General Data Protection Regulation

Globalization, compliance, and the growth in outsourcing have created a myriad of cross-border data transfer scenarios. These scenarios include marketing to and servicing customers, assessing global compliance with diversity and including goals, and outsourcing back office business functions. However, the emergence of far reaching data privacy regulation, such as the EU General Data Protection Regulation

The California Privacy Protection Act (CPRA) amended the California Consumer Privacy Act (CCPA) and has an operative date of January 1, 2023. The CPRA introduces new compliance obligations including a requirement that businesses conduct risk assessments. While many U.S. companies currently conduct risk assessments for compliance with state “reasonable safeguards” statutes (e.g., Florida, Texas

Virginia may be the first state to follow California’s lead on consumer privacy legislation, but it certainly will not be the last. The International Association of Privacy Professionals (IAPP) observed, “State-Level momentum for comprehensive privacy bills is at an all-time high.” The IAPP maintains a map of state consumer privacy legislative activity, with in-depth analysis

In honor of Data Privacy Day, we provide the following “Top 10 for 2021.”  While the list is by no means exhaustive, it does provide some hot topics for organizations to consider in 2021.

  1. COVID-19 privacy and security considerations.

During 2020, COVID-19 presented organizations large and small with new and unique data privacy and security considerations. Most organizations, particularly in their capacity as employers, needed to adopt COVID-19 screening and testing measures resulting in the collection of medical and other personal information from employees and others. This will continue in 2021 with the addition of vaccination programs. So, for 2021, ongoing vigilance will be needed to maintain the confidential and secure collection, storage, disclosure, and transmission of medical and COVID-19 related data that may now include tracking data related to vaccinations or the side effects of vaccines.

Several laws apply to data the organizations may collect. In the case of employees, for example, the Americans with Disability Act (ADA) requires maintaining the confidentiality of employee medical information and this may include COVID-19 related data. Several state laws also have safeguard requirements and other protections for such data that organization should be aware of when they or others on their behalf process that information.

Many employees will continue to telework during 2021. A remote workforce creates increased risks and vulnerabilities for employers in the form of sophisticated phishing email attacks or threat actors gaining unauthorized access through unsecured remote access tools. It also presents privacy challenges for organizations trying to balance business needs and productivity with expectations of privacy. These risks and vulnerabilities can be addressed and remediated through periodic risk assessments, robust remote work and bring your own device policies, and routine monitoring.

As organizations work to create safe environments for the return of workers, customers, students, patients and visitors, they may rely on various technologies such as wearables, apps, devices, kiosks, and AI designed to support these efforts. These technologies must be reviewed for potential privacy and security issues and implemented in a manner that minimizes legal risk.

Some reminders and best practices when collecting and processing information referred to above and rolling out these technologies include:

  • Complying with applicable data protection laws when data is collected, shared, secured and stored including the ADA, Genetic Information Nondiscrimination Act, CCPA, GDPR and various state laws. This includes providing required notice at collection under the California Consumer Privacy Act (CCPA), or required notice and a documented lawful basis for processing under the GDPR, if applicable.
  • Complying with contractual agreements regarding data collection; and
  • Contractually ensuring vendors who have has access to or collect data on behalf of the organization implement appropriate measures to safeguard the privacy and security of that data.
  1. The California Consumer Privacy Act (CCPA) and the California Privacy Rights Act (CPRA)

On January 1, 2020, the CCPA ushered in a range of new rights for consumers, including:

  • The right to request deletion of personal information;
  • The right to request that a business disclose the categories of personal information collection and the categories of third parties to which the information was sold or disclosed; and
  • The right to opt-out of sale of personal information; and
  • The California consumer’s right to bring a private right of action against a business that experiences a data breach affecting their personal information as a result of the business’s failure to implement “reasonable safeguards.”

The CCPA carves-out (albeit not entirely) employment-related personal information from the CCPA’s provisions. It limits employee rights to notice of the categories of personal information collected by the business and the purpose for doing so, and the right to bring a private right of action against a business that experiences a data breach affecting their personal information.

In November, California voters passes the California Privacy Rights Act (CPRA) which amends and supplements the CCPA, expanding compliance obligations for companies and consumer rights. Of particular note, the CPRA extends the employment-related personal information carve-out until January 1, 2023. The CPRA also introduces consumer rights relating to certain sensitive personal information, imposes an affirmative obligation on businesses to implement reasonable safeguards to protect certain consumer personal information, and prevents businesses from retaliating against employees for exercising their rights.  The CPRA’s operative date is January 1, 2023 and draft implementation regulations are expected by July 1, 2022. Businesses should monitor CCPA/CPRA developments and ensure their privacy programs and procedures remain aligned with current CCPA compliance requirements.

In 2021, businesses can expect various states, including Washington, New York, and Minnesota to propose or enact CCPA-like legislation.

  1. Biometric Data

There was a continued influx of biometric privacy class action litigation in 2020 and this will likely continue in 2021. In early 2019, the Illinois Supreme Court handed down a significant decision concerning the ability of individuals to bring suit under the Illinois’s Biometric Information Privacy Act (BIPA). In short, individuals need not allege actual injury or adverse effect beyond a violation of his/her rights under BIPA to qualify as an aggrieved person and be entitled to seek liquidated damages, attorneys’ fees and costs and injunctive relief under the Act.

Consequently, simply failing to adopt a policy required under BIPA, collecting biometric information without a release or sharing biometric information with a third party without consent could trigger liability under the statute. Potential damages are substantial as BIPA provides for statutory damages of $1,000 per negligent violation or $5,000 per intentional or reckless violation of the Act. There continues to be a flood of BIPA litigation, primarily against employers with biometric timekeeping/access systems that have failed to adequately notify and obtain written releases from their employees for such practices.

Like many aspects of 2020, biometric class action litigation has also been impacted by COVID-19. Screening programs in the workplace may involve the collection of biometric data, whether by a thermal scanner, facial recognition scanner or other similar technology. In late 2020, plaintiffs’ lawyers filed a class action lawsuit on behalf of employees concerning their employer’s COVID-19 screening program, which is alleged to have violated the BIPA. According to the complaint, employees were required to undergo facial geometry scans and temperature scans before entering company warehouses, without prior consent from employees as required by law. More class action lawsuits of this nature are likely on the horizon.

The law in this area is still lagging behind the technology but starting to catch up. In addition to Illinois’s BIPA, Washington and Texas have similar laws, and states including Arizona, Florida, Idaho, Massachusetts and New York have also proposed such legislation. The proposed biometric law in New York would mirror Illinois’ BIPA, including its private right of action provision. In California, the CCPA also broadly defines biometric information as one of the categories of personal information protected by the law.

Additionally, states are increasingly amending their breach notification laws to add biometric information to the categories of personal information that require notification, including 2020 amendments in California, D.C., and Vermont. Similar proposals across the U.S. are likely in 2021.

A report released by Global Market Insights, Inc. in November 2020 estimates the global market valuation for voice recognition technology will reach approximately $7 billion by 2026, in main part due to the surge of AI and machine learning across a wide array of devices including smartphones, healthcare apps, banking apps and connected cars, just to name a few. Voice recognition is generally classified as a biometric technology which allows the identification of a unique human characteristic (e.g. voice, speech, gait, fingerprints, iris or retina patterns), and as a result voice related data qualifies biometric information and in turn personal information under various privacy and security laws. For businesses exploring the use of voice recognition technology, whether for use by their employees to access systems or when manufacturing a smart device for consumers or patients, there are a number of privacy and security compliance obligations to consider including the CCPA, GDPR, state data breach notification laws, BIPA, COPPA, vendor contract statutes, statutory and common law safeguarding mandates.

  1. HIPAA

During 2020, the Office of Civil Rights (OCR) at the U.S. Department of Health and Human Services was active in enforcing HIPAA regulations. The past year saw more than $13.3 million recorded by OCR in total resolution agreements. OCR settlements have impacted a wide array of health industry-related businesses, including hospitals, health insurers, business associates, physician clinics and mental health/substance abuse providers. Twelve of these settlements where under the OCR’s Right to Access Initiative, which enforces patients’ rights to timely access of medical records at reasonable cost. It is likely this level of enforcement activity will continue in 2021.

The past year produced a significant amount of OCR-issued guidance relating to HIPAA. In March OCR issued back-to-back guidance on COVID-19-related issues, first regarding the provision of protected health information (PHI) of COVID-19 exposed individuals to first responders, and next providing FAQs for telehealth providers. In July, the director of the OCR issued advice to HIPAA subject entities in response to the influx of recent OCR enforcement actions: “When informed of potential HIPAA violations, providers owe it to their patients to quickly address problem areas to safeguard individuals’ health information.” Finally in September, the OCR published best practices for creating an IT asset inventory list to assist healthcare providers and business associates in understanding where electronic protected health information (ePHI) is located within their organization and improve HIPAA Security Rule compliance, and shortly after it issued updated guidance on HIPAA for mobile health technology.

In December, Congress amended the Health Information Technology for Economic and Clinical Health Act to require the Secretary of Health and Human Services to consider certain recognized security practices of covered entities and business associates when making certain determination, and for other purposes. In 2021, businesses will want to review their information security practices in light of applicable recognized security practices in an effort to demonstrate reasonable safeguards and potentially minimize penalties in the event of a cybersecurity incident.

  1. Data Breaches

The past year was marked by an escalation in ransomware attacks, sophisticated phishing emails, and business email compromises. Since many of these attacks were fueled in part by vulnerabilities due to an increased remote workforce, 2021 will likely be more of the same.
Continue Reading Top 10 for 2021 – Happy Data Privacy Day!

A new report released by Global Market Insights, Inc. last month estimates that the global market valuation for voice recognition technology will reach approximately $7 billion by 2026, in main part due to the surge of AI and machine learning across a wide array of devices including smartphones, healthcare apps, banking apps and connected cars,

After years of data breaches, mass data collection, identity theft crimes, and failed attempts at broad-based federal legislation, 2020 may be the year that state privacy and data security legislation begins to take hold in the U.S. For example, the California Consumer Privacy Act (“CCPA”) and the New York Stop Hacks and Improve Electronic Data

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

As wearable and analytics technology continues to explode, professional sports leagues, such as the NFL, have aggressively pushed into this field. (See Bloomberg). NFL teams insert tiny chips into players shoulder pads to track different metrics of their game. During the 2018-2019 NFL season, data was released that Ezekiel Elliot ran 21.27 miles per hour for a 44-yard run, his fastest of the season. The Dallas Cowboys are not alone as all 32 teams throughout the league can access this chip data which is collected via RFID tracking devices. Sports statistics geeks don’t stand a chance as this technology will track completion rates, double-team percentages, catches over expectation, and a myriad of other data points.

There are obvious questions and concerns about the use of this technology, and not just at the professional level. Wearables can be found at all levels of sports and athletic activities, including at colleges and high schools. At the professional level, the NFL is unique in that it allows teams to use the chip data during contract negotiations. However, players do not have full access to this information, unless specifically granted by individual teams. This is important since there is much debate over who truly owns this data. And, for a variety of reasons, players and athletes want to know where their information is stored, how it is stored, whether and how it might be used and disclosed, who has access to it, and what safeguards are in place to protect it. Major League Baseball and the Players Association added Attachment 56 to the 2017-2021 Collective Bargaining Agreement to address some of these concerns. But, again, these and other questions are not unique to professional ball players.

See the source imageWith devices ranging from wearable monitors to clothing and equipment with embedded sensors, professional teams, colleges and universities, local school districts, and other sports and athletic institutions, as well as the companies that provide the wearables, can now collect massive amounts of data such as an athlete’s heart rate, glucose level, breathing, gait, strain, or fatigue. On the surface, this data may relate to an athlete’s performance and overall wellness, which may be somewhat apparent to onlookers without the aid of the device. However, alone or aggregated, the data may reveal more sensitive personal information relating to the athlete’s identity, location, or health status, information that cannot be obtained just by closely observing the individual. When organizations collect, use, share, or store this data, it creates certain privacy and security risks and numerous international, federal, and state data protection laws may apply. Any sports or athletic organization that develops a wearable device program, or has reason to believe that these devices are being used by coaches and others to collect similar data, should be mindful of these risks and regulatory issues.

Below is a non-exhaustive list of some of these laws:
Continue Reading As Wearable Technology Booms, Sports and Athletic Organizations at all Levels Face Privacy Concerns

The deadline to comply with the GDPR’s complex and far ranging requirements is rapidly approaching.  As your organization races to implement its compliance program before the May 25, 2018 effective date, questions and concerns are likely to arise.  While there is no shortage of online guidance on the GDPR, finding answers to your specific questions

The implementation of the European Union’s General Data Protection Regulation (GDPR), with an effective date of May 25, 2018, is just around the corner, and with it will come pressure on the human resources (HR) department to update its approach to handling employee data. The GDPR significantly enhances employee rights in respect to control over