The UK government has recently published proposals to amend UK data protection legislation with moves towards divergence from EU rules and regulation following the UK’s decision to leave the EU (“Brexit”). The Data Protection and Digital Information Bill (“DPDI Bill”) proposes to make significant changes to existing UK data protection legislation, including the UK General Data protection Regulation (“UK GDPR”) and the Data Protection Act 2018 (“DPA”). The proposals include some measures that will result in a significant divergence, particularly for companies operating on a pan-European basis. While some compliance obligations will be relaxed, most of the changes can best be described as “similar but different” in approach. It remains to be seen what the final text will look like when the bill is passed into law, with some of the more radical proposals already having been dropped from consideration. A crucial point of consideration for UK legislators when the DPDI Bill is making its way through the various stages of the legislative process in the Houses of Parliament will be whether this legislation remains sufficiently similar to the EU’s General Data Protection Regulation (“EU GDPR”) that the UK is able to retain its adequacy status for the purposes of exports of personal data from the EU to the UK by companies operating internationally.
The European Commission recently adopted a new set of Standard Contractual Clauses (SCCs) for organizations to use in compliance with the EU General Data Protection Regulation requirements for transfers of personal data from the European Economic Area. The previous SCCs were outdated and did not cover many common data processing scenarios. Organizations will have an 18-month transition period to adopt the new SCCs, but many parties will need this time to re-examine their dataflows and review their internal compliance procedures to meet the exacting new standards.
A new bill, titled the “Washington Privacy Act,” was introduced in the Washington State Senate on January 18, 2019. If enacted, Washington would follow California to become the second state to adopt a comprehensive privacy law.
Similar to the California Consumer Privacy Act (CCPA), the Washington bill applies to entities that conduct business in the state or produce products or services that are intentionally targeted to residents of Washington and includes similar, though not identical size triggers. For example, it would apply to businesses that 1) control or process data of 100,000 or more consumers; or 2) derive 50 percent or more of gross revenue from the sale of personal information, and process or control personal information of 25,000 or more consumers. The bill would not apply to certain data sets regulated by some federal laws, or employment records and would not apply to state or local governments.
On January 23, 2019, the European Commission announced its decision to adopt adequacy status with Japan for transfers of personal data. Pursuant to the European Union’s (EU) General Data Protection Regulation (GDPR), this decision will allow personal data to flow freely between the 28 EU countries, three additional European Economic Area member countries (Norway, Liechtenstein, and Iceland), and Japan, without the need for additional data protection safeguards or derogations. Japan adopted an equivalent decision with the EU on January 22, 2019. These reciprocal findings of adequacy will create the largest area of safe data flows in the world.
Issues of lack of transparency and consent formed the basis of the CNIL’s $57 million dollar fine against Google under the GDPR. CNIL is France’s highest ranking data-privacy agency. It’s the first large penalty for a U.S. technology company since the GDPR went into effect last May.
The Sedona Conference® has released a Public Comment Version of its Commentary on Information Governance, Second Edition. The latest edition of this Commentary sets out 11 principles of information governance that provide a strategic framework for senior management to make decisions with respect to all information within an enterprise and accounts for changes and advances in technology and law that have occurred over the past four years. It also incorporates guidance on information governance contained in The Sedona Principles, Third Edition, which we discussed in a previous blog post. As defined in this Commentary, information governance “means an organization’s coordinated, interdisciplinary approach to satisfying information compliance requirements and managing information risks while optimizing information value.” The Commentary recognizes that information governance encompasses a variety of disciplines, including traditional records and information management, data privacy, information security, and e-discovery.