On February 28, 2024, President Biden issued an Executive Order (EO) seeking to protect the sensitive personal data of Americans from potential exploitation by particular countries. The EO acknowledges that access to Americans’ “bulk sensitive personal data” and United States Government-related data by countries of concern can, among other things:

…fuel the creation and refinement of AI and other advanced technologies, thereby improving their ability to exploit the underlying data and exacerbating the national security and foreign policy threats. In addition, access to some categories of sensitive personal data linked to populations and locations associated with the Federal Government — including the military — regardless of volume, can be used to reveal insights about those populations and locations that threaten national security. The growing exploitation of Americans’ sensitive personal data threatens the development of an international technology ecosystem that protects our security, privacy, and human rights.

The EO also acknowledges that due to advances in technology, combined with access by countries of concern to large data sets, data that is anonymized, pseudonymized, or de-identified is increasingly able to be re-identified or de-anonymized. This prospect is significantly concerning for health information warranting additional steps to protect health data and human genomic data from threats.

The EO does not specifically define “bulk sensitive personal data” or “countries of concern,” it leaves those definitions to the Attorney General and regulations. However, under the EO, “sensitive personal data” generally refers to elements of data such as covered personal identifiers, geolocation and related sensor data, biometric identifiers, personal health data, personal financial data, or any combination thereof.

Significantly, the EO does not broadly prohibit:

United States persons from conducting commercial transactions, including exchanging financial and other data as part of the sale of commercial goods and services, with entities and individuals located in or subject to the control, direction, or jurisdiction of countries of concern, or impose measures aimed at a broader decoupling of the substantial consumer, economic, scientific, and trade relationships that the United States has with other countries.

Instead, building on previous executive actions, such as Executive Order 13694 of April 1, 2015 (Blocking the Property of Certain Persons Engaging in Significant Malicious Cyber-Enabled Activities), the EO intends to establish “specific, carefully calibrated actions to minimize the risks associated with access to bulk sensitive personal data and United States Government-related data by countries of concern while minimizing disruption to commercial activity.”

In short, some of what the EO does includes the following:

• Directs the Attorney General, in coordination with the Department of Homeland Security (DHS), to issue regulations that prohibit or otherwise restrict United States persons from engaging in certain transactions involving bulk sensitive personal data or United States Government-related data, including transactions that pose an unacceptable risk to the national security. Such proposed regulations, to be issued within 180 days of the EO, would identify the prohibited transactions, countries of concern, and covered persons.
• Directs the Secretary of Defense, the Secretary of Health and Human Services, the Secretary of Veterans Affairs, and the Director of the National Science Foundation to consider steps, including issuing regulations, guidance, etc. to prohibit the provision of assistance that enables access by countries of concern or covered persons to United States persons’ bulk sensitive personal data, including personal health data and human genomic data.

At this point, it remains to be seen how this EO might impact certain sensitive personal information or transactions involving the same.

Jackson Lewis will continue to track developments regarding the EO and related issues in data privacy.