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Nicholas Shepherd

Nick Shepherd is an associate in Covington’s Washington, DC office, where he is a member of the Data Privacy and Cybersecurity Practice Group, advising clients on compliance with all aspects of the EU/UK General Data Protection Regulation (GDPR), ePrivacy Directive and its national implementing laws, EU/UK direct marketing laws, emerging state privacy laws in the United States, and other privacy and cybersecurity laws worldwide. Nick counsels on topics that include adtech, anonymization, children's privacy, cross-border data transfers, data breach response, artificial intelligence, and much more, providing advice tailored to product- and service-specific contexts to help clients apply a risk-based approach in addressing requirements on transparency, consent, lawful processing, data sharing, and related issues.

A U.S.-trained and qualified lawyer with 7 years of working experience in Europe, Nick now leverages his multi-faceted legal background and international experience from the U.S. to provide clear and pragmatic advice to help organizations address their privacy compliance obligations across jurisdictions.

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On July 10, 2019, the European Data Protection Board (“EDPB”) and the European Data Protection Supervisor (“EDPS”) issued a joint assessment of the impact of the U.S. Clarifying Overseas Use of Data Act (“CLOUD Act”) on the legal framework for the protection of personal data in the EU.

The EDPB is an independent body composed of representatives from the EU Member States’ Supervisory Authorities for data protection, the national bodies enforcing EU data protection law, such as the General Data Protection Regulation (“GDPR”).  The EDPS is a separate European body whose primary role is to ensure that European institutions respect data protection law.  Though separate bodies, the EDPB and EDPS (hereafter “the institutions”) work jointly on some matters.  Opinions issued by the institutions are not legally binding, but may be influential and are indicative of the stance of European privacy regulators regarding certain issues.

The institutions note that the extraterritorial effect of the CLOUD Act could result in service providers being “susceptible to facing a conflict of laws between US law and the GDPR and other applicable EU or national law of the Member States.”Continue Reading European Data Protection Board Issues Opinion on U.S. CLOUD Act

On June 13, 2019, the Cyberspace Administration of China (“CAC”) issued the draft Measures on Security Assessment of the Cross-border Transfer of Personal Information (“Draft Measures”) for public comment. (The official Chinese version of the Draft Measures is available here, and an unofficial English translation is available here.) The comment period ends on July 13, 2019.

The issuance of the Draft Measures marks another major development in the implementation of China’s Cybersecurity Law (“CSL”) over the past month, aiming to create a cross-border data transfer mechanism that would govern all of the transfers of personal information conducted by network operators (defined as “owners and managers of networks, as well as network service providers”).

CAC has previously released two earlier versions of its draft Measures on Security Assessment of Cross-border Transfer of Personal Information and Important Data back in 2017, which imposed security assessment obligations on network operators when they transfer both personal information and important data outside of China (See Covington’s previous alert here). The latest and long-anticipated Draft Measures only focus on the cross-border transfer of personal information (the cross-border transfer of important data will be subject to a separate approval mechanism introduced by the draft Measures for Data Security Management released by CAC on May 28, 2019) and also set out new requirements that bear resemblance to the Standard Contractual Clauses under the EU’s General Data Protection Regulation (“GDPR”).

We discuss the key requirements of the Draft Measures in a greater detail below.Continue Reading China Seeks Public Comments on Draft Measures related to the Cross-border Transfer of Personal Information

On May 31, 2019, the Cyberspace Administration of China (“CAC”) released the draft Regulation on the Protection of Children’s Personal Information Online (“Draft Regulation”) for public comment. (An official Chinese version is available here and an unofficial English translation of the Draft Regulation is available here.) The comment period ends on June 30, 2019.

As mentioned in our last blog post (available here), CAC issued the draft Measures for Data Security Management (“Draft Measures”) just last week, which set out the general regulatory framework that will govern the collection and use of personal information by network operators (broadly defined as “owners and managers of networks, as well as network service providers”). The release of this new Draft Regulation demonstrates CAC’s intention to set out more stringent requirements for network operators if they collect, store, use, transfer or disclose the personal information of minors under 14 years old. We discuss the key requirements of the Draft Regulation in a greater detail below.Continue Reading CAC Releases Draft Regulation on the Protection of Children’s Personal Information Online

On May 28, 2019, the Cyberspace Administration of China (“CAC”) released the draft Measures for Data Security Management (“Draft Measures”) for public comment. (An official Chinese version of the Draft Measures is available here and an unofficial English translation is available here.) The comment period ends on June 28, 2019.

The release of these Draft Measures demonstrates China’s continuing efforts to implement the data protection requirements imposed by China’s Cybersecurity Law (“CSL”). For example, under Article 41 of the CSL, network operators must notify individuals of the purposes, methods and scope of the information collection and use, and obtain their consent before collecting or using individuals’ personal information. Furthermore, under Article 42 and 43 of the CSL, network operators must not disclose, tamper with, or damage citizens’ personal information that they have collected, and they are further obligated to delete unlawfully collected information and amend incorrect information.

To implement the CSL, the CAC and the Standardization Administration of China issued a national standard for personal information protection (“Standard”) on January 2, 2018, which took effect on May 1, 2018 (see our previous blog post about that Standard here). A draft amendment to the Standard (“Draft Amendment”) was released for public comment on February 1, 2019 (see our previous blog post about the Draft Amendment here). The new Draft Measures incorporate some of personal information protection requirements specified in the Standard and the Draft Amendment, and also introduce a number of new requirements for the protection of “important data,” which was initially mentioned in Article 21 and 37 of the CSL, but was not defined.Continue Reading China Releases Draft Measures for Data Security Management

On May 24, 2019, the Cyberspace Administration of China (“CAC”) released the draft Measures on Cybersecurity Review (“Draft Measures”) for public comment. (An official Chinese version of the Draft Measures is available here and an unofficial English translation is available here). The comment period ends on June 24, 2019.

The publication of these Draft Measures marks a critical step forward in implementing the cybersecurity review, which is designated by Article 35 of China’s Cybersecurity Law (“CSL”) to safeguard the procurement of network products and services by Critical Information Infrastructure (“CII”) operators that may impact the national security of China. To implement Article 35 of the CSL, the CAC previously released the Measures on the Security Review of Network Products and Services (Trial) (“Trial Measures”) on May 2, 2017, which established a process for CAC to conduct a cybersecurity review in a range of key sectors. (For more information, please see Covington’s alert on the Trial Measures here). These Draft Measures update the review process and, once finalized, will replace the previous Trial Measures.Continue Reading China Seeks Public Comments on Draft Regulation on Cybersecurity Review of Network Products and Services

On April 19, 2019, China’s Ministry of Public Security (“MPS”) released the final version of its Guideline for Internet Personal Information Security Protection (互联网个人信息安全保护指南) (the “Guideline”).  A previous version of the Guideline was released for public comments on November 30, 2018.

Under China’s Cybersecurity Law (the “CSL”), MPS is the key regulator tasked with protecting cybersecurity and combating cybercrime.  Following the issuance of the draft Regulations on Cybersecurity Multi-level Protection Scheme (the “Draft MLPS Regulation”, discussed in our previous post available here) and the Regulation on the Internet Security Supervision and Inspection by Public Security Agencies (also discussed in a previous post, available here) last year, the release of this new Guideline represents the latest efforts made by MPS to implement the CSL.

The stated goal of the Guideline is to “protect cybersecurity and individuals’ legitimate interests” and to “effectively prevent cybercrime involving personal information.”  Although not issued as a legally binding administrative regulation, this Guideline sets out the best practices recommended by MPS and will likely serve as an important reference for cybersecurity inspections that will be carried out by the agency and its local counterparts (i.e., local public security bureaus, “PSBs”).

To a large extent, this Guideline overlaps with China’s national standard on personal information protection, GB/T 35273-2017 Information Security Technology – Personal Information Security Specification (the “Standard”), which took effect on May 1, 2018.  The Guideline referred to the Standard as its “indispensable” reference, although at this stage, it is unclear how this Guideline will interact with other existing regulations and national standards.  Furthermore, this new Guideline provides more prescriptive requirements relating to a company’s cybersecurity infrastructure, both in terms of organizational support and technical measures to be implemented.

This post summarizes key requirements of the Guideline.Continue Reading China’s Ministry of Public Security Issues New Personal Information Protection Guideline

On March 12, 2019, the European Data Protection Board (“EDPB”) issued an opinion in response to a series of questions about the competences, tasks and powers of European supervisory authorities for data protection (“SAs”), when the processing of personal data triggers the material scope of both the ePrivacy Directive and…
Continue Reading EDPB Issues Opinion on the Interplay between the ePrivacy Directive and the GDPR

On January 21, 2019, the French Supervisory Authority for data protection (“CNIL”) issued a fine of €50 million against Google for violations of the General Data Protection Regulation (“GDPR”) (the decision was published in French here).  The CNIL’s decision was triggered by complaints from two non-profit organizations together representing…
Continue Reading Google fined €50 million in France for GDPR violation

On 30 November 2018, the Austrian Data Protection Authority (“DPA”) decided that the website of an online media publisher – which offers users the option to either consent to advertising cookies or pay for a subscription – gives users a free choice that is compatible with the requirements of consent…
Continue Reading Austrian Data Protection Authority Validates Paid Subscription Model as a Viable Alternative to Ad Tracking

On November 23, 2018, the European Data Protection Board (“EDPB”) issued draft Guidelines 3/2018 on the territorial scope of the GDPR (Article 3) (“Guidelines”). As per standard procedure, the EDPB has published this first version of the Guidelines to allow for public consultation about its contents over the next several…
Continue Reading European Data Protection Board Issues Draft Guidelines on Extra-Territorial Application of the GDPR