Three years after the European Commission’s (Commission) adoption of the updated Standard Contractual Clauses (SCCs), new clauses are on the horizon.

The Commission announced a recent initiative in which the SCCs would be open for public consultation beginning the fourth quarter of 2024, with potential updates to the SCCs being adopted by the Commission in the second quarter of 2025 (2025 Clauses). These 2025 Clauses offer the Commission the opportunity to address any gaps left by the current SCCs adopted on June 4, 2021.Continue Reading Another Update Already? New EU Standard Contractual Clauses on the Horizon to Further Safeguard Cross Border Data Transfers

In July of 2023, the Federal Trade Commission (FTC) and the U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) published a joint letter cautioning hospitals, health app developers, and telehealth providers about the privacy and security risks related to the use of online tracking technologies integrated into their websites or mobile apps that may be impermissibly disclosing consumers’ sensitive personal health data to third parties. Additionally, the two agencies sent the joint letter to approximately 130 hospital systems and telehealth providers to remind them of the regulatory risks associated with using such technologies.Continue Reading A Cautionary Tale: FTC and OCR Publish Warning Letters Regarding the Use of Third-Party Tracking Technologies

The Office for Civil Rights (OCR) recently issued a bulletin (the “Bulletin”) addressing the use of online tracking technologies by HIPAA-covered entities and business associates (collectively “regulated entities”). The Bulletin highlights the regulated entities’ obligations under the HIPAA Privacy, Security, and Breach Notification Rules (collectively the “HIPAA Rules”) when using tracking technologies. This blog post provides the key information regulated entities should know about their obligations under HIPAA when they, or their business associates, use tracking technologies.Continue Reading Cookies and HIPAA Don’t Always Mix: OCR Issues Guidance on HIPAA and Tracking Technologies

On December 13, 2022, the European Commission published a draft adequacy decision for the EU-U.S. Data Privacy Framework (“EU-U.S. DPF or DPF”) signaling the potential return of the framework allowing the flow of personal data between the EU and the United States. Although this is a draft decision, if approved, it will ease trans-Atlantic data flow and ease the restrictions that were placed after the 2020 Schrems II decision invalidated the EU-U.S. Privacy Shield framework for cross-border transfers. This draft adequacy decision ultimately concluded that the DPF provides an adequate level of protection of personal data.Continue Reading Don’t Call It A Comeback: EU-U.S. Data Privacy Framework Inches Closer to Implementation Following the European Commission’s Draft Adequacy Decision

With at least 70% of American schools shutting down, and others, if not all, to follow, school and millions of parents are faced with unprecedented challenges managing the children’s education from children’s homes through online schooling. Online schooling or “distance learning” presents not only operational and technical challenges of its own, but also presents concerns and challenges to properly protecting the privacy and security of student information. Even in view of a pandemic and emergency conditions, schools and online education providers are still required to meet legal obligations under various laws and implement best practices to not only meet the laws’ requirements but also to foster a secure environment for students to learn. The following provides a summary of the applicable federal and state laws impacting online learning, followed by general best practices.
Continue Reading COVID-19 Bulletin: Online Schooling Data Privacy Concerns and Best Practices During the Pandemic

In a letter sent earlier this month, a group representing more than 30 companies, trade associations and various industries asked the California Attorney General if enforcement of the California Consumer Privacy Act could be postponed. Concerned with the business impacts and reprioritization related to COVID-19, the association asked the Attorney General to delay enforcement from July 2020 until January 2021. The association stated that companies scrambling to respond to COVID-19 would need more time to comply with the various
Continue Reading COVID-19 Bulletin: California Attorney General: CCPA Enforcement Will Not Be Delayed Due to COVID-19

As we have often said here in the US, “so goes California, so goes the country” when it comes to laws of all kinds, not just those addressing privacy. Well, globally, the same can be said of the impact of the European Union’s GDPR. Originally scheduled to go into effect this month (it was later amended to be enforced in August 2020), Brazil will be regulating privacy and security more extensively with the Brazilian General Data Protection Law (aka, the Lei Geral de Proteção de Dados and often referred to as the “LGPD” in the Portuguese acronym) (Law 13.709/2018). Here is a quick summary of the LGPD’s requirements.
Continue Reading So goes the EU, so goes the world….Brazil’s new privacy law is on the horizon.

Rebekah Mackey, Taft summer associate, contributed to this article.

Just months after the European Union’s General Data Protection Regulation, or “GDPR” changed the landscape of data privacy around the globe, California reaffirmed its position as the United States pioneer of consumer-friendly data privacy protections with the state legislature’s passage of Assembly Bill No. 375.

The California Consumer Privacy Act (“Act”) was originally a ballot initiative to be voted on by California residents in November, but the fate of the policy changed course rapidly when AB 375 passed within one week of being introduced in the state’s legislature. Here are some of the key provisions of which businesses and consumers should be aware when the law goes into effect Jan. 1, 2020.Continue Reading So Goes California, So Goes the Country?: The Golden State Again Breaks New Privacy Law Ground

As you put together your resolutions and plans for the new business year, it is important to remember that the European Union’s (“E.U.”) General Data Protection Regulation (“GDPR”) will go into effect on May 25, 2018. The impact that it could have on U.S. companies will depend on whether a company processes the personal data of E.U. citizens (note: the definition of “personal data” under the GDPR is quite broad). If you think this doesn’t apply to your company, think again – even without a physical presence in the E.U., the internet makes it easier than ever to collect personal data from E.U. residents while operating solely in the U.S. So, whether it’s the information of your customers, the customers of your clients, or even the personal data of your own employees, it is important to be aware of your obligations under GDPR and the ways by which you can comply.

As we introduced last year, underpinning the GDPR is the view that privacy is a fundamental human right. Accordingly, the GDPR takes a comprehensive approach to privacy law – much more so than the sectoral approach used here in the U.S. In the U.S., privacy tends to be regulated based on the category of information collected (e.g., protected health information under HIPAA). Under the GDPR, as well as its predecessor, the Data Protection Directive 95/46/EC, the focus is on personal data in all sectors of industry. And we should take a moment to remind everyone that stringent regulations on transferring personal data from the E.U. to the U.S. are not something new. U.S. companies should have been complying with the Data Protection Directive since 1995. Indeed, many companies are just now starting to do what they should have been doing for a long while. In truth, in some part, this lack of compliance or sufficient protection of personal data is why the GDPR has come to be.Continue Reading Happy New Year! Tick. Tock. Let the countdown to GDPR begin!

Ohio is poised to lead the nation by incentivizing businesses to implement certain cybersecurity controls, which can be an affirmative defense to a data breach claim based on negligence. Under the proposed legislation, if a business is sued for negligently failing to implement reasonable information security controls resulting in a data breach, the business can assert its compliance with the cybersecurity control as an affirmative defense at trial.

For years we have counseled our clients to implement a comprehensive data
Continue Reading Cybersecurity: An Affirmative Defense to Ohio Data Breach Negligence Claims