It is an understatement to say that a lot has happened in privacy law during the past decade. Here is my list of the most notable developments.
NOTE: I am giving a particular emphasis to what I find to be notable from a United States perspective. What is notable privacy law depends upon where one is situated. For example, if one is from a small country, that country’s developments are quite notable even if not well-known on a worldwide stage.
Last week, the EU issued the General Data Protection Regulation (GDPR), a long-awaited comprehensive privacy regulation that will govern all 28 EU member countries. Clocking in at more than 200 pages, this is quite a document to digest. According to the European Commission press release: “The regulation will establish one single set of rules which will make it simpler and cheaper for companies to do business in the EU.”
The GDPR has been many years in the making, and it will have an enormous impact on the transfer of data between the US and EU, especially in light of the invalidation of the Safe Harbor Arrangement earlier this year. It will has substantial implications for any global company doing business in the EU. The GDPR is anticipated to go into effect in 2017.
Here are some of the implications I see emerging from the GDPR as well as some questions for the future:
1. Penalties and Enforcement
Under Article 79, violations of certain provisions will carry a penalty of “up to 2% of total worldwide annual turnover of the preceding financial year.” Violations of other provisions will carry a penalty of “up to 4% of total worldwide annual turnover of the preceding financial year.” The 4% penalty applies to “basic principles for processing, including conditionals for consent,” as well as “data subjects’ rights” and “transfers of personal data to a recipient in a third country or an international organisation.”
These are huge penalties. Such penalties will definitely be a wake-up call for top management at companies to pay more attention to privacy and to provide more resources to the Chief Privacy Officer (CPO). Now we can finally imagine the CEO at a meeting, with her secretary rushing over to her and whispering in her ear that the CPO is calling. The CEO will stand up immediately and say: “Excuse me, but I must take this call. It’s my CPO calling!”
To date, EU enforcement of its privacy laws has been spotty and anemic, so much so that many characterize it as barely existent. Will the new GDPR change enforcement? With such huge fines, the payoff for enforcement will be enormous. We could see a new enforcement culture emerge, with more robust and consistent enforcement. If privacy isn’t much of a priority of upper management at some global companies, it will be soon.
The Safe Harbor Arrangement has been in place since 2000, and it is a central means by which data about EU citizens can be transferred to companies in the US. Under the EU Data Protection Directive, data can only be transferred to countries with an “adequate level of protection” of personal data. The EU has not deemed the US to provide an adequate level of protection, so Safe Harbor was created as a work around.
For the past nearly two decades, the FTC has risen to become the leading federal agency that regulates privacy and data security. In this webinar, Professor Daniel J. Solove will discuss how the Federal Trade Commission (FTC) is enforcing privacy and data security. What are the standards that the FTC is developing for privacy and data security? What sources does the FTC use for the standards it develops?
A common misconception is that the FTC’s jurisprudence has been rather thin, merely focuses on enforcing promises made in privacy policies. To the contrary, a deeper look the FTC’s jurisprudence demonstrates that it is quite thick and has extended far beyond policing promises. The FTC has codified certain norms and best practices and has developed some baseline privacy and security protections. The FTC has laid the foundation for an even more robust law of privacy and data security. Professor Solove will discuss some of the potential ways this body of regulation could develop in the future.
My webinar was written up at the Wall Street Journal. If you’re interested in seeing it, it’s free and available here. Below is some background about the FTC as well as some of my writings about the FTC that may be of interest if you want a deeper dive.