Privacy Law Forecast for 2019

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This past year was quite a whirlwind for privacy and cybersecurity watchers. Just to sum up a few of the top events of last year:

  • Facebook’s Cambridge Analytica scandal rocked political headlines
  • Europe introduced the GDPR, the most comprehensive data protection legislation to date in the world
  • California enacted the California Consumer Privacy Act, becoming the first US state to create GDPR-style rules
  • Google came under fire for allowing app developers to read your email, and track your location (even with location tracking off!)
  • Marriott’s guest reservation system was hacked, exposing the personal information of up to 500 million guests, including passport numbers and payment numbers for some of those hacked

What will happen in 2019? Here are our top 5 predictions:

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California Consumer Privacy Act vs GDPR

California Consumer Privacy Act vs GDPR – How to Maximize Your Privacy Compliance Program

California’s recent passage of the Consumer Privacy Act of 2018 now places the world’s fifth-largest economy under European style data protection rules. Given the new law, US businesses that were previously hesitant to implement GDPR are now reconsidering their position.

Luckily, the GDPR and the California Consumer Privacy Act (CCPA or CaCPA) share some similarities. Both provide for consumer-facing privacy notices, data access rights, and data portability. As businesses automate their GDPR compliance processes, they should also leverage those same processes under the CaCPA to save significant time and expense.

Below, we have listed five common operational steps that all businesses should take in their GDPR and CaCPA privacy compliance programs:

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California Privacy Update: Tentative Compromise on Consumer Privacy Act

6/28/2018 Update: Governor Brown signed AB-375 into law on the afternoon of June 28, 2018. The law is named the California Consumer Privacy Act of 2018, and will take effect in January 2020. This will give industry and lawmakers some time to regroup and fine tune the regulations under this new act.

In a last-minute attempt to keep the California Consumer Privacy Act initiative off the November ballot, California lawmakers reached a tentative deal with ballot sponsor Alastair Mactaggart on June 21st to push forward a legislative privacy bill. The deal depends on the bill passing both houses and being signed by Governor Brown by June 28th.

The proposed bill, introduced by State Assembly member Ed Chau and state senator Robert Hertzberg, would give California consumers unprecedented rights to know what information businesses collect about them, where that information comes from, and how that information is shared. The bill also gives consumers the power to stop companies from selling their data.

The bill removes some of the most draconian features of the proposed Consumer Privacy Act, by removing private rights of action for procedural violations of the law, discarding minimum statutory damages for even de minimis violations, and providing a 30-day “right to cure” for businesses. Further, the proposed bill provides some relief for businesses facing “manifestly unfounded or excessive” requests from consumers concerning their data.

Though this compromise bill reduces many of the operational headaches of the proposed ballot initiative, it will likely face strong opposition from the tech sector. Most prominent amongst the initiative’s detractors is the Committee to Protect California Jobs, a PAC composed of the California Chamber of Commerce, TechNet, Internet Association, and technology giants such as Google, AT&T, and Comcast.

While it remains to be seen whether this bill prevents a November ballot showdown, the policy debate around the Consumer Privacy Act is indicative of broader trends towards privacy legislation. Public sentiment in support of state privacy laws is only growing, given the recent Facebook-Cambridge Analytica scandal, and the increasing frequency of large-scale data breaches like those affecting Equifax, Target, and Yahoo. This growing pro-privacy sentiment is not confined to California and follows on the heels of recent cybersecurity legislation in Massachusetts and New York, heightened data breach rules in Idaho and Oregon, and a new federal bill introduced in Congress by Sens. Edward Markey, D-Mass, and Richard Blumenthal, D-Conn. (the “CONSENT” bill).

California’s appetite for regulation is one of the largest in the nation, however, and it has a history of spearheading privacy rules. It was the first state to introduce data breach notification requirements in 2002, and so far, is the only state with specific rules on online privacy notices (under CalOPPA). Compared with other proposed legislation, this would be the widest in scope, increasing the operational burdens of most businesses. Regardless of the outcome of this tentative privacy deal, businesses should pay close attention to privacy developments in California, as they often provide a model for other states.

American Privacy Laws in a Global Context: Predictions for 2018

Should putative class members have privacy rights in class action claims under the CCPA?
Image Credit: kmicican from pixabay.com

[Originally published as the May 2018 Cover Story: Data Privacy and the Law – American Privacy Laws in a Global Context: Predictions for 2018, by Lily Li, in Orange County Lawyer Magazine, May 2018, Vol. 60 No.5.]

Cybersecurity Attacks Are Inevitable

Cybersecurity attacks are on the rise. According to the non-profit organization, Identity Theft Resource Center, there were over 1,579 publicly reported data breaches in 2017, compared to 1,091 in 2016, and 780 in 2015. Not only are these cyberattacks happening at high-profile companies like Equifax, Uber, and Yahoo, they are increasingly happening to businesses of all sizes. Any entity able to pay a ransom is now a potential target.

Law firms are no exception. In 2017, DLA Piper was hit with a “wiper-ware” attack, following previous email hacks of Cravath and Weil Gotshal in 2016. Earlier this year, UK-based cybersecurity firm, RepKnight, reported that almost 800,000 UK law firm email addresses and affiliated passwords were available on the dark web, with over 50% of these credentials posted in the last six months. These law firms did not just include local UK firms, but global law firms with a UK presence.

Given these alarming statistics, what should legislators do?

In the EU, Canada, and China, legislators have decided to develop and implement national data privacy and cybersecurity frameworks: GDPR, PIPEDA, and CSL respectively. The United States, by contrast, still relies upon a patchwork of sectoral laws and inconsistent state rules. This article will take a brief look at developments in the EU, Canada, and China, discuss the current United States privacy framework, and predict likely developments in U.S. privacy law over the next year.

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