Category: USA
30. July 2019
In an attempt to settle a long-running litigation of a class-action case started in 2010, Google agrees to pay $13 million over claims that it violated U.S. wire-tapping laws. The issue came from vehicles used for its Street View mapping Project that captured and collected personal data from private wifi networks along the way.
Street View is a feature that lets users interact with panoramic and detailed images of locations all around the world. The legal action began when several people whose data was collected sued Google after it admitted the cars photographing neighborhoods for Street View had also gathered emails, passwords and other private information from wifi networks in more than 30 countries.
While the company was quick to call this collection of data a mistake, investigators found out that the capture of personal data was built and embedded by Google engineers in the software of the vehicles to intentionally collect personal data from accessed networks.
The new agreement would make Google to be required to destroy any collected data via Street View, agree not to use Street View to collect personal data from wifi networks without consent, and to create webpages and instructions to explain to people how to secure their wireless content.
Google had been asked to refrain from using and collecting personal data from wifi networks in an earlier settlement in 2013, which raises questions as to why it was necessary to include it in the current settlement as well.
17. July 2019
On Tuesday last week, the European Court of Justice (CJEU) held the hearing on case 311/18, commonly known as “Schrems II”, following a complaint to the Irish Data Protection Commission (DPC) by Maximilian Schrems about the transfer of his personal data from Facebook Ireland to Facebook in the U.S. The case deals with two consecutive questions. The initial question refers to whether U.S. law, the Foreign Intelligence Service Act (FISA), that consists a legal ground for national security agencies to access the personal data of citizens of the European Union (EU) violates EU data protection laws. If confirmed, this would raise the second question namely whether current legal data transfer mechanisms could be invalid (we already reported on the backgrounds).
If both, the US-EU Privacy Shield and the EU Standard Contractual Clauses (SCCs) as currently primeraly used transfer mechanisms, were ruled invalid, businesses would probably have to deal with a complex and diffucult scenario. As Gabriela Zanfir-Fortuna, senior counsel at Future of Privacy Forum said, the hearing would have had a particularly higher impact than the first Schrems/EU-US Safe Harbor case, because this time it could affect not only data transfers from the EU to the U.S., but from the EU to all countries around the world where international data transfers are based on the SCCs.
This is what also Facebook lawyer, Paul Gallagher, argued. He told the CJEU that if SCCs were hold invalid, “the effect on trade would be immense.” He added that not all U.S. companies would be covered by FISA – that would allow them to provide the law enforcement agencies with EU personal data. In particular, Facebook could not be hold responsible for unduly handing personal data over to national security agencies, as there was no evidence of that.
Eileen Barrington, lawyer of the US government assured, of course, by referring to a “hypothetical scenario” in which the US would tap data streams from a cable in the Atlantic, it was not about “undirected” mass surveillance. But about “targeted” collection of data – a lesson that would have been learned from the Snowden revelations according to which the US wanted to regain the trust of Europeans. Only suspicious material would be filtered out using particular selectors. She also had a message for the European feeling of security: “It has been proven that there is an essential benefit to the signal intelligence of the USA – for the security of American as well as EU citizens”.
The crucial factor for the outcome of the proceedings is likely to be how valid the CJEU considers the availability of legal remedies to EU data subjects. Throughout the hearing, there were serious doubts about this. The monitoring of non-US citizens data is essentially based on a presidential directive and an executive order, i.e. government orders and not on formal laws. However, EU citizens will be none the wiser, as particularly, referring to many critisists’ conlusion, they do not know whether they will be actually surveilled or not. It remains the issue regarding the independence of the ombudsperson which the US has committed itself to establish in the Privacy Shield Agreement. Of course, he or she may be independent in terms of the intelligence agencies, but most likely not of the government.
However, Henrik Saugmandsgaard Øe, the Advocate General responsible for the case, intends to present his proposal, which is not binding on the Judges, on December 12th. The court’s decision is then expected in early 2020. Referring to CJEU judge and judge-rapporteur in the case, Thomas von Danwitz, the digital services and networking would be considerably compromised, anyways, if the CJEU would declare the current content of the SCC ineffective.
15. July 2019
According to a report of the Washington Post the Federal Trade Commission (FTC) has approved a $ 5 billion (approx. € 4,4 billion) settlement with Facebook. The settlement was reached between the FTC and Facebook due to various Data Protection incidents, in particular the Cambridge Analytica scandal.
The settlement relies on a three to two vote – the FTC’s three republicans supported the fine the two democrats were against it- and terminates the procedure for investigating Facebook’s privacy violations against users’ personal information. The fine of $ 5 billion is the highest fine ever assessed against a tech company, but even if it sounds like a very high fine, it only corresponds to the amount of the monthly turnover and is therefore not very high in relative terms. So far, the highest fine was $ 22,5 million for Google in 2012.
The decision of the FTC needs to be approved by the Justice Department. As a rule, however, this is a formality.
This is not the first fine Facebook has to accept in connection with various data protection incidents and certainly not the last. Investigations against Facebook are still ongoing in Spain as well as in Germany. In addition, Facebook has been criticized for quite some time for privacy incidents.
2. July 2019
The Governor of Texas, Greg Abbott, recently signed the House Bill 4390 (HB 4390), which modifies the state’s current Data Breach Notification law and introduces an advisory council (“Texas Privacy Privacy Protection Advisory Council”) charged with studying data privacy laws in Texas, other states and relevant other jurisdictions.
Prior to the new amendment, businesses had to disclose Data Breaches to the Data Subjects “as quickly as possible”. Now, a concrete time period for notifying individuals whose sensitive personal information was acquired by an unauthorized person is determined by the bill. Individual notice must now be provided within 60 days after discovering the breach.
If more than 250 residents of Texas are subject to a Data Breach the Texas Attorney General must also be notified within 60 days. Such a notification must include:
– A detailed description of the nature and circumstances of the data breach;
– The number of the affected residents at that time;
– The measures taken regarding the breach and any measures the responsible person intends to take after the notification;
– Information on whether the law enforcement is engaged in investigating the breach.
The amendments take effect on January, 1 2020.
27. June 2019
US Senators Mark R. Warner (Democrats) and Josh Hawley (Republicans) want to know from Facebook, Google and Co. exactly how much the data of their users, measured in dollars and cents, is worth to them.
Last Sunday, the two senators announced their intention for the first time in a US talk show: Every three months, each user is to receive an overview of which data has been collected and stored and how the respective provider rates it. In addition, the aggregated value of all user data is to be reported annually to the US Securities and Exchange Commission. In this report, the companies are to disclose how they store, process and protect data and how and with which partner companies they generate sales with the data. All companies with more than 100 million users per month will be affected.
The value of user data has risen enormously in recent years; so far, companies have protected their internal calculations as company secrets. In addition, there is no recognized method for quantifying the value of user data; only when a company is sold or valued by means of an initial public offering (IPO) does it become obvious. In the case of the WhatsApp takeover it was $ 55 per user, in the case of Skype it was $ 200.
But one can doubt the significance of these figures. A further indication can be the advertising revenues, which are disclosed by companies per quarter. At the end of 2018, Facebook earned around $6 per user worldwide, while Amazon earned $752 per user. These figures are likely to rise in the future. “For years, social media companies have told consumers that their products are free to the user. But that’s not true – you are paying with your data instead of your wallet,” said Senator Warner. “But the overall lack of transparency and disclosure in this market have made it impossible for users to know what they’re giving up, who else their data is being shared with, or what it’s worth to the platform. […]” Experts believe it is important for consumers to know the value of their data, because only when you know the value of a good you are able to value it.
On Monday, Warner and Rawley plan to introduce the Designing Accounting Safeguards to Help Broaden Oversight And Regulations on Data (DASHBOARD) Act to the parliament for its first reading. It remains to be seen whether their plans will meet with the approval of the other senators.
24. June 2019
The Federal Trade Commission (FTC) announced that it had taken action against several companies that pretended to be compliant with the EU-U.S. Privacy Shield and other international privacy agreements.
According to the FTC, SecureTest, Inc., a background screening company, has falsely claimed on its website to have participated in the EU-U.S. Privacy Shield and Swiss-U.S. Privacy Shield. These framework agreements allow companies to transfer consumer data from member states of the European Union and Switzerland to the United States in accordance with EU or Swiss law.
In September 2017, the company applied to the U.S. Department of Commerce for Privacy Shield certification. However, it did not take the necessary steps to be certified as compliant with the framework agreements.
Following the FTC’s complaint, the FTC and SecureTest, Inc. have proposed a settlement agreement. This proposal includes a prohibition for SecureTest to misrepresent its participation in any privacy or security program sponsored by any government or self-regulatory or standardization organization. The proposed agreement will be published in the Federal Register and subject to public comment for 30 days. Afterwards the FTC will make a determination regarding whether to make the proposed consent order final.
The FTC has also sent warning letters to 13 companies that falsely claimed to participate in the U.S.-EU Safe Harbor and the U.S.-Swiss Safe Harbor frameworks, which were replaced in 2016 by the EU-U.S. Privacy Shield and Swiss-U.S. Privacy Shield frameworks. The FTC asked companies to remove from their websites, privacy policies or other public documents any statements claiming to participate in a safe harbor agreement. If the companies fail to take action within 30 days, the FTC warned that it would take appropriate legal action.
The FTC also sent warning letters with the same request to two companies that falsely claimed in their privacy policies that they were participants in the Asia-Pacific Economic Cooperation (APEC) Cross-Border Privacy Rules (CBPR) system. The APEC CBPR system is an initiative to improve the protection of consumer data moving between APEC member countries through a voluntary but enforceable code of conduct implemented by participating companies. To become a certified participant, a designated third party, known as an APEC-approved Accountability Agent, must verify and confirm that the company meets the requirements of the CBPR program.
11. June 2019
U.S. Customs and Border Control (CBP) announced on Monday, 10th June 2019, that photos of travelers, their cars and their license plate images were stolen during a data breach.
The network of CBP itself was not affected by the breach, but the photos were transferred to a subcontractor and stolen by a hack at the subcontractor. The name of the subcontractor was not mentioned. According to US media reports, the subcontractor is Perceptics which was hacked in May 2019.
CBP announced: “CBP learned that a subcontractor, in violation of CBP policies and without CBP’s authorization or knowledge, had transferred copies of license plate images and traveler images collected by CBP to the subcontractor’s company network.” CBP has not terminated its cooperation with the hacked subcontractor despite breaches of data protection and security regulations.
CBP was informed about the breach on 31st May 2019. The breach affects nearly 100.000 people who travelled the USA. Besides the photos of travelers, their cars and license plates neither passport or other travel documents nor images of airline passengers were involved. The photos show travellers crossing either the US border to Canada or Mexico.
Until now, the hacked data could neither be found on the Internet nor in the Dark net.
20. May 2019
On May 10, 2019, Phil Murphy, Governor of New Jersey, signed a bill amending the law regarding notification of data breaches in New Jersey. The purpose of the amendment is to extend the definition of personal data to include online account information.
The amendment requires companies subject to the law to notify New Jersey residents of security breaches concerning the user name, e-mail address or other account holder identifying information.
The amendment states that companies should notify their customers affected by violations of such information electronically or otherwise and instruct them to promptly change any password and security questions or answers or take other appropriate measures to protect their online account with the company. The same shall be done for all other online accounts for which the customer uses the same username or e-mail address and password or the same security question and answer.
In addition, the amended law prohibits the company from sending notifications to the e-mail account of a person affected by a security breach. Instead, notifications must be sent in another legally required manner or by a clear and unambiguous notification sent online when the customer’s account is connected to an IP address and the company knows that the customer regularly accesses their account from that online location.
The amendment will take effect on 1 September 2019.
2. May 2019
Sensitive data of 80 million US households are unprotected available in the internet. The data are stored on an openly accessible database whose owner is unknown.
Affected are 65 % of all US households, in numbers, 80 million households. The database includes detailed information regarding the number of persons living in a household, their names, marital status, age, date of birth, residential address including GPS data for localization and household income.
The number of affected US-citizens cannot be named due to the fact, that in one household can live a different amount of people. Because of this it is possible that over 100 million people are affected.
On the basis of the accessible data an identification of individuals is easily possible because hackers or thefts of identity can find out the mailaddresses and connect this information with free accessible information from e.g. social media.
Regarding the owner of the database no information is known. It is presumed that it is a company from the health or insurance sector.
The owner need to be find, otherwise the leak cannot be closed.
15. January 2019
Massachusetts’ data breach law has been significantly amended by the legislation signed by Gov. Charlie Baker on 10th January becoming effective as of 11th April this year. An overview of the key changes can be found following.
The amended law requires companies to provide certain additional information when notifying the Massachusetts Attorney General and the Office of Consumer Affairs and Business Regulation about a breach of security or the reasonable believe of the existence such a breach. This information include, but are not limited to “the nature of the breach of security or unauthorized acquisition or use”, the types of personal information compromised (e.g. social security numbers), “the number of residents affected by the incident at the time of notification”, the person responsible for the breach – if known -, and whether the entity maintains a written information security program according to Massachusetts 201 CMR § 17.03.
A further update concerns the notice of the affected individuals. The amended law explicitly sets out a rolling notification to individuals under certain circumstances and prohibits therefore a company from delaying notice to affected individuals referring to the ground that the total number of individuals affected has not yet been determined. “In such case, and where otherwise necessary to update or correct the information required, a person or agency shall provide additional notice as soon as practicable and without unreasonable delay upon learning such additional information.”
If the company experiencing a data security incident is owned by another entity, the particular notification to the affected individual must specify “the name of the parent or affiliated corporation”.
Another significant change to the data breach law refers to the requirement of providing an offer of complimentary credit monitoring for “a period of not less than 18 months” (42 months, if the company is a consumer reporting agency) when a Massachusetts resident’s Social Security number has been compromised, or is reasonably believed to have been compromised, in a data security incident. Also, Companies must certify their credit monitoring services to the Massachusetts attorney general and the Director of the Office of Consumer Affairs and Business Regulation in order to demonstrate compliance with the respective Massachusetts state law. Companies must eventually provide the credit monitoring services at no costs to the affected residents and are prohibited from asking them to waive their right to a private action as a condition for the reception of such services.
However, when these amendments become effective, beside Connecticut and Delaware, Massachusetts will have become one of those states providing a credit monitoring obligation when residents’ Social Security numbers are concerned by a breach of security. In fact, according to Public Act No. 18-90 that substitutes Senate Bill No. 472, Connecticut recently increased the required period of credit monitoring to be provided to the affected individuals from 12 to 24 months.
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