Privacy & Information Security Law Blog

The White House today released the report from the 60-day cybersecurity review the President ordered in February. Speaking to a packed audience in the East Room, President Obama outlined the broad range of threats facing the digital infrastructure, focusing not only on national security and organized crime attacks, but also on identity theft and incursions into individual privacy.

He promised a “new comprehensive approach to securing our nation’s infrastructure,” including appointment of a White House cybersecurity coordinator reporting to both the National Security Council and the National Economic Council. The coordinator would have broad responsibilities, but little direct authority, although the President did promise that the coordinator would have access to him.

On May 19 and 20 the European Commission held a conference which was perhaps the most important data protection event in Brussels since the Commission conference on evaluation of the EU Data Protection Directive 95/46/EC held in 2002. The conference was part of the Commission's current evaluation of the Directive, and was designed to explore both the current status of data protection in the EU and where it is headed in the coming years. Speakers included Jacques Barrot, the European Commissioner in charge of justice, freedom and security; Alex Türk, chairman of the CNIL (French Data Protection Authority) and the Article 29 Working Party; European Data Protection Supervisor Peter Hustinx; and representatives of European academia, business and non-governmental organizations.

On May 19, Maine Governor John Baldacci signed legislation limiting the time that breach notification may be delayed following a determination by law enforcement that providing notice will not compromise a criminal investigation. The provision, which will take effect 90 days after the close of the Legislature's 2009 session (scheduled to occur on June 17), will limit the permissible delay to seven business days.

Pursuant to Maine's current breach notification law, entities that become aware of a breach "shall conduct in good faith a reasonable and prompt investigation to ...

On May 15, 2009, the German Federal Council adopted the "Act against unsolicited commercial phone calls and improvement of consumer protection."  According to the Act, violations of the existing prohibition on unsolicited commercial phone calls can now be sanctioned with a fine up to € 50,000.

In addition, the Act clarifies that a commercial phone call is only lawful if the recipient has given his or her prior explicit consent to receive the call.  The provision is intended to prevent the caller's reliance on consent that may have been given by the recipient in a totally different ...

In November, the 31st International Conference of Data Protection and Privacy Commissioners will approve a resolution that will include an international standard for privacy protection called the “Joint Proposal for a Draft of International Standards on the Protection of Privacy with regard to the processing of Personal Data.”  The standard will be submitted to the United Nations as the basis for a treaty.  This is not the conference’s first attempt to reach consensus on an international standard, but it is the first to include robust processes that will begin to narrow the issues that divide nations on data protection law.

On May 12, 2009, the European Commission issued a long-awaited recommendation on the implementation of privacy and data protection principles in applications supported by radio-frequency identification (“RFID”).  The recommendation follows a process initiated in 2006 when the European Commission launched a public consultation on RFID technologies.  Following this public consultation and in order to protect consumers’ privacy and data protection, the European Commission decided to take further steps by preparing a recommendation to regulate the use of RFID.

The UK Information Commissioner's Office has published a review of the strengths and weaknesses of the EU Data Protection Directive, commissioned from RAND Europe.

The concept of such a review was highly radical when first proposed. It provoked the promise of a similar study from the European Commission and generated much debate as to whether, and if so when, the Directive itself might be reviewed. The conclusions of the RAND study are much less radical than anticipated but more likely, as a consequence, to stimulate constructive debate within Europe as to the future shape of data protection law. Whilst not endorsing the RAND study, in April 2009, the European Privacy and Data Protection Commissioners' Conference discussed the themes raised by RAND and issued a declaration committing to contribute to the ongoing debate concerning the future of data protection law, including better implementation and enforcement of the existing legal framework.

On May 6, 2009, the proposed amendments to the e-Privacy Directive received a second reading in the European Parliament.  In addition to other measures, it will include a definition of “personal data breach” and will introduce a data breach notification requirement. 

The review of the e-Privacy Directive forms part of a wider review of telecoms legislation.  The objective of that review is to improve network security and integrity, to increase protection for user personal data and to improve measures to prevent spam and “cyber attacks.”  The scope of the amended Directive will include the processing of personal data in connection with the provision of publicly available electronic communications services in public communications networks within the European Community, including public communications networks supporting data collection and identification devices.

In February 2009, the Ponemon Institute published the results of its inaugural study "Germany - 2008 Annual Study: Cost of a Data Breach."  The study is the first such research study undertaken in Germany, using data from actual incidents to estimate the costs of dealing with data breaches by German companies.  The study examined the experience of 18 German organizations that suffered a breach.  These case studies reviewed ranged in size an incident involving less than 3,750 records to an incident involving more than 90,000 records.  The breaches reviewed occurred across ten industry ...

On May 5, 2009, the Federal Trade Commission’s ("FTC's") Acting Director of the Bureau of Consumer Protection, Eileen Harrington, testified before the House Energy and Commerce Committee Subcommittee on Commerce, Trade and Consumer Protection in support of the proposed federal Data Accountability and Trust Act (H.R. 2221).  The Act would require companies to implement reasonable data security policies and procedures to protect personal information.  It would also mandate security breach notifications for consumers affected by data security breaches.

At the eleventh hour, the Federal Trade Commission announced that it will once again delay enforcement of the Red Flags Rule.  The Red Flags Rule was promulgated pursuant to the Fair and Accurate Credit Transactions Act of 2003 ("FACTA").  The previous compliance date was May 1, 2009, which was an extension from the original deadline of November 1, 2008.  The new extension applies only to the provisions of the Rule requiring financial institutions and creditors to implement an identity theft prevention program.  The continuing enforcement delays respond to ongoing uncertainty about ...