New York Expands Data Privacy Protections

New York continued its active legislative session last week, this time by expanding its data breach notification law. The SHIELD Act (Stop Hacks and Improve Electronic Data Security), signed by Governor Andrew Cuomo on July 25, 2019, notably expands the definition of a data breach and the scope of what constitutes personal information. But the law could have gone farther; the state did not enact a private right of action, as has California, and which several other states are considering. New York’s action does, however, contain several other very significant provisions in the context of data breaches involving New York residents.

Nevada’s New Privacy Law – Beating California in the Backstretch

Just as companies are reaching the straightway in their efforts to get ready to comply with the California Consumer Privacy Act (“CCPA”) by January 1, Nevada has burst ahead with a privacy law that will take effect before the CCPA. On May 29, 2019, Nevada Governor Steve Sisolak signed SB 220 into law, amending Nevada’s existing law that requires an operator of an Internet website or online service to provide a privacy notice to consumers detailing certain of the operator’s privacy practices; SB 220 goes into effect on October 1, 2019.1 SB 220 allows consumers to opt-out of operators of Internet websites and online services selling personally identifiable information to other entities for monetary consideration and will require both legal and operational changes for businesses. Operators, as defined by the law, must create a “designated request address” that allows consumers to submit requests prohibiting sale of information collected about the consumer, and operators must respond to the requests within 60 days.

National Financial Institutions—Developing A Project Plan To Comply With The California Consumer Privacy Act

Since its adoption last year, U.S. financial institutions have been confronted with the challenge of planning their compliance with the California Consumer Privacy Act (the “CCPA”)1. The CCPA becomes effective in two stages—January 1, 2020 and July 1, 2020 (or possibly sooner depending upon the date the California Attorney General adopts implementing regulations).2Regrettably, considerable confusion exists within the financial industry about the scope of the CCPA and the obligations it imposes on financial institutions.In an effort to provide our financial intermediary clients and friends with a workable summary of a financial institution’s obligations—and in particular for financial institutions that do not have a physical presence in California—this Alert is intended to assist in identifying coverage considerations, and provide a practical approach to the development of a project plan that will demonstrate reasonable compliance with the CCPA’s admittedly ambiguous set of requirements and obligations.

SB 561 Held in Committee-Private Right of Action under the CCPA Confined (for Now)

On Thursday, March 16, 2019, the California Senate Appropriations Committee held in Committee SB 561, which would have greatly expanded the private right of action (i.e., the ability to bring private class actions) available under the California Consumer Privacy Act (“CCPA”). SB 561 was introduced in February by California Attorney General (“AG”) Xavier Becerra and Senator Hannah-Beth Jackson. Notably, the bill sought to amend the existing private right of action to cover all violations of the CCPA, as opposed to merely data breaches. Additionally, the bill would have discontinued the 30-day cure period, whereby businesses were immunized from penalization by the AG to the extent they were able to cure an alleged violation within 30-days’ notice thereof, and would have eliminated businesses’ and third parties’ entitlement to seek interpretive guidance regarding compliance from the AG (and instead would authorize the AG to publish general guidance).

Potentially Expanded Private Right of Action Increases Risk of Class Action Exposure Under the California Consumer Privacy Act

As companies were getting up-to-speed on the effects of the European Union’s General Data Protection Regulation (GDPR) last year, California quickly enacted its own privacy law, the California Consumer Privacy Act (“CCPA” or “Act”) last June. We address below the high risk associated with the CCPA and its interaction with regulations in key U.S. industries. The fast-passed legislation was designed to avoid a November 2018 ballot initiative on the subject, and was plagued by errors and ambiguities that require robust clarification.  The Act’s take-away, however, was abundantly clear – California consumers have a right to know what personal data companies are collecting and are empowered to bring a private right of action for a data breach (and even potentially for other violations of the Act). 

Jail Time for Executives? Federal Privacy Proposals Have Teeth

2019 will bring significant privacy law changes in the U.S. These changes will require significant compliance efforts by companies operating in the U.S. this year. It is still an open question as to whether those compliance efforts will be in connection with a new federal privacy law or the California Consumer Privacy Act of 2018 (CCPA). Numerous companies and members of Congress are calling for federal legislation. Momentum is building. However, unless legislative action is immediate in the new Congress, it is time for companies to begin efforts to comply with the CCPA, if they have not already done so.

SEC Report on Internal Controls, Cybersecurity

Cyber-security has become – or perhaps should be – a key area of concern for every enterprise. The risks are substantial for the firm, its shareholders, executives and customers as recent cases illustrate. Every enterprise large or small is a potential victim. The losses can and often are substantial not just in dollars but also in trust, customers and more. The Commission has issued guidance. The agency has also brought enforcement actions.

Now, however, the Commission has issued a report based on nine investigations of firms involved in a variety of industries, cautioning about cyber risks in the context of the firm’s obligations to maintain proper internal controls. Report of Investigation Pursuant to Section 21(a) of the Exchange Act Regarding Certain Cyber-Related Frauds Perpetrated Against Public Companies, October 16, 2018. 

Extraterritorial Application of The GDPR

By:  Ron Moscona, Jamie Nafziger and Clint Conner The EU General Data Protection Regulation (GDPR), which is billed as the most important development in data privacy regulation in at least 20 years, arrived with a bang in May of this year and companies have been scrambling to implement compliance measures that will avoid its stiff… Read More

Will California’s New Privacy Law be Preempted? Federal Hearings and Public Comments Begin

Although numerous attempts have been made to pass a comprehensive U.S. privacy law over the years, this one might actually succeed. Efforts have begun on multiple fronts. From Senate Commerce Committee hearings to several federal agencies vying for which will lead a federal regulatory effort, privacy is a hot topic in Washington, DC. Businesses should take immediate action to enter the discussions if they have not already done so. Comments on a proposed federal framework are due October 26, 2018. The Commerce Committee will hold additional hearings in October. Industry is coming to the table in an attempt to avoid facing a jumble of inconsistent state privacy laws.

Digital Assets a Focus Point for Regulators

By:  Genna Garver, Daniel Baich, Kimberly Frumkin As investor interest in cryptocurrencies has picked up, government agencies and non-governmental organizations tasked with protecting investors are taking a harder look at these virtual investment products. While the Securities and Exchange Commission (SEC), the Commodity Futures Trading Commission (CFTC), Financial Industry Regulatory Authority (FINRA), and the National Futures Association… Read More

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