The Brazilian General Data Protection Law (LGPD) has been effective for almost six months. Since then, there have been movements to form the National Data Protection Authority responsible for enforcing the law (ANDP), guidance on best practices for data security has been published and private enforcement of the LGPD is underway. This quick tip will shed some light on how Brazil’s landmark privacy legislation has made way despite the continuing COVID-19 pandemic. Continue Reading LGPD Updates: Six Months Out
Yesterday, California Attorney General Xavier Becerra announced a $17.5 million multi-state settlement with The Home Depot, Inc. regarding a data breach affecting point-of-sale systems at the retailer’s facilities. The breach affected the payment card information of approximately 40 million consumers and 53 million email addresses. The settlement includes both monetary and injunctive relief, pursuant to which the retailer will implement increased security policies and procedures.
In announcing the settlement, Attorney General Becerra stated that the retailer had, among other things, failed to “stay apprised of evolving security standards.” The settlement is an important reminder of the need for companies to keep abreast of developments in consumer privacy and cybersecurity.
Attorney General Becerra joined more than 40 other state attorneys general in securing the settlement. The California case is California v. Home Depot U.S.A., Inc. et al., No. 20-CIV-05220 in the Superior Court of California for San Mateo County. The settlement, which is pending final approval, is available here.
The Fundamentals of Preparing for and Responding to a Cyber Event Are More Important Than Ever
To say 2020 has been a year of change would be quite an understatement. The COVID-19 pandemic has fundamentally transformed how we live, work, and interact with one another.
This is most definitely true for the world of cybersecurity. Bill Conner, the chairman and CEO of SonicWall, probably captured it best: “We’re in the midst of one of the most turbulent times in cybersecurity history. Over the past six months … we’ve seen shifts we thought would take decades happen virtually overnight.” Continue Reading 2020: The Year COVID-19, Corporate Reputation & Cybersecurity Collided
Update: The Governor signed the law on Friday, September 25, 2020.
Life science and healthcare companies operating in California face unique challenges regarding California Consumer Privacy Act (CCPA) compliance because of existing inconsistencies between the CCPA and the Health Insurance Portability and Accountability Act (HIPAA). California Assembly Bill (AB) 713 addresses these inconsistencies by easing burdens imposed by the CCPA on medical research and by bringing certain provisions of the CCPA in line with HIPAA and other federal and state health data regulations. At the same time, the bill will impose additional requirements on the use of deidentified health data. AB 713 has passed the California legislature unanimously and will be signed or vetoed by Governor Newsom by September 30, 2020. If signed, the bill will immediately go into effect. Continue Reading The CCPA May Soon Be Amended to Strengthen CCPA Exemptions for Medical and Research Data
In the latest chapter of the discussions about Brazil’s LGPD, on August 26, 2020, the Senate rejected the article in the Executive Order (‘Medida Provisória’ – MP) which provided for the extension of its implementation to May 3, 2021. Accordingly, the MP will lose effect in relation to that article, and the LGPD will go into force promptly, pending only the presidential sanction. The implementation of the LGPD articles covering the administrative penalties remains set for August 1, 2021, as per the amended Law enacted on June 10, 2020. Continue Reading In a Surprise Move, the Brazilian Landmark Privacy Law, LGPD, Is About to Be in Effect
The final California Consumer Privacy Act Regulations (CCPA Regs) were adopted by the California secretary of state on August 14, 2020. In an addendum released by the California attorney general (Cal. AG), the office of administrative law (OAL) notes that their changes are “non-substantive changes for accuracy, consistency, and clarity.” There are indeed no wholesale changes from the version adopted by the California attorney general in June 2020 and the final CCPA Regs released on August 14, 2020. That said, the following changes, while not altogether transformative, could nonetheless cause businesses to update their CCPA compliance programs. Continue Reading The Final California Consumer Privacy Act Regulations Are in Effect
The attorney general’s office has posted a set of FAQs and corresponding responses on its California Consumer Privacy Act (CCPA) site. While aimed at providing guidance to consumers about the CCPA, the FAQs can also serve as a quick reference for businesses regarding their CCPA compliance obligations. Below are the highlights.
- Right to Opt Out of Sale: California residents have the right to request that businesses stop selling their personal information (PI), which is an “opt-out request” that can be submitted via the “Do Not Sell My Personal Information” link that businesses must conspicuously provide on their websites and privacy policies. Businesses cannot require residents to create an account to submit opt-out requests, and if businesses ask for PI to complete these requests, they can only use such information to verify the consumers’ identities. Upon receipt of an opt-out request, a business must stop all sales of the consumer’s PI and wait 12 months before prompting the consumer to opt back in. Common exceptions to this opt-out right include sales that are necessary to comply with legal obligations and certain exempted medical or credit report information. Opt-out requests should be submitted to the businesses themselves and not their service providers, as service providers are not responsible for responding to such requests. Businesses can only sell PI of a child under the age of 16 if they have received affirmative “opt-in” consent. If the child is under the age of 13, that consent must come from the child’s guardian.
In invalidating the Privacy Shield program, it immediately jeopardizes the portion of the $7.1 trillion in commerce between the European Union and United States that is in part underpinned by the Privacy Shield program.
But it does not have to be seismic for your company.
Standard contractual clauses are still valid under the decision.
If your company relies on Privacy Shield to transfer data from the European Union and United States, you should, immediately identify the programs at issue and update your data protection addenda to add standard contractual clauses. The European Court of Justice placed a greater onus on data exporters in the European Union to assess the adequacy of privacy protections for the data importer [e.g., U.S. company]. Therefore U.S. companies should anticipate a greater degree of questions from customers and E.U. employees regarding the adequacy of the controls. In addition, we suggest the following additional steps for in-house teams:
- First Step: Leverage your Article 30 inventory to identify data flows impacted by the decision
- Second Step: Collaborate with your procurement and IT teams to assess impact
- Third Step: Discuss with your senior leadership to align on risk tolerance
- Fourth Step: Document the basis for the decision
- Fifth Step: Develop your long term action plan (e.g., regionalized data centers, development of a cross-functional team)
Please see our July 20 update for full analysis of the decision.
CCPA Enforcement: Enter the AG
Dominique Shelton Leipzig (Perkins Coie) moderated the IAPP Keynote, “CCPA Enforcement: Enter the AG,” on July 9, 2020. The discussion featured Supervising Deputy Attorney General Stacey Schesser and Travis LeBlanc (Cooley) who shared their personal insights and views on the California Consumer Privacy Act (CCPA) and its enforcement.
Key takeaways include:
- The CCPA regulations will not be enforceable or effective until they are approved by the Office of Administrative Law and published by the Secretary of State.
- Beginning on July 1, 2020, the California Attorney General’s office (AG) started its enforcement of the CCPA, but the enforcement is currently limited to the “four corners” of the statute.
- The AG has sent out notices of violation and corresponding 30-day opportunity to cure (NOVs) to businesses that are not complying with the CCPA.
- The AG has not focused on a particular industry or sector, but has looked at consumer complaints submitted to the AG, along with publicly available information such as complaints on social media (Twitter).
- The NOVs were sent to online businesses and involved issues relating to CCPA disclosures and mechanisms.
- An important CCPA right is the right to opt out of sale. If a business is selling personal information, they must have the Do Not Sell link on the home page.
- The CCPA expressly seeks to protect minors by requiring, among other things, a much clearer authorization (i.e., opt in).
- Protecting health data has been and continues to be a priority. Companies should keep this in mind in connection with COVID-19 data collection.
- Companies are advised to take a comprehensive approach to privacy and data security (e.g., comply with California Online Privacy Protection Act, implement reasonable data security measures, etc.).
- AG’s past enforcement actions may provide insights into the types of issues that are of the greatest concern to the AG (e.g., Equifax).
- If a business receives a NOV, it should communicate and engage with the AG right away.
- The exclusive enforcement of the CCPA resides with the AG, except for the limited private right of action for a data breach.
- The CCPA is not an easily understood law. It is lengthy, nuanced, and complex. Businesses need to thoroughly understand both the statute and the regulations.
- Our key takeaway from this discussion: Companies wishing to avoid receiving NOVs should consider updating their websites to include Do Not Sell links if they have third-party cookies that can track users across multiple sites.
Alastair Mactaggart on the CPRA
Key takeaways include:
- The CPRA is popular.
- Mactaggart’s goal is to treat privacy as a human right. He hopes to attain an adequacy determination from the European Union for California as a territory.
- Mactaggart believes that “cross-contextual behavioral advertising” requires a Do Not Sell link.
- The CPRA will add new rights including:
- Right to correct data.
- Right to limit use of sensitive data.
- Right to opt out of sharing of PI.
The California Consumer Privacy Act of 2018 (CCPA) regulates a company’s offerings of financial incentives and price or service differences related to the collection, retention, or sale of personal information. Cal. Civ. Code Section 1798.125(a)(2); Final Text of CCPA Regulations, 999.301(j), 999.307, 999.336. Although the CCPA became effective on January 1, 2020, the regulations were not issued in final form until June 1, 2020. As a result, many companies are still in the process of developing their approach to complying with the CCPA’s requirements–particularly those that relate to financial incentives. If your company offers programs that may fall within the definition of “financial incentives” or “price or service differences,” you should be aware of the CCPA’s requirements related to those types of offerings, including the requirement to provide notice of the financial incentive and disclose a good faith estimate of the value of the consumer’s data that forms the basis of the offering. The California Attorney General is expected to begin enforcing the CCPA on July 1, 2020.