Legislation

The CLOUD Act and its Impact on Cross-Border Access to the Contents of Communications

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On Friday morning, March 23, President Trump signed the $1.3 trillion omnibus spending bill into law, including the Clarifying Lawful Overseas Use of Data (CLOUD) Act, and in doing so established a sea change in the rules for cross-border government access to the contents of electronic communications. The CLOUD Act consists of three core components: (1) resolving the main issue in the Microsoft Ireland case pending before the U.S. Supreme Court, (2) providing a process for entities to request a comity analysis for potential conflicts with non-U.S. legal obligations, and (3) removing legal barriers [...] 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

ePrivacy Regulation Trilogue Negotiations Pushed back to Fall 2018; Final ePrivacy Regulation may not be in Place until 2020

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About this time last January, the European Parliament released its proposal for a new ePrivacy Regulation.  The intent of the ePrivacy Regulation is to replace the current ePrivacy regime – which consists of an ePrivacy Directive and a patchwork of local implementing legislation – with a uniform set of directly-applicable EU-wide rules.  Since the Parliament released its ePrivacy Regulation draft, both the European Council and the European Parliament have reviewed it and released their own revised drafts. The ePrivacy Regulation contains a number of important rules for companies.  Traditionally, [...] 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

Bill Proposes Jail Time for Executives Who Conceal Data Breaches

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On November 30, 2017, a group of U.S. senators re-introduced a bill, known as the Data Security and Breach Notification Act, which seeks to impose criminal liability of up to five years of jail time on any corporate executive convicted of “intentionally and willfully” concealing a data breach. The bill also proposes that the Federal Trade Commission (FTC) establish standard, nationwide security protocols for businesses to follow.  The bill would also require companies to report data breaches to consumers or users within 30 days unless a U.S. federal law enforcement or intelligence agency [...] Read more

Challenge to Privacy Shield Dismissed by EU General Court

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In October of last year, we reported that digital rights advocacy group Digital Rights Ireland (“DRI”) had brought an action to annul the EU-U.S. Privacy Shield.  DRI filed its challenge before the General Court of the European Union, which is the court of first instance in the EU system with exclusive jurisdiction over challenges to the validity of EU legal acts.  Last week, the General Court dismissed DRI’s challenge, meaning that Privacy Shield remains valid and in force. DRI based its Privacy Shield suit on Article 263 of the Treaty on the Functioning of the European Union (TFEU), [...] 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

An English-Language Primer on Germany’s GDPR Implementation Statute: Part 4 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