Draft EDPB Guidelines Clarify the Roles of Parties Processing Personal Data and Call for Detailed Data Processing Agreements

On September 7, 2020, the European Data Protection Board (EDPB) published draft guidelines (Guidelines) intended to clarify the roles of the parties processing personal data and when they are operating as controllers, joint controllers, or processors under the EU General Data Protection Regulation (GDPR). Continue Reading

EDPB Issues Guidelines on Social Media Targeting Under GDPR

On Monday September 7, 2020, the European Data Protection Board (EDPB) issued draft Guidelines 8/2020 on the targeting of social media users (the “Draft Guidelines”). The Draft Guidelines have far-reaching implications for social media platforms, advertisers, and adtech companies, as they will result in a clarification of the roles and responsibilities of the key stakeholders, and establish rules for consent.

The Draft Guidelines are open for public consultation until October 19, 2020. Interested companies can submit their comments to the EDPB. Continue Reading

Initial Reaction of European Data Protection Regulators to Schrems 2.0 Judgment

Over the last few days, the European Data Protection Board (EDPB), the European Data Protection Supervisor (EDPS) and various Supervisory Authorities (SAs) across Europe issued statements addressing the decision of the European Court of Justice (ECJ) to invalidate the EU-U.S. Privacy Shield framework (Schrems 2.0). Below we summarize some of the main reactions.

The EDPB is working on a set of FAQs that will hopefully provide some level of clarification on key issues that companies now face. The EDPB is meeting on July 22 and 23, and we expect the FAQs to be published shortly thereafter. We will report on these FAQs as soon as they are issued. Continue Reading

ECJ Invalidates EU-U.S. Privacy Shield and Upholds the Standard Contractual Clauses

On July 16, 2020, the European Court of Justice (ECJ) declared the EU-U.S. Privacy Shield framework (Privacy Shield) invalid. The ECJ upheld the EU Standard Contractual Clauses (SCCs), but ruled that companies must verify prior to any transfer using SCCs that the parties can effectively provide the level of protection required by EU law. Continue Reading

Liu v. SEC: Foreshadowing a Challenge to the FTC’s Disgorgement Authority

In Liu v. Securities & Exchange Commission,1 the Supreme Court upheld, but circumscribed, the Securities and Exchange Commission’s (SEC’s) disgorgement authority by holding 8-1 that the SEC may seek disgorgement through its equitable relief power only if the award does not exceed a wrongdoer’s net profits and is awarded to victims. Although this decision is important in its own right, the Court’s underlying reasoning also has significant ramifications on a similar question regarding the Federal Trade Commission’s (FTC’s) power to obtain equitable monetary relief under 15 U.S.C. § 53(b) (Section 13(b) of the FTC Act). Continue Reading

FTC Announces Unusually Stringent Consent Order in Privacy Shield Case Settlement

On June 30, 2020 the Federal Trade Commission (FTC) announced that it reached a settlement in its litigation against NTT Global Data Centers (formerly RagingWire Data Centers) over allegations that the company misled customers about its adherence to the EU-U.S. Privacy Shield framework.1 As part of the settlement, the cloud service provider is required to hire a third-party assessor to annually verify its compliance with the Privacy Shield if it chooses to participate in the framework.2 As noted by three commissioners, this order is “more protective of the Privacy Shield Principles than the 14 orders [the] Commission … has approved in prior Privacy Shield Cases.”3 Continue Reading

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