The Evolving Privacy Landscape at a Glance: Compliance Considerations for a New Decade

Increased regulation continues to be the trend in data privacy law, with 2019 bringing forth a host of new regulations and guidance on existing laws. This year, the pace will not likely slow, with January 1, 2020, having marked the official arrival of robust data privacy law in the United States as the California Consumer Privacy Act (CCPA) came into effect.

Boards and management will need to continue to monitor the evolving privacy compliance landscape to ensure that they are considerate of privacy obligations and attendant risks when implementing their business objectives and oversight going into 2020.

CCPA

In its 2019 session, the California legislature amended the CCPA and the California Attorney General issued a set of regulations that implement, clarify and impose new obligations under the CCPA. Commentators expect that the law and regulations will be further amended, but as of now, if the CCPA applies to your business,[1] notable obligations include:

• Updating websites, mobile applications and other locations where consumers’ personal information is collected in order to provide the consumer with meaningful understanding of the information collected about them at or before collection, as well as the purposes for which the information will be used. If information is sold (as defined broadly under the CCPA), providing the consumer with a “Do Not Sell My Personal Information” link at the point of collection.
• Updating privacy policies to apply to online and offline (brick-and-mortar) practices. The policies must detail the categories of information that are collected, the sources of the information, how such information may be used and with whom, as well as the consumers’ rights under the CCPA and how to exercise those rights, including the right to opt out of sale of data and the right to access and delete data. If no notice of the right to opt out of sale is provided, companies must expressly state that they do not and will not sell personal information.
• Updating contracts with vendors that receive personal information to ensure your vendors qualify under certain exceptions under the law (such that sharing information with them does not constitute a “sale”) and collaborate with respect to consumers’ access or deletion requests.
• Training employees who are responsible for handling consumer inquiries about your business’ privacy practices, the requirements of the CCPA and how to direct consumers to enable consumers to exercise their rights.
• Implementing methods for complying with the rights granted by the CCPA, including:
  • Designating an official contact for questions about your company’s privacy policies.
  • Offering two or more designated methods for receiving consumer requests under the CCPA.

  • Establishing, documenting and complying with a method for verifying that the person making a request for access or deletion is indeed the subject consumer.

  • Ensuring your business can identify an individual consumer’s data to provide that individual with access to that data, delete it from your records or remove such data from data sets that are sold to third parties.

Other Privacy Legislation

• Other US State Laws. Many states followed California’s lead, and last year 16 other states introduced legislation offering comprehensive consumer privacy reform. However, only Maine and Nevada passed legislation, and the Maine law applies only to Internet service providers operating in Maine when providing Internet access service to customers physically located in Maine, while the law in Nevada is focused solely on data sales. Connecticut, Texas and a few other states passed legislation to enact advisory councils or task forces to study and recommend data privacy laws.
• International Laws. China and India each had notable legislative action over the past year. In May 2019, the Cyberspace Administration of China issued draft Measures on Administration of Data Security that, when issued in final form, will constitute binding regulations on network operators who collect, store, transmit, process and use data within Chinese territory. In December 2019, India was poised to pass a GDPR-inspired data privacy law that would require express consent for most uses of an individual’s personal data and allow for individuals to request their personal information be deleted.
• Biometric Laws. In two separate rulings in 2019, the Illinois Supreme Court and a three-judge panel in the Ninth Circuit sided with the plaintiffs in cases regarding alleged breaches of the Illinois Biometric Information Privacy Act (BIPA). While the Ninth Circuit federal case, Patel, et al. v. Facebook is stayed to allow Facebook to petition to the US Supreme Court, the Illinois Supreme Court decision in Rosenbach v. Six Flags found plaintiffs need only show violation of their rights under BIPA—as opposed to actual injury—to bring a claim for violation of BIPA. In addition, a bipartisan federal bill to regulate facial recognition and state biometric privacy laws in New York, Florida, Massachusetts and Arizona was introduced in 2019. Many states have also amended the definition of personal information in their existing privacy or data breach notification laws to include biometric information.

Notable Enforcement

Early in 2019, the French Data Protection Authority announced a €50 million fine against Google for alleged GDPR violations for allegedly not properly disclosing to users how personal data is collected and used across its personalized ads services.

Additionally, in October of 2019, the Berlin Commissioner for Data Protection and Freedom of Information issued a €14.5 million fine against a German real estate company, die Deutsche Wohnen SE, for its failure to maintain a GDPR-compliance data retention policy and consequently storing tenants’ personal information longer than necessary for the purposes for which the data was initially collected, and without a legal basis for such excessive retention. This shows that a seemingly minor offense—over retention of data—can also bring serious penalties.

These two actions differ from those enforcement actions highlighted in Cybersecurity: What Keeps Us Up at Night in this memo, in that these actions did not arise out of a cybersecurity incident, but relate solely to privacy violations—an alleged failure to obtain adequate consent from users prior to collecting and processing their information and improper retention of personal data, respectively.

Key Takeaways:

• The 2019 GDPR enforcement action against Google and legislative proposals demonstrate that authorities and legislatures are focused on consumer privacy—and not just cyberattacks.
• Legislative and enforcement trends indicate that companies need to continue to stay abreast of their data collection, processing and sharing activities and compliance obligations as this landscape evolves in 2020.

This article was republished in Pratt’s Privacy & Cybersecurity Law Report.