Virginia is poised to become the second U.S. state to enact broad consumer privacy legislation. While the legislation draws some parallels with the California Consumer Privacy Act (CCPA) and upcoming California Privacy Rights Act (CPRA), the Virginia Consumer Data Protection Act (VCDPA) introduces new requirements that go beyond these laws, such as opt-ins to collect sensitive data, opt-outs for targeted advertising, the creation of data protection assessments, and new provisions that must be included in service provider agreements. Continue Reading
On February 2, 2021, the European Data Protection Board (EDPB) issued guidance on the processing of personal data for research purposes in response to questions posed by the European Commission (Document). The Document aims to provide clarity on the application of the General Data Protection Regulation (GDPR) to scientific health research. In particular, the Document provides high-level guidance on pertinent issues such as consent for scientific research purposes, appropriate legal bases, and data repurposing. Continue Reading
On January 18, 2021, the European Data Protection Board (EDPB), comprised of all national supervisory authorities (SAs) of the European Union, published draft guidelines for data breach notification1 (the Guidelines).
The Guidelines provide useful insight into how regulators apply the General Data Protection Regulation (GDPR) personal data breach notifications rules. Specifically, they describe six common types of personal data breaches (i.e., ransomware, data exfiltration attacks, internal human risk, lost or stolen device and paper documents, misposted data, and social engineering attacks), and offer 18 case studies. Through these case studies, the EDPB seeks to clarify organizations’ notification and remediation obligations. Continue Reading
On January 12, 2021, the District Court of the District of Columbia was the latest court to grant a motion to compel production of a forensic report prepared by an external security-consulting firm in data breach litigation.1 This case involved a cyberattack on a law firm that led to the public dissemination of the confidential information of the plaintiff, who was a former client of the firm. The plaintiff moved to compel his former law firm to produce “all reports of its forensic investigation into the cyberattack.”2 The defendant asserted that it had produced all relevant materials, including materials related to a second-track investigation conducted by its usual cybersecurity vendor, eSentire, for business continuity purposes. However, the plaintiff also sought a report prepared by Duff & Phelps, who was retained by the defendant’s outside litigation counsel. The defendant argued the Duff & Phelps report was protected by the work-product and attorney-client privileges. The court rejected the defendant’s arguments and ordered production of the Duff & Phelps report and associated materials. Continue Reading
Justices Considered Whether Certain Court-Imposed Monetary Remedies Are Legal
On Wednesday, January 13, 2021, the U.S. Supreme Court heard arguments in the much-anticipated case of AMG v. FTC, which challenges the Federal Trade Commission’s (FTC’s) authority to obtain monetary relief in court under Section 13(b) of the FTC Act. The Court’s decision is likely to have a significant impact on the relief the FTC is able to obtain in federal court proceedings. Continue Reading
On December 15, 2020, the European Commission (EC) unveiled a set of proposals to regulate digital platforms. The draft laws include antitrust-related requirements, addressed by the Digital Markets Act (DMA) and more general regulatory requirements, addressed in the Digital Services Act (DSA). The DMA/DSA package will apply to all digital services, including social media, online marketplaces, and other online platforms, meaning tech companies active in Europe will have a new set of rules to follow. Continue Reading