It didn’t take long for other states to follow California’s lead in pursuing rigorous data privacy protections for their residents. Although New York was unsuccessful in passing its own version of the California Consumer Protection Act (CCPA) this year, legislation expanding data breach notification protocols was signed into law by Governor Andrew Cuomo on July 25, 2019¹. The SHIELD Act (the Stop Hacks and Improve Electronic Data Security Act) signals a growing trend in the U.S. toward strengthening data privacy protections in the wake of high-profile data breaches through the adoption of more comprehensive and enforceable regulations.

Despite the global angst preceding the GDRP’s effective date, there’s been seemingly little news about enforcement efforts against noncompliant businesses. But, the reality is that EU regulators have been very busy working behind the scenes. As of February, 2019, nearly 100,000 claims under the GDPR have been lodged with EU national data protection authorities (“DPAs”), many relating to telemarketing and promotional e-mails. Similarly, just over 40,000 data breaches were reported to the DPAs; and 255 investigations into EU cross-border processing activities were initiated, mostly as a result of complaints filed by individuals.

The EU’s sweeping data privacy law – GDPR (General Data Protection Regulation) – will celebrate its one year anniversary later this month. In this time, the GDPR is credited with, among other things, inspiring other jurisdictions, including the United States, to adopt similar legislation designed to protect the rights of individuals over their personal data and increase the transparency of data collection and processing activities.

In the wake of an historic, multi-state lawsuit filed against a “Business Associate” earlier this month, it is imperative that companies with business associate agreements (BAA) in place with health care/plan customers review internal data security policies and procedures to ensure they are in compliance with their obligations arising under HIPAA, state privacy laws and the BAAs.

Outside GC Member Stephan Grynwajc continues to keep a close eye on the fate of the EU-U.S. Privacy Shield data-sharing arrangement. 

U.S. companies handling the personal data of EU residents should now be familiar with the requirements of the General Data Protection Regulation (GDPR), the new data protection law covering all countries in the EU, which went into effect on May 25, 2018. News about the GDPR has been plentiful, including Outside GC’s own alerts. However, compliance with EU privacy laws does not end with this regulation. There are other EU legislations covering privacy matters outside of the GDPR, such as the E-Privacy Directive 2002/58/EC of 2002 (a/k/a the “Cookies Directive”) and the “national derogations” of individual EU member state laws which impose additional responsibilities for U.S. companies that use the personal data of its residents as part of their business activities.

The future of the EU-U.S. Privacy Shield data-sharing arrangement is shaky at best. On June 12, 2018, a resolution was passed by the European Parliament’s Committee on Civil Liberties, Justice, and Home Affairs (LIBE) calling for the suspension of the Privacy Shield, unless the U.S. demonstrates full compliance with the requirements of the program by September 1, 2018. And today, following the recommendation of the LIBE, Parliament itself voted 303 to 223 (with 29 abstentions) in favor of suspension “unless the U.S. is fully compliant” by September 1st.

The European Parliament took this action in response to a number of recent data breaches affecting Privacy Shield Certified-U.S. companies, causing concern over the effectiveness of the regulatory oversight of the framework, as well as well as over the sufficiency of the Shield’s certification requirements which are designed to protect the personal data of EU residents. If suspended, certified U.S. companies will no longer be able to leverage the benefits afforded to them by the Privacy Shield, forcing them to find new compliance mechanisms by which to transfer data from the EU in order to satisfy the requirements of the GDPR.