Data Privacy

On November 16, 2023, the European Data Protection Board (“EDPB”) issued draft Guidelines 2/2023 on Technical Scope of Art. 5(3) of ePrivacy Directive (“Guidelines”).  Article 5(3) is the provision that requires consent before storing or accessing information on an end user’s device. Over the years it has become known as the “cookie rule,” but it is technology-agnostic.  The Guidelines expand upon guidance issued by the Article 29 Working Group in 2014, and are intended to clarify when the requirement applies to new tracking methods.  The Guidelines are open to public consultation through December 28, 2023. 

The Guidelines identify and explain the four key elements that trigger the obligation to obtain opt-in consent under Article 5(3) of the ePrivacy Directive (“ePD”).  The Guidelines set forth an extremely broad interpretation of what constitutes “storing” and “accessing” information on a user’s device that arguably goes beyond the plain meaning of these terms.  This interpretation is likely to be relevant for companies considering how to approach the discontinuation of third-party cookies on many browsers.    

Continue Reading EDPB Issues Draft Guidelines on Technical Scope of ePrivacy Directive Rules for Storage and Access

On October 11, 2023, the French data protection authority (“CNIL”) issued a set of “how-to” sheets on artificial intelligence (“AI”) training databases. The sheets are open to consultation until December 15, 2023, and all AI stakeholders (including companies, researchers, NGOs) are encouraged to provide comments.  

Continue Reading French CNIL Opens Public Consultation On Guidance On The Creation Of AI Training Databases

On October 30, 2023, days ahead of government leaders convening in the UK for an international AI Safety Summit, the White House issued an Executive Order (“EO”) outlining an expansive strategy to support the development and deployment of safe and secure AI technologies (for further details on the EO, see our blog here). As readers will be aware, the European Commission released its proposed Regulation Laying Down Harmonized Rules on Artificial Intelligence (the EU “AI Act”) in 2021 (see our blog here). EU lawmakers are currently negotiating changes to the Commission text, with hopes of finalizing the text by the end of this year, although many of its obligations would only begin to apply to regulated entities in 2026 or later.

The EO and the AI Act stand as two important developments shaping the future of global AI governance and regulation. This blog post discusses key similarities and differences between the two.

Continue Reading From Washington to Brussels: A Comparative Look at the Biden Administration’s Executive Order and the EU’s AI Act

On 3 October 2023, the UK Information Commissioner’s Office (“ICO”) finalized its Employment practices and data protection − Monitoring workers guidance (“Guidance”) to account for new types of work, including work from home, and the use of more sophisticated technologies for monitoring. In November 2022, we published a detailed blog post on the ICO’s public consultation.

The finalized Guidance is aimed at employers. It does not prevent employers from engaging in monitoring; rather, it sets out how they can do so in compliance with data protection law.  The Guidance defines “monitoring workers” as “any form of monitoring of people who carry out work on [an employer’s] behalf” and can include “monitoring workers on particular work premises or elsewhere” both during and outside working hours. The Guidance is clear that it applies to homeworking.  It also applies to a range of monitoring technologies and purposes, including (but not limited to) technologies for monitoring timekeeping or access control; keystroke monitoring to track, capture and log keyboard activity; and productivity tools which log how workers spend their time.

Continue Reading UK Information Commissioner’s Office Releases New Guidance for Monitoring at Work

On September 28, 2023, the Cyberspace Administration of China (“CAC”) issued draft Provisions on Standardizing and Promoting Cross-Border Data Flows (Draft for Comment) (规范和促进数据跨境流动规定(征求意见稿)) (draft “Provisions”) (Chinese version available here) for a public consultation, which will conclude on October 15, 2023. 

The draft Provisions propose significant changes to the existing cross-border data transfer regime established under China’s Personal Information Protection Law (“PIPL”).  Specifically, the draft Provisions provide certain exemptions to the requirement to adopt a transfer mechanism under Article 38 of the PIPL. In addition, the draft Provisions significantly lower the thresholds that trigger the obligation to undergo a government-administered security assessment or adopt Standard Contracts.  Moreover, in the event of a conflict between the draft Provisions and the PIPL’s implementing regulations (including the Measures on the Standard Contract for the Cross-Border Transfer of Personal Information and the Measures for Security Assessment of Cross-Border Data Transfer), the draft Provisions would prevail.

Continue Reading China Proposes Significant Changes to Cross-Border Transfer Rules

On 12 September 2023, the UK Information Commissioner, John Edwards, and the Chief Executive of the National Cyber Security Centre (“NCSC”), Lindy Cameron, signed a joint memorandum of understanding (“MoU”) detailing how the Information Commissioner’s Office (“ICO”) and NCSC will work together moving forward.

The MoU does not create legally binding obligations between the ICO and NCSC, but provides a strong signal of intent for areas of cooperation.  The statements about information sharing and engaging with NCSC leading to potentially reduced fines under the UK GDPR are likely to be of particular interest to commercial organizations.

Continue Reading ICO Encourages Organizations To Cooperate with NCSC and Flags Potential Reduction in Fines

On June 30, 2023, a Superior Court of California (County of Sacramento, case number 34-2023-80004106-CU-WM-GDS) held that enforcement of the California Privacy Protection Agency’s (“CPPA”) regulations cannot commence until one year after the finalized date of the regulations.  However, the court declined to delay the CPPA’s ability to enforce violations of the underlying ballot initiative.

On June 30, 2023, the Delaware general assembly passed the Delaware Personal Data Privacy Act (“DPDPA”), H.B. 154.  This bill resembles the comprehensive privacy statutes in Connecticut, Montana, and the recently passed bill in Oregon, though there are some notable distinctions.  If signed into law, Delaware will be the latest state to implement

On July 4, 2023, the European Commission published its proposal for a regulation laying down additional procedural rules relating to the enforcement of the GDPR.  The aim of the proposed Regulation is to clarify and harmonize the procedural rules that apply when EU supervisory authorities investigate complaint-based and ex officio cross-border cases (i.e., where the relevant processing conducted by a controller or processor  spans multiple Member States, resulting in a “lead” authority and additional “concerned” authorities).  If adopted, the Regulation will sit alongside the GDPR, complementing the existing cooperation and consistency mechanisms set forth in Chapter VII.

Continue Reading European Commission Proposes GDPR Enforcement Procedure Regulation

On June 22, 2023, the Oregon state legislature passed the Oregon Consumer Privacy Act, S.B. 619 (the “Act”).  This bill resembles the comprehensive privacy statutes in Colorado, Montana, and Connecticut, though there are some notable distinctions.  If passed, Oregon will be the twelfth state to implement a comprehensive privacy statute, joining California, Virginia, Colorado, Connecticut