Enforcement

SEC Announces Its First Enforcement Action Over Cyber-related Disclosures

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The Securities and Exchange Commission’s $35 million settlement with Altaba Inc., the successor in interest to Yahoo! Inc., is the first civil penalty of its kind for a data breach and underscores the agency’s increasing focus on public companies’ cybersecurity disclosure obligations. A cross-practice team from our Securities Litigation and Cybersecurity Preparedness & Response groups examined the SEC action in an advisory published on April 27, 2018. To read the full advisory, please click here. [...] Read more

Belgian Court Uses Novel Argument to Assume International Jurisdiction over Non-EU Facebook Entities

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On February 16, 2018, the Brussels Court of First Instance rendered a judgment in proceedings brought by the Belgian Privacy Commission’s against Facebook. The case forms one part of two-tiered litigation brought by the Commission in regards to alleged monitoring practices vis-à-vis Belgian internet users. In parallel to the proceedings that resulted in the judgment cited above, the Belgian Privacy Commission had also initiated a procedure referred to as “summary proceedings” against Facebook – and Facebook defeated the Privacy Commission’s claim before the Brussels Court of Appeal in [...] Read more

In Order, FTC Recognizes Lower Notice Requirements for “Consumer-Expected” Data Collection

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Last week, the Federal Trade Commission granted a petition by Sears Holding Management seeking modification of a 2009 Commission Order. The notable 2009 Order settled allegations that Sears had improperly failed to provide notice regarding data collection by certain software the company offered to consumers. Sears argued that the 2009 Order placed it at a “competitive disadvantage” in the mobile application marketplace. The now-modified Order enables Sears to conduct certain “consumer-expected” forms of data collection and use without requiring heightened notice or consent under the 2009 [...] Read more

German DPAs Publish Model GDPR Processing Records – Translations Provided

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In just under 100 days, the EU General Data Protection Regulation (GDPR) enters into force. One of the major changes the GDPR introduces is a duty for in-scope controllers and processors to maintain written records of their processing activities.  Under Article 30 GDPR, companies will need to inventory all “processing activities under [their] responsibility” and memorialize them in a written record setting forth, inter alia, the purposes of processing operations, international transfers, and retention periods. Article 30 GDPR thus creates a new kind of documentation obligation.  This obligation [...] Read more

Privacy & Data Security Team Launches Unique GDPR Tracker Website

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“To Harmonize or Not To Harmonize: That Is the Question.” With the the GDPR fast approaching on May 25, 2018, European Member States are getting ready with the implementation of national legislation. Although the GDPR is a regulation, and directly applicable in all Member States, it has left room for country-specific legislation in several different regards (such as the processing of employee data or individual rights restrictions). Most Member States still only have draft legislation at this point, but the expectation (or at least intention) is that each country will have adopted legislation [...] Read more

ECJ Rules against Schrems Class Action, Sets Up Jurisdictional Questions for GDPR Class Actions

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In late 2015, the European Court of Justice (ECJ) issued its initial Schrems decision, invalidating the EU/US Safe Harbor and leading to important developments in the rules for transferring personal data from the EU to the US.  Since that decision, Mr. Schrems has pursued two further legal proceedings in the EU. The first involves Mr. Schrems’ challenge in the Irish courts to EU Standard Contractual Clauses, which permit data to be transferred internationally between contract parties.  In the trial,  Alston & Bird Special Counsel Peter Swire testified as an expert on US national [...] Read more

Data Protection Litigation to Become a New Reality in Belgium

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On November 16, 2017 the Belgian Senate adopted an “Act on the Establishment of the Data Protection Authority” (the “Act”). Following Austria, Germany, and the UK, Belgium is the fourth EU Member State to pass a domestic statute implementing the General Data Protection Regulation 2016/679 (“GDPR”) prior to its effective date of 25 May 2018. The new Belgian Act sets forth the structure and legal organization of the Data Protection Authority (“DPA”), which will serve as the successor of the current Belgian Privacy Commission. More importantly, the Act significantly broadens the DPA’s [...] Read more

EU DPAs and the Future of Privacy Shield

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The Article 29 Working Party group (WP29) of European data protection authorities recently announced that they will legally challenge the adequacy of the Privacy Shield Framework unless the U.S. government addresses certain “prioritized concerns” by May 25, 2018. Privacy Shield provides a framework which helps over 2500+ participating U.S. companies legally transfer EU personal data to the United States. The WP29 announcement follows a report and press release from the European Commission in October which stated that “the Privacy shield continues to ensure an adequate level of protection.” [...] Read more

An English-Language Primer on Germany’s GDPR Implementation Statute: Part 5 of 5

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Over the past year, the German government has been working on legislation to implement the EU’s General Data Protection Regulation (GDPR).  On July 6, 2017, Germany did so by passing a statute titled the Data Protection Amendments and Implementation Act. The Act repeals Germany’s venerated Federal Data Protection Act (Bundesdatenschutzgesetz, or BDSG) and replaces it with an entirely new BDSG, aptly referred to as the “BDSG-New.” Germany becomes the first EU Member State to pass a GDPR implementation statute. Given Germany’s reputation as one of, if not the, most serious privacy jurisdiction [...] Read more

Virginia Amends Data Breach Notification Law

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Virginia amended the state’s data breach notification law, effective July 1, 2017, to expand notification requirements for employers and payroll service providers to data breaches that involve “unauthorized access and acquisition of unencrypted and unredacted computerized data containing a [Virginia] taxpayer’s identification number in combination with the income tax withheld for that taxpayer. . . .”[1] The expanded notification obligation is subject to the same likelihood of harm threshold that applies in the original law. Notification is required only when the employer or payroll [...] Read more