On March 1, 2022, the Senate passed a data breach and cybersecurity bill that could vastly expand data breach notice requirements. The Strengthening American Cybersecurity Act (the “Senate Bill”), which now shifts to the House of Representatives, would require organizations in certain critical infrastructure sectors to report substantial cybersecurity incidents to the Department of Homeland Security within 72 hours after the organization reasonably believes the cyberincident has occurred, among other measures intended to enhance the nation’s cybersecurity posture. Covered organizations would also be required to report ransom payments within 24 hours of making a payment in response to a ransomware attack. These provisions are not limited to data breaches affecting personal data and would significantly expand the breadth of data breach reporting requirements to many commercial enterprises that have not focused on consumer privacy issues.

While the bill was criticized by FBI Director Christopher Wray and Deputy Attorney General Lisa Monaco for shifting cyber-focus from the DOJ/FBI to DHS/CISA, it remains likely to pass the House, where similar legislation was supported last year as part of the annual defense authorization package. In addition to its breach reporting provisions, the Senate Bill would also require or encourage new cybersecurity measures for federal agencies, clarify the roles of certain cybersecurity officials and authorize the federal contractor cybersecurity FedRAMP program for five years.Continue Reading Senate Approves Breach Reporting Legislation; Likely to Pass House

A recent decision by the Austrian Supervisory Authority (“SA”) casts a spotlight on the complexities of data transfers and cookie use, and highlights a shift in regulatory focus onto these topics in the year ahead. Regulators around Europe are increasingly beginning to weigh in on such transfers, and the outcomes of their deliberations will shape the data transfer compliance landscape in the months to come. These decisions present complex questions about the future of data transfers in the EU and UK.
Continue Reading Increased EU Scrutiny of US Data Transfers Through Cookie Use

Since the passage of the California Consumer Privacy Act (CCPA) in 2018, many states have proposed sweeping data protection legislation, but only two others, Colorado and Virginia, have so far succeeded in passing such laws. That may soon change. In 2021, several states came close to enacting comprehensive privacy legislation and that momentum has continued into this year, with data protection bills being carried over, introduced, and reintroduced in state legislatures across the country. As the possibility of a federal privacy law dwindles—particularly during this midterm year—state legislatures are poised to be the source of major data protection developments in 2022. Throughout the year, Ropes & Gray will monitor and analyze these developments in state privacy laws, beginning with a discussion of the latest iteration of the proposed New York Privacy Act.
Continue Reading State Privacy Law Developments: The New York Privacy Act

As 2021 comes to a close, so does our 12 Days of Data series, but we will see you on the other side in 2022 with more posts on the top privacy and data protection issues. 2021 was an interesting year. While vaccinations spread and some sense of normalcy started to return, new strains of COVID-19 led to additional waves of shutdowns that stalled many of the debates. In 2022, we anticipate that the move toward a new normal will continue, and we will once again start to see traction on some of these data, privacy, and cybersecurity issues. As a preview, here are some of the key areas where we expect to see potential developments in 2022.
Continue Reading Closing out the 12 Days of Data: What to Expect in 2022

If 2021 is any indication, the Federal Trade Commission (FTC) shows no signs of slowing down in its pursuit of enforcement actions to address a wide variety of alleged privacy and cybersecurity issues. Under the leadership of new chair, Lina Khan, the past year has seen the FTC engage is a variety of new and expanding enforcement actions exhibiting an increasing interest in regulating data privacy and security, as well as other consumer protection areas.

While the FTC has become the de facto regulator for entities that are not subject to other sector-specific regulations, the Commission’s assertion of authority over privacy and cybersecurity matters is limited by its statutory powers under section 5 of the FTC Act, which prohibits “unfair or deceptive acts or practices” that injure consumers. The FTC’s expansion of that authority to cover privacy and cybersecurity matters has only grown more aggressive in recent years but has also become the subject of close judicial review. Notably, in 2018, the Eleventh Circuit ruled, in LabMD, Inc. v. FTC, that the FTC did not have unlimited authority to dictate the details of companies’ privacy and cybersecurity protections. Earlier this year, the Supreme Court, in AMG Capital Mgmt., LLC v. FTC, held that Section 13(b) of the FTC Act does not allow the FTC to obtain monetary relief in federal court. The FTC has asked Congress to use its authority to remedy this ability, and claims that this constitutes a loss of its “best and most efficient tool for returning money to consumers who suffered losses as a result of deceptive, unfair, or anticompetitive conduct.”

The FTC has pushed for a more expansive view of its authority for several years, and this has only intensified over the last year. Even before the AMG decision, the FTC had been advocating for Congress to address the gap in Section 13(b), which only explicitly provides for the FTC’s ability to order injunctive relief and is silent on monetary relief. While waiting on Congress to address the issue, we expect for the FTC to continue to bring enforcement actions and order restitution and disgorgement via their Section 19 authority, which provides for these types of relief, but only after a final cease-and-desist order, which can be challenged and is subject to review of appellate courts.Continue Reading FTC Signals Increased Focus on Privacy and Data Misuse

GDPROrganizations which fail to implement appropriate technical and organizational security measures to protect personal data and suffer personal data breaches as a result, increasingly may find themselves facing the double whammy of both enforcement action by the UK Information Commissioner’s Office (ICO), (which can include significant financial penalties) and potentially also group-style legal actions brought by data subjects.

British Airways, which suffered a cyber incident that is believed to have started in June 2018 and led to a personal data breach involving almost 500,000 of its customers, has found itself on the receiving end of such an action.Continue Reading UK Group-Style Data Breach Actions Continue

CAThe California Attorney General’s office (OAG) recently released a third set of proposed modifications to the California Consumer Privacy Act (CCPA) regulations.  This comes on the heels of the second set of modifications the Office of Administrative Law (OAL) approved just two months ago (see article here).  The third set of proposed modifications restores certain provisions the OAG had previously withdrawn from its draft regulations submitted to the OAL in July, as well as clarifies and adds illustrative examples to some provisions.  Overall, the modifications do not significantly alter the CCPA regulatory landscape, and if accepted, are not likely to impact businesses greatly.  Nonetheless, businesses should review the changes, which address the following topics, to confirm that they would not require any adjustment in business practice:
Continue Reading California AG Proposes Third Amended Regulations to CCPA

The rapid spread of the coronavirus is causing alarm around the world.  This almost unprecedented global event is leading to various unforeseen consequences, including the collection, use and sharing of personal data of affected individuals – and, in some cases, persons connected to them – in ways not envisaged only a few weeks ago.  The processing of personal data of this nature can potentially have serious, albeit sometimes unintended, consequences.
Continue Reading Thoughts on the Use of Personal Data in the Fight Against Coronavirus

On 8 January 2018, the Information Commissioner launched a public consultation on a Direct Marketing Code of Practice, which she is required by Section 122 of the Data Protection Act 2018 to produce in order to provide practical guidance in relation to the carrying out of direct marketing in accordance with the requirements of the data protection legislation and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR). Accordingly, like the existing ICO Direct Marketing Guidance, which it will supersede, the proposed code sets out the law and provides examples and good practice recommendations. To a significant extent, the draft code replicates the current guidance, which was updated in 2018 to reference the General Data Protection Regulation (GDPR). When finalized, the Commissioner must take the code into account when considering whether those engaged in personal data processing for “direct marketing purposes” have complied with the GDPR and PECR. The key aspects of the draft code are summarized below, including new guidance on in-app advertising and direct marketing on social media platforms.
Continue Reading UK’s ICO Publishes Draft Direct Marketing Code of Practice

The Opinion of Advocate-General (AG) Henrik Saugmandsgaardøe in the “Schrems II” case (C-311-18) was delivered on 19 December and will likely leave organisations, which currently rely on EC Commission-approved standard contractual clauses to ensure adequate protection for personal data that they transfer internationally heaving a collective sigh of relief, at least for the moment.
Continue Reading Schrems II and Standard Contractual Clauses – the Advocate-General’s Opinion