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Chris Cwalina (US)

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On May 12, 2021, President Biden issued an Executive Order aimed at improving cybersecurity of the federal government, with assistance from the private sector.  The 18-page Executive Order does not set forth specific requirements, but rather sets deadlines for named agencies to develop requirements, standards, or guidelines on specific cybersecurity areas.  The Executive Order also states that “All Federal Information Systems should meet or exceed the standards and requirements for cybersecurity set forth in and issued pursuant to this order.”  Any company subject to either the Federal Acquisition Regulation (FAR) and the Defense Federal Acquisition Regulation Supplement (DFARS) contract requirements may be seeing substantial changes in the future.

We are seeing companies use many different approaches to the California Consumer Privacy Act (“CCPA”) compliance, but the “wait and see” approach in particular is not advisable.

Companies who want to “wait and see” point to the pending amendments to CCPA that are currently working through the California Senate (as we have previously described—see links below). Others point to the California Attorney General regulations that will be released in draft form in the next few months, which should provide some guidance to implementing CCPA.

Those statements are indeed accurate, as far as they go. However, they neglect the fact that most business cannot turn on a dime and do not have a robust grasp on the IT and business systems that collect and share personal information. Given that January 1, 2020 is almost upon us and July 2020 follows close behind, there simply will not be enough time once the amendments are passed and the guidance provided, to implement CCPA if you do not start now (or ideally, have started already).

In the absence of federal action, states have been actively passing new and expanded requirements for privacy and cybersecurity (see some examples here and here). While laws like the California Consumer Privacy Act (CCPA) are getting all the attention, many states are actively amending their breach notification laws. Illinois, Maine, Maryland, Massachusetts, New Jersey, New York, Oregon, Texas, and Washington have all amended their breach notification laws to either expand their definitions of personal information, or to include new reporting requirements.

Below is a roundup of recent and significant changes.

This is the Data Protection Report’s fourth blog posts in a series of CCPA blog posts that will break down the major elements of the CCPA, which will culminate in a webinar on the CCPA in October. Stay tuned for additional blogs and information about our upcoming webinar on the CCPA.

The California Consumer Privacy Act (the “CCPA” or “Act”) includes significant and new disclosure requirements for businesses that collect and or sell or disclose California residents’ personal information. Below we have outlined: (1) disclosures businesses must make in their privacy policy; (2) disclosures businesses must make upon receipt of a “verifiable consumer request”; and (3) Norton Rose Fulbright’s takeaways.

Privacy policy disclosures

Upon the CCPA taking effect, a business’s privacy policy must affirmatively inform consumers of the categories of personal information collected about the consumer, the sources from which that information is collected, the commercial or business purpose for which the personal information is  collected, the categories of third parties the information will be shared with, and specific pieces of personal information collected about the consumer.  In addition, businesses must provide consumers with a description of their rights. Businesses should be cognizant that the Act specifically prohibits businesses from collecting additional categories of personal information and then using those new categories for purposes other than as disclosed.

This is the Data Protection Report’s third blog post in a series of CCPA blog posts that will break down the major elements of the CCPA which will culminate in a webinar on the CCPA in October. This blog focuses on the CCPA’s broad definition of Personal Information. Stay tuned for additional blogs and information about our upcoming webinar on the CCPA.

The California Consumer Privacy Act (“CCPA” or the “Act”) sets a new precedent with its sweeping definition of  Personal Information (“PI”).   The CCPA defines “[p]ersonal information” as any information that “identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.”

On July 5, the European Parliament passed a non-binding resolution, asking the European Commission, the EU’s executive body, to suspend the Privacy Shield framework. The EU-US Privacy Shield, designed by the US Department of Commerce and the European Commission, provides a mechanism for companies to transfer personal data between the EU and the US while remaining compliant with EU data protection laws.

The European Commission passed the data-sharing privacy framework on July 12, 2016, after its precursor, Safe Harbor, was struck down by the European Court of Justice on October 6, 2015.

Since the European Parliament’s resolution is non-binding, the European Commission could choose to ignore it.  However, the Commission will no doubt take the Parliament members’ concerns into consideration in its annual review of the Shield which is due in September.

Further discussions on whether to renegotiate the Privacy Shield is also on the table since the Shield is based on the now defunct EU directive 95/46, which the European Union General Data Protection Regulation replaced when it went into effect on May 25, 2018.