The outbreak of a new coronavirus that is believed to have began in central Chinese city of Wuhan and now appears to be spreading to the United States is driving concerns for organizations around preparedness regarding their operations, their customers, and their employees. Both the Center for Disease Control and Prevention (CDC) and the State
CCPA Is Here, and it Does Have Requirements for Employees, Applicants, etc.
Some business leaders and HR professionals may be waking up this morning not realizing they must provide a “Notice at Collection” to some or all of their employees and applicants under the new California Consumer Privacy Act (CCPA). This is not surprising given the confusion during 2019 about whether this law would reach that far.
Personal Information, Private Information, Personally Identifiable Information…What’s the Difference?
When privacy geeks talk “privacy,” it is not uncommon for them to use certain terms interchangeably –personal data, personal information, personally identifiable information, private information, individually identifiable information, protected health information, or individually identifiable health information. They might even speak in acronyms – PI, PII, PHI, NPI, etc. Blurring those distinctions might be OK for
CCPA Amendments Updated, Finalized, and Moving on to Governor Newsom
The California Consumer Privacy Act is almost here! The groundbreaking law takes effect January 1, 2020. Covered businesses and their service providers have already started preparing, as the CCPA continues to evolve since it was introduced. California’s legislative session ended on September 13th, with some final modifications to bills that would amend certain
OCR Recognizes Insider Threats to HIPAA PHI, You Should Too
As we have observed here, news reports of security risks, hackings and breaches caused by individuals, terror groups or even countries around the world certainly are important and can be unsettling. But, for many organizations, including healthcare providers and business associates, a significant and perhaps more immediate area of data risk is malicious insiders.
New York Enacts the SHIELD Act
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
Upward Trend in Cyberattacks Targeting Senior Executives
Verizon recently published its 2019 Data Breach Investigations Report. This report is the 12th edition and contains an analysis of 41,686 security incidents with 2,013 confirmed breaches from 73 sources, including public and private entities. Included among its many findings, the report found high-level executives are twelve times more likely to be the target
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
District Court Finds no CFAA Violation where Employee Shares Confidential Company Information with Competitor
A district court in Tennessee recently concluded in Wachter Inc. v. Cabling Innovations LLC that two former employees who allegedly shared confidential company information found on the company’s computer system with a competitor did not violate the Computer Fraud and Abuse Act (CFAA). The CFAA expressly prohibits “intentionally accessing a computer without authorization or exceeding
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