Privacy & Information Security Law Blog

On September 29, 2010, the Centre for Information Policy Leadership (the “Centre”) hosted a pre-conference workshop at the International Association of Privacy Professionals (”IAPP”) Privacy Academy in Baltimore, Maryland.  The tutorial “Accountability on the Ground,” led by Centre Executive Director Marty Abrams, offered practical guidance on the subject of accountability.  The workshop, which featured presentations by Centre member companies, discussed in-depth examples of how organizations can implement an accountability program.

According to a press report dated October 2, 2010, the German state data protection authorities responsible for the private sector (also known as the “Düsseldorfer Kreis”) continue to consider the use of Google Analytics on company websites to be illegal.  The Düsseldorfer Kreis reached this decision at a recent meeting of its Telemedia working group.  The group has indicated that it hopes to continue negotiations with Google.  Dr. Alexander Dix, the Berlin Commissioner for Data Protection and Freedom of Information who was interviewed on this issue, stated that although ...

On August 25, 2010, the German government approved a draft law concerning special rules for employee data protection, originally proposed by the Federal Ministry of the Interior.  A background paper on the draft law was published on August 25, 2010.  The draft law would amend the German Federal Data Protection Act (the Bundesdatenschutzgesetz or “BDSG”) by adding provisions that specifically address data protection in the employment context.  Currently, employee data protection is regulated by (1) general provisions in the BDSG, (2) the new Section 32 of the BDSG introduced by the most recent reform in September 2009, (3) the Works Constitution Act, (4) guidance from state data protection authorities, and (5) comprehensive case law from federal and local labor courts.

The Department of Health and Human Services (“HHS”) received numerous comments on its proposed modifications to the Health Insurance Portability and Accountability Act Privacy, Security and Enforcement Rules, which were issued on July 8, 2010.  Some highlights from the comments are outlined below.

Enforcement Rule

The American Hospital Association (“AHA”) suggested that HHS should continue to require the Secretary of HHS to attempt to resolve a complaint or compliance review through informal means, instead of making the informal resolution process optional.  According to the AHA, making “resolution via informal means optional, regardless of the perceived level of culpability of a particular entity” would not be appropriate or effective.  The Coalition for Patient Privacy, on the other hand, recommended stricter enforcement so that “the only category of violators that should not be penalized with fines are those who despite due diligence could not discover the violation, who reported the violation immediately when discovered, and fully corrected the problems within 30 days of discovery.”

The UK Information Commissioner’s Office (the “ICO”) has indicated that UK law firm ACS:Law could face a maximum penalty of £500,000 following a major data breach.

Personal information, including names and addresses, of over 8,000 Sky broadband subscribers and 400 PlusNet users was made publicly available following an apparent attack on ACS:Law’s website.  The broadband customers involved are suspected by ACS:Law’s clients of illegally file-sharing copyright work, including music and, in some instances, pornographic films.

David Vladeck, the head of the Bureau of Consumer Protection at the Federal Trade Commission, shared his vision for consumer privacy protection with an audience at the IAPP’s Privacy Academy on September 30, 2010.  Mr. Vladeck began by reminding the audience that the FTC is aggressively enforcing on privacy and data security matters, having brought 29 cases to date.  Where possible, the FTC joins forces with other federal regulators, such as the Department of Health and Human Services, to seek broad relief that the FTC could not otherwise get on its own.  Mr. Vladeck indicated that the FTC also works closely with the states, citing a recent case in which the FTC filed concurrent settlements with 36 state attorneys general.  Mr. Vladeck stated that the FTC plans to continue to bring cases to ensure that companies “reasonably” safeguard information.

Mr. Vladeck noted three key areas for future enforcement.  The FTC will (1) bring more cases involving “pure” privacy, i.e., cases involving practices that attempt to circumvent consumers’ understanding of a company’s information practices and consumer choices; (2) focus enforcement efforts on new technologies (Mr. Vladeck noted that, to assist staff attorneys in bringing these sorts of cases, the FTC has hired technologists to assist and also have created mobile labs to respond to the proliferation of smart phones and mobile apps); and (3) increase international cooperation on privacy issues (Mr. Vladeck cited the FTC’s recently-announced participation in the Global Privacy Enforcement Network).

Please join us at these great events coming up this fall.  Several members of Hunton & Williams’ Privacy and Information Management team are presenting at these events to discuss the current and evolving privacy and data security issues occurring around the world.

Internet Rights and Technology: A Practical Legal Guide to Doing Business on the Internet – New York City Bar
On September 28, 2010, 6:00 p.m. – 8:45 p.m., the New York City Bar hosts a live program to discuss how the Internet affects various areas of law, including intellectual property, new media, litigation, regulatory and licensing.  The faculty includes Hunton & Williams partner, Aaron P. Simpson, who will lead the Privacy & Data Security session.

The United States Federal Trade Commission ("FTC") recently joined forces with privacy authorities from eleven other countries to launch the Global Privacy Enforcement Network ("GPEN"), which aims to promote cross-border information sharing and enforcement of privacy laws.  On September 21, 2010, GPEN unveiled its new website, www.privacyenforcement.net, designed to educate the public about the network.  The GPEN website, which is supported by the Organization for Economic Co-Operation and Development ("OECD"), provides guidelines and application instructions for ...

The Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (generally referred to as “Convention 108”), enacted in 1981, is the only legally-binding international treaty dealing with privacy and data protection.  The Convention is also of fundamental importance in providing the underlying legal framework for instruments such as the EU Data Protection Directive 95/46.  So far, 42 countries have become parties to Convention 108.

As the European Commission reviews the EU Directive, the Council of Europe also is preparing to review Convention 108.  The review will be conducted by the Council of Europe’s Consultative Committee on data protection (referred to as T-PD) in a process that will likely take several years.  The T-PD, which meets at the Council of Europe’s headquarters in Strasbourg, is primarily composed of representatives of national governments and data protection authorities, with the International Chamber of Commerce being the only private-sector entity with formal observer status.  The group has commissioned a legal study from an outside consultant to analyze Convention 108 and provide any recommended revisions by the end of 2010, and the T-PD will begin discussions at its upcoming meeting in November.

On September 15, 2010, New York State Attorney General Andrew Cuomo announced a $100,000 settlement with EchoMetrix, a developer of parental control software that monitors children’s online activity.  The settlement comes one year after the Electronic Privacy Information Center (“EPIC”) alleged in a complaint to the Federal Trade Commission that EcoMetrix was deceptively collecting and marketing children’s information.