D(MA)-Day: Formal Adoption of the EU Digital Markets Act

On July 18, 2022, the long-awaited Digital Markets Act (DMA) received the final approval of the EU’s co-legislators. The DMA will impose stringent far-reaching obligations on the largest digital platforms: the “gatekeepers.” The regulation will give the European Commission (EC) significant new enforcement powers, including the ability to impose severe fines and remedies in case of non-compliance.

The DMA will profoundly change the way in which big tech platforms operate in the EU. It will capture the largest tech companies and potentially 15-20 other platforms such as Alibaba and Booking.com. It will also create complications for non-gatekeepers, as the rules will impact how data can be shared with a gatekeeper’s commercial partners. Continue Reading

EU Parliament and EU Council Approve the DMA

On July 18, 2022, the EU Council formally adopted the EU Digital Markets Act (DMA), following approval by the EU Parliament earlier this month (the press releases are available here and here). The final DMA text as approved is available here.

As next steps, the final text of the law will be signed by the Parliament and Council Presidents and will be published in the EU Official Journal. The Publications Office still needs to make some further technical edits to the text before it can be published, including to clarify the date of application (i.e., add a specific date, given that the text currently states “[6 months after entry into force]”). We expect that final publication in the EU Official Journal will take place this fall. Continue Reading

Privacy Legislation Update: The “Three Corners” Bill and the Cantwell Draft

On June 3, 2022, members of the U.S. Congress released a bipartisan, bicameral discussion draft of a comprehensive national data privacy and data security framework. The draft is notable in that it reflects a compromise on the two issues that have for years vexed lawmakers angling for federal privacy legislation: preemption and private right of action. The House Energy and Commerce Committee has announced a hearing for June 14 to discuss the draft.

The discussion draft has become widely known as the “three corners” bill, because it has the support of three of the four “corners” of the relevant committees: the Chair and Ranking Member of the House Energy and Commerce Committee and the Ranking Member of the Senate Commerce Committee. Notably, the fourth “corner,” Senate Commerce Committee Chair Maria Cantwell, is circulating her own draft.[1] While there are similarities between the two drafts, the differences reflect the likely sticking points among the negotiators.

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California Privacy Protection Agency Releases Draft CPRA Regulations – An In-Depth Analysis

On May 27, 2022, the California Privacy Protection Agency (CPPA) released a much-anticipated first draft of some of the anticipated regulations implementing the California Privacy Rights Act (CPRA).[1] The release accompanied the CPPA’s announcement of its next public meeting on June 8, 2022, where the agency will, among other agenda items, consider possible action regarding the draft regulations and the delegation of rulemaking authority functions to the CPPA’s executive director. Ahead of this meeting, on June 3, the CPPA released a draft Initial Statement of Reasons (ISOR) to accompany the draft regulations, which provides an explanation of the purpose and necessity of the draft regulations, along with an FAQ offering further information about the draft regulations and rulemaking process. While the formal CPRA rulemaking process has not yet officially begun, we expect to learn more about a potential schedule for the notice and comment period for the regulations at the CPPA’s June 8 meeting.

For a more high-level overview of the draft regulations’ key takeaways, please see our Wilson Sonsini Alert. Continue Reading

Privacy and Security of Health Information: A Primer for Digital Health Companies

COVID-19 has rapidly accelerated our expectations that virtual connection can deliver better and more economical care. As a result, digital health companies have an unprecedented opportunity to innovate, but with that opportunity also comes significant regulatory challenges related to the collection and processing of personal health information. What legal requirements apply to processing of health information? What are the risks associated with noncompliance? In this brief primer, we provide answers to these questions, and a window to what may lay next on the horizon. Continue Reading

DOJ Acknowledges Limits to the CFAA, but Questions (and Possible Civil Liability) Remain for Security Researchers and Others

On May 19, 2022, the U.S. Department of Justice (DOJ) revised its policy regarding charging decisions under the Computer Fraud and Abuse Act (CFAA). The new policy makes clear, “for the first time,” that the DOJ “should decline prosecution” of “good faith” security research, even if said research involves a technical violation of the CFAA.1 The new policy also limits prosecutions based on terms of service (TOS) or other boilerplate contractual violations, in recognition of the U.S. Supreme Court’s decision in Van Buren v. United States, 593 U.S. __ (2021). Continue Reading

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