The GDPR Article 17 provides for a right to erasure — commonly known as the “right to be forgotten.” Data subjects may request that an organization erase their personal data “without undue delay” under a number of circumstances. These circumstances include when the data is no longer relevant to the purposes of collection, when consent is withdrawn and there is no other legal ground for processing, or when the data has been unlawfully processed, among other things.
In a very important decision, FTC v. AT&T Mobility (9th Cir. 2018 en banc), the U.S. Court of Appeals for the 9th Circuit en banc reversed an earlier panel decision that severely limited the FTC’s jurisdiction to protect privacy and data security. I strongly criticized the panel decision in an previous blog post.
The FTC has taken the lead role in protecting privacy and data security through the FTC Act Section 5, 15 U.S.C. § 45, which prohibits “unfair or deceptive acts” affecting commerce. Section 5(a)(2) contains a list of industries that are carved out from FTC jurisdiction. This list includes banks, airlines, and common carriers. A “common carrier” is defined in the Communications Act of 1934, 47 U.S.C. § 153: “The term ‘common carrier’ or ‘carrier’ means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy.” Common carriers are regulated by the Federal Communications Commission (FCC).
In FTC v. AT&T Mobility the FTC brought a Section 5 enforcement action against AT&T for a part of AT&T’s business that was not regulated by the FCC. However, the 9th Circuit panel concluded that the common carrier exception to FTC jurisdiction was status-based — it applied to common carriers no matter what activities they were engaged in. This means that if a company engages in a non-minor amount of common carrier activities, then everything that it does, including many activities beyond its functions as a common carrier, fall outside the FTC’s power to regulate under Section 5. Because these are non-common-carrier activities, the FCC often can’t regulate them either. This opens up an odd no man’s land where a company can engage in certain activities and escape regulatory enforcement while other companies engaging in the same activities cannot.
Here’s what I wrote about why the earlier 9th Circuit panel decision was problematic:
The International Privacy+Security Forum (February 26-27, 2018 in Washington DC) is next week.
The International Forum is a new annual sister event to the Privacy+Security Forum, an annual event held in October at George Washington University in Washington, DC. The regular Privacy+Security Forum will be in its 4th year in 2018. This past year, we had 800 participants.
Paul Schwartz and I created the International Forum to recognize the profound importance of international privacy and security law, not just abroad, but here in the United States.
We have 100 speakers and 30+ sessions.
I turned my short GDPR vignette about GDPR’s territorial scope into a cartoon. The GDPR applies not just to all EU organizations that process personal data. The GDPR also applies to non-EU established organizations that offer goods and services to EU citizens or that monitor behavior within the EU.
The GDPR thus has quite a long arm in its reach. Any organization, even those with no physical presence in the EU, can fall under the scope of the GDPR.
Every year, we hear about how climate change is worsening. It seems the same story is happening with data security. Last year was the worst year in recorded data breach history. More than 5,200 breaches were reported in 2017, with more than 7.8 billion records compromised. By comparison, there are 7.6 billion people on Earth, so 2017 saw the number of records compromised surpass the total world population. Previously, 2016 was the record-holder with 6.3 billion records compromised. Are there any records left that haven’t been compromised?
Major breaches and security incidents included the enormous Equifax breach of 145 million records, the Uber breach, and the NSA leaked tools, which spawned WannaCry and other niceties. Click here for a collection of summaries of some of the more notable breaches of 2017.
The FTC released the above chart showing the history of Commissioners, Chairwomen and Chairman of the FTC from 1915 through the present day. According to the chart, The Federal Trade Commission is composed of five Commissioners, and their terms extend for seven years. The Commissioners are appointed by the President with the advice and consent of the Senate. At any given time, not more than three Commissioners may be members of the same political party. The President designates one Commissioner as Chairman, and the Chairman is given the responsibility for the administration of the Commission.
This week the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) announced an agreement to settle HIPAA violations with Filefax, located in Northbrook, Illinois. One aspect was different than their usual settlement process in that Filefax closed the business down during the OCR investigation and was no longer operating when the settlement was reached. OCR announced that Filefax could not avoid their obligations under HIPAA even though they were no longer running the company. The receiver that is liquidating the company’s assets agreed to pay $100,000 to settle the potential HIPAA violations made by the company while open.
Their HIPAA violations stemmed from an anonymous complaint stating that the medical records of approximately 2,150 patients, which contained protected health information (PHI), received by Filefax had been taken to a shredding/recycling facility and sold. The OCR investigation found over a period of several weeks the PHI had been left unsecured outside Filefox and had been removed from the facility by an unauthorized person.
The press release can be viewed here. The Resolution Agreement can be viewed here.
HIPAA Enforcement 2017: Another Big Year for HIPAA Enforcement
Why Is HIPAA Data Breach Enforcement Increasing? An Insurer’s View from Katherine Keefe
Lessons from 2016, the Biggest HIPAA Enforcement Year on Record
This cartoon focuses on the lawful processing requirement. Under the EU’s General Data Protection Regulation G(DPR), the collection and processing of personal data must be for “specified, explicit and legitimate purposes.” This is in contrast to the United States where the processing of personal information is permitted unless a law forbids it.
Under the GDPR, data processing must be “lawful” – it must be justified by a legitimate purpose in order to be permissible. Article 6 of the GDPR sets forth the grounds for the lawfulness of processing personal data. These grounds include the consent of the data subject, when processing is necessary to perform a contract where the data subject is a party, when processing is necessary to comply with a legal obligation, when processing is necessary to protect a person’s vital interests, or when processing is necessary to perform a task carried out in the public interest. The final ground for lawful processing is when processing is necessary for the “legitimate interests” of a data controller or third party.
It is far from clear that there are legitimate interests in the cartoon above. Organizations often think that “legitimate interests” mean any interests that are important to their business, but that’s not the case. This ground for lawful processing is much narrower. And, legitimate interests must not be overridden by the data subject’s interests or rights.
The Article 29 Working Party was created by the EU Data Protection Directive in 1996. Its purpose is to provide advice, opinions, and guidance about data protection. The Article 29 Working Party is composed of a representative from each EU member state. The General Data Protection Regulation (GDPR) will replace the Working Party with the European Data Protection Board (EDPB).
Below are some of the most important guidelines to be issued by the Article 29 Working Party (WP29) about the General Data Protection Regulation (GDPR).
Guidelines on the right to “data portability” (wp242rev.01)
Guidelines on Data Protection Officers (‘DPOs’) (wp243rev.01)
In this post, I provide a brief overview of my scholarship last year.
I co-authored Risk and Anxiety: A Theory of Data Breach Harms with Professor Daniel Keats Citron. The piece is forthcoming in Texas Law Review this year. Even though there continues to be a steady flow of data breaches, there remains significant confusion in the courts around the issue of harm. Courts struggle with data breach harms because they are intangible, risk-oriented, and diffuse. Professor Citron and I argue: “Despite the intangible nature of these injuries, data breaches inflict real compensable injuries. Data breaches raise significant public concern and legislative activity. Would all this concern and activity exist if there were no harm? Why would more than 90% of the states pass data-breach notification laws in the past decade if breaches did not cause harm?” We provide examples of different types of data breaches and discuss whether harm should be recognized. We argue that there are many instances where we would find harm that the majority of courts today would not.
Download Risk and Anxiety: A Theory of Data Breach Harms for free.