On Thursday, New York Governor Andrew Cuomo signed into law the Stop Hacks and Improve Electronic Data Security Act (SHIELD Act), sponsored by Senator Kevin Thomas and Assemblymember Michael DenDekker. The SHIELD Act, which amends the State’s current data breach notification law, imposes more expansive data security and data breach notification requirements on companies, in
“Help Me, Help You”: Defense Department Advises Contractors That Cybersecurity Is An Allowable Cost
During a presentation at the Professional Services Council Federal Acquisition Conference on June 13, 2019, a high-ranking Department of Defense (“DoD”) official announced, with dramatic flair, that cybersecurity is an allowable cost:
“I need you all now to get out your pens and you better write this down and tell your teams: Hear it from
The GDPR – One Year and Counting
The GDPR is wrapping up its first year and moving full steam ahead. This principles-based regulation has had a global impact on organizations as well as individuals. While there continue to be many questions about its application and scope, anticipated European Data Protection Board guidance and Data Protection Authority enforcement activity should provide further clarity in the upcoming year. In the meantime, here are a few frequently asked questions – some reminders of key principles under the GDPR and others addressing challenges for implementation and what lies ahead.
Can US organizations be subject to the jurisdiction of the GDPR?
Whether a US organization is subject to the GDPR is a fact-based determination. Jurisdiction may apply where the US organization has human or technical resources located in the EU and processes EU personal data in the context of activities performed by those resources. In cases where the US organization does not have human or technical resources located in the EU, it may be subject to the GDPR’s jurisdiction in two instances: if the organization targets individuals in the EU (not businesses) by offering goods or services to them, regardless of whether payment is required, or if it monitors the behavior of individuals in the EU and uses that personal data for purposes such as profiling (e.g. website cookies, wearable devices). The GDPR may also apply indirectly to a US organization through a data processing agreement.
If we execute a data processing agreement, does that make our US organization subject to the GDPR?
When an organization subject to the GDPR engages a third party to process its EU data, the GDPR requires that the organization impose contractual obligations on the third party to implement certain GDPR-based safeguards. If you are not otherwise subject to the GDPR, executing a data processing agreement will not directly subject you to the GDPR. Instead, it will contractually obligate you to follow a limited, specific set of GDPR-based provisions. Your GDPR-based obligations will be indirect in that they are contractual in nature.
Does the GDPR apply only to the data of EU citizens?
No, the GDPR applies to the processing of the personal data of data subjects who are in the EU regardless of their nationality or residence.
Is our organization subject to the GDPR if EU individuals access our website and make purchases?
If your organization does not have human or technical resources in the EU, the mere accessibility of your website to EU visitors, alone, will not subject you to the GDPR. However, if your website is designed to target EU individuals (e.g. through features such as translation to local language, currency converters, local contact information, references to EU purchasers, or other accommodations for EU individuals) your activities may be viewed as targeting individuals in the EU and subject you to the GDPR.
Are we required to delete an individual’s personal data if they request it?
If your organization is subject to the GDPR, an individual may request that you delete their personal data. However, this is not an absolute right. Your organization is not required to delete the individual’s personal data if it is necessary
- for compliance with a legal obligation or the establishment, exercise or defense of a legal claim
- for reasons of public interest (e.g. public health, scientific, statistical or historical research purposes)
- to exercise the right of freedom of expression or information
- where there is a legal obligation to keep the data
- or where you have anonymized the data.
Additional consideration should be given to any response when the individual’s data is also contained in your back-ups.
GDPR principles have started to influence law in the U.S. In fact, many have been watching developments regarding the California Consumer Privacy Act (CCPA), which shares a right to delete as it pertains to the personal information of a California resident. Similar to the GDPR, it is not an absolute right and in certain cases an exception may apply. For instances, both law contain an exception from the right to have personal information deleted when the information is needed to comply with certain laws.
Does the GDPR apply to an EU citizen who works in the US?
If your organization is not subject to the GDPR and you hire an EU citizen to work in the US, the GDPR may not apply to the processing of their personal data in the US. However, depending on the circumstances, the answer may be different if the EU citizen is in the US on temporary assignment from an EU parent. In that scenario, their data may be subject to the GDPR if the US entity’s relationship with the parent creates an establishment in the EU, and it processes this data in the context of the activities of that establishment. To the extent the EU parent transfers the EU employee’s personal data from the EU to the US entity, that transfer may require EU-US Privacy Shield certification, the execution of binding corporate rules, or standard contractual clauses. These measures are designed to ensure data is protected when it is transferred to a country, such as the US, that is not deemed to have reasonable safeguards.
Do we need to obtain an EU individual’s consent every time we collect their personal data?
If your organization is subject to the GDPR and processes an EU individual’s information, you must have a “legal basis” to do so. Consent is just one legal basis. In addition to consent, two of the most commonly used legal basis are the “legitimate interests” of your organization and the performance of a contract with the individual. A legitimate interest is a business or operational need that is not outweighed by the individual’s rights (e.g. processing personal data for website security, conducting background checks, or coordinating travel arrangements). Processing necessary to the performance of a contract is activity that enables you to perform a contract entered into with the individual (e.g. processing employee data for payroll pursuant to the employment contract or processing consumer data for shipping goods under a purchase order.)
Should we obtain an employee’s consent to process their personal data?Continue Reading The GDPR – One Year and Counting
New Jersey’s Data Breach Notification Amendment Signed into Law
On May 10, Governor Phil Murphy signed into law P.L.2019, c.95. an amendment enhancing New Jersey’s data breach notification law by expanding the definition of personal information, and updating notification requirements. As we previously reported, the amendment was unanimously approved by the New Jersey General Assembly and Senate in late February.
New Jersey’s data
California’s “Your Data, Your Way” Initiative
California keeps making privacy headlines for its trailblazing California Consumer Privacy Act (“CCPA”), set to take effect January 1, 2020, but there is another set of privacy bills making its way through the California state legislature, that, if passed, will provide consumers with further privacy protections.
The “Your Data Your Way” initiative, comprised of four
University Settles Claims Involving Use of Retirement Plan Participant Data For Cross-Selling by Recordkeeper
Wrongful use of retirement plan participant data was among the claims made by a class of 40,000 participants against the plan sponsor and others in Cassell et al. v. Vanderbilt University et al. Specifically, the plan participants claimed that the University inter alia breached its “loyalty and prudence” duty by failing to protect confidential employee
CCPA: Employee Personal Information on the Chopping Block
How will the California Consumer Protection Act (CCPA) apply to us? This is a question 0rganizations have asked since the CCPA was first proposed. There remains a number of important questions about the scope of the Golden State’s sweeping privacy law that still need to be answered.
One of those questions is whether the
SEC Issues Privacy and Data Security Risk Alert
Following recent examinations of SEC-registered investment advisers and broker-dealers, the Securities and Exchange Commission’s (SEC) Office of Compliance Inspections and Examinations (OCIE) published a privacy risk alert on April 16, 2019. OCIE is hoping to remind advisers and broker-dealers about providing compliant privacy and opt-out notices, and adopting and implementing effective policies and procedures for
Small Michigan Medical Practice To Close Following Ransomware Attack
Small and midsized enterprises (SMEs) continue to be targeted by ransomware, phishing and other cyberattacks; the consequences of which could be devastating. Those consequences include putting SMEs out of business, which is unfortunately the case for one small medical practice in Battle Creek, Michigan, as reported by HIPAAJournal.
The reality is that the effects
Bill Which Would Expand the CCPA Private Right of Action Moves Forward
As we reported, in late February, California Attorney General Xavier Becerra and Senator Hannah-Beth Jackson introduced Senate Bill 561, legislation intended to strengthen and clarify the California Consumer Privacy Act (CCPA). This week, the Senate Judiciary Committee referred the bill to the Senate Appropriations Committee by a vote of 6-2. This move came