In a compromise to avoid a ballot measure, at the very last moment on the very last day, just before the stroke of midnight, on June 29, 2018, the California legislature passed and Governor Brown signed into law the California Consumer Privacy Act of 2018 (the “Act”), which takes effect on January 1, 2020. Many of its provisions are similar to the General Data Protection Regulations (“GDPR”), which took effect in Europe at the end of May, and required companies to institute new internal data privacy regimes. So, while those companies which prepared for the GDPR are well on their way to gaining compliance with this new law, there is still much to be done by them and especially those companies which were not impacted by the GDPR. (more…)
On May 25, 2018, important European regulations regarding data privacy and protection go into effect that will have a major impact on American companies, many of whom don’t realize they will be subject to compliance with its requirements. The General Data Protection Regulations (the “GDPR”) will have severe penalties for non-compliance (as high as €20 million or 4% of annual worldwide turnover). The GDPR will also have very broad territorial reach applying not only to European entities, but also to entities located outside of Europe (including those in the U.S.) that process the personal data of living European individuals residing in the covered countries, including if the company:
- Offers goods or services to individuals in the covered countries (e.g., e-commerce, capital raising, fund raising, immigration);
- Employs individuals in one or more of the countries;
- Monitors the behavior of individuals in any of these countries; and
- Collects, stores, or processes the personal data of affected individuals on behalf of others.
For these purposes, the European definition of personal data mirrors nicely the American definition of personally identifiable information. Given the severe penalties and broad reach, it is important that each company in the U.S. consider whether the GDPR applies to its operations and, if so, how best to comply. (more…)
Just about every survey of General Counsels reveals the same #1 culprit of sleepless nights….. a cybersecurity hack. If you run a business in today’s global environment, it is hard to escape the fundamental reality that it is more than likely a matter of when, not if, you will face a cyber threat. And depending on the nature of your business, that threat can have a wide range of implications. If you are a public company, there is an additional issue to consider… what do you have to disclose to your investors and shareholders?
Being prepared for a hack with a comprehensive written information security plan and an equally robust incident response plan is just one component to be considered if you are a public company. You must also have a plan to meet your reporting and disclosure obligations to a variety of governmental bodies. While measuring your response needs in the wake of a hack, and determining if there are state, federal or international laws and regulations that require reporting, you must also pay close attention to possible disclosure obligations in your SEC filings. Specifically, if you have tripped a disclosure to a state attorney general or your company’s customers, then it is possible you may also have a disclosure obligation to your shareholders. (more…)
Just in the last week, both the European Parliament and the European Data Protection Supervisor (“EDPS”) published findings holding the currently proposed EU-US Privacy Shield to be seriously deficient, and calling for further negotiations to deal with those “holes”.
On May 26, 2016, the European Parliament passed a resolution, see EU Parliament Resolution, basically saying nice try, no cigar! While acknowledging that great strides were made, the Parliament felt that too many gaps remained. Not surprising were the on-going concerns about the broad gathering of private data (i.e., bulk collection) by the U.S. government and what is viewed as the less than clearly defined circumstances in which that data may be used for recognized national security and law enforcement reasons, and what else? (more…)