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On January 6th, the first day of the New York legislature’s 2021 session, NY lawmakers proposed Assembly Bill 27 (AB 27), the Biometric Privacy Act.  The legislative purpose of AB 27 is to provide safeguards for consumers regarding their biometric identifiers, such as fingerprints, handprints, retina or iris scans, voiceprints, and other facial and hand recognition.  Effectively, the proposed Act would require private (non-governmental) organizations that possess a biometric identifier or biometric information (i.e., information “based on” a biometric identifier) (collectively “biometric data”) to develop a written retention policy  setting forth the time period for information containing biometric data, as well as guidelines for permanently destroying such biometric data either when: (i) the initial purpose for obtaining such information “has been satisfied,” or (ii) within three years of the individual’s last interaction with the private entity, whichever happens first.

AB 27 would also require organizations to obtain individuals’ express written consent for the collection of their biometric data prior to collecting or otherwise obtaining such data. In addition, the proposed Act would prohibit organizations from selling or otherwise profiting from the biometric data which they possess, and separately mandate organizations to provide technical and organizational safeguards around biometric data that are the same or more protective than the measures it maintains for other confidential and/or sensitive information.
Continue Reading New York proposes a new Biometric Privacy Act

On July 25, 2019, New York Governor Andrew Cuomo signed into law the Stop Hacks and Improve Electronic Data Security (SHIELD) Act (S.5575B/A.5635), which significantly increases obligations for businesses handling private data to notify affected consumers upon experiencing a security breach. Additionally, Governor Cuomo signed the Identity Theft Prevention and Mitigating Services Act (A.2374/S.3582), requiring consumer credit reporting agencies to offer identity theft prevention and mitigation services to consumers who have been affected by a security breach of the agency’s system.

In an official press release announcing his signature on both pieces of legislation, the Governor emphasized the significance of implementing such laws to protect New Yorkers against security breaches. Citing a recent significant data breach, Cuomo noted that “[a]s technology seeps into practically every aspect of our daily lives, it is increasingly critical that we do everything we can to ensure the information that companies are trusted with is secure . . . [t]he stark reality is security breaches are becoming more frequent and with this legislation New York is taking steps to increase protections for consumers and holding these companies accountable when they mishandle sensitive data.”Continue Reading New York enacts new security and identity theft protection laws in response to recent data breaches

Three bipartisan Senate bills are up for consideration in Congress that would attempt to modernize the legal standards under which the U.S. government can access communications electronically stored by email service providers and cloud computing companies.

The proposed bills, introduced July 27, 2017, each provide a different scheme in updating the Electronic Communications Privacy Act (ECPA), which has been criticized for being woefully outdated, given the rise of the Internet of Things and how people currently share, store, and use information. Accordingly, many have publicly called for Congress to completely overhaul the Reagan-era statute.

Current Framework: The ECPA

Although ECPA has undergone amendment since its passage in 1986, the most scrutinized aspects of the law, such as those related to email retention, remain unchanged from when it was passed more than 30 years ago.

ECPA currently requires law enforcement officials to obtain a warrant in order to access data less than 180 days old. A warrant requirement is a strict legal standard, requiring that any request be supported by probable cause – a reasonable suspicion of criminal activity based on articulable facts.

However, if the data is more than 180 days old, ECPA considers those older communications to be abandoned, and therefore not subject to a reasonable expectation of privacy. Thus, law enforcement officials are entitled to access those emails and other electronic communications without a warrant.  Instead, government officials need only issue a subpoena for the information or obtain a court order.
Continue Reading ECPA Reform Legislation on the Horizon (Again)

While there is no federal law requiring companies to notify individuals of data breaches, South Dakota and Alabama will be the only states without data breach legislation if Gov. Susana Martinez signs New Mexico’s H.B. 15, which the state legislature passed March 16. While the bill itself applies only to New Mexico residents, passage of H.B. 15—to be known as the “Data Breach Notification Act”—could put additional pressure on the United States Congress to draft federal legislation for data breach notification, so companies can base compliance on a single standard rather than a patchwork of state laws. In either case, it adds additional requirements to that patchwork.

New Mexico’s Data Breach Notification Act, as passed by both houses of the state legislature, imposes several requirements on any “person” who “owns or licenses records containing personal identifying information of a New Mexico resident.” Those requirements include “proper disposal” of records containing personal identifying information when those records are “no longer reasonably needed for business purposes”; “implement[ing] and maintain[ing] reasonable security procedures and practices appropriate to the nature of the information” and requiring any retained services providers to do the same; breach notification “in the most expedient time possible, but not later than thirty calendar days following discovery of the security breach”; though notification is not required where, “after an appropriate investigation, the person determines that the security breach does not give rise to a significant risk of identity theft or fraud.”Continue Reading And Then There Were Two – New Mexico Set to Become 48th State to Enact Data Breach Notification Law

This post was written by Cynthia O’Donoghue.

Costa Rica’s 2011 data protection law came into force March 5, 2013, and Peru’s laws took effect April 22, 30 days after it published regulations. While this imposes new obligations on businesses operating or looking to do business in these countries, as with other data protection laws…

This post was also written by Christopher G. Cwalina and  Amy S. Mushahwar.

The midterm elections will likely result in a shift of political power within the House of Representatives. The resultant divided government is likely to impact the present ambitious privacy and data security legislative agenda. Reed Smith Washington D.C. Data Privacy, Security…