As the Jan. 1, 2020 operational date for the California Consumer Privacy Act (“CCPA”) approaches, the balance between consumer rights and company responsibility continues to be vigorously debated. As this blog predicted when we discussed the first set of amendments to the CCPA, negotiations and amendments to the CCPA continue. We review the most recent Feb. 22, 2019 consumer friendly amendment now—Senate Bill 561 (“SB 561”).

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The Background of the Law

Of late, the U.S. private sector has been abuzz with the European Union’s new General Data Protection Regulations and the implementation of the same. However, savvy companies cannot forget that state legislatures have been for some time enacting statutes aimed at protecting its residents in how businesses use and disseminate their personal information. In 2008, Illinois became one of the first states to be mindful of the uniqueness of biometrics with the passage of the Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/5, et seq. BIPA provides standards of conduct for private entities in connection with the collection, use, retention, and destruction of “biometric identifiers” and “biometric information.” A “biometric identifier” is defined as a retina or iris scan, fingerprint, voiceprint, or scan of a person’s hand or face geometry while “biometric information” is defined as “any information … based on an individual’s biometric identifier used to identify an individual,” 740 ILCS 14/10. Under BIPA, a private entity in possession of such identifiers and information must establish written policies regarding their retention and destruction and cannot obtain such data unless it: (1) informs the subject of the collection; (2) informs the subject of the specific purpose for the collection and how long the data would be stored; and (3) receives written consent from the subject. 740 ILCS 10/15(b). Importantly, BIPA also provides a private cause of action for “[a]ny person aggrieved by a violation” of the statute and the greater of $1,000 in liquidated damages or actual damages for negligent violations and the greater of $5,000 in liquidated damages or actual damages for intentional or reckless violations. 740 ILCS 14/20(1) and (2). The statute also provides for reasonable attorneys’ fees and costs. 740 ILCS 14/20(3).

While initially dormant, BIPA became the focal point for a flurry of class action lawsuits starting in 2015 against social media websites that used facial recognition for photo tagging purposes. More recently, it has been used increasingly against employers who had timekeeping systems that required fingerprinting scans. At that time, many companies were unaware that BIPA even existed or that it could apply to the technology they were using.


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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.


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As we assist clients with preparing for GDPR compliance before and after this Friday’s effective date, I thought to share some quick thoughts on the law and what we are seeing here at Taft.

  1. “GDPR Compliant.” Be wary of companies making such claims and don’t make such claims, yourselves.  As with HIPAA, there is no such thing as a stamp of “compliance” approval.  And, like bragging about your information security, warranting that you are “compliant” is just asking for that


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U.S. privacy law is based on the principles of notice and consent – for instance, under FTC and state consumer protection laws, consumers given fair notice and the opportunity to consent generally cannot complain about the use of their data.

But as we have noted in prior posts, the E.U.’s General Data Protection Regulation (“GDPR”), which will become effective May 25 of this year, is more comprehensive than any U.S. privacy law in most respects. It treats personal data (defined broadly) as belonging to the person identified by the data, or “data subject.” The company collecting the data has a limited license to use that data in legitimate ways – as described in one article, a company can only use the data in ways that “wouldn’t surprise them or make them uncomfortable.”

It is unsurprising, then, that under the GDPR, the specific concepts of fair notice and consent are also more robust than in the U.S. This post will give an overview of the notice requirements under the GDPR, and a future post will explore the consent requirements.


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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.


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This is part two of a multi-part look into the European Union’s General Data Protection Regulation (GDPR) and why U.S. companies need to be aware of the law and how it may impact their business.  We will conclude the series with a webinar in 2018 that will review the series and provide further insights and comments on any updates that may have occurred since the beginning of the series. In this second part of our series, we think it is
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This is part one of a multi-part look into the EU’s General Data Protection Regulation (GDPR) and why U.S. companies need to concern themselves with an EU law, the difference from U.S. regulations and the different mechanisms available to comply. We will conclude this series with a webinar in 2018 that will review the series and provide further insights and comments on any updates that may have occurred since the beginning of the series.

The GDPR is a new privacy
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