Privacy/Data Protection

As 2021 comes to a close, it is a great time to take stock of the present state of affairs with respect to U.S. privacy laws. With the relatively recent passage of comprehensive privacy laws in California, and additional countries adopting laws that closely follow the principles of the EU’s General Data Protection Regulation (GDPR), along with increasing public concerns regarding how companies manage customers’ personal data, legal practitioners entered 2021 with high hopes that comprehensive federal privacy legislation may finally be on the horizon. Nevertheless, in a trend that is likely to continue in the year ahead, it was the states rather than federal legislatures that successfully added to the ranks of privacy laws with which businesses will soon need to comply.

Continue Reading Momentum Builds for State Privacy Laws but the Possibility of a Federal Law Remains Remote

2021 was a busy year for data protection law in China. On June 10, 2021, the Standing Committee of the National People’s Congress of the People’s Republic of China adopted the Data Security Law (DSL), which went into effect on September 1, 2021. On August 20, 2021, the Standing Committee of the National People’s Congress enacted the Personal Information Protection Law (PIPL), which went into effect just last month, in November 2021. The DSL applies broadly to processing of all data, not just personal information or electronic data and expands on the provisions from China’s Cybersecurity Law, which was enacted in 2016. In contrast, the PIPL applies only to the processing of personal information and has been compared to Europe’s General Data Protection Regulation (GDPR), although that comparison may obscure the contours of China’s law more than it enlightens.

Consistent with the course of Chinese administrative law, the laws’ key terms, analyses, and processes will continue to be fleshed out and perhaps materially enhanced or diminished in a series of regulations, measures, standards, and guidance documents. The latest draft measures on cross-border transfers, which are being closely watched by organizations contemplating cross border data transfers, were published at the end of October, and comments were accepted through November. We expect China to continue finalizing the laws’ terms and measures in 2022.

Continue Reading What China’s New Data Laws Could Mean for 2022

In the wake of major cybersecurity incidents, it is becoming increasingly common for shareholders to bring derivative lawsuits alleging that the officers or board members failed to exercise proper governance over cybersecurity. Some companies have paid settlements to resolve such matters, but few derivative actions have ended in judgment on the merits in favor of plaintiffs, largely because plaintiffs are rarely able to show that directors failed to execute their oversight responsibilities. A recent ruling by the Delaware Court of Chancery dismissing a derivative lawsuit against Marriott International, Firemen’s Ret. Sys. of St. Louis v. Sorenson, No. 2019-0965-LWW (Del. Ch. Oct. 5, 2021), reiterates that directors who monitor cybersecurity governance, work to mitigate cyber risks, and seek outside advice on data protection issues will usually not face liability.

Continue Reading Marriott Data Breach Ruling Puts Corporate Boardrooms on Notice

It’s the most data-filled time of the year!

Join us on RopesDataPhiles.com for the Twelve Days of Data.

Over the next twelve business days, we will close out 2021 by recapping twelve of the hottest topics in data privacy and cybersecurity and looking forward to what’s to come in 2022. Topics covered will include privacy

The Future of US Federal and State Regulation of Data Privacy

During the November 3rd session of Ropes & Gray’s conference, “The Future of Global Data Protection: Conflict or Coherence?” Ropes & Gray partner Chong Park moderated a discussion with Ropes & Gray’s data protection partner Fran Faircloth and Minh Ta, Vice President of Global Governmental Affairs at the Carlyle Group regarding the future of federal and state regulation of data privacy in the United States.

The group all agreed that there should be a comprehensive, US federal data privacy law, but expressed opposing views on the likelihood of such a federal law being implemented in the near future. Minh analogized it to the infrastructure bill debate in the United States, noting that there is bipartisan consensus to address the issue on some level, but the problem lies in the details—i.e., what specifically should be regulated is where people disagree. Fran, on the other hand, expressed a bit more optimism that a federal law on privacy would be passed in the future, but agreed the likelihood of imminent passage is unlikely. She noted that as more states pass their own versions of privacy laws, that eventually as a result a federal law would be passed.

Continue Reading The Future of US Federal and State Regulation of Data Privacy

Preeminent privacy scholar and George Washington University Law School professor, Daniel Solove joined Ropes & Gray’s virtual conference on “The Future of Global Data Protection,” for a wide-ranging discussion with Edward McNicholas, co-leader of the Ropes & Gray data, privacy & cybersecurity practice, in which the pair explored:

  • The state of complexity and inconsistency in the international privacy law landscape
  • The inherent flaws in the models on which privacy laws are currently based
  • The risks of moving toward a regulatory model
  • Theories of harm in data breach cases
  • The role of the courts in adjudicating privacy laws

Please see below for an overview of some of these topics, or to access a recording of the session please visit our blog: RopesDataPhiles.

Continue Reading How Data Breaches Are Shaping the Global Data Protection Debate

Law360 (October 4, 2021, 5:30 PM EDT) —
On June 29, Florida Gov. Ron DeSantis signed into law H.B. 833, known as the Protecting DNA Privacy Act.

The act took effect on Oct. 1, and applies to the collection, use, retention, maintenance and disclosure of a DNA sample collected from an individual in Florida as well as the results of any subsequent DNA analysis. The act is self-executing and took effect without the need for creation of implementing regulations.

The act clarifies the extent to which individuals own their genetic information, and it creates new crimes for the unlawful collection, retention, analysis, disclosure or sale of an individual’s DNA sample and the results of a DNA analysis, subject to certain limited exemptions, such as use for specified clinical or research purposes.

The act also has important implications for secondary uses of data by health care providers and others that perform genetic testing and analyze genetic information.

Continue Reading What Florida’s DNA Privacy Law Means For Health Care Providers

On August 20, 2021, the Standing Committee of the National People’s Congress promulgated the Personal Information Protection Law (PIPL), which will become effective on November 1, 2021. The PIPL is the first comprehensive national level personal information protection law in China, which systematically regulates the processing of personal information by entities and individuals. The PIPL, together with the Cybersecurity Law, which was promulgated in 2017, and the Data Security Law, which was promulgated earlier this year, form the three pillars of China’s comprehensive data protection legal regime.

This Alert provides a summary of the highlights of the PIPL, discusses the implications on domestic and foreign businesses operating in China, and compares the PIPL with the European Union (EU) General Data Protection Regulation (GDPR), which has greatly influenced many of the concepts included in the PIPL.
Continue Reading China Passes Personal Information Protection Law

LockThe FTC’s recent settlement with Flo Health, announced on June 22, 2021, offers insights into what practices could invite FTC investigation, especially when companies that collect sensitive information make specific promises about high levels of health privacy and data security. More than 100 million consumers use Flo, an app developed by Flo Health Inc., to help women track their periods and fertility. Although the settlement contains no admissions by Flo, the agency alleged that Flo shared users’ health information with outside data analytics providers; an arrangement that is not uncommon for apps that deal with less-sensitive data, but one which contradicted the company’s promise to keep users’ personal information private.
Continue Reading Recent FTC Settlement with Flo Health Focuses on Notice and Consent for Companies Sharing Sensitive Data

Cyber SecurityWhat Is Tax-Related Identity Theft?

Fraudulent tax refunds issued as a result of identity theft occur when an individual steals a victim’s personally identifiable information (PII), such as a Social Security number (SSN), and files a tax return claiming to be the victim. More than 89,000 Americans filed complaints with the Federal Trade Commission (FTC) reporting tax fraud linked to identity theft in 2020. Similarly, businesses may also fall victim to tax fraud, where an individual steals a business’s employer identification number (EIN) to file fraudulent returns. In both scenarios, the victims usually discover they have fallen victim to such fraud when their tax returns are rejected, or when the business receives notice about Forms W-2 they didn’t file with the Social Security Administration or notices for balances due to the Internal Revenue Service (IRS) that are not owed. Most frequently, neither businesses nor individuals will have any reliable information as to how their information has been exposed. The IRS has noted such tax fraud tends to increase during tax season and time of crisis, and cybercriminals have undeniably taken advantage of the COVID-19 pandemic to unleash an unprecedented number of tax fraud schemes to steal information from taxpayers.
Continue Reading Best Practices to Avoid Tax-Related Identity Theft