Privacy & Information Security Law Blog

On March 7, 2024, the Court of Justice of the European Union (“CJEU”) issued its judgment in the case of IAB Europe (Case C‑604/22). In this judgment, the CJEU assessed the role of the Interactive Advertising Bureau Europe (“IAB Europe”) in the processing operations associated with its Transparency and Consent Framework (“TCF”) and further developed CJEU case law on the concept of personal data under the EU General Data Protection Regulation (“GDPR”).

On December 8, 2023, the European Parliament and the Council reached a political agreement on the EU’s Regulation laying down harmonized rules on Artificial Intelligence (the “AI Act”).

The AI Act will introduce a risk-based legal framework for AI. Specifically, the AI Act will state that: (1) certain AI systems are prohibited as they present unacceptable risks (e.g., AI used for social scoring based on social behavior or personal characteristics, untargeted scraping of facial images from the Internet or CCTV footage to create facial recognition databases, etc.); (2) AI systems presenting a high-risk to the rights and freedoms of individuals will be subject to stringent rules, which may include data governance/management and transparency obligations, the requirement to conduct a conformity assessment procedure and the obligation to carry out a fundamental rights assessment; (3) limited-risk AI systems will be subject to light obligations (mainly transparency requirements); and (4) AI systems that are not considered prohibited, high-risk or limited-risk systems will not be under the scope of the AI Act.

On November 22, 2023, the Artificial Intelligence (Regulation) Bill was introduced into the UK Parliament’s House of Lords. The purpose of the Bill is to make provision for the regulation of AI and for connected purposes. 

On October 30, 2023, the Federal Trade Commission announced that it is sending nearly $100 million in refunds to consumers who were harmed as a result of internet phone service provider Vonage’s alleged use of dark patterns and other obstacles that made it difficult for users to cancel their service.

On November 1, 2023, 29 nations, including the U.S., the UK, the EU and China (full list available here), reached a ground-breaking agreement, known as the Bletchley Declaration. The Declaration sets forth a shared understanding of the opportunities and risks posed by AI and the need for governments to work together to meet the most significant challenges posed by the technology. The Declaration states  that there is an urgent need to understand and collectively manage the potential risks posed by AI to ensure the technology is developed and deployed in a safe, responsible way. The Declaration was signed at the AI Safety Summit 2023, held at Bletchley Park in the UK.

On October 30, 2023, the G7 leaders announced they had reached agreement on a set of International Guiding Principles on Artificial Intelligence (AI) and a voluntary Code of Conduct for AI developers, pursuant to the Hiroshima AI Process. The Hiroshima AI Process was established at the G7 Summit in May 2023 to promote guardrails for advanced AI systems at a global level.

On September 15, 2023, the Irish Data Protection Commission (the “DPC”) announced a fine of 345 million Euros against TikTok Technology Limited (“TikTok”) for non-compliance with GDPR rules regarding the processing of personal data of child users. This decision by the DPC reflects the binding decision of the European Data Protection Board (the “EDPB”) pursuant to Article 65 of the GDPR.

On May 4, 2023, the Biden-Harris Administration announced new actions to promote responsible American innovation in artificial intelligence (“AI”). The Administration also met with the CEOs of Alphabet, Anthropic, Microsoft and OpenAI as part of the Administration’s broader, ongoing effort to engage with advocates, companies, researchers, civil right organizations, not-for-profit organizations, communities, international partners, and others on critical AI issues. These efforts build upon the steps the Administration has taken so far, including the Blueprint for an AI Bill of Rights issued by the White House Office of Science and Technology Policy (“OSTP”) and the  AI Risk Management Framework released by the National Institute of Standards and Technology (“NIST”). The Administration is also actively working to address national security concerns raised by AI, especially in critical areas like cybersecurity, biosecurity and safety. 

On May 5, 2023, New York Attorney General Letitia James released proposed legislation that seeks to regulate all facets of the cryptocurrency industry. Entitled the “Crypto Regulation, Protection, Transparency, and Oversight (CRPTO) Act,” if enacted the bill would substantially expand New York’s oversight of crypto enterprises conducting business in the Empire State, including as to matters involving privacy and cybersecurity.

On April 25, 2023, officials from the Federal Trade Commission, Consumer Financial Protection Bureau (“CFPB”), Department of Justice’s Civil Rights Division (“DOJCRD”) and the Equal Employment Opportunity Commission (“EEOC”) released a Joint Statement on Enforcement Efforts against Discrimination and Bias in Automated Systems (“Statement”), also sometimes referred to as “artificial intelligence” (“AI”).

On April 4, 2023, the data protection regulator of the UK, the Information Commissioner’s Office (ICO), issued a fine of a £12.7 million to TikTok Information Technologies UK Limited and TikTok Inc (together, “TikTok”) for a number of breaches of UK data protection law, including failing to use children’s personal data lawfully. 

On Monday, March 27, 2023, the Centre for Information Policy Leadership (CIPL) at Hunton Andrews Kurth submitted a response to the California Privacy Protection Agency (CPPA)’s Invitation for Preliminary Comments on Proposed Rulemaking for cybersecurity audits, risk assessments and automated decisionmaking.

On February 16, 2023, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth LLP held a virtual roundtable to discuss the role of age assurance and age verification tools as part of its Children’s Data Privacy Project. Representatives from CIPL member companies, data protection authorities, civil society and experts exchanged views on the effectiveness of different methodologies and emerging best practices to shield minors from harmful or inappropriate content.

On March 15, 2023, the UK Information Commissioner’s Office (“ICO”) published an updated version of its guidance on AI and data protection (the “updated guidance”), following requests from UK industry to clarify requirements for fairness in AI. 

On January 26, 2023, the National Institute of Standards and Technology (“NIST”) released the Artificial Intelligence Risk Management Framework (“AI RMF 1.0”), which provides a set of guidelines for organizations that design, develop, deploy or use AI to manage its many risks and promote trustworthy and responsible use and development of AI systems.

On January 20, 2023, The Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth published “Digital Assets and Privacy,” a discussion paper compiling insights from workshops with CIPL member companies that explored the intersection of privacy and digital assets, with a particular focus on blockchain technology. The paper includes recommendations for developing coherent, tech-friendly, future-focused, and pragmatic regulations and policies.

On January 11, 2023, the Belgian Data Protection Authority (“Belgian DPA”) announced that it has approved the Interactive Advertising Bureau Europe’s (“IAB Europe”) action plan with respect to its Transparency and Consent Framework (“TCF”).

On October 26, 2022, House Energy and Commerce Committee and Consumer Protection and Commerce Subcommittee leaders (“Committee Leaders”) sent letters to several toy manufacturers, including Bandai Namco, Hasbro, Mattel, MGA Entertainment, LEGO Group and the Toy Association, asking how they plan to protect children and their information from BigTech companies like TikTok and YouTube. Given the shift of marketing efforts from traditional television outlets to social media platforms, Committee Leaders are concerned about failure to protect children’s privacy, security and mental health on social media platforms.

On November 1, 2022, the Federal Trade Commission hosted their annual PrivacyCon 2022, which was available to the public via webcast. The FTC held seven different panels highlighting the latest research and trends in consumer privacy and data security.

On October 20, 2022, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth published a white paper entitled Protecting Children’s Data Privacy, Policy Paper I, International Issues and Compliance Challenges. The paper identifies and explores the key issues and challenges that organizations and data protection authorities face in the context of globally divergent legal standards and policy approaches relating to children’s data.

On October 4, 2022, the White House Office of Science and Technology Policy (“OSTP”) unveiled its Blueprint for an AI Bill of Rights, a non-binding set of guidelines for the design, development, and deployment of artificial intelligence (AI) systems. 

On February 2, 2022, the Litigation Chamber of the Belgian Data Protection Authority (the “Belgian DPA”) imposed a €250,000 fine against the Interactive Advertising Bureau Europe (“IAB Europe”) for several alleged infringements of the EU General Data Protection Regulation (the “GDPR”), following an investigation into IAB Europe Transparency and Consent Framework (“TCF”).

On November 5, 2021, IAB Europe (“IAB EU”) announced that, in the coming weeks, the Belgian Data Protection Authority plans to share with other data protection authorities a draft ruling on the IAB EU Transparency & Consent Framework (“TCF”). The TCF is a GDPR consent solution built by IAB EU that has become a widely used approach to collecting consent to cookies under the GDPR. The draft ruling is expected to find that the TCF does not comply with the GDPR, in part because IAB EU acts as a controller, and the digital signals the TCF creates to capture individuals’ consent to cookies are personal data under the GDPR. Because IAB EU does not consider itself a controller with respect to the TCF, it does not currently comply with the GDPR’s controller obligations.

On September 14, 2021, the Federal Trade Commission authorized new compulsory process resolutions in eight key enforcement areas: (1) Acts or Practices Affecting United States Armed Forces Members and Veterans; (2) Acts or Practices Affecting Children; (3) Bias in Algorithms and Biometrics; (4) Deceptive and Manipulative Conduct on the Internet; (5) Repair Restrictions; (6) Abuse of Intellectual Property; (7) Common Directors and Officers and Common Ownership; and (8) Monopolization Offenses.

On May 2, 2021, the Norwegian data protection authority, Datatilsynet, notified Disqus Inc. (“Disqus”), a U.S. company owned by Zeta Global, of its intention to issue a fine of 25 million Norwegian Krone (approximately 2.5 million Euros). The preliminary fine was issued for failure to comply with the General Data Protection Regulation’s (“GDPR”) accountability, lawfulness and transparency requirements, primarily due to Disqus’ tracking of website visitors.

On April 23, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the European Data Protection Board (“EDPB”) consultation on draft guidelines on virtual voice assistants (the “Guidelines”). The Guidelines were adopted on March 12, 2021 for public consultation.

Building upon its April 2020 business guidance on Artificial Intelligence and algorithms, on April 19, 2021, the FTC published new guidance focused on how businesses can promote truth, fairness and equity in their use of AI.

On April 21, 2021, the European Commission (the “Commission”) published its Proposal for a Regulation on a European approach for Artificial Intelligence (the “Artificial Intelligence Act”). The Proposal follows a public consultation on the Commission’s white paper on AI published in February 2020. The Commission simultaneously proposed a new Machinery Regulation, designed to ensure the safe integration of AI systems into machinery.

On March 25, 2021, the Centre for Information Policy Leadership at Hunton Andrews Kurth organized an expert roundtable on the EU Approach to Regulating AI–How Can Experimentation Help Bridge Innovation and Regulation? (the “Roundtable”). The Roundtable was hosted by Dragoș Tudorache, Member of Parliament and Chair of the Artificial Intelligence in the Digital Age (“AIDA”) Committee of the European Parliament.  The Roundtable gathered industry representatives and data protection authorities (“DPAs”) as well Axel Voss, Rapporteur of the AIDA Committee.

On March 12, 2021, the European Data Protection Board (“EDPB”) published its Guidelines 01/2021 on Virtual Voice Assistants for consultation (the “Guidelines”). Virtual voice assistants (“VVAs”) understand and execute voice commands or coordinate with other IT systems. These tools are available on most smartphones and other devices and collect significant amounts of personal data, such as through user commands. In addition, VVAs require a terminal device equipped with a microphone and transfer data to remote service. These activities raise compliance issues under both the General Data Protection Regulation (“GDPR”) and the e-Privacy Directive.

On March 1, 2021, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted a response to the new Brazilian data protection authority’s (Agência Nacional de Proteção de Dados, the “ANPD’s”) public consultation (in Portuguese) on the impact of the Brazilian data protection law (Lei Geral de Proteção de Dados, the “LGPD”) on small and medium-sized enterprises (“SMEs”), which will inform the ANPD’s upcoming special rules for SMEs.

On August 18, 2020, the U.S. National Institute of Standards and Technology (“NIST”) published a draft report, Four Principles of Explainable Artificial Intelligence (Draft NISTIR 8312 or the “Draft Report”), which sets forth four proposed principles regarding the “explainability” of decisions made by Artificial Intelligence (“AI”) systems.

On July 14, 2020, the Litigation Chamber of the Belgian Data Protection Authority (the “Belgian DPA”) imposed a €600,000 fine on Google Belgium SA (“Google”) for non-compliance with the right to be forgotten.

On June 18, 2020, Senator Sherrod Brown (OH) released a discussion draft of a privacy bill entitled the Data Accountability and Transparency Act of 2020 (“the Bill”). The Bill would provide individuals with several new rights regarding their personal data; implement rules limiting how personal data is collected, used or shared; and establish a new federal agency called the Data Accountability and Transparency Agency to protect individuals’ privacy and enforce those rules.

The Cyberspace Administration of China (“CAC”), together with 11 other authorities, has jointly issued the Measures for Cybersecurity Review (the “Measures”), which will take effect on June 1, 2020, and the currently-effective Measures for Examining the Security of Network Products and Services will be repealed simultaneously.