Category Archives: California Consumer Privacy Act

California Consumer Privacy Act, Data Privacy, GDPR

What to do in a No-Deal-Brexit Scenario

What happens to your GDPR Compliance Program in the event that the UK leaves the EU without striking an agreement with the EU.   Here is a summary of actions you will likely need to take, followed by a more detailed explanation.

  1. Revise your standard contractual clauses for transfers from the EU to the UK
  2. Ensure you appoint an Article 27 representative in both the UK and the EU. 
  3. Register with a supervisory authority in both the UK and the EU
  4. Make revisions to your privacy policy to refer to both the UK and EU laws, identifies the supervisory authority and the company’s representative in both the UK and the EU
  5. Review DPIAs to ensure compliance with both sets of laws.

According to the ICO (the UK Data Privacy Supervisory Authority), the UK government intends to incorporate the GDPR directly into UK law upon Brexit (UK GDPR).  The UK GDPR together with the Data Protection Act 2018 will comprise the UK’s data protection scheme. Existing GDPR compliance programs must continue to apply those protections to personal data of UK data subjects. Nevertheless,  data controllers and processors will need to make changes to their data privacy and protection practices before a No Deal Brexit. In particular, companies will need to make adjustments with regard to the following:

Data Transfers

Most likely the most burdensome issue. Since the European Commission determines whether a country outside the EU offers an adequate level of data protection, transfers of personal data to such countries are not automatically deemed “adequate.”  Thus, until there has been an adequacy determination, transfers of personal data between the EU and the UK can be made only subject to certain protections, such as Standard Contractual Clauses (SCCs).

The length of time it will take to obtain an adequacy determination from the European Commission is unknown, and there is no assurance that such a decision will be made quickly.  Be prepared to implement interim safeguards and understand how personal data flows from within and out of the UK. Identify which data transfers will be problematic.  Adopt appropriate transfer mechanisms.

Transfers from the EU to the UK. If your company transfers EU personal data to the UK, you will need to ensure adequate safeguards are in place or that one of the exceptions in GDPR Article 49 applies. For some companies, the only available data transfer mechanism will be SCCs. Identify all such data transfers now and begin the process of entering into SCCs with entities to which your company transfers data, such as vendors, customers, and even internal corporate affiliates, so these agreements are in place before Brexit.

Transfers from the UK to the EU. If your company transfers personal data from the UK to the EU, the ICO has indicated that post-Brexit transfers from the UK to the EU will not be restricted.  Although no specific action is required concerning these transfers, best practice suggests that you keep these transfers under review.  

Transfers from the UK to the countries outside the EU. There will not be changes to the rules that govern theEUse changes, as they will have already been in place. It is expected that the UK government will confirm existing adequacy decisions and the SCCs.

Article 27 Representatives

By now you will have appointed a data protection officer (DPO), whether internally or engaged an external one.  This is required, with some exception, by the GDPR.  If your DPO is located in the UK, that DPO will only be valid for compliance within the UK.  Conversely, if your DPO is situated in the EU, an additional DPO must be appointed in the UK.  As a result, to remain in compliance with both the UK and the EU companies will need to appoint two DPOs one in the UK and one in the EU.

Lead Supervisory Authority

Under the GDPR, companies with a physical presence in the EU, and that engage in “cross-border processing,” are permitted, but not required, to choose a lead supervisory authority (LSA). The LSA then coordinates “cross-border processing” issues across the EU and has primary responsibility for conducting investigations into the company’s data processing activities and responding to its compliance inquiries. When choosing an LSA, it should be where the company’s headquarter is located, or if no headquarters, then the place where decisions about the purpose and means of processing are made. Following Brexit, companies whose “main establishment” is in the UK will no longer be able to designate the ICO as their LSA. Moreover, unless those companies physically move the operations where their decisions about the processing of personal data are made to an EU country, they may lose the ability to designate an LSA altogether, leaving them subject to regulation by multiple EU data protection authorities.

Data Protection Officers

The ICO’s guidance states that Data Protection Officers (DPOs) appointed by a company may continue in that role and combine their UK responsibilities with ongoing EU responsibilities, so long as “they have expert knowledge of both UK data protection law and the EU regime and are ‘easily accessible’ from both locations.” Because the UK GDPR will mirror the GDPR, your DPO who already possesses knowledge of the GDPR will also necessarily possess knowledge of the UK GDPR. Your DPO should also possess knowledge of the Data Protection Act 2018, which took effect at the same time as the GDPR.

Privacy Notices

Although, information required in your privacy notice is unlikely to change references to EU law and the identification and contact information for the DPO and the LSA may need to be changed.  If your U.S.-based company participates in the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks you will need to update your privacy notice by March 29, 2019, to affirm that your commitment to the Privacy Shield extends to UK personal data.

Article 30 Records of Processing

Changes to the information you are required to document are not likely. You may need to review certain of your processing activities involving data transfers to the UK and update your records accordingly. For example, you may now have to classify certain personal data as being subject to international transfer rules and document under which adequate safeguards it was transferred.

Data Protection Impact Assessments

Existing assessments may need to be reviewed to determine whether they cover international data flows that become restricted after Brexit.

If you have questions or concerns please contact me for assistance.

California Consumer Privacy Act (CCPA)—Or should we say CDPR?

California Consumer Privacy Act, Data Privacy, GDPR, ,

Just when you thought you could catch your breath, California, on June 28, 2018, enacted the strictest data privacy law in the United States—the California Consumer Privacy Act (“CCPA”). With striking resemblances to the GDPR, the new law will carry with it broad implications for businesses providing services to, or collecting data from, California consumers. By passing the bill, the California legislature secured time to review and amend the law before it becomes effective on January 1, 2020. The ink is far from dry on the new bill, and it will be the center of heated debates before it slams the streets of California.

The tab for non-compliance? Any business that intentionally violates the CCPA may be liable for a civil penalty of up to $7,500 per violation. To put that in context, Yahoo’s 2016 data breach of over 500 million accounts would have amounted in a fine north of 100 billion dollars. Like the GDPR, the CCPA will require organizations to reassess how they are handling personal information, data retention policies, third-party processing contracts, and master privacy policies. To ensure compliance, businesses must take steps similar to those that the GDPR requires, such as data mapping, data inventory, gap analysis, and drafting new privacy policies and contracts.

Like the GDPR, the CCPA will require organizations to reassess how they are handling personal information, data retention policies, third-party processing contracts, and master privacy policies. To ensure compliance, businesses must take steps similar to those that the GDPR requires, such as data mapping, data inventory, gap analysis, and drafting new privacy policies and contracts.

California—with its roughly 39.5 million people—boasts the fifth largest economy in the world. Given that businesses across the globe contribute to California’s growing economy, the CCPA sets the new standard of privacy for anyone transacting business in the United States. In the modern digital world, the CCPA, like its influential digital counterpart—the GDPR, are here to stay and shift privacy rights back to the hands of consumers. Let us help you with this hurdle to CCPA compliance.

See chart below for a comparison of the CCPA and the GDPR.

General Data Protection Regulation (GDPR) California Consumer Privacy Act 2018 (CCPA)
The basis for consent Opt-in Opt-out
To whom it applies Anyone processing or controlling the processing of personal data of individuals located in the EU. For-profit businesses that process personal data of CA residents and satisfy one or more of the following thresholds:

A)    Have annual gross revenue of $25 million or more;

B)    Collects, sells or shares for personal purposes the personal information of at least 50,000 consumers, households, or devices; or

C)    Derives 50% or more of its annual revenues from selling consumers’ personal information

 

The law also applies to affiliated, cobranded entities of businesses that meet the above criteria, even if the affiliate doesn’t do business in CA.
Individual Rights 1.     Access

2.     Rectification

3.     Erasure

4.     Restriction of processing

5.     Object to processing

6.     Data portability

7.     Withdraw consent at any time, without affecting the lawfulness of processing based on consent before its withdrawal

 

 1.     The right to know all data collected by a business on you.

2.     The right to know whether their personal information is sold or disclosed and to whom.

3.     The right to say no to the sale of personal information.

4.     The right to access their personal information.

5.     The right to delete your data.
When does it come into effect? May 25, 2018 January 1, 2020
Potential Fines Up to €20 million or up to 4% of the total worldwide annual turnover, whichever is higher. A civil penalty up to $7,500 per violation

 

Private individual right up between $100 and $750 per consumer, per incident.
Time allowed to respond to a request One month 45 days