The conditions for transborder data flows may become more uniform in the EU under the proposed Data Protection Regulation, but restrictions on foreign data transfers are now appearing in new data privacy laws and regulations in several regions of the world, posing global compliance challenges.
As 2011 is coming to a close, many of us are thinking about what 2012 will bring. With regard to privacy, there are numerous key issues to choose from (and I am sure many privacy professionals would add to this list) - but from a corporate compliance standpoint, here are my top five picks for hot topics to address in 2012:
In a significant development that could materially increase the liability risk associated with payment card security breaches (and personal data security breaches, in general), the U.S. Court of Appeals 1st Circuit (the "Court of Appeals") held that payment card replacement fees and identity theft insurance/credit monitoring costs are adequately alleged as mitigation damages for purposes of negligence and an implied breach of contract claim. The decision in Hannaford could be a game changer in terms of the legal risk environment related to personal data breaches, and especially payment card breaches where fraud has been perpetrated. In this post, we summarize the key issues and holdings of the Court of Appeals.
Dan Or-Hof, a privacy and technology partner at the Israeli law firm Pearl Cohen Zedek Latzer is reporting that new regulations and orders introduced by Israel's Ministers Committee for Biometric Applications set the ground for a two-year biometric IDs issuance trial period. The Ministry of Home Affairs is making final preparations to start issuing the IDs that will contain encoded fingerprints and facial image, and will be stored in a national database. A campaign led by privacy activists against the controversial biometric database has failed to yield a positive result so far.
It is being reported that Moscow prosecutors conducted an investigation into whether several websites that were involved in data breaches earlier this year violated the country's data protection law. As a result of the breaches, names, contact information and order histories of Internet magazine subscribers (including adult-themed publications) became available on Internet search engines, including Russian-language Yandex. Without naming the websites, the report states that the prosecutors have filed administrative charges against two Internet magazines as a result of the investigation.
On July 20, 2011, the U.S. House of Representatives Energy and Commerce Committee's Trade Subcommittee approved the Secure and Fortify Electronic Data Act (the "SAFE Data Act"). The Act would require any business that maintains personal information to implement an information security program and notify affected individuals in the event of an information security breach. The SAFE Data Act would preempt the over 45 existing state information security and breach notification laws and task the Federal Trade Commission with developing information security rules implementing the Act.
Last week, the upper house of Russia's federal legislature approved amendments to the country's federal data protection law. The amendments impose detailed information security requirements on businesses that process personal data and revise some of the statute's data subject consent provisions.The amended law will come into force when it is published in the official newsletter.
The Federal Trade Commission announced today that Teletrack, Inc. has agreed to pay $1.8 million to settle charges that the company sold credit reports for marketing purposes, in violation of the Fair Credit Reporting Act (FCRA). According to the FTC's complaint, Teletrack sells credit reports and other services to businesses that mainly serve financially distressed consumers. Teletrack's business customers include pay day lenders, rental purchase stores and non-prime rate auto lenders. These businesses use Teletrack's credit reports to decide whether and on what terms to extend credit to their customers.
On May 16, 2011, EU's Article 29 Working Party (WP29) adopted an opinion setting out privacy compliance guidance for mobile geolocation services.WP29 is comprised of representatives from the EU member states' data protection authorities (DPAs), the European Data Protection Supervisor and the European Commission. WP29's mandate includes (i) giving expert advice to the EU member states regarding the implementation of European data protection directives, and (ii) promoting uniform implementation of the directives in all EU state members as well as in Norway, Liechtenstein and Iceland. WP29's opinions, therefore, carry significant weight in the interpretation and enforcement of data protection laws by European DPAs. Not surprisingly, WP29 has concluded that geolocation data is "personal data" subject to the protections of the European data protection framework, including the EU Data Protection Directive 95/46/EC. The Working Party also determined that the collection, use and other processing of geolocation data through mobile devices generally requires explicit, informed consent of the individual. Below are the highlights of the opinion.
Mr. Kwang Hyun Ryoo, a partner at the Korean law firm of Bae, Kim & Lee LLC, is reporting in the firm's newsletter that on March 29, 2011, Korea enacted a comprehensive personal data protection law, entitled Personal Information Protection Act (PIPA). Most of the act's provisions will come into force on September 30, 2011.