present Living in modern society, we are profiled. We accept the necessity to hand over intimate details about ourselves to proper authorities and presume they will keep this information secure- only to be used under the most egregious cases with legal justifications. Parents provide governments with information about their children to obtain necessary services, such as health care. We reciprocate the forfeiture of our intimate details by accepting the fine print on every form we sign- or button we press. In doing so, we enable second-hand trading of our personal information, exponentially increasing the likelihood that our data will be utilized for illegitimate purposes. Often without our awareness or consent, detection devices track our movements, our preferences, and any information they are capable of mining from our digital existence. This data is used to manipulate us, rob from us, and engage in prejudice against us- at times legally. We are stalked by algorithms that profile all of us. This is not a dystopian outlook on the future or paranoia. This is present day reality, whereby we live in a data-driven society with ubiquitous corruption that enables a small number of individuals to transgress a destitute mass of phone and internet media users. In this paper we present a few examples from around the world of both violations of privacy and accomplishments to protect privacy in online environments.
  • Internet Privacy and the State

    Internet Privacy and the State

    UC Berkeley UC Berkeley Previously Published Works Title Internet Privacy and the State Permalink https://escholarship.org/uc/item/37x3z12g Author Schwartz, Paul M Publication Date 2021-06-27 Peer reviewed eScholarship.org Powered by the California Digital Library University of California Berkeley Law Berkeley Law Scholarship Repository Faculty Scholarship 1-1-1999 Internet Privacy and the State Paul M. Schwartz Berkeley Law Follow this and additional works at: http://scholarship.law.berkeley.edu/facpubs Part of the Law Commons Recommended Citation Paul M. Schwartz, Internet Privacy and the State, 32 Conn. L. Rev. 815 (1999), Available at: http://scholarship.law.berkeley.edu/facpubs/766 This Article is brought to you for free and open access by Berkeley Law Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact [email protected]. Interet Privacy and the State PAUL M. SCHWARTZ" INTRODUCTION "Of course you are right about Privacy and Public Opinion. All law is a dead letter without public opinion behind it. But law and public opinion in-1 teract-and they are both capable of being made." Millions of people now engage in daily activities on the Internet, and under current technical configurations, this behavior generates finely grained personal data. In the absence of effective limits, legal or other- wise, on the collection and use of personal information on the Internet, a new structure of power over individuals is emerging. This state of affairs has significant implications for democracy in the United States, and, not surprisingly, has stimulated renewed interest in information privacy? Yet, the ensuing debate about Internet privacy has employed a deeply flawed rhetoric.
  • Mr. Bruno Gencarelli Head of Unit for International Data Flows and Protection European Commission JUST-C4@Ec.Europa.Eu

    Mr. Bruno Gencarelli Head of Unit for International Data Flows and Protection European Commission [email protected]

    Mr. Bruno Gencarelli Head of Unit for International Data Flows and Protection European Commission [email protected] 26 July 2019 Re: Access Now Responds to Privacy Shield Review Questionnaire - Third review Dear Mr. Gencarelli, Thank you for your invitation to provide information and observations on the European Commission’s third annual review of the EU-U.S. Privacy Shield arrangement, the mechanism to facilitate the transfer and processing of the personal data of individuals from the European Union to and within the United States. Access Now is an international organisation that defends and extends the digital rights of users at risk around the world.1 By combining innovative policy, user engagement, and direct technical support, we fight for open and secure communications for all. Access Now maintains a presence in 13 locations around the world, including in the policy centers of Washington, DC and Brussels.2 Access Now regularly analyzes data transfer arrangements under EU law, including the Safe Harbor arrangement that was invalidated by the Court of Justice of the European Union in 2015, and the Privacy Shield which replaced it.3 Users benefit from a free, open, and secure internet that is enabled by legal certainty for stakeholders to operate. Robust data transfer frameworks which ensure a high level of data protection in the free flow of data are key to deliver these benefits for all actors. The Privacy Shield continues to be inadequate to protect fundamental rights. Since negotiations began in 2016, Access Now has provided detailed analysis and recommendations to the EU Commission on how to improve the Privacy Shield.
  • Data Protection Directive 95/46/EC to the Internet, 25 J. Marshall J

    Data Protection Directive 95/46/EC to the Internet, 25 J. Marshall J

    The John Marshall Journal of Information Technology & Privacy Law Volume 25 Issue 2 Journal of Computer & Information Law Article 2 - Spring 2008 Spring 2008 All or Nothing: This is the Question? The Application of Article 3(2) Data Protection Directive 95/46/EC to the Internet, 25 J. Marshall J. Computer & Info. L. 241 (2008) Rebecca Wong Joseph Savirimuthu Follow this and additional works at: https://repository.law.uic.edu/jitpl Part of the Computer Law Commons, Internet Law Commons, Privacy Law Commons, and the Science and Technology Law Commons Recommended Citation Rebecca Wong & Joseph Savirimuthu, All or Nothing: This is the Question? The Application of Article 3(2) Data Protection Directive 95/46/EC to the Internet, 25 J. Marshall J. Computer & Info. L. 241 (2008) https://repository.law.uic.edu/jitpl/vol25/iss2/2 This Article is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in The John Marshall Journal of Information Technology & Privacy Law by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. ALL OR NOTHING: THIS IS THE QUESTION? THE APPLICATION OF ARTICLE 3(2) DATA PROTECTION DIRECTIVE 95/46/ EC TO THE INTERNET REBECCA WONGt AND JOSEPH SAVIRIMUTHUtt I. INTRODUCTION The exponential growth of social networking Web sites, online per- sonal journals and the use of multimedia by individuals, raises impor- tant questions about the compatibility of Article 3(2) of the Data Protection Derivative 95/46/EC ("DPD") as applied to the internet.
  • Trends in Privacy and Data Security

    Trends in Privacy and Data Security

    TRENDS IN PRIVACY AND DATA SECURITY JEFFREY D. NEUBURGER PARTNER PROSKAUER ROSE LLP Jeff is co-head of the firm’s Technology, Media & Telecommunications Group, head of the firm’s Blockchain Group, and a member of the firm’s Privacy & Cybersecurity Group. His practice focuses on technology, media, and intellectual property-related transactions, counseling, and dispute resolution. 24 April/May 2019 | Practical Law © 2019 Thomson Reuters. All rights reserved. As large-scale data breaches and other cyber incidents continue to pose significant threats worldwide, privacy and cybersecurity remain top priorities for regulators and companies alike. To minimize risks and reduce potential liability, companies and their counsel should stay updated on privacy and data security-related enforcement activity, notable litigation, new regulations, and key emerging issues. the-lightwriter /iStock photo © 2019 Thomson Reuters. All rights reserved. The Journal | Litigation | April/May 2019 25 ompanies must keep up with the dynamic legal Children’s privacy practices. The FTC approved obligations governing privacy and data security, modifications to the Entertainment Software Rating Board’s understand how these obligations apply in practice, (ESRB’s) COPPA safe harbor program. The ESRB is a self- improve their cyber intelligence, and manage their regulatory organization for the video game industry. Ccompliance to minimize risks. This article reviews important Mobile device security. The FTC issued a report titled FTC privacy and data security developments over the past year and Recommends Steps to Improve Mobile Device Security highlights key issues for 2019. Specifically, it addresses recent: Update Practices (available at ftc.gov), which makes several Federal regulation and enforcement actions.
  • Findings of the Data Privacy and Security Advisory Committee September 2020

    Findings of the Data Privacy and Security Advisory Committee September 2020

    Wisconsin Department of Agriculture, Trade and Consumer Protection Findings of the Data Privacy and Security Advisory Committee September 2020 Page | 0 WI DATCP Data Privacy and Security Report - September 2020 EXECUTIVE SUMMARY ....................................................................................................................... 2 INTRODUCTION ................................................................................................................................... 4 COMMITTEE OBJECTIVES AND STRUCTURE.................................................................................... 5 Table 1: Membership List .................................................................................................................................... 6 Table 2: Meeting Schedule .................................................................................................................................. 7 CURRENT LANDSCAPE OF DATA PRIVACY, SECURITY, AND BREACH REGULATION ............... 8 Data Privacy ............................................................................................................................................................. 8 Data Security ............................................................................................................................................................ 9 Data Breach ...........................................................................................................................................................11 Other Privacy and Security
  • Privacy As Privilege: the Stored Communications Act and Internet Evidence Contents

    Privacy As Privilege: the Stored Communications Act and Internet Evidence Contents

    PRIVACY AS PRIVILEGE: THE STORED COMMUNICATIONS ACT AND INTERNET EVIDENCE Rebecca Wexler CONTENTS INTRODUCTION .......................................................................................................................... 2723 I. THE INTERNET AND THE TELEGRAPH ....................................................................... 2730 A. The Puzzle ........................................................................................................................ 2731 B. The Stored Communications Act .................................................................................. 2735 C. Telegraph Privacy Statutes ............................................................................................. 2741 II. PRIVACY AS PRIVILEGE .................................................................................................... 2745 A. Statutory Privileges ........................................................................................................ 2745 1. Defining Statutory Privileges ................................................................................... 2745 2. Common Features of Privileges ............................................................................... 2748 3. Confidentiality Without Privilege ........................................................................... 2750 4. The Current Stored Communications Act Privilege ............................................. 2753 B. The Rules that Govern Statutory Privilege Construction .........................................
  • Anonymity, Faceprints, and the Constitution Kimberly L

    Anonymity, Faceprints, and the Constitution Kimberly L

    University of Baltimore Law ScholarWorks@University of Baltimore School of Law All Faculty Scholarship Faculty Scholarship Winter 2014 Anonymity, Faceprints, and the Constitution Kimberly L. Wehle University of Baltimore School of Law, [email protected] Follow this and additional works at: http://scholarworks.law.ubalt.edu/all_fac Part of the Constitutional Law Commons, Fourth Amendment Commons, and the Privacy Law Commons Recommended Citation Anonymity, Faceprints, and the Constitution, 21 Geo. Mason L. Rev. 409 (2014) This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. 2014] 409 ANONYMITY, FACEPRINTS, AND THE CONSTITUTION Kimberly N. Brown' INTRODUCTION Rapid technological advancement has dramatically expanded the war­ rantless powers of government to obtain information about individual citi­ zens directly from the private domain. Biometrics technology I-such as voice recognition, hand measurement, iris and retinal imaging, and facial recognition technology ("FRT")-offers enormous potential for law en­ forcement and national security. But it comes at a cost. Although much of the American public is complacent with government monitoring for securi­ ty reasons,2 people also expect to go about daily life in relative obscurity­ unidentifiable to others they do not already know, do not care to know, or are not required to know-so long as they abide by the law. The reality is quite different. The government and the private sector have the capacity for surveillance of nearly everyone in America.