This cartoon is about evolution of data breaches, which began to grab headlines back in 2005, thanks in large part to California’s data breach notification law — the first of such laws. Since that time, every state has passed breach notification laws, and there are breach notification laws sprouting up around the world. Every day, we hear of more and more data breaches . . . and they are getting larger and larger.
I had the opportunity to interview Mark Singer and Raf Sanchez, both at Beazley, about the issue of profiling and the GDPR. Mark Singer is a member of the Cyber & Executive Risk Group at Beazley. Mark handles insurance coverage issues arising out of cybersecurity, technology errors and omissions, data privacy, intellectual property, media and advertising liabilities. Raf Sanchez leads the international Beazley Breach Response Services team at Beazley and is responsible for incident response in all territories outside the US and Canada.
This cartoon is about data subject access requests (DSARs) — sometimes called “subject access requests” (SARs). The GDPR Article 15 provides for DSARs. The new California Consumer Privacy Act (CCPA) provides individuals with a right to learn about the personal data collected and shared about them over the past 12 months.
For more background about DSARs, see this great guide to DSARs by WireWheel.
I’m thrilled that, the American Law Institute (ALI) has approved the Principles of the Law, Data Privacy. Professor Paul Schwartz and I were co-reporters on the project. According to the ALI press release: “The Principles seek to provide a set of best practices for entities that collect and control data concerning individuals and guidance for a variety of parties at the federal, state, and local levels, including legislators, attorneys general, and administrative agency officials.”
The project involves our attempt to create a comprehensive approach to data privacy for the U.S. that bridges the divide with the EU. For example, there are many provisions in the General Data Protection Regulation (GDPR) that are not as incompatible with U.S. law as one might think. We bring U.S. law most of the way there, but we preserve core commitments in U.S. law that cannot readily be made consistent with the EU approach. We also have some new approaches to certain issues that haven’t yet been tried in quite the same ways in other laws before, such as our approach to transparency and notice, as well as our approach to handling the identifiability of personal data. The Principles of the Law, Data Privacy is not an attempt to write our ideal privacy law as if drafting on a blank slate. Nor is it an attempt to restate existing law. Instead, it is something in between. We build on foundations in existing law, look for ways the law can be advanced progressively without clashing with core commitments or introducing concepts that are without precedent.
Thus, our goal has been to produce a balanced compromise, an approach to advance U.S. privacy law significantly without being radical. I am certain industry and advocates will find things they like and things that they wish were different. This isn’t the law I’d write if I were writing on a blank slate. But it is, I hope, a big step forward.
We hope this project is useful to legislatures working on privacy legislation, to other policymakers, and to everyone who is thinking about privacy law.
We want to thank our advisory group and the ALI members who contributed greatly to this project. The ALI process is a wonderful one — a thoughtful constructive discussion about how to craft meaningful regulation between practitioners, judges, and academics, among others.
The final draft will be released very soon. Paul and I will be posting the blackletter portion of the project. The entire document, which consists of our commentary, notes, and illustrations — including the support for and rationales behind the provisions — will be available from the ALI. Please stay tuned.
As a teaser, below is the table of contents
Quietly, at the end of April, HIPAA was significantly weakened. HHS published what sounds like an innocuous notification in the Federal Register: Notification of Enforcement Discretion Regarding HIPAA Civil Money Penalties. This notification is actually an enormous change to the HIPAA penalty structure, a drastic reduction in HIPAA fines.
The existing penalty structure under HIPAA is based on the HITECH Act of 2009, which increased HIPAA’s fines in an attempt to give teeth to HIPAA enforcement. Since HIPAA began being enforced in 2003 until the HITECH Act, fines had barely been issued despite an enormous amount of HIPAA violations. HITECH was Congress’s rebuff to this weak enforcement approach. After HITECH’s more potent penalty structure, HHS finally began issuing fines. The chart below is how HHS has been interpreting the HITECH penalty framework since the HITECH Act:
There were some ambiguities under the HITECH Act as to these penalty tiers, but HHS had long interpreted these tiers according to the above chart. But now, HHS has suddenly changed its mind and adopted a very different interpretation. Under this new interpretation, the penalty tier limits are now as follows:
Notice the new annual limits. There are severe reductions in the annual limits for nearly every category except for uncorrected willful neglect. This change yanks many of the teeth out of HIPAA enforcement.