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On January 6, 2021, a bipartisan group of state legislators introduced the “Biometric Privacy Act,” (Assembly Bill 27), which would make New York only the second state with a private right of action against entities that improperly use or retain biometric information.  This is the third time that New York lawmakers have proposed such a bill.

The bill would protect individuals’ biometric identifiers, defined as fingerprints, voiceprints, retina or iris scans, and scans of face or hand geometry, as well as information based on such identifiers used to identify an individual.[1]

Under the bill, private entities in possession of biometric identifiers or information would need to develop and comply with publicly available written policies establishing retention schedules and guidelines for permanently destroying the identifiers or information when the initial purpose for collecting or obtaining them has been satisfied or within three years of the individual’s last interaction with the entity, whichever occurs first.  Private entities would also be required to store, transmit, and protect from disclosure all biometric identifiers and information using the reasonable standard of care in their industry, and in a manner that is the same as or more protective than the manner in which they store, transmit, and protect other confidential and sensitive information.…
Continue Reading New York Lawmakers Introduce Biometric Privacy Bill with Private Right of Action

Patchwork and continually changing regulation continues to be the trend in data privacy law, with 2020 adding new legislation to the fray and striking down some existing privacy structures. 2021 will likely be a time of reflection for businesses trying to adjust to impending new requirements in the face of an increasingly remote workforce and customer base.…
Continue Reading The Privacy Law Plot Continues to Thicken: Compliance Considerations for 2021

In July 2019, the UK Information Commissioner’s Office (“ICO”) issued two notices of intent (“NOIs”) to fine British Airways (“BA”) and Marriott International Inc. (“Marriott”) for violations of the EU General Data Protection Regulation (“GDPR”), both related to high-profile personal data breaches. The NOIs proposed staggering fines of £183.39 million and £99.2 million, respectively, which would have constituted the largest penalties levied under the GDPR to date. More than a year later, the UK ICO finally issued the long-awaited penalty notices in relation to both investigations, imposing in both cases fines that, while still significant, were greatly reduced from what had initially been indicated – £20 million in the case of BA (a massive reduction of more than £163 million), and £18.4 million in the case of Marriott (an equally surprising reduction of more than £79 million).…
Continue Reading UK ICO Data Breach Fines – What Can We Learn From British Airways and Marriott?

Main Takeaways

Recommendations 01/2020 of the European Data Protection Board (the “EDPB”) on measures that supplement transfer tools to ensure compliance with the EU level of protection of personal data (the “Recommendations”)[1] attempt to provide a step-by-step roadmap to help EU data exporters transfer personal data outside the EU to third countries in a manner consistent with the judgment of the Court of Justice of the European Union (the “CJEU”) handed down on July 16, 2020, in Data Protection Commissioner v. Facebook Ireland and Maximillian Schrems (“Schrems II”, further described in Section 1 below).[2] The Recommendations were published on November 11, 2020 and can be relied upon immediately, even though they are subject to public consultation, with comments being due prior to December 21, 2020.…
Continue Reading Recommendations of the EDPB Further to the CJEU’s Schrems II Judgment: One Step Forward, Two Steps Back?

On Monday, November 9, 2020, the U.S. Federal Trade Commission announced a proposed settlement with Zoom Video Communications, Inc. (“Zoom”), a video conferencing provider, regarding allegations that Zoom misrepresented its data security practices to users and designed its product to circumvent certain embedded security features of third-party software.  The proposed settlement requires Zoom to undertake a range of specific remedial measures related to its data security practices.  It also imposes multiple layers of reporting and certification requirements.…
Continue Reading FTC Announces Settlement with Zoom Regarding Data Security Practices

In a landmark enforcement action related to a bank data breach, the Office of the Comptroller of the Currency (“OCC”) assessed an $80 million civil monetary penalty and entered into a cease and desist order with the bank subsidiaries of Capital One on August 6, 2020.  The actions follow a 2019 cyber-attack against Capital One.  The Federal Reserve Board also entered into a cease and desist order with the banks’ parent holding company.  The OCC actions represent the first imposition of a significant penalty against a bank in connection with a data breach or an alleged failure to comply with the OCC’s guidelines relating to information security.…
Continue Reading OCC Imposes $80 Million Penalty in Connection with Bank Data Breach

In a highly-anticipated landmark judgment handed down on July 16, 2020, the Court of Justice of the European Union (the “CJEU”) in Data Protection Commissioner v. Facebook Ireland and Maximillian Schrems (“Schrems II”, summarised in part 3. below and the full text of which can be accessed here) has:

  • invalidated the European Commission Decision 2016/1250 on the adequacy of the protection provided by the EU-U.S. Data Protection Shield (the “EU-US Privacy Shield”) for transfer of personal data from the EU to entities certified under the mechanism located in the United States;
  • upheld the European Commission Decision 2010/87 on standard contractual clauses for the transfer of personal data to processors established outside the EU (the “SCCs”); and
  • reminded that a transfer of data based on SCCs may be challenged before the competent supervisory authority, which has to “suspend or prohibit”, on a case-by-case basis, any such transfer when, in its view, the SCCs “are not or cannot be complied with.”

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Continue Reading Schrems II: The CJEU Declares EU-U.S. Privacy Shield Invalid, Upholds the SCCs And Calls On 27 Supervisory Authorities to Ensure Their Compliance

On June 25, 2020, a federal district court in the Eastern District of Virginia held that a bank must produce in discovery a report generated by its cybersecurity forensic investigator following a 2019 data breach involving unauthorized access to personal information of customers and individuals who had applied for accounts.[1]  Even though the report was produced at the direction of outside counsel, the court rejected arguments that the forensic report is protected from disclosure by the work product doctrine.  Instead, the court determined that the report was not produced primarily in anticipation of litigation based on several factors, including the similarity of the report to past business-related work product by the investigator and the bank’s subsequent use and dissemination of the report.  This decision raises questions about the scope of work product protection for forensic expert and other similar reports in the context of an internal investigation.…
Continue Reading Federal Court Compels Production of Data Breach Forensic Investigation Report

Last month, the Financial Services Information Sharing and Analysis Center[1] (“FS-ISAC”) warned financial services companies, and particularly smaller firms, of a substantial increase in attempted cyberattacks since the start of the COVID-19 pandemic.  In particular, cyber-attacks targeted at bank employees rose in the first quarter of 2020.  As of early April, FS-ISAC had also identified over 1,500 fraudulent or phishing websites designed to look like pandemic-related lending or financial support programs to deceive visitors into disclosing sensitive personal information.…
Continue Reading FS-ISAC Warns that Cyberattacks Against Financial Services Firms Increased Substantially in Response to COVID-19 Mitigation Efforts