Privacy and Data Security Client Alert | February 2019

by Shook, Hardy & Bacon L.L.P.
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Google Receives Record GDPR Fine

Marking the first major penalty against a U.S. tech company under the General Data Protection Regulation (GDPR), the French data-protection authority, CNIL, has fined Google a record $57 million. Google’s violations stemmed from a lack of transparency regarding how it uses consumers’ personal information and from a failure to obtain sufficiently informed consent to use that information to personalize ads. CNIL’s investigation began on May 25, 2018—the day the GDPR took effect—in response to concerns raised by two groups of privacy activists. While the fine represents a fraction of the maximum possible penalty of $4.7 billion, the move should put other U.S. tech companies on high alert that European regulators will apply tough scrutiny under the sweeping data-protection law.

Read CNIL's statement and The Washington Post article >>

 

Privacy Activist Files Bevy of GDPR Complaints

Austrian attorney and privacy activist Max Schrems has filed several GDPR complaints with the Austrian data-protection authority, naming Amazon, Netflix, YouTube and other major technology companies. The complaints allege that the companies failed to fully comply with data-subject information requests. Schrems, who leads the non-profit noyb (none of your business), has demonstrated that privacy groups will continually test companies’ compliance with the GDPR; he filed complaints in 2018 against Google, Facebook, Instagram and WhatsApp.

Read the Reuters article >>

 

Stepping into the Federal Void, States Introduce Comprehensive Privacy Laws and Other Measures

Following on the heels of the California Consumer Privacy Act (CCPA), legislation introduced in the New Mexico and Washington state legislatures would greatly expand consumer-privacy protections in those states. The New Mexico bill, SB 176, largely incorporates the same provisions as the CCPA, while the Washington bill, SB 5376, incorporates concepts from the GDPR. One major difference is that the New Mexico bill provides for a private right of action while the Washington bill would be enforceable only by the state attorney general. The laws would take effect on July 1, 2020, and December 31, 2020, respectively.

Legislators in Massachusetts have also introduced a CCPA-style privacy law that would take effect January 1, 2023. The law provides for a private right of action, and, significantly, explicitly states that a mere technical violation would provide a plaintiff standing to sue, a heavily litigated issue under the Illinois biometric privacy law.

Other states are also looking to enact stricter privacy provisions. Legislators in New York have proposed several measures, including a private right of action for data-breach victims and a prohibition on the use of biometric data for marketing and advertising purposes. A Virginia bill would allow minors to request removal of information and impose additional restrictions on marketing, advertising and data sharing. A law introduced in Utah would restrict government agencies’ ability to obtain personal information, and North Dakota is considering a bill that would require affirmative consent before an entity discloses personal information.

Read The Information article >>

 

Yahoo Settles Derivative Suits Over Data Breaches, But Data-Breach Settlement Rejected

After a $35 million settlement with the Securities and Exchange Commission in 2018 for failing to timely disclose a 2014 breach affecting more than 500 million users, Yahoo (now Altaba) has settled three shareholder derivative lawsuits related to a series of cyberattacks from 2013 to 2016. The plaintiff shareholders alleged that Yahoo’s directors and officers breached their fiduciary duties with their handling of customer information in relation to those cyberattacks. The $29 million settlement marks the first time shareholders have been awarded monetary damages in a breach-related derivative lawsuit.

Yahoo’s attempt to settle a related consumer class-action lawsuit, however, was rejected by Judge Koh of the Northern District of California. Judge Koh rejected the proposed $50 million settlement on multiple grounds, finding the amount allocated to victims too vague, the attorneys’ fees too high and a shortage of required enhanced security measures.

Read The New York Times article and the Courthouse News article >>

 

North Carolina to Propose Amendments to Data-Breach Law

After recent increases in the number of North Carolina residents affected by data breaches, State Rep. Jason Saine, accompanied by State Attorney General Josh Stein, announced that he would be proposing amendments to the state’s data-breach-notification law. While the legislation is still being drafted, its provisions will reportedly include a new 15-day deadline to provide notification of a breach, a requirement to maintain reasonable security procedures and practices, and a mandatory five years of free credit monitoring for victims of a breach.

Read the Carolina Journal article >>

 

EU and Japan Agree to Allow Data Flows

Building on their July 2018 agreement to recognize each other’s data-protection systems as adequate, the European Commission and Japan have formally adopted that adequacy decision. The decision takes effect immediately, allowing freer flow of data between Japan and the European Union. It will also complement the EU-Japan Economic Partnership Agreement, which enters into force in February 2019.

Read the EU press release >>

 

Shutdown Affected Federal Government’s Privacy and Cybersecurity Work

The federal government's partial shutdown of December 2018–January 2019 has complicated the work of various agencies with regards to privacy and cybersecurity matters. The Department of Homeland Security and the Federal Trade Commission (FTC) furloughed staff who focus on privacy issues, while other agency employees were restricted in the amount of time they could spend on privacy matters, resulting in delays to investigations and risk assessments. The Federal Bureau of Investigation also saw cybersecurity probes hamstrung by a lack of funds, subpoena delays and an inability to collaborate with other government agencies.

Read the IAPP's article and the Bank Info Security article >>

 

Facebook May Receive Record FTC Fine

FTC may impose a record-setting fine on Facebook following an alleged violation of a 2011 consent decree requiring the company to protect its users' personal data. The fine is reportedly projected to be larger than the $22.5 million fine Google received in 2012, which at the time set a record for the largest penalty imposed for violations related to improving privacy practices.

Read The Washington Post article >>

 

The Push for National Privacy Legislation Gains Steam

Calls for national privacy legislation continue to arise, due in part to the enforcement of the GDPR, the passage of the California Consumer Privacy Act and various privacy-related incidents at major companies such as Facebook and Marriott Hotels. Multiple constituencies are forming to press their visions to Congress. Among the competing proposals are bills introduced by Democratic and Republican senators, a group of privacy organizations' proposal for a new federal agency and a privacy framework of baseline protections formulated by the Information Technology and Innovation Foundation, a think tank backed by major tech companies.

Read the Associated Press article >>

 

Huawei Indicted for Alleged Theft of Trade Secrets, Wire Fraud and Obstruction of Justice

An unsealed indictment has revealed that the Department of Justice (DOJ) has charged Chinese device-maker Huawei with stealing trade secrets from T-Mobile. According to the indictment, Huawei employees violated confidentiality and non-disclosure agreements and stole equipment related to a T-Mobile phone-testing robot. Huawei also allegedly offered bonuses to employees based on the value of information they stole from other companies.

Read the DOJ statement >>

 

U.K.'s ICO Releases Guidance on Brexit

While the terms on which the United Kingdom will exit the EU are subject to ongoing debate, the Information Commissioner’s Office has released guidance on personal-data flows to the European Economic Area after Brexit is completed. The ICO published the guidance, along with associated tools, to help organizations prepare for a future in which data flows are not provided for in the United Kingdom's withdrawal from the EU. The ICO’s primary advice is to continue complying with the GDPR, as the United Kingdom plans to incorporate the GDPR into U.K. law after Brexit.

Read ICO's guidance >>

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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JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
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  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

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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