Privacy & Information Security Law Blog

On October 23, 2017, the Federal Trade Commission issued a policy enforcement statement providing additional guidance on the applicability of the Children’s Online Privacy Protection Rule (“COPPA Rule”) to the collection of children’s audio voice recordings. The FTC previously updated the COPPA Rule in 2013, adding voice recordings to the definition of personal information, which led to questions about how the COPPA Rule would be enforced against organizations who collect a child’s voice recording for the sole purpose of issuing a command or request.

On October 19, 2017, the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE Committee”) narrowly voted to approve an amended version of the e-Privacy Regulation (“Regulation”). The committee vote is an important step in the process within the European Parliament. This vote will be followed by a vote of the European Parliament in its plenary session on October 23-26. If the plenary also votes in favor, the European Parliament will have a mandate to begin negotiations with the Member States in the Council. If these negotiations (commonly known as “trilogue”) succeed, the Regulation will be adopted.

In our final two segments of the series, industry leaders Lisa Sotto, partner and chair of Hunton & Williams’ Privacy and Cybersecurity practice; Steve Haas, M&A partner at Hunton & Williams; Allen Goolsby, special counsel at Hunton & Williams; and Eric Friedberg, co-president of Stroz Friedberg, along with moderator Lee Pacchia of Mimesis Law, continue their discussion on privacy and cybersecurity in M&A transactions and what companies can do to minimize risks before, during and after a deal closes. They discuss due diligence, deal documents and best practices in privacy and data security. The discussion wraps up with lessons learned in the rapidly changing area of data protection in M&A transactions, and predictions for what lies ahead.

On October 19, 2017, the White House announced that President Donald J. Trump plans to nominate two individuals to serve as commissioners of the Federal Trade Commission. President Trump selected Joseph Simons to lead the FTC as its chairman for a seven-year term, beginning September 26, 2017. Simons’ background primarily has focused on antitrust matters. From June 2001 to August 2003, he led the FTC’s antitrust initiative as Director of the FTC’s Bureau of Competition.

On October 18, 2017, the EU Commission (“Commission”) released its report and accompanying working document on the first annual review of the EU-U.S. Privacy Shield framework (collectively, the “Report”). The Report states that the Privacy Shield framework continues to ensure an adequate level of protection for personal data that is transferred from the EU to the U.S. It also indicates that U.S. authorities have put in place the necessary structures and procedures to ensure the proper functioning of the Privacy Shield, including by providing new redress possibilities for EU individuals and instituting appropriate safeguards regarding government access to personal data. The Report also states that Privacy Shield-related complaint-handling and enforcement procedures have been properly established.

On October 4, 2017, the Article 29 Working Party (the “Working Party”) revised and adopted the final version of the Guidelines on data protection impact assessments (DPIA) and determining whether processing is “likely to result in a high risk” for the purposes of Regulation 2016/679 (the “Guidelines”). The Guidelines were first published for comment on April 4, 2017, and the final publication of these revised Guidelines follows the public consultation that ended in May 2017.

On October 13, 2017, the Federal Trade Commission published the twelfth and final blog post in its “Stick with Security” series (the “Series”). The Series focused on the 10 principles outlined in the FTC’s Start with Security Guide for Businesses and sought to provide insights and lessons learned on data security from recent FTC cases, closed investigations and questions and comments received from businesses. The final post, entitled Stick with Security: FTC resources for your business, outlines the resources available to businesses to put the principles detailed in the Series into practice. These can be found on the FTC’s Data Security page.

Last week, at the 39th International Conference of Data Protection and Privacy Commissioners in Hong Kong, data protection authorities from around the world issued non-binding guidance on the processing of personal data collected by connected cars (the “Guidance”). Noting the ubiquity of connected cars and the rapidity of the industry’s evolution, the officials voiced their collective concern about potential risks to consumers’ data privacy and security. The Guidance identifies as its main concern the lack of available information, user choice, data control and valid consent mechanisms for consumers to control the access to and use of their vehicle and driving-related data. Building on existing international guidelines and resolutions, the Guidance urges the automobile industry to follow privacy by design principles “at every stage of the creation and development of new devices or services.”

On October 4, 2017, the Federal Trade Commission and the Department of Education (“DOE”) announced that they will co-host a workshop to explore privacy issues related to education technology. The Ed Tech Workshop, which will take place on December 1, 2017 in Washington, D.C., will examine how the FTC’s Rule implementing the Children’s Online Privacy Protection Act (“COPPA”) applies to schools and intersects with the Family Educational Rights and Privacy Act (“FERPA”), which is administered by the DOE.

Recent judicial interpretations of the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14, present potential litigation risks for retailers who employ biometric-capture technology, such as facial recognition, retina scan or fingerprint software. Federal judges in various district courts have allowed BIPA cases to move forward against companies such as Facebook, Google and Shutterfly, and retailers who use biometric data for security, loss prevention or marketing purposes may also become litigation targets as federal judges decline to narrow the statute’s applicability and additional states consider passing copycat statutes.