GDPR's Most Frequently Asked Questions: If I Already Drafted a Privacy Policy to Comply with US Law Do I need to Change it for the GDPR?

by Bryan Cave

The European Union’s General Data Protection Regulation (“GDPR”) is arguably the most comprehensive – and complex – data privacy regulation in the world. As companies prepare for the GDPR to go into force on May 25, 2018, there continues to be a great deal of confusion regarding the requirements of the GDPR.

To help address that confusion, Bryan Cave is publishing a multi-part series that discusses the questions most frequently asked by clients.

Question: If I already drafted a privacy policy to comply with United States laws do I need to change that policy to comply with the GDPR?

Answer: Yes, although the degree to which your privacy policy will need to be changed depends on which United States laws it was designed to comply with.

There are a number of laws within the United States that require companies to provide people with a notice concerning the company’s privacy practices – a document that is often interchangeably referred to as  “privacy notice,” “privacy policy,” or “information notice.”  With regard to the federal government these include the Gramm Leach Bliley Act (“GLBA”), which requires financial institutions to provide privacy notices to customers, the Health Insurance Portability and Accountability Act (“HIPAA”), which requires health care plans, health insurers, and health care providers to provide privacy notices to patients, the Family Educational Rights and Privacy Act “FERPA”), which requires educational institutions that receive federal funding to provide privacy notices to students and parents, the Children’s Online Privacy Protection Act (“COPPA”), which requires that websites which collect information from children provide a privacy notice to parents.  State legislatures have also enacted statutes that require that websites which collect from state residents online provide a privacy notice concerning their online privacy practices, and companies that collect Social Security Number provide a privacy notice specific to their collection and use of that data type.

The various statutes that mandate privacy notices in the United States contain a common core of similarities; almost all of them require that a company describe the type of information it collects, the third parties with whom it shares the information, and the steps that it is taking to secure the information.  What must be included within a privacy notice diverges beyond that common core.  For example, whereas a privacy notice drafted to comply with HIPAA, FERPA, or COPPA will discuss a person’s ability to access their data and to correct inaccuracies, a privacy notice drafted to comply with GLBA or state online collection laws will not. 

The net result is that how close a United States drafted privacy notice is to complying with the requirements of the GDPR depends on the context in which it was drafted and which United States laws it was intended to satisfy.  That said, there are certain provisions within the GDPR that contain no American analog and, as a result, are unlikely to be found in most privacy notices drafted within the United States.  The following chart indicates which requirements of the GDPR are likely, or are not likely, to be found in a United States based privacy notice:

Summary of Information Required to be Included in Privacy Notice Pursuant to

GDPR Articles 13 and 14

It Is The Intention Required by
United States Law to be Included
In a Privacy Notice

1.     Contact Info.  Identity and contact information of the controller, and “of the controllers’ representative.

Partially.  Many United States laws require that a privacy notice provide an organization’s contact information; none require that they include a “representative” that would satisfy the requirements of GDPR Article 27.

2.     Data Protection Officer.  If the controller has a data protection officer, his/her name and contact information.

No.  While some United States laws require the appointment of a privacy or security resource, none require that resource to have the qualifications or responsibilities described in GDPR Articles 38-39.

3.     Description of purpose.  The purposes of the processing (and the legal basis for those purposes).  If one of those purposes is the “legitimate interest” of the controller, that legitimate interest must be described.

Similar requirements in most US privacy laws.

4.     Description of recipients.  Categories of people that will receive data.

Similar requirements in most US privacy laws.

5.     Cross border transfers.  If the data is going to leave the EEA that must be disclosed, as well as the “appropriate or suitable safeguards and the means by which to obtain a copy of them” for effecting such transfer.

No US analog.

6.     Description of data retention period.  The period for which the data will be stored, or the criteria used to determine when it will be deleted.

No US analog.

7.     Access Rights.  Information concerning the right to request access to the information.

Some US analogs (e.g., HIPAA).

8.     Rectification Rights.  Information concerning how to ask that inaccuracies be fixed.

Some US analogs (e.g., FERPA).

9.     Erasure Rights.  Information concerning how to ask that the data be deleted.

Some US analogs (e.g., COPPA).

10.  Opt-out Rights.  If there is a right to opt-out of a certain use, or withdraw consent, a description of how consent can be withdrawn.

Some US analogs (e.g., GLBA).

11.  Complaints.  A statement that the data subject has a right to lodge a complaint with a supervisory authority.

Some US analogs (e.g., HIPAA).

12.  Automated decision making.  A disclosure if automated decision making will occur.

No US analog.

13.  Mandatory nature of data collection  A description of whether the data is required by statute or contract to be collected, as well as the possible consequences for not providing the data.

No US analog.

[View source.]

Written by:

Bryan Cave

Bryan Cave on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.