Photo of Chiara Portner

Chiara holds the certificate for CIPP/US for U.S. private-sector privacy from the International Association of Privacy Professionals (IAPP), the global standard in privacy certification.

Data privacy and security terms have become ubiquitous in software license agreements, including in both hosted service agreements and software license agreements. Security terms have been the norm for many years in the SaaS world, where the software licensor is hosting a customer’s data. However, in more recent years, much to the chagrin of small start-up software licensors of on-premise software, security terms and guarantees are now an expected part of the deal, even if the terms tend to be shorter in length and more limited in scope. Given the increasing importance – and inherent risks – of storing data, customers are understandably still concerned with data privacy and security even where a vendor is not actually hosting or storing their data.
Continue Reading Why Security Matters Even More for On-premise Software Vendors

Happy new year from our team at Hopkins & Carley! With each new year comes a host of bright new intentions. As each of us knows all too well, some will stick and others will quickly be forgotten. As a reminder to stay the course when it comes to data privacy and security, this year we kick off our 2021 to-do (and not-to-do) list. Rather than focus on privacy and security predictions for 2021, we wanted to share a list of action items based on some of the hard-learned lessons from 2020, as well as trends that we expect to continue into 2021. 2020 was a very busy and tumultuous year in the privacy and security world, and this will certainly also be the case in 2021. Companies that handle personal information must juggle an increasing number of laws, regulations, business-mandated requirements and risks. With that, here are a few things to keep in mind as we enter 2021:
Continue Reading Our Privacy & Security 2021 To-Do (and Not-To-Do) List: Lessons Learned From a Year Like No Other

Data retention. It’s not something that excites and invigorates businesses. But it is a necessary cost of doing business, not only to ensure one retains certain data for as long as each applicable law requires, but also as an increasingly important risk mitigation strategy.

Determining how long to retain a type of data or record depends on several factors. Various laws and regulations mandate that businesses retain certain records and data for minimum time periods. Statutes of limitation on certain types of claims also guide businesses as to how long to retain certain data. Conversely, privacy laws have always included a component of data minimization requiring businesses not to “hoard” data. Taken as a whole, these different rules require businesses to strike the right balance between retaining data for at least the properly mandated period and not retaining it for longer than necessary. Now, getting this right is even more important with the increasing risks of class action lawsuits for data security breaches. Quite simply, the more data you have, the more data you can lose. Having bastions of data will further complicate the tracking of data that may have been accessible to or taken by an unauthorized third party. This is one reason why, despite requirements to promptly notify individuals that their data was accessed in a security breach, businesses may take months to provide the notifications to individuals.
Continue Reading Data Retention – More than Meets the Eye

With the adoption of more stringent privacy laws across the globe, we have seen an exponential increase in privacy technology (or “tech”) vendors offering automated privacy compliance solutions. Among other things, privacy tech vendors provide software and services to assist companies with a whole range of services, including data inventory and mapping, privacy assessments, compliance reports and risk management, as well as policies, individual rights automation and other records that may be required as part of an organization’s compliance obligations. Many privacy tech vendors pitch their solutions to organizations as designed to “easily” assist with ongoing global compliance with the aid of automation and/or algorithms. Depending on the price that you are willing to pay, relying on these solutions can indeed be helpful to automate certain aspects of privacy compliance, including data mapping, consent mechanisms, records of processing or individual rights management. However, in their marketing materials, many privacy tech vendors – big or small, paid or free – caution companies that using legal professionals for privacy compliance will simply be too costly. Based on our experience, this is misleading at best, and a recent situation really reveals just that.
Continue Reading Lessons on Hidden Costs of Privacy Tech Vendors

Consistent with California’s history of prioritizing consumer privacy protections, Proposition 24 (full text here), a.k.a the California Privacy Rights Act (“CPRA”), was placed on the November ballot and handily approved by voters last week. The measure’s background itself indicates that the CPRA was being put forward to make privacy more transparent to users, similar to “ingredient labels on foods.” Background information also indicates a willingness to strengthen privacy rights over time rather than diluting them (particularly as regards to children), and in fact this push for increased transparency and protection is consistent with how certain platforms are requiring clearer policies (we discuss Apple’s new requirements here). While the CPRA will be fully effective and enforceable January 1, 2023, certain provisions take effect earlier and have a look-back provision. Businesses should start to familiarize themselves with the new or updated definitions and additional requirements contained in the CPRA.
Continue Reading Voters Approve the California Privacy Rights Act: What Businesses Need to Know

Long gone are the days when companies could claim ownership in their employees’ data, at least in California. As our prior posts have indicated, the definition of “consumer” under the CCPA is extremely broad and extends to employees. A consumer is not only a customer or user of a business’ services, products or websites, but also a business’ employees, contractors and job applicants.

However, despite taking effect in January 1, 2020, the CCPA’s application is currently limited with regard to personal information of employees, contractors, and job applicants collected and used in the employment context. This hold delays application of some provisions of the CCPA with respect to personal information collected in the employment context (originally until January 1, 2021 and now as extended to January 1, 2022 or 2023 as set forth below), including the rights to access data and deletion of data. As a reminder, the exemption also only applies to the extent that the employer collects/uses the personal information in the context of its employment relationship and for employment purposes. Thus, any use of such personal information by an employer outside the scope of the strict employment relationship would remain covered under all of the provisions of the CCPA. For example, if an employer were to allow its insurance company to collect employee data in order to market other insurance services to those individuals, this would not be within the scope of employment and therefore subject to all of the consumer rights otherwise available under CCPA.
Continue Reading Employee Data under CCPA

With the Covid-19 crisis, many companies that may have traditionally only done business offline are transitioning and expanding into e-commerce. Others are starting new businesses and innovating new technologies and platforms. There are a multitude of considerations that go into these new ventures, an important one of which is security.
Continue Reading Data Security and the New York SHIELD Act: Going Beyond New York Companies

During a recent keynote presentation with the IAPP following the July 1 enforcement deadline of the CCPA, Stacey Schesser, Supervising Deputy Attorney General for the State of California (“Deputy AG”), provided a bit of a roadmap for CCPA enforcement actions from the California Attorney General (“AG”) that are both currently underway and expected in the near future.
Continue Reading CCPA Enforcement: What to Expect Next

Despite three annual reviews by European Union Commissioners, the European Court of Justice (CJEU) invalidated the Privacy Shield and called into question many transfers of personal data pursuant to the Standard Contractual Clauses on July 16.  At stake are transfers of EU personal data to thousands of U.S. companies that rely on personal data being transferred from the EU. The case is colloquially known as “Schrems II” as it is the second case involving Maximillian Schrems (Case C-311/18 Data Protection Commissioner v Facebook Ireland and Maximillian Schrems). Mr. Schrems’ first case resulted in an invalidation of the EU-US Safe Harbor, the Privacy Shield’s predecessor in 2015.
Continue Reading Schrems II: EU Personal Data Transfers to the U.S. and the Invalidation of the Privacy Shield

As if businesses did not already have enough to address with the COVID-19 pandemic and compliance with the California Consumer Privacy Act (the “CCPA”), businesses need to consider the California Privacy Rights Act (the “CPRA”), which will almost certainly be on the November ballot. Structured as an amendment to the CCPA and also known as “CCPA 2.0”, the CPRA ballot initiative was spawned by Alastair Mactaggart. You may recall Mr. Mactaggart as the real estate developer who submitted a ballot initiative that resulted in a negotiation with the state legislature to replace the initiative with the CCPA. If the CPRA is passed and becomes law, it would be effective and enforceable January 1, 2023, with certain provisions having a look-back provision.

The CPRA would establish a new category of “sensitive data” that is reminiscent of the GDPR’s definition of special categories of data but it is much broader. The definition is overly-inclusive, spanning from race, religion, and sexual orientation to financial account information and government identifiers (e.g., social security numbers). Consumers could choose to limit the use, sale and sharing of their sensitive data. Additional links on business websites may be required to “Limit the Use of My Sensitive Personal Information” in addition to the current “Do Not Sell My Personal Information” link that some businesses must now include under the CCPA.
Continue Reading The California Privacy Rights Act: CCPA Part Two