Global Privacy & Cybersecurity Update Vol. 14

by Jones Day
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Jones Day

United States

Regulatory—Policy, Best Practices, and Standards

New York Attorney General Announces Record Number of Data Breach Notices in 2016On March 21, 2017, the New York Attorney General's Office announced that it received 1,300 reported data breaches in 2016—a 60 percent increase from the number received in 2015. The reported breaches exposed personal records of 1.6 million New York residents.

Office of U.S. Trade Representative Reports on Data Residency Laws
On March 31, the Office of U.S. Trade Representative released its annual report analyzing how barriers to trade have played out in dozens of foreign countries. The report highlights two trends: (i) an increasing emergence of data residency laws requiring private-sector companies to store information locally; and (ii) new laws that require government data to be stored locally, such as in China, Indonesia, Canada, and Nigeria. 

SEC Reaffirms Commitment to Pursuing Actions over Cyber Reporting
On April 20, in response to a Jones Day moderator at the 2017 IAPP Global Privacy Summit, the Securities and Exchange Commission's ("SEC") Acting Enforcement Director commented on the absence of SEC actions against public companies for failing to report cyber incidents and risks. She noted that the absence should not be mistaken for the agency's unwillingness to bring such actions, but she added that "we [SEC] are not looking to second-guess good-faith disclosure decisions."  

Massachusetts Attorney General Educates Law Enforcement on Cyber Crime
On April 26, the Massachusetts Attorney General hosted the sixth annual National Cyber Crime Conference. More than 650 law enforcement officers, prosecutors, and investigators from across the United States and Canada attended the three-day conference. The goal of the conference was to help equip law enforcement officials and prosecutors with the tools and skills to effectively detect and defeat cyber crime. 

Regulatory—Critical Infrastructure

NIST Publishes Report on Robot Cybersecurity Performance Analysis
On April 18, the National Institute of Standards and Technology ("NIST") issued a report titled "Metrics and Key Performance Indicators for Robotic Cybersecurity Performance Analysis." The report follows NIST's construction of a "testbed to measure the performance impact induced by cybersecurity technologies on Industrial Control Systems." The research delves into various manufacturing-related operational methodologies and the effectiveness of defensive measures.

NIST Issues Cyber-Threat Intelligence and Information-Sharing Bulletin
On May 8, NIST published a bulletin titled "Cyber-Threat Intelligence and Information Sharing to discuss the basics of cyber-threat information sharing and building relationships in an information-sharing community. The bulletin discusses security alerts, intelligence reports, and tool configurations, as well as strategies to build and participate in information-sharing networks. 

Regulatory—Retail

FTC Penalizes Membership Reward Service for Violating Order
On March 17, the Federal Trade Commission ("FTC") announced a civil penalty against a membership reward service, Upromise, for failing to disclose the extent of its data collection practices. Despite a 2012 order requiring the company to make clear and prominent disclosures, the FTC alleged that the company failed to make appropriate disclosures or to obtain the necessary assessments certifying protection of consumer data. As part of the new order, the company must pay $500,000 and implement the remedial measures prescribed in the 2012 order.  

FTC Resolves Allegations that Companies Misrepresented Participation in International Privacy Program
On April 14, the FTC approved final orders with three companies regarding allegations that they deceived consumers by misrepresenting their participation in the Asia-Pacific Cooperation Cross-Border Privacy Rules system. The settlements with a provider of endpoint protection software, a marketer of a private message app, and a distributor of cybersecurity software prohibit the companies from misrepresenting their participation, membership, or certification in any privacy or security program sponsored by a government or self-regulatory or standard-setting organization. 

FTC Seeks Comment on Children's Privacy Compliance Oversight Program Proposal
On April 19, the FTC sought comment regarding a private compliance and data security company's proposed change to its self-regulatory guidelines regarding children's privacy. The proposed change adds a requirement that companies in the program annually assess whether third parties collect personal information from children. 

FTC Settles Deceptive Online and Mobile Consumer Tracking Practices with Digital Advertiser
In April, the FTC approved a final consent decree with digital advertising technology company Turn. The FTC charged Turn with misrepresenting the extent to which it continued to track consumers, even after the consumers opted out of such tracking through web browser settings, as advised by Turn's privacy policy. The FTC alleged that Turn used unique device identifiers to track tens of millions of mobile phone customers who had blocked or deleted cookies. As part of the order, Turn must provide an effective opt-out mechanism for consumers who do not want their information used for targeted advertising.  

Regulatory—Defense and National Security

DOD Announces Cyber Bug Bounty Program
On March 2, the Department of Defense ("DOD") announced that it would invite hackers to test the department's cybersecurity. The pilot program is the first in a series planned to find vulnerabilities in the department's applications, websites, and networks. The pilot was announced as part of an effort to comply with the Administration's Cyber National Action Plan. 

Regulatory—Transportation

Office of Unmanned Aircraft Systems Director Testifies on FAA Rules Regarding Privacy
On March 15, the director of the Federal Aviation Administration ("FAA") Office of Unmanned Aircraft Systemstestified before the Senate Committee on Commerce, Science, and Transportation that the FAA has no rules in place regarding what data commercial drones can collect, whether companies can sell such data, and how long companies can retain the information they gather. The director also noted that the FAA is working with the Drone Advisory Committee, which includes several members from the drone industry, to draft regulations. 

Regulatory—Financial Services

SEC Proposes Inline XBRL Filing of Tagged Data
On March 1, the SEC proposed amendments to improve the quality and accessibility of data submitted by public companies and mutual funds using eXtensible Business Reporting Language ("XBRL"). The acting chairman noted that "while XBRL technology has made disclosures easier to access for investors, there are legitimate concerns about the burdens smaller companies face when preparing their filings," and the Commission is seeking "a way to streamline this process to ensure usability for the public while keeping compliance costs down."  

SWIFT Messaging System to Start Suspicious Payment Alerts to Defend Banks
On April 12, the Society for Worldwide Interbank Financial Telecommunication ("SWIFT") announced measures to defend banks against cyberattacks that target banks' connections to the SWIFT messaging system. Among other measures, the tools include a payment screening service allowing small member banks to automate the flagging of suspicious payments. SWIFT is an interbank messaging system that hackers used to steal $81 million from Bangladesh last year.  

Regulatory—Health Care/HIPAA

HHS Settles with Wireless Health Services Provider Following Theft of Unsecured Laptops
On April 24, the U.S. Department of Health and Human Services ("HHS") publicized a $2.5 million settlement with a wireless health services provider, CardioNet, relating to the disclosure of unsecured patient health information stored on two stolen laptops. Because the investigation revealed that CardioNet "had an insufficient risk analysis and risk management processes in place at the time of the theft," the provider was also ordered to implement a corrective action plan. For more information, see the related Jones Day Commentary 

HHS Settles with Hospital Provider for HIPAA Privacy Violations
On May 10, HHS announced a settlement with a hospital system for inadvertently disclosing protected health information ("PHI") in a hospital press release, which reported on a data security incident affecting patient data. Under the settlement, the hospital system must pay $2.4 million and "update its policies and procedures on safeguarding PHI from impermissible uses and disclosures and to train its workforce members." 

Litigation, Judicial Rulings, and Agency Enforcement Actions

Illinois Federal Judge Approves $76 Million Settlement in Cruise Robocall Class Action
On March 2, an Illinois federal district court granted final approval of a $76 million settlement resolving a class action accusing several cruise marketing companies of robocalling millions of Americans. The plaintiffs alleged that the cruise marketing companies operated a telemarketing scheme advertising free cruises but actually intending to sell timeshares. The calls went out to at least 900,000 numbers contained in a class list put together from company records. The settlement provides a minimum payout of $135 per call, with most class members receiving more than $400 each.  

Clothing Retailer Settles Data Breach Class Action for $1.6 Million
On March 17, a prominent clothing retailer settled a credit card data breach class action affecting approximately 350,000 customers. Although the action was initially dismissed for lack of standing, the Seventh Circuit Court of Appeals found that preventative measures like credit monitoring were sufficient to show standing. As part of the settlement, the company will pay $1.6 million and institute a host of remedial security measures.

New York Attorney General Announces Settlements with Three Health and Fitness App Providers
On March 23, three mobile health app developers agreed to pay $30,000 and revise their advertising and privacy policies to resolve the New York Attorney General's claims that they falsely touted the ability of their apps to measure key vital signs and were unclear about what data the apps collected. The settlement concluded a yearlong investigation by the New York Attorney General into deceptive statements and "irresponsible privacy practices" linked to the developers' health-related apps that promise to accurately measure heart rates and detect fetal heartbeats.  

Florida Federal Judge Approves $31 Million FACTA Class Action Settlement
On March 23, a Florida federal judge signed a $31 million class action settlement involving a major fast food chain. The figure comprises the largest settlement in the history of the Fair and Accurate Credit Transactions Act ("FACTA"). The plaintiffs alleged that the food chain violated FACTA through its practice of printing the full expiration dates of customers' credit cards on receipts.  

Massachusetts Attorney General Settles with Advertising Company in Geofencing Case
On April 4, the Massachusetts Attorney General entered a settlement prohibiting an advertising company from engaging in certain geofencing practices. Specifically, the "digital advertising company [] was hired to use mobile geofencing technology to target women entering reproductive health facilities." The settlement forbids the advertising company from using geofencing technology near hospital facilities to collect or compile the medical information of any individual.

California Federal Judge Approves $60.5 Million Judgment in Favor of Advertising Company
On April 13, a California federal judge approved an unopposed $60.5 million judgment in favor of a large advertising company against an online real estate rental service in a copyright and computer fraud suit. The advertising company alleged that the real estate rental service unlawfully collected its user data by scraping contact information via a third party. In addition to the monetary penalty, the judgment included an injunction preventing the real estate rental service and any of its officers from reproducing or distributing the advertising company's content themselves or through a scraper, robot, or spider.

Florida Attorney General and FTC File Complaints for "Tech Support" Scams
On May 1, the Florida Attorney General and the FTC filed a complaint against three technical support software companies alleging violations of the Florida Deceptive and Unfair Trade Practices Act. These alleged scams involved pop-up ads disguised as virus alerts that instructed consumers to call a number for help. The companies then sold the consumers unnecessary and costly technical support services or software products.

Legislative—Federal

Congress Votes to Repeal FCC Broadband Privacy Rules
On March 28, the House of Representatives approved a joint resolution repealing the privacy rules for internet service providers ("ISPs") set by the Federal Communications Commission ("FCC") in October 2016. The resolution, which passed the Senate on March 23, was signed by the President on April 3. Among the privacy rules invalidated by this action is a rule that required ISPs to obtain opt-in consent before using or selling consumer data, including web browsing and app usage history. Under the Congressional Review Act, Congress can repeal agency rules through simple majority votes.

Small Business Cybersecurity Bill Proceeds to Senate Floor
On April 5, the Senate Commerce, Science, and Transportation Committee passed the bipartisan MAIN STREET Cybersecurity Act, which aims to equip small businesses with resources to help them protect against and manage cybersecurity risks, including implementing the NIST's voluntary Cybersecurity Framework. According to a 2012 study by the National Cyber Security Alliance cited by the bill's co-sponsor, around 60 percent of small businesses that suffer a cybersecurity attack go out of business within six months. The legislation, which is backed by the U.S. Chamber of Commerce and National Small Business Association, now awaits full Senate consideration.

President Signs Cybersecurity Executive Order
On May 11, President Trump signed an executive order designed to enhance the cybersecurity capabilities of the federal government. Specifically, the order seeks to improve accountability within federal agencies, augment incident response capabilities, and develop a workforce more capable of tackling cybersecurity issues.

House Approves Revised Modernizing Government Technology Bill
On May 17, the House of Representatives passed the Modernizing Government Technology Act ("MGT Act") by voice vote. The legislation creates a centralized fund for agencies to modernize their technology and allows agencies to put money saved through IT efficiencies into working capital funds that can be accessed for up to three years. According to a May 12Congressional Budget Office estimate, implementing the MGT Act would cost $500 million over five years. A companion bill in the Senate that is identical to the current version awaits committee action.

Legislative—States

Virginia Updates Data Breach Notification Law for Payroll Data
On March 13, the Virginia Governor signed an amendment to Virginia's data breach notification law, adding a requirement that employers or payroll service providers give notice to the Attorney General's office if payroll information is compromised. Notification to the Virginia Attorney General is required if there is an "unauthorized access and acquisition of unencrypted and unredacted computerized data containing a taxpayer identification number in combination with the income tax withheld for that taxpayer" and "the employer or payroll provider reasonably believes [the access or acquisition] has caused, or will cause, identity theft or other fraud." The Virginia amendment was enacted in response to the recent surge of Form W-2 phishing scams and will go into effect on July 1.

Tennessee Clarifies Encryption Exception in Data Breach Notification Law
On April 4, the Tennessee governor signed an amendment to Tennessee's data breach notification law to clarify that companies do not need to notify Tennessee citizens of personal data breaches if the information compromised was encrypted, resolving confusion that was created by a 2016 amendment. The amendment went into effect immediately upon signature by the governor.

New Mexico Becomes 48th State to Enact Data Breach Notification Law
On April 6, New Mexico became the 48th state to enact a data breach notification law—leaving Alabama and South Dakota as the only states without such laws. H.B. 15 governs data breach notification requirements for entities storing and using personal identifying information about New Mexico residents and also establishes requirements for securing and disposing of that information. The bill requires notification to affected consumers in the event of a breach within 45 days of discovery of the breach and will go into effect on June 16.

The following Jones Day lawyers contributed to this section: Jeremy Close, Jay Johnson, Lindsey Lonergan, Alexandra McDonald, Dan McLoon, Mary Alexander Myers, Mauricio Paez, Nicole Perry, Alexa Sendukas, John Sullivan, Anand Varadarajan, and Jenna Vilkin.

Latin America

Argentina

Argentina Issues Draft Data Protection Bill
In February, the Argentinean Data Protection Agency (Dirección Nacional de Protección de Datos Personales) posted the first draft of a new data protection bill (source document in Spanish) on its website. Argentina's current data protection bill was enacted in December 2000. The draft bill incorporates several changes proposed in a 2016 public consultation as well as the forthcoming EU General Data Protection Regulation.

Chile

Chilean Government Passes New Personal Data Bill
On March 10, the Chilean government enacted a new version (source document in Spanish) of the Law of Protection of Personal Data. The bill incorporates guiding principles issued by the Organization for Economic Cooperation and Development's guidelines, as well as the recognition of data holders' "ARCO rights" and rules regarding special protection for sensitive personal data. The legislation also creates the Personal Data Protection Agency to supervise and enforce data protection matters.

Mexico

INAI Issues Strategic Actions to Implement General Data Protection Law
On March 27, the National Institute for Transparency, Access to Information and Personal Data Protection (Instituto Nacional de Transparencia, Acceso a la Información y Protección de Datos Personales or "INAI") issued a step-by-step plan (source document in Spanish) for the implementation of the new General Law for the Protection of Personal Data Held by Regulated Subjects (source document in Spanish). The five strategic lines of action suggested by INAI include: (i) evaluation of the local data protection regulatory framework and counseling state congresses on the subject; (ii) development, execution, and evaluation of the Personal Data Protection National Program; (iii) adjustment of existing laws and regulations issued by the National Transparency System; (iv) revisions to the new digital National Transparency Platform; and (v) personnel training on how to handle personal data.

INAI Issues Recommendations for Using Social Media
On April 10, INAI issued recommendations (source document in Spanish) to avoid risks when using personal data in social media. According to one study, by the third trimester of 2016, there were 64.9 million social media users in Mexico, the majority of whom are under 40 years old. Among other measures, INAI's tips for social media users include: (i) avoiding contact with unknown users; (ii) logging out when accessing accounts on a public computer; (iii) creating robust passwords with diverse characters; (iv) selecting adequate privacy and security configurations for social media accounts; and (v) refraining from business transactions on social media.

The following Jones Day lawyers contributed to this section: Guillermo Larrea, Daniel D'Agostini, and Mónica Peña Islas.

Europe

European Union

EDPS Calls for Improvements to EU Border policy
On March 6, the European Data Protection Supervisor ("EDPS") released an opinion on the European Travel Information and Authorization System ("ETIAS"), a border management regulation proposed in late 2016. In the opinion, the EDPS questions the proposed data collection practices envisioned as part of ETIAS and cautions against profiling tools because they raised "serious technical, legal, and ethical questions."

EDPS Announces 2018 International Conference of Data Protection and Privacy Commissioners
On March 13, the EDPS released a press statement announcing the 40th International Conference of Data Protection and Privacy Commissioners to be hosted in Brussels in October 2018. The conference will allow independent regulators on privacy and data protection to adopt high-level resolutions and recommendations addressed to governments and international organizations.

EDPS Seeks Stronger Consumer Protections in Digital Content Contracts
On March 14, the EDPS published an opinion concerning contracts for the supply of digital content. The EDPS highlighted the risk of confusion for consumers and businesses regarding new provisions in EU law that treat personal information as a commodity for exchange in digital contracts. The EDPS also warned of potential legal uncertainty should EU rules inadvertently interfere with the GDPR and forthcoming ePrivacy Regulation.

EU Commissioners Publish Joint Statement on Data Flows with Japan
On March 20, the European Commission issued a press release on the joint statement made by Vice President Andrus Ansip and Commissioner Vera Jourová on data flows between Japan and the EU. According to the statement, both the Commission and Japan seek "close and regular exchanges between the EU and Japan on the data economy and increased cooperation for the free flow of data between the EU and Japan and ensuring high standards of data protection."

Commissioner Speaks on EU-U.S. Data Flows and Data Protection
On March 31, the European Commission published a commissioner's speech at the Center for Strategic and International Studies in Washington, which covered the Umbrella Agreement, e-evidence, online hate speech, the General Data Protection Regulation ("GDPR"), and the Privacy Shield. In the speech, the commissioner described the evolution of transatlantic data exchanges and commented that the Umbrella Agreement and the Privacy Shield would benefit citizens and businesses provided that they continue to be properly implemented.

Article 29 Working Party Issues Opinion on ePrivacy Regulation
On April 4, the Article 29 Working Party adopted an Opinion on the Proposed Regulation of the European Commission for the ePrivacy Regulation, which is intended to replace the ePrivacy Directive. In its opinion, the Working Party outlines four "grave" concerns that would lower the level of protection in place under the GDPR: (i) the tracking of the location of terminal equipment; (ii) the conditions under which the analysis of content and metadata is allowed; (iii) the default settings of terminal equipment and software; and (iv) tracking walls.

EDPS Issues Necessity Toolkit to Facilitate Policymaking
On April 11, the EDPS published a necessity toolkit designed to help policymakers identify the impact of new laws on the fundamental right to data protection and determine cases in which the limitation of this right is truly necessary. The toolkit provides policymakers with a practical step-by-step checklist, setting out the criteria to be considered by policymakers when they assess the necessity of new legislation and providing examples to illustrate each step. The toolkit is based on decisions issued by the Court of Justice and the European Court of Human Rights, as well as on Opinions published by both the EDPS and the Article 29 Working Party.

European Network and Information Security Agency

ENISA Provides Recommendations on Privacy Enhancing Technologies
On March 9, the European Network and Information Security Agency ("ENISA") published a document providing recommendations on how to build and maintain an online community for Privacy Enhancing Technologies ("PETs") maturity assessments. The community development approach guides developers and individuals with key skills they need to participate actively in the PETs. The document presents four areas to consider when developing the community: hosting and maintenance, dissemination and promotion, content generation and trust building, and continuous improvement.

France

France Further Implements Digital Republic Act
On March 14, the Prime Minister adopted two orders to further implement the Digital Republic Act. The first order (source document in French) provides that data processing decisions based on "algorithmic processing" have to mention: (i) the purpose of such processing; (ii) the right to obtain the processing rules; and (iii) the conditions under which such rights of access can be exercised. The second order (source document in French) relates to the availability of "reference data" and the conditions under which such data can be accessed.

CNIL Issues 2016 Activity Report
On March 31, CNIL issued its 2016 Activity Report (source document in French) describing 430 controls targeting the implementation of CCTV measures and personal data processing. The report also discusses the 7,703 claims it received relating to the online dissemination of personal data, marketing, the Internet of Things, and Wi-Fi tracking. According to the report, the majority of claims aimed to control the user's e-reputation through delisting and the removal of URLs.

France Implements National System of Health Data
On April 10, France launched (source document in French) the National System of Health Data ("SNDS"), a new database that compiles information related to health insurance and various medical records. The SNDS shares health care information to better assess health expenditures, health monitoring, and research in the health care sector. SNDS will be available only to certain public entities, but other private and public structures may request access for public interest purposes.

CNIL Fines Transportation Services Company
On April 13, CNIL fined a transportation services company €15,000 for failure to comply with French data protection laws. After investigating the company's practices, CNIL observed that the company did not follow required retention periods for personal data or appropriately delete payment card information.

Germany

Bavarian DPA Issues Guidance on Data Protection Impact Assessments
On March 13, the Bavarian Data Protection Authority ("DPA") published a paper (source document in German) on Data Protection Impact Assessments ("DPIA") as described in Art. 35 of the EU GDPR. DPIAs are required when a new technology's data processing might affect the rights and freedoms of natural persons, and the paper provides guidance on how to evaluate whether a DPIA is required and about the comprehensiveness of performing a DPIA.

Italy

DPA Approves DNA Database
On March 9, the Italian DPA approved a draft (source document in Italian) decree to regulate the nation's DNA database. As part of the decree, the DPA required strengthening the integrity of the data in the database, especially regarding the data of individuals acquitted of criminal charges. The DPA also stressed the need to provide data subjects with an adequate information notice.

DPA Fines Money Transfer Companies
On March 10, the Italian DPA fined (source document in Italian) five companies €11 million for operating a money transfer business involving the illicit use of personal data. To avoid tracking money transfers abroad and scrutiny under the anti-money laundering laws, the companies registered the transfers in the names of individuals who were deceased, nonexistent, or otherwise unaware of such transfers. The fines comprise the highest penalty ever issued by the Italian DPA.

Netherlands

Ministry of Security and Justice Publishes Statistics on Cybercrime
On March 1, the Ministry of Security and Justice published the Safetymonitor (source report in Dutch) annual report, which contains crime statistics in the Netherlands. The report includes figures on cybercrime since 2012 and notes that 10.7 percent of the Dutch population was the victim of cybercrime in 2016. Hacking was the most common offense, followed by fraud and cyberbullying.

Netherlands Issues Draft Bills on "UBO-register" and "Central Shareholder-register"
On March 31, the Netherlands published the first draft of a bill (source document in Dutch) aimed at implementing the Fourth Anti-Money Laundering Directive (2015/849/EU), which requires EU Member States to establish an Ultimate Beneficial Owner ("UBO") register. According to the draft bill, the publicly accessible data will contain personal data such as the UBO's name, date of birth, nationality, residence, and the nature and size of his or her stake in the respective organization. Parliament members have also submitted a proposal (source document in Dutch) on the Central Shareholder-register, opting for a register that will not be accessible to the public.

Spain

DPA Provides Guidance on Telecommunications Services Rights
On March 14, the Spanish Data Protection Agency ("DPA") launched a website (source document in Spanish) that provides information on the rights of telecommunications users and guidance on how to assert claims. This effort follows initiatives by the DPA to promote citizen awareness of rights and guarantees under Spanish law.DPA Holds Ninth Annual Open Session
On May 25,the DPA held its Annual Open Session (source document in Spanish) to address, among other topics, the new GDPR provisions, implementation, the DPA's activities, and changes in Spanish law.

United Kingdom

UK Incorporates EU Data Protection Regulations
In March, the UK government issued a white paper setting out detailed proposals on how the United Kingdom will leave the European Union following the service of its Article 50 notice. The "Great Repeal Bill" will incorporate existing EU law (including the GDPR) into UK law, effectively opting into the EU data protection regime.

ICO Fines Lawyer for Improper Storage of Client Information
On March 16, the Information Commissioner's Office ("ICO") fined a British barrister £1,000 for keeping records relating to 250 clients on his home computer and having accidentally uploaded the information to an internet directory as part of a software upgrade. Some files contained highly sensitive information related to court proceedings pending before the UK courts.

ICO Issues Draft Guidance on Consent under GDPR
On March 31, ICO issued draft guidance on the requirements for consent under the GDPR. While still subject to consultation, the guidance helps data controllers "decide when to rely on consent for processing and when to look at alternatives" and takes "account of future guidelines issued by relevant European authorities."

The following Jones Day lawyers contributed to this section: Paloma Bru, Laurent De Muyter, Undine von Diemar, Marina Foncuberta, Olivier Haas, Jörg Hladjk, Bastiaan Kout, Matthijs Lagas, Jonathon Little, Martin Lotz, Hatziri Minaudier, Giuseppe Mezzapesa, Selma Olthof, Audrey Paquet, Elizabeth Robertson, and Rhys Thomas.

Asia, Africa, and the Middle East

Hong Kong

Securities and Futures Commission Tightens Cybersecurity Rules
Beginning in April, the Securities and Futures Commission ("SFC") announced efforts to strengthen cybersecurity rules after a series of hacking attacks of brokerage accounts over the past 18 months led to investor losses totaling HK$110 million. As part of these efforts, the SFC will launch a market consultation on proposals requiring brokers to upgrade their cybersecurity systems, which may include two-step authentication and transaction notification requirements.

PCPD Investigates Loss of Voters' Personal Data
On April 11, the Office of the Privacy Commissioner for Personal Data ("PCPD") issued a statement on the reported loss of registered voters' personal data. The PCPD is investigating the loss of two computers belonging to the Registration and Electoral Office to determine if any privacy violations occurred and whether personal data was compromised.

Japan

Cabinet Submits Bill Concerning De-Identified Medical Information
On March 10, the Diet began considering a bill (source document in Japanese) "concerning de-identified medical information to promote research and development in the medical field." The law aims to advance the use of health and medical information, after de-identification, for the purpose of advanced research and development in life sciences while securing the adequate protection of patient privacy.

Personal Information Protection Commission Releases Guidelines for Health Care Sector
On April 14, after a review of public comments, the Personal Information Protection Commission, together with the Ministry of Health, Labor and Welfare, released guidelines (source document in Japanese) concerning the Personal Information Protection Act for the health care sector. The guidelines discuss proper handling of personal information for medical and long-term-care business operators.

Ministry of Internal Affairs and Communications Amends Telecommunications Guidelines
On April 18, after a review of public comments, the Ministry of Internal Affairs and Communications released Guidelines Concerning Personal Information Protection in the Telecommunication Business and the accompanying commentary for these guidelines (source documents in Japanese). The guidelines specifically apply to telecommunication carriers.

People's Republic of China

China Passes Civil Law Relating to Personal Data Protection
On March 15, China passed the General Provisions of the Civil Law (source document in Chinese). The General Provisions, which will take effect on October 1, lay out various measures to protect the security and integrity of personal data.

CAC Issues Data Localization Requirements
On April 11, the Cyberspace Administration of China ("CAC") published a draft (source document in Chinese) on proposed "Measures for the Security Assessment of Outbound Transmission of Personal Information and Critical Data." The draft requires operators of key information infrastructure to keep within China critical data and personal information that they collect or generate in the course of operating their businesses. Under these measures, critical data or information can be released outside of China only if it passes a "security assessment."

Singapore

PDPC Updates Anonymization Guidelines
On March 28, the Personal Data Protection Commission ("PDPC") announced updates to Chapter 3 of its Advisory Guidelines on the Personal Data Protection Act ("PDPA") for Selected Topics. The revisions "provide further clarity for organizations using and disclosing anonymized data, including further information on the considerations for assessing and managing the risks of re-identification from anonymized data."

PDPC Fines IT Services Company for PDPA Violations
On April 6, the PDPC ordered a $10,000 fine against a data intermediary IT services company for "failing to make reasonable security arrangements to prevent unauthorized access and unauthorized modification of [] customers' personal data"—violations under the PDPA.

Israel

Israel Passes Data Security and Data Breach Notification Requirements
On March 21, Israeli lawmakers enacted (unofficial translation) mandatory data security and data breach notification requirements on companies doing business in Israel. The new regulations apply to all data collected, processed, or held by public or private entities in Israel and govern information collected by multinational companies with a presence in Israel. The regulations allow courts to apply sanctions for data security breaches caused by negligence, adding criminal sanctions for some willful violations. The regulations are effective March 2018.

The following Jones Day attorneys contributed to this section: Michiru Takahashi, Li-Jung Huang, and Richard Zeng.

Australia

Law Requires Telecommunications Service Providers to Retain Metadata
Beginning on April 13, telecommunications service providers in Australia must collect and retain telecommunications data for a minimum period of two years. Metadata that must be retained includes the source, destination, date, time, duration, type of communication, and location of equipment or line used in connection with the communication. In addition, retained data must be encrypted and protected from unauthorized interference or access. Per a ruling from the Attorney General, civil litigants will not be allowed access to retained telecommunications data.

The following Jones Day lawyers contributed to this section: Adam Salter and Nicola Walker.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. 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. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our 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 are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy 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 our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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