Privacy & Information Security Law Blog

David Vladeck, Director of the FTC’s Division of Consumer Protection, this morning previewed the long-awaited FTC report that sums up months of discussion regarding the future of privacy regulation in the United States and examines the viability of a Do Not Track mechanism.  Vladeck indicated at the Consumer Watchdog Policy Conference that the existing privacy framework in the U.S. is not keeping pace with new technologies.  In addition, he stated that the pace of industry self-regulation, while constructive, has been too slow.  According to Vladeck, the report will address several major themes, including the following:

Earlier today, a Department of Commerce official briefed Hunton & Williams and Centre for Information Policy Leadership representatives on the Department’s forthcoming “Green Paper” on privacy.  On November 12, 2010, Telecommunications Reports Daily published an article based on information obtained from an unofficial, pre-release draft version of the Green Paper.  It remains to be seen which portions of the leaked draft ultimately will survive the interagency approval process currently underway.  The Department of Commerce representative emphasized that the content of the draft Green Paper currently undergoing review is consistent with Assistant Secretary of Commerce Larry Strickling’s October 27, 2010, speech in Jerusalem.  In his speech, Secretary Strickling explained that the Department is calling it a “Green” Paper, “not because of its environmental impact, but because it contains both recommendations and a further set of questions on topics about which [the Department] seek[s] further input.”

On November 4, 2010, the New York Privacy Officers' Forum hosted a live program to discuss emerging issues in behavioral advertising.  Peter Weingard from online advertising technology and services company Collective began the program with a presentation highlighting the evolution of the advertising industry and the benefits of online behavioral advertising to advertisers, publishers and consumers.  Hunton & Williams partner Aaron Simpson followed Mr. Weingard with a presentation focusing on the emerging legal issues associated with the technology, including a discussion ...

On November 4, 2010, the European Commission (the “Commission”) released a draft version of its Communication proposing “a comprehensive approach on personal data protection in the European Union” (the “Communication”) with a view to modernizing the EU legal system for the protection of personal data.  The Communication is the result of the Commission’s review of the current legal framework (i.e., Directive 95/46/EC), which started with a high-level conference in Brussels in May 2009, followed by a public consultation and additional targeted stakeholders’ consultations throughout 2010.  Although the Commission considers the core principles of the Directive to still be valid, the Communication equally acknowledges that the existing legal framework for data protection in the European Union is no longer able to meet the challenges of rapid technological developments and globalization.

Representative Rick Boucher (D-VA), current head of the House Subcommittee on Communications, Technology and the Internet, lost his reelection bid yesterday to Republican Morgan Griffith, the Majority Leader of the Virginia House of Delegates.  Representative Boucher, widely recognized and respected for his legislative efforts in the areas of technology, telecommunications and privacy law, co-authored the CAN-SPAM Act and also introduced draft privacy legislation earlier this year.  Congressman Boucher’s defeat leaves the House Subcommittee on Communications, Technology and the Internet panel without its top Democrat, and it is unclear who will fill that leadership vacancy.

The United States Congress is currently considering several bills addressing cybersecurity issues.  Below are brief summaries of four such bills.

The Grid Reliability and Infrastructure Defense (“GRID”) Act

The GRID Act was passed by the House of Representatives on June 9, 2010. This bill would amend the Federal Power Act to grant the Federal Energy Regulatory Commission (“FERC”) authority to issue emergency orders requiring critical infrastructure facility operators to take actions necessary to protect the bulk power system. Prior to FERC issuing such an order, the President would have to issue a written directive to FERC identifying an imminent threat to the nation’s electric grid.  FERC would be required to consult with federal agencies or facility operators before issuing an emergency order only “to the extent practicable” in light of the nature of the threat. The GRID Act is being considered by the Senate Committee on Energy and Natural Resources at this time.

On July 27, 2010, Senator John Kerry (D-Mass.) announced his intention to introduce an online privacy bill to regulate the collection and use of consumer data.  “Our counterparts in the House have introduced legislation and I intend to work with Senator Pryor and others to do the same on this side with the goal of passing legislation early in the next Congress,” Kerry said in a prepared statement.  Senator Kerry is the Chairman of the Commerce Subcommittee on Communications, Technology, and the Internet.  He indicated that his bill would go beyond the regulation of targeted ...

On July 19, 2010, Representative Bobby Rush (D-Ill.) introduced a bill "to foster transparency about the commercial use of personal information" and "provide consumers with meaningful choice about the collection, use and disclosure of such information."  The bill, cleverly nicknamed the "BEST PRACTICES Act", presumably intends to set the standards for the use of consumer personal information by marketers.  A similar bill was introduced by Representatives Boucher and Stearns in early May.  Although both proposals would require opt-out consent for online behavioral advertising ...

Following the first “hung parliament” since 1974, the UK is facing considerable legislative reform under the newly formed Conservative - Liberal Democrat coalition government.  Although the parties appear to have differing opinions on a number of legislative issues, one issue that unites them is their commitment (at least in theory) to strengthening the current data protection regime implemented under the Labour government.

Each party’s manifesto states that, should it be elected, it will enhance the audit powers of the Information Commissioner (the UK data protection regulator).  Currently, the Information Commissioner may audit government departments and public authorities suspected of violating data protection principles without their prior consent.  The Conservatives and Liberal Democrats propose to extend the Information Commissioner’s audit powers to private sector organizations.  This could be achieved in theory by secondary legislation.

On May 4, 2010, Congressmen Rick Boucher (D-VA) and Cliff Stearns (R-FL) introduced draft legislation designed to protect the privacy of personal information both on the Internet and in offline contexts.

The legislation would apply to any “covered entity,” which is defined as “a person engaged in interstate commerce that collects data containing covered information.”  The term “covered information” is very broad and includes, but is not limited to, an individual’s first name or initial and last name, a postal address, a telephone number or an email address.  Government agencies and entities that collect covered information from fewer than 5,000 individuals in any 12-month period (and do not collect sensitive information) would not be considered “covered entities” for purposes of the law.

On November 24, 2009, the European Parliament formally approved the European Union's telecoms reform package.  This reform proposed by the European Commission in November 2007 consists of various different EU Directives that set-up the legal framework applicable to the electronic communications sector (telecoms) and includes a new e-Privacy Directive.

New provisions of the e-Privacy Directive will strengthen the protection of privacy and personal data in the electronic communication sector and includes the following:

• mandatory notification for personal data breaches ...

Although China has yet to enact a national data protection law, certain provincial-level rules implementing national consumer protection laws impact the collection and use of personal data.  These provincial regulations may warrant specific attention by entities doing business in the relevant Chinese provinces.  The impact of each of these will often be limited, both because they affect only enterprises doing business in the respective provinces and because the actual requirements of each of these regulations are typically modest.  Also, the potential penalties for violation ...

On October 14, 2009, the Australian government released a report entitled “Enhancing National Privacy Protection” that contains proposed reforms to Australia’s privacy laws, including the Privacy Act 1988 (“Privacy Act”).  In announcing the report, Cabinet Secretary and Special Minister of State Joe Ludwig stated that the reforms aim to “provide for one set of streamlined Privacy Principles for Australian Government agencies and private sector organizations which will provide greater clarity and cut red tape.”  The report comprises the first stage of a two-stage response to a report issued by the Australian Law Reform Commission (“ALRC”) in 2008 that contained 295 recommendations to revise Australian privacy laws and practices.

New Hampshire recently enacted legislation restricting the use and disclosure of protected health information (“PHI”). As of January 1, 2010, health care providers and their business associates will be obligated to notify affected individuals of disclosures of PHI that are allowed under federal law, but are prohibited under the New Hampshire statute.

The New Hampshire law requires health care providers and their business associates to (i) obtain authorization for the use or disclosure of PHI for “marketing” and (ii) offer individuals an opt-out opportunity for the use or disclosure of PHI for fundraising purposes. In addition, it prohibits the disclosure of PHI for marketing (even with an authorization) or fundraising by voice mail, unattended facsimile, or through other methods of communication that are not secure.

On July 28, 2009,  the Data Privacy Subgroup meeting at the Asia-Pacific Economic Cooperation (APEC) Forum in Singapore reported a number of privacy-related legislative developments on the horizon.  Among the highlights:

• On July 15, the Malaysian Cabinet approved privacy legislation to be enacted by the Parliament in early 2010 
• Vietnam is set to enact consumer protection legislation including privacy provisions in 2010 
• Hong Kong's Privacy Commissioner will soon begin a review process to evaluate how privacy law has kept up with changing technology
• The Philippines is set to enact ...

On May 19, Maine Governor John Baldacci signed legislation limiting the time that breach notification may be delayed following a determination by law enforcement that providing notice will not compromise a criminal investigation. The provision, which will take effect 90 days after the close of the Legislature's 2009 session (scheduled to occur on June 17), will limit the permissible delay to seven business days.

Pursuant to Maine's current breach notification law, entities that become aware of a breach "shall conduct in good faith a reasonable and prompt investigation to ...

On May 6, 2009, the proposed amendments to the e-Privacy Directive received a second reading in the European Parliament.  In addition to other measures, it will include a definition of “personal data breach” and will introduce a data breach notification requirement. 

The review of the e-Privacy Directive forms part of a wider review of telecoms legislation.  The objective of that review is to improve network security and integrity, to increase protection for user personal data and to improve measures to prevent spam and “cyber attacks.”  The scope of the amended Directive will include the processing of personal data in connection with the provision of publicly available electronic communications services in public communications networks within the European Community, including public communications networks supporting data collection and identification devices.