For your GDPR compliance: Have a plan. Try your best. Embrace privacy.

UK Information Commissioner Elizabeth Denham spoke recently in New Zealand about data breaches and the state of the EU General Data Protection Regulation (GDPR) after six months.

Key takeaways included:

  • “EU data protection regulators [are] going to prioritize …enforcement activity towards those bad actors who are a direct threat to EU residents. Companies who are trying their best to comply with the rules and are cooperating with EU regulators can expect to engage the advisory and warning end of our toolkit rather than the 4 percent of global turnover fines.”
  • If, within the 72-hour time limit, you have no clue as to the who, the what or the how of a breach, then you do not have the required accountability data checks and balances in place.
  • Since GDPR went into effect, there have been more complaints from the public – an increase to 19,000 from the previous 9,000  in a comparable six month period; and more breach reports – over 8,000 since the end of May when it became mandatory in some high risk circumstances.
  • “Businesses that embrace a commitment to strong privacy protection will be the ones to flourish”.

Read the full text of the speech on the ICO’s website.

If at first they don’t consent, try, try again?

A new form of privacy fraud further complicates the relationship between the Ad Tech industry and GDPR.

As Ad Tech vendors struggle to comply with the strict requirements of the EU General Data Protection Regulation (GDPR), especially around the acquisition of freely given, specific, informed and unambiguous user consent for the use of personal data – a new form of privacy fraud called “consent string fraud” has been detected.

What is a GDPR consent string? This is “a series of numbers added to an ad bid request, which identifies the consent status of an ad tech vendor. That means whether or not they have a user’s consent to use their data in order to serve them personalized advertising.”

What is consent string fraud? In this practice, companies (whether knowingly or mistakenly), tamper with the consent string, changing the “0” (no user consent) to a “1” (have user consent).

CPO Magazine has more details.

The European Parliament Committee on Civil Liberties, Justice and Home Affairs has weighed in on blockchain with the following key points:

  • If you want to use a blockchain structure to handle personal data you need to specifically design the blockchain platform to support data sovereignty.
  • Personal data in the blockchain is generally not anonymous and GDPR obligations would apply; future blockchain applications should integrate mechanisms that ensure that data can be fully anonymous.
  • You should not process personal data on the blockchain until you are able to guarantee compliance with the GDPR, especially the rights to the rectification and erasure of data.
  • Blockchain users may be both data controllers, for the personal data that they upload onto the ledger, and data processors, by virtue of storing a full copy of the ledger on their own computer.
  • Because there are many copies of the data on the chain, blockchain is likely to be incompatible with the GDPR data minimization principle.
  • The European Commission and the Member States should fund research and innovation on new blockchain technologies that are compatible with the GDPR.

Read the full text of the European Parliament Committee on Civil Liberties, Justice and Home Affairs Opinion.

Privacy Compliance & Data Security - A Fox Rothschild Blog

Keep your passwords close…and complex, and encrypted and unique, and ever-changing.

In the wake of recent data breaches involving passwords, the French data protection authority, the CNIL, has published guidelines for adequate passwords.

Some highlights include:

  • If you use a password as your sole method of authentication, it needs to be at least 12 characters consisting of uppercase letters, numbers and special characters.
  • If you use additional measures of protection, the password may be less complex.
  • A passphrase is better than a password, and the CNIL developed a tool for producing passwords from sentences.
  • Your authentication function must (i) use a public algorithm deemed strong and (ii) have a software implementation that is free of known vulnerabilities.
  • NEVER store passwords in cleartext – require and allow periodic renewal of passwords.

For details, see the full guidelines.

Don’t store users’ passwords in cleartext. Really.

It’s not a good idea. Also, it may be deemed a ‘knowing violation’ of the EU General Data Protection Regulation (GDPR) requirement to adequately protect personal data.

That is one key takeaway from the GDPR enforcement action by the State Commissioner for Data Protection and Freedom of Information Baden-Wuerttemberg, Germany (LfDI), against social media company knuddels.de, after a data breach that impacted 800,000 knuddels.de users.

Other takeaways from the enforcement action include:

  • contact your data protection authority (DPA) directly and quickly after a breach
  • inform users immediately and comprehensively about the breach
  • cooperate with your DPA
  • improve your IT security after a breach, even if this requires a significant monetary investment (6 digits’ worth in this case).

Due to the above, the company received a relatively low fine of €20,000.

“As a DPA it is not important for the LfDI to compete for the highest possible fines. What counts in the end is the improvement of data protection and data security for the users concerned.” – says the head of the LfDI, Stefan Brink.

The IAPP has more on the decision.

According to Rochelle Osei-Tutu, an International Trade Specialist at the U.S. Department of Commerce, over 4,000 companies have already registered for EU-US Privacy Shield and 2,600 for the Swiss-US Shield. Of them, 1,300 cover cross-border flows of HR data. Eighty percent of registered companies are small and medium-sized businesses, but many Fortune 500 companies are registered as well.

It took 13 years under the now defunct Safe Harbor to reach these numbers, which have been reached in just two years of Privacy Shield. This, says Osei-Tutu, underscores the importance of data protection and cross-border transfers now.

Things to look out for, regarding Privacy Shield on the commercial side, says Ralf Sauer, Deputy Head of Unit for International Data Flows at the European Commission, are checks against false claims made by companies and making sure that there are no bad apples on the list that don’t play by the rules. In the wake of the Schrems lawsuit, surveillance under Section 702 of FISA and the functioning of the ombudsperson mechanism are of importance as well. A remaining issue of concern for the EU is the appointment of a permanent ombudsperson, says Sauer.

 

Does the EU General Data Protection Regulation (GDPR) apply to me?

The European Data Protection Board (EDPB) published for public comment its much awaited guidelines on the extraterritorial effect of GDPR.

Some highlights include:

  • In some circumstances, the presence of one employee or agent of the non-EU entity may be sufficient to constitute a stable arrangement for the purpose of GDPR scope if that employee or agent acts with a sufficient degree of stability.
  • A non-EU controller will not become subject to the GDPR simply because it chooses to use a processor in the Union.
  • A processor subject to GDPR is required to enter into an agreement containing the key requirements of Art 28 GDPR with its controller who is not subject to GDPR.
  • GDPR applies to people physically located in the Union at the time of the processing regardless of their citizenship or residence.
  • For Non-EU entities, intention to establish commercial relations with consumers in the Union must be manifested. Non-exhaustive factors include taking EU currency, using EU languages or an EU top level domain.
  • Monitoring behavior can be done on the internet or through wearable or smart devices. At issue will be the purpose for processing and any subsequent behavioral analysis or profiling. 

Read the full text of the guidelines.

Data privacy and security

Enforcement actions under the EU General Data Protection Regulation (GDPR) are coming to a theater near you in 2019.

At the IAPP Data Protection Congress, CNIL Director of Rights Protection and Sanctions Directorate Mathias Moulin, warns that the time for the GDPR’s transition “is coming to an end,” and that it’s “time for action” and there will be “teeth.”

The EDPB’s Andrea Jelinek and Irish Data Protection Commissioner, Helen Dixon, predict major GDPR-related fines will not come down the pike in 2018, but it’s safe to expect some fines in 2019.

Details from IAPP’s The Privacy Advisor.

Registration for the Privacy Summit is open.

Fox Rothschild’s Minneapolis Privacy Summit on November 8 will explore key cybersecurity issues and compliance questions facing company decision-makers. This free event will feature an impressive array of panelists drawn from cybersecurity leaders in major industries, experienced regulatory and compliance professionals and the Chief Division Counsel of the Minneapolis Division of the FBI.

Attendees receive complimentary breakfast and lunch, and can take advantage of networking opportunities and informative panel sessions:

GDPR and the California Consumer Privacy Act: Compliance in a Time of Change

The European Union’s General Data Protection Regulation has been in effect since May. Companies that process or control EU citizens’ personal data should understand how to maintain compliance and avoid costly fines. Many more businesses should also prepare for the next major privacy mandate: the California Consumer Privacy Act.

Risk Management – How Can Privacy Officers Ensure They Have the Correct Security Policies in Place?

Panelists offer best practices for internal policies, audits and training to help maintainn protected health information (PHI), personally identifiable information (PII) or other sensitive data. Learn the cutting edge strategies to combat the technology threats of phishing and ransomware.

Fireside Chat

Jeffrey Van Nest, Chief Division Counsel of the Minneapolis Division of the FBI, speaks on the state of affairs in regulation and enforcement, including how to partner with the FBI, timelines of engagement and the latest on cyber threat schemes. His insights offer details on forming effective cyber incident response plans.

Keynote Speaker – Ken Barnhart

Ken is the former CEO of the Occam Group, a cybersecurity industry advisor and the founder and principal consultant for Highground Cyber – a spin-off of the Occam Group’s Cybersecurity Practice Group. For more than a decade, he has helped companies of all sizes design, host and secure environments in private, public and hybrid cloud models. Prior to his work in the corporate sector, Ken served as a non-commissioned officer in the United States Marine Corp and is a decorated combat veteran of Operation Desert Shield\Storm with the HQ Battalion of the 2nd Marine Division.

Geared toward an audience of corporate executives, in-house chief privacy officers and general counsel, the summit will provide important take-aways about the latest risks and threats facing businesses.

Stay tuned for more agenda details. Registration is open.

Austin, Texas, downtown skyline at sunsetThe American Bar Association is holding its upcoming 2018 Business Law Section Annual Meeting at the Austin Convention Center in Austin, TX, from September 13 to 15.

Fox partner Matt Kittay will moderate a panel entitled “Lawyer Ethical Issues in M&A Technology.” Featuring Haley Altman of Doxly, Steve Obenski of Kira Systems, and James Walker of Richards Kibbe & Orbe. The group will discuss ethical issues facing lawyers who use both emerging and globally accepted technology platforms to execute M&A and private equity transactions. The panel will take place on Friday, September 14 from 3:30 PM to 5:00 PM at the Technology in M&A Subcommittee Meeting of the Mergers & Acquisitions Committee. The Fairmont Hotel connected to the Convention Center will host the panel.

For more information and to register to attend the section’s Annual Meeting, please visit the ABA website.