GDPR Enforced In The US

How Will GDPR Be Enforced In The US

GDPR, Uncategorized

The General Data Protection Regulation (GDPR) is a law that protects the privacy of most Europeans. The GDPR protects in part by imposing limitations on the free movement of personal data between the European Union (EU) and other countries. It took effect in May 2018.

This ground-breaking data protection and privacy regulation goes well beyond the boundaries of the European Union’s physical borders. Furthermore, it requires companies based outside of the EU to safeguard the personal data of their people.

Extra-Territorial Scope of GDPR

The GDPR’s scope goes beyond the boundaries of the EU. That means that websites outside the EU that handle personal data about EU citizens are also obliged to comply with the GDPR’s requirements.

The text of the General Data Protection Regulation (GDPR) provides an essential compliance checklist that companies should follow if they are subject to GDPR. This “checklist” contains particular requirements that are unique to countries outside of the EU, such as American companies and organizations.

You may be wondering how the laws of the European Union might be enforced  in an area over which the EU supervisory authorities have no jurisdiction. The reality is complicated, but in short, there are avenues in which United States (US) courts might enforce agreements referencing GDPR and apply guidance of the EU Commission or EU supervisory authorities.

Enforcement of GDPR in the US

The General Data Protection Regulation (GDPR) is being implemented in the EU and EEA by the many supervisory authorities situated across the region. The GDPR does, however, apply to companies situated outside of Europe.

Businesses subject to GDPR that do not have a physical presence or establishment in any EU member-states may need to have a physical representative located inside the region to comply with the GDPR. For those who have violated the General Data Protection Regulation, EU supervisory authorities may address this representative for complaints or for levying fines.

EU enforcement agencies may take disciplinary actions against those who violate the rules. These organizations are likely to get support from government officials in the country where the company is based. Noncompliance may be pursued by EU enforcement agencies, especially against multinational or large corporations, by stop processing orders or regulatory investigations Furthermore, EU data protection authorities may fine companies that continue to do business with US organizations that violate GDPR, effectively preventing US companies from getting customers in the EU.

Finally, EU and US companies may pursue US companies for breach of contract, if GDPR compliance is written into the underlying agreement. These contractual claims may be adjudicated in US courts, depending on the contract, even if they relate to EU compliance.  

GDPR and US-EU Data Sharing

The General Data Protection Regulation (GDPR) defines, in Article 45, the circumstances under which personal data may be transferred outside of the EU. It states that data transfers beyond the EU are permitted if the receiving country has an adequacy agreement with the EU. It is also applicable if the data processor or controller demonstrates an adequate level of data privacy safeguards inside the EU. The EU previously acknowledged the EU-US Privacy Shield as an acceptable mechanism for transfer; however, with the recent “Schrems II” decision from the Court of Justice of the European Union, the Privacy Shield framework has been invalidated for data transfers.

Since the US as a whole does not feature on the European Union’s list of countries with a sufficient level of data protection law, businesses should consult with their privacy counsel as to the best alternative mechanisms for international data transfers

GDPR Compliance Requirements for US Companies

Any US company obliged to comply with the GDPR may be subject to strict requirements as companies located in the EU.

Suppose your website collects or processes personally identifiable information (PII) of EU citizens. In that case, you should do so based on a lawful basis. The following is a checklist that companies in the United States may use as a starting point toward compliance with the General Data Protection Regulation, subject to the advice of their local privacy counsel:

  • Identify and appoint a data protection officer to oversee the processing of EU personal data;
  • Inform your customers about the reasons for which you are processing their data;
  • Make sure you have a data processing agreement in place with your suppliers;
  • Evaluate your data processing operations and improve the level of protection;
  • Determine what to do in the case of a data breach in your organization;
  • Comply with all applicable rules governing cross-border data transfers; and
  • Designate a representative in the European Union;

With the GDPR compliance checklist and retention of local privacy counsel, you may be able to mitigate the risk of enforcement actions brought by EU regulatory authorities. Moreover, a consent management platform (often referred to as a CMP) may help you make your website GDPR compliant.

GDPR Fines for US Companies

The General Data Protection Regulation (GDPR) has significant enforcement penalties to incentivize compliance. There is the possibility of substantial fines for noncompliance with the law, which may reach 4 percent of global sales or €20 million, depending on the severity and circumstances of the violation.

As reported by the US International Trade Commission, since May 2018, data protection authorities in EU member states have collectively penalized US companies for more than $417 million under the General Data Protection Regulation (GDPR).

Conclusion

The General Data Protection Regulation (GDPR) is applicable based on the location of the data subject when their data is processed, not on their citizenship or country. Any company in the United States that provides services or monitors customers in the European Union (EU) should determine their obligations under GDPR, if any apply, and how to comply with the GDPR.

All companies based in the United States should work toward complying with the guidelines of GDPR, if they are subject to it. It is not just to protect the data being transferred and to avoid being fined. But, it is also to protect companies’ integrity and the US in dealing with data protection.

Learn more about the General Data Protection Regulation (GDPR) implications for your business’s marketing strategies. Metaverse Law specializes in data privacy, data protection, and cybersecurity laws. It continues to provide practical solutions for today’s online businesses, including GDPR compliance. To learn more about our services, please contact us now!

Surveillance camera hanging from the top of a building.

Can US Employers Monitor Their Employees at Work?

Workplace Privacy , , , , , , , , , , ,

Image by Peggy und Marco Lachmann-Anke from Pixabay.

With the ongoing events that began in 2020 (the COVID-19 pandemic and ensuing quarantine), many U.S. employers transitioned to remote work arrangements to accommodate local or state stay-at-home mandates. During this time, some employers engaged in certain types of remote workplace monitoring, such as the use of mobile device management (MDM) or productivity monitoring software.

There are many legitimate reasons why employers may monitor their employees in the U.S.

  • Customer-imposed contractual security requirements might require video surveillance on premises or implement data loss prevention (DLP) technology to prevent the unauthorized access or deletion of confidential data.
  • New privacy and security laws require employers to protect the confidentiality and privacy of consumer data, which requires monitoring of access to personal information.
  • Employers are required to protect access to proprietary information, or it may lose trade secret status if disclosed too broadly.
  • Employers can also generally monitor to improve the quality of their services and workforce productivity and satisfaction, such as through call monitoring or review of employee internet use.
  • Finally, employers have an overwhelming legitimate interest in preventing workplace harassment and criminal actions, which may require investigation and review of employees.

E-mails and Company Equipment (Computers, Phones)

U.S. employers generally have the right to monitor employees on company computers, phones, and other devices when (i) monitoring is done in the ordinary course of business, and (ii) employees are notified of the monitoring. In this situation, courts usually find that employees do not have an expectation of privacy regarding their communications and other activities on these devices.

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cybersecurity attorney

Why Every CIO Should Have a Cybersecurity Attorney

Cybersecurity

Every day, the digital world expands by leaps and bounds, and someone could be taking advantage of your company’s information to commit illegal or unethical actions. Today, many crooks are using the Internet to disguise their identity. It can be challenging to protect your company from outside attacks. A high-quality cyber lawyer has the experience to advise businesses as to the reasonable steps to take to avoid becoming a victim and to be protected from within.

Differentiating technical specialists from those responsible for legal responsibilities and hazards enables businesses to create more effective breach response strategies. Understanding the function of a third-party cybersecurity company can aid in this process.

Cybersecurity has always been one of the primary concerns of chief information officers (CIOs). Since the number of high-profile hacks seems to increase month after month, security is plaguing Information Technology (IT) executives throughout the workday.

What is a CIO?

The Chief Information Officer, known as the CIO, holds the top technical position within a given organization. A CIO is responsible for managing, implementing, and using information and computer technologies. Because technology is increasing and reshaping industries globally, the role of the CIO has increased in popularity and importance.

The CIO analyzes how various technologies benefit the company or improve an existing business process and then integrates a system to realize that benefit or improvement.

This person makes crucial business decisions concerning the organization’s technological strategy and interfaces with other C-level executives to communicate needs, processes, and progress. One role of the CIO is to provide an executive-level interface between the technology department and the rest of the business.

What is a Cyber Security Attorney?

Cybersecurity attorneys typically advise on implementing strategies to meet state, federal, and international legal requirements. They may also represent clients before regulatory bodies and serve as the quarterback and crisis manager during incident response to mitigate loss and guide toward  compliance with the law.

A cybersecurity attorney must be knowledgeable with fundamental cybersecurity laws. It is for them to contribute effectively to the company’s operations. These laws include:

  • Electronic Communications Privacy Act 
  • Homeland Security Act
  • Cybersecurity Information Sharing Act of 2015, 
  • Federal Trade Commission Act, 
  • laws on data breach notification,
  • applicable sector-specific state and federal laws

Additionally, the cybersecurity attorney must have a firm grasp of privacy legislation. They must, at the very least, be familiar with privacy legislation. Privacy regimes set obligations to enhance data security since security is necessary for data to stay private.

A cybersecurity attorney should be bilingual in both legal and technological language. Oftentimes, a critical function of such an attorney is to convert legal requirements into design requirements and comprehend technical specifics. As a result, the attorney must grasp the fundamentals of technology or possess a genuine interest and desire to study.

Cyber Security Attorney as a Need

When you don’t have an experienced professional to help protect your company from an inside attack, you subject your operations to a higher level of risk. It’s better to hire a specialist today than at the moment you find out you’ve been compromised.

Many crooks rely on attacks from abroad to gain access to U.S. corporations. Law firms with a reputation for solid cybercrime protection have the upper hand when defending their clients. It is why every CIO should have a comprehensive cyber defense attorney to advise them. When it comes to demonstrating in court that a corporation’s security has been compromised despite implementing reasonable security controls, a professional cyber law firm is more likely to be able to fight back and win. If a cyber crimes attorney does not represent you, you may never know.

A skilled cybercrime attorney can help them get that understanding. They are more likely to know what to ask in court and potentially defeat the government’s case against the company. It can be an expensive process to fight a cyber case. However, the outcome could mean the difference between accepting a settlement or paying big money to defend against an action. Every CIO needs to make sure their law firm is fully staffed to handle cyber cases. The best ones will be located in cities with thriving cybercrime defense attorneys.

The Internet has created a world where criminals can create a fake Twitter account to impersonate a famous person. They can use burner accounts to send emails to spammers. There are even some who use false identity information to try to trick people into opening bank accounts or PayPal accounts under pretenses. An experienced law firm can make these and other cases stick. When cases do make it through the system, the attorney representing the company will know when they have a winning situation.

A good CIO will be aware of the need for an experienced lawyer who can work on cyber cases. Because cyber crimes often involve stealing information, the information may need to be presented as evidence in court. It may mean the company’s entire network should be checked, from top to bottom and back up. In this kind of scenario, an ounce of prevention is worth a pound of treatment. Any company that fails to put in the necessary time and resources to protect itself is putting itself at risk of getting sued.

For a cyber law firm to win its cases, it must also put its client’s interests on the same level as their own. Any information that is stolen or misused needs to be appropriately represented. That means the management must train every employee working to treat documents over the Internet and any company’s computer systems. A good lawyer will also work closely with the IT department to stop any unauthorized access to the company’s computers.

When a CEO realizes that they may be subjecting their companies to cyberattacks, the company’s CIO and cybersecurity attorney should help them out. Law firms should work hard to track down every instance of cybercrime they are liable for, not just the common ones. Every person should know how to prepare defenses in cyber cases. Every business should have an IT department that can track down any attacks when they do happen.

To know what you need for your cybersecurity attorney, contact Metaverse Law today and learn more.

GDPR for small businesses

GDPR For Small Business

GDPR

In May 2018, the General Data Protection Regulation (GDPR) went into effect, strengthening the rights of EU residents regarding data privacy and protection. Essentially, these rights comprise two things:

  • Besides transparency, organizations must provide individuals with the ability to review, amend, or challenge the processing of their personal information.
  • To protect individual data, organizations should implement security measures and manage the liability for any breach or misuse of this information.

This article will discuss how GDPR may applyies to small businesses and some of the essential tasks these businesses need to determine whether the data privacy of their clients is being protected and whether they are GDPR compliant.

GDPR and Small Businesses

Small Businesses with 250-500 Employees

A small company is generally considered as one with fewer than 500 employees in the United States. It is a requirement under GDPR for companies to keep a record of all data processing operations, if they meet certain thresholds. If subject to GDPR, the GDPR’s record-keeping requirements apply to every business with 250-500 employees.

Whether a Data Protection Officer (DPO) is needed is not determined by the business’ size but by the scale and sensitivity of its core processing operations. DPOs are knowledgeable about data protection legislation and processes. A person in this position is also responsible for notifying the authorities of any data breaches.

Small Businesses with Fewer Than 250 Employees

Generally speaking, Article 30 of the GDPR exempts small businesses with less than 250 workers from the need to maintain records of their processing operations, whether as a controller or processor. The size exemption does not apply, however, if the businesses are processing data in any of the following activities:

  • The data processing operations may jeopardize an individual’s rights and freedoms.
  • The information to be processed may involve an individual’s racial origin; political, religious, or philosophical opinions; union membership; genetic or biometric data; or the individual’s health or sexuality.
  • The personal data involved are related to criminal offender, conviction, or arrest-related.
  • The personal data is processed regularly.

As long as these minor requirements are met, small businesses should consider themselves equivalent to larger firms under GDPR for Article 30 compliance requirements.

Small businesses are generally understood to have fewer resources than large corporations. Thus, the Information Commissioner Office (ICO) will consider any smaller company’s challenges in complying with the new legislation. 

GDPR Compliance of Small Businesses

In most instances, your personal data, client information, and company connections will all have this kind of information in some manner. Therefore, let us examine the GDPR’s fundamental principles and how you will be required to comply with them.

Consent

privacy policy compliance

Prepare to add more check-the-boxes to your systems since enhanced consent demands getting permission for each use of a customer’s data. Suppose your business requests an email address and permission to deliver purchase information. In that case, it might need permission once more before utilizing that email for marketing reasons. Businesses should phrase all permission requests in a manner that is understandable to the company’s targeted customers.

Access and Control

Data owners should be given control over their information, including the right to delete, receive and reuse their data. It also includes the ability to move, copy, or transfer their data securely. As a business owner, you may need to provide a system for customers to control the use of their personal data, from data entry to data deletion.

Data Breach Reporting

Businesses may have to notify data owners if a security breach occurs. While this may conjure up visions of large-scale attacks, it also encompasses minor errors such as granting access to your data to a contractor or an employee losing a laptop. No matter how minor the breach is, the business might have to inform the data owner about it if it poses risks to the data owner.

Privacy

After the data is provided, you’ll need security measures in place to preserve it. Merely said, you should see that data is appropriately protected. Thus, it would be best if you consider encrypting any database that holds your clients’ data rather than simply password protecting it.

Overseeing

You may need to provide proper surveillance to third-party applications and organizations that are involved in the data processing. When using online newsletter services, the use of mailing lists should be in GDPR compliance. 

Additional GDPR Compliance

The following factors may help illustrate the most critical actions that US small businesses will need to do to be GDPR compliant:

Audit the Data

Proper auditing of data for GDPR compliance is not a simple undertaking. Thus, businesses must make wise decisions. They may be required to do Data Protection Impact Assessments (DPIAs) before initiating any data processing. It proactively protects data and assesses potential risks to data subjects associated with any new data processing. Most European data protection authorities provide guidelines on their websites on DPIAs and when they should be conducted.

Audit the Service Providers

Auditing your service provider’s compliance is a chore that many US businesses struggle with and may be the source of your business’s most significant risk. Businesses need to evaluate and execute data processing agreements with third-party service providers that handle personal data on your behalf. GDPR requires the data controller to enter contracts, and the data processor may only act on the controller’s orders. A service provider that does not comply with GDPR may be subject to non-compliance and put the controller at risk.

What Happens To Non-Compliant Small Businesses?

Investing the effort to design a GDPR-compliant privacy policy may significantly assist small businesses in showing compliance. Those who have not done so may be deemed non-compliant. They may face reprimands, temporary or permanent data processing limits, data restriction or deletion orders, and suspension of data transfer to third countries from supervisory authorities.

Article 83 of the GDPR alerts enterprises to infractions and imposes discretionary fines. It incentivizes enterprises to handle personal data legally and responsibly. 

GDPR Compliance is Important for Small Businesses

GDPR compliance is crucial for both small and large businesses. Many businesses have hired a Data Protection Officer (DPO) to monitor GDPR compliance. 

Inadequate comprehension is a poor excuse for GDPR non-compliance. Whether it is a sole proprietor or a global corporation, businesses should review how they handle personal data and verify that suitable processes and policies are in place. Systems for granting data access requests and systems for detecting and reporting data breaches may need to be in place. Businesses should also implement appropriate technical and organizational protections to oversee the safety and security of data.

To comply with the GDPR requirements, your business must work with experts in data privacy and protection. Contact Metaverse Law today and learn more.

Image of the United States Capitol Building at night.

Strengthening the U.S. Government Supply Chain: Cybersecurity under Executive Order 14028

Cybersecurity , , , , , , , , ,

Image Credit: Michael Jowen from Unsplash.

U.S. government agencies have a reputation for occasionally clinging on to outdated technology. Some illustrative examples include the U.S. Department of Defense (DoD) paying Microsoft $9 million to continue supporting the defunct Windows XP in 2015 and a U.S. Government Accountability Office (GAO) report from 2019 documenting multiple agencies using legacy systems with 8 to 50-year-old components. In its findings, the GAO unsurprisingly concluded that such legacy systems using outdated or unsupported software languages and hardware poses a cybersecurity risk.

In the wake of the SolarWinds, Microsoft Exchange, and Colonial Pipeline security incidents that impacted U.S. government agencies and/or U.S. critical infrastructure, President Biden issued Executive Order 14028 to update minimum cybersecurity standards for all software sold to the federal government and throughout the supply chain.

Existing Requirements under FedRAMP, DFARS, and CMMC

The new obligations arising out of Executive Order 14028 add to existing security regulations for certain government contractors and subcontractors.

The Federal Risk and Authorization Management Program (FedRAMP) oversees the safe provisioning of cloud products and services from a Cloud Service Provider (CSP) to any government agency. As part of the FedRAMP authorization process, an accredited Third-Party Assessment Organization (3PAO) assesses the CSP’s controls under NIST SP 800-53, a security framework for federal government information systems. The 3PAO also assesses additional controls above the NIST baseline that are unique to cloud computing.

Contractors who supply products or services specifically to the DoD are subject to the Defense Federal Acquisition Regulation Supplement (DFARS). The DFARS standards establish compliance with fourteen groups of cybersecurity requirements under NIST SP 800-171, meant to protect Controlled Unclassified Information (CUI).  

In November 2020, the DoD released the Cybersecurity Maturity Model Certification (CMMC) framework, which builds upon DFARS. Contractors undergo an audit by a CMMC Third Party Assessment Organization (C3PAO), which issues a certification for the contractors’ assessed cybersecurity maturity level. The certification ranges from CMMC Level 1, indicating a low, ad-hoc maturity, to CMMC Level 5, indicating a high, optimized maturity. As contractors progress further up the DoD supply chain all the way to prime contractors—those working directly with the DoD—the DoD scale requirements for those contractors to meet higher certification levels. Meeting all DFARS controls and 110 controls in NIST SP 800-171 roughly correlates to CMMC level 3.

Cybersecurity Requirements of Executive Order 14028

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