Privacy & Information Security Law Blog

On October 4, 2010, the French Data Protection Authority (the “CNIL”) stated in a press release that a recently enacted environmental law (Act No. 2010-788 of July 12, 2010, known as “Grenelle II”) expands the CNIL’s authority to regulate devices used to measure the viewership of advertisements in public places like shopping malls, train stations and airports.  Grenelle II introduces a new provision under Article L. 581-9 of the French Environmental Code, which states: “Any system that automatically measures the audience of an advertising device or which analyzes the typology or behavior of individuals passing within the vicinity of such advertising device requires prior approval of the CNIL.”

On October 8, 2010, the UK Information Commissioner’s Office launched a consultation on a new statutory code of practice on the sharing of personal data.

As stated in the ICO’s press release, the draft code sets out a model of good practice, covering routine and one-off arrangements for sharing data with third parties.  The code offers guidance on issues such as:

• The factors that an organization must take into account when deciding whether or not to share personal data
• The point at which individuals should be told that their data will be shared
• The security and staff training measures that must be implemented
• The rights of individuals to access their personal data
• Circumstances in which it is not acceptable to share personal data

On September 14, 2010, a French Appeals Court in Dijon (the “Court”) upheld a decision against an employer that had terminated an employee who not only used a company car for personal reasons, but also committed serious traffic violations while using the vehicle.  The Court rejected evidence collected using a Global Positioning System (“GPS”) device embedded in the company’s vehicle on the grounds that the employer (1) had failed to register this data processing activity with the French Data Protection Authority (the “CNIL”) and (2) had not given proper notice to employees regarding the use of GPS devices in company cars.  Nevertheless, the Court ruled that the use of a geolocation device in the employment context does not necessarily constitute an invasion of an employee’s right to privacy, provided the employer complies with applicable laws.

On September 29, 2010, the Centre for Information Policy Leadership (the “Centre”) hosted a pre-conference workshop at the International Association of Privacy Professionals (”IAPP”) Privacy Academy in Baltimore, Maryland.  The tutorial “Accountability on the Ground,” led by Centre Executive Director Marty Abrams, offered practical guidance on the subject of accountability.  The workshop, which featured presentations by Centre member companies, discussed in-depth examples of how organizations can implement an accountability program.

According to a press report dated October 2, 2010, the German state data protection authorities responsible for the private sector (also known as the “Düsseldorfer Kreis”) continue to consider the use of Google Analytics on company websites to be illegal.  The Düsseldorfer Kreis reached this decision at a recent meeting of its Telemedia working group.  The group has indicated that it hopes to continue negotiations with Google.  Dr. Alexander Dix, the Berlin Commissioner for Data Protection and Freedom of Information who was interviewed on this issue, stated that although ...

On August 25, 2010, the German government approved a draft law concerning special rules for employee data protection, originally proposed by the Federal Ministry of the Interior.  A background paper on the draft law was published on August 25, 2010.  The draft law would amend the German Federal Data Protection Act (the Bundesdatenschutzgesetz or “BDSG”) by adding provisions that specifically address data protection in the employment context.  Currently, employee data protection is regulated by (1) general provisions in the BDSG, (2) the new Section 32 of the BDSG introduced by the most recent reform in September 2009, (3) the Works Constitution Act, (4) guidance from state data protection authorities, and (5) comprehensive case law from federal and local labor courts.

The Department of Health and Human Services (“HHS”) received numerous comments on its proposed modifications to the Health Insurance Portability and Accountability Act Privacy, Security and Enforcement Rules, which were issued on July 8, 2010.  Some highlights from the comments are outlined below.

Enforcement Rule

The American Hospital Association (“AHA”) suggested that HHS should continue to require the Secretary of HHS to attempt to resolve a complaint or compliance review through informal means, instead of making the informal resolution process optional.  According to the AHA, making “resolution via informal means optional, regardless of the perceived level of culpability of a particular entity” would not be appropriate or effective.  The Coalition for Patient Privacy, on the other hand, recommended stricter enforcement so that “the only category of violators that should not be penalized with fines are those who despite due diligence could not discover the violation, who reported the violation immediately when discovered, and fully corrected the problems within 30 days of discovery.”

The UK Information Commissioner’s Office (the “ICO”) has indicated that UK law firm ACS:Law could face a maximum penalty of £500,000 following a major data breach.

Personal information, including names and addresses, of over 8,000 Sky broadband subscribers and 400 PlusNet users was made publicly available following an apparent attack on ACS:Law’s website.  The broadband customers involved are suspected by ACS:Law’s clients of illegally file-sharing copyright work, including music and, in some instances, pornographic films.

David Vladeck, the head of the Bureau of Consumer Protection at the Federal Trade Commission, shared his vision for consumer privacy protection with an audience at the IAPP’s Privacy Academy on September 30, 2010.  Mr. Vladeck began by reminding the audience that the FTC is aggressively enforcing on privacy and data security matters, having brought 29 cases to date.  Where possible, the FTC joins forces with other federal regulators, such as the Department of Health and Human Services, to seek broad relief that the FTC could not otherwise get on its own.  Mr. Vladeck indicated that the FTC also works closely with the states, citing a recent case in which the FTC filed concurrent settlements with 36 state attorneys general.  Mr. Vladeck stated that the FTC plans to continue to bring cases to ensure that companies “reasonably” safeguard information.

Mr. Vladeck noted three key areas for future enforcement.  The FTC will (1) bring more cases involving “pure” privacy, i.e., cases involving practices that attempt to circumvent consumers’ understanding of a company’s information practices and consumer choices; (2) focus enforcement efforts on new technologies (Mr. Vladeck noted that, to assist staff attorneys in bringing these sorts of cases, the FTC has hired technologists to assist and also have created mobile labs to respond to the proliferation of smart phones and mobile apps); and (3) increase international cooperation on privacy issues (Mr. Vladeck cited the FTC’s recently-announced participation in the Global Privacy Enforcement Network).

Please join us at these great events coming up this fall.  Several members of Hunton & Williams’ Privacy and Information Management team are presenting at these events to discuss the current and evolving privacy and data security issues occurring around the world.

Internet Rights and Technology: A Practical Legal Guide to Doing Business on the Internet – New York City Bar
On September 28, 2010, 6:00 p.m. – 8:45 p.m., the New York City Bar hosts a live program to discuss how the Internet affects various areas of law, including intellectual property, new media, litigation, regulatory and licensing.  The faculty includes Hunton & Williams partner, Aaron P. Simpson, who will lead the Privacy & Data Security session.