Privacy & Security
Richard T. Horton Associate Editor Loyola University Chicago School of Law, LLM 2021 There’s no doubt that remote work, brought on by the coronavirus pandemic, will accelerate the digital revolution already underway. Consumers’ growing appetite to conduct their business online, rather than in-person, has fueled the proliferation of digitally accessible products and services. For instance, …
Lydia Bayley Associate Editor Loyola University Chicago School of Law, JD 2022 While the COVID-19 pandemic undeniably pushed many legislative agendas to the backburner, some seem to be heating back up. With the 117th Congress now in session, data privacy is once again moving to the forefront of federal legislative debate. For decades, the United States has …
On July 16, 2020, the Court of Justice of the European Union (“CJEU”) issued its deafening decision that summarily and immediately invalidated the EU-US Privacy Shield. The regulatory program established between the European Council and the U.S. Dept. of Commerce allowed for the transfer of personal data of EU residents to be sent from the EU to the US without violating the data transfer restrictions of the General Data Protection Regulation (“GDPR”). The decision went on to cast serious doubt on the sufficiency of standard contractual clauses to adequately protect data transferred to any third country, not just the US. Several months later, data exporters in the EU are still sorting through the wreckage of their privacy programs and waiting for practical advice on the way forward.
Joanna Shea Associate Editor Loyola University Chicago School of Law, JD 2022 A common topic of COVID-adjacent conversation these days is the ‘silver lining’ – unexpected positives resulting from the dark grey cloud that has claimed over half a million lives in the United States. Emergency adaptation measures taken by industries otherwise slow to modernize …
On December 12, 2020, the European Commission (the “EC”) issued a highly anticipated draft of newly revised standard contractual clauses (“new SCCs”) that may be used by European Union-based companies to safeguard data transfers of personal data to third countries, such as the US, in compliance with GDPR Art. 46(1). The release comes at a decidedly inopportune time as it follows on the heels of the Court of Justice of the European Union’s (CJEU) Data Protection Commissioner v. Facebook Ireland Limited and Maximillian Schrems (“Schrems II”) decision which casts serious doubt on the adequacy of SCCs alone to safeguard against the “high-risks” involved in EU to US data transfers. And for many data protection experts, the language of the revised SCCs only adds to the confusion, raising even more questions. But one question in particular seems to be prominent among others—for transfers to importers, directly subject to GDPR, are SCCs really necessary?
On December 17, 2020, the Securities and Exchange Commission (“SEC”) charged Robinhood Financial, LLC (“Robinhood”) with material misrepresentation and misleading its users about its revenue sources, specifically Robinhood’s receipt of payments from certain principal trading firms for routing its customer orders to them. The SEC charges against Robinhood also relate to certain statements about the execution quality Robinhood achieved for its customers’ orders and Robinhood’s failure to satisfy its duty of best execution. Robinhood agreed to pay $65 million to settle the charges.
President Joe Biden has issued a number of Executive Orders, many of which address the ongoing COVID-19 public health emergency. On January 21, 2021, President Biden released another pillar of his Administration’s long-term plan to direct the United States out of the throes of the pandemic. The twelfth Executive Order titled, “Ensuring a Data-Driven Response to COVID-19 and Future High-Consequence Public Health Threats” orders the Department of Health and Human Services (“HHS”) Secretary Alex Azar to conduct a nationwide review of the interoperability of public health data systems in an effort to enhance the collection, sharing, analysis, and collaboration of de-identified patient data.
It cannot be denied that the COVID-19 pandemic has led to many novel legal and regulatory issues. One topic of major concern both domestically and abroad is how to manage the massive amounts of consumer data being collected in the attempt to quell the spread of the virus. This issue is especially complicated to address in the United States, where a convoluted patchwork of state and federal laws interact to create a relentlessly fragmented data regulation system. Now, as state and local governments, along with tech giants like Apple and Google, continue to roll out contact tracing applications, the need for comprehensive data privacy regulation is more pressing than ever.
Complex litigation in data breach disputes is not surprising due to the reliance on information technology infrastructure. The Identity Theft Resource Center defines a data breach as “an incident in which an individual name plus a Social Security number, driver’s license number, medical record or financial record is potentially put at risk because of exposure.” However, the issue that challenges most plaintiffs’ in a data breach lawsuit is the ability to establish an injury-in-fact sufficient to support Article III standing. Injury-in-fact is harm that is concrete and particularized, and actual or imminent. Currently, the United States Court of Appeals fails to uniformly decide this issue, creating “splits” in the Circuits regarding Article III standing in data breach litigation. The Supreme Court ruled in fact-distinguishable cases concerning standing, but not in the data breach litigation context. Until the Supreme Court renders guidance, Americans face significant judicial patchwork in privacy protection.
There is no doubt that working from home has become a new normal for millions of employees worldwide, and for some, this may be the future of their employment. When the workforce made the shift to remote work and online meeting navigation, Zoom Video Communications, Inc. (“Zoom”) quickly became the frontrunning platform. Many companies flocked to Zoom because of its alleged higher levels of security and encryption capabilities. However, a recent lawsuit against Zoom, by nonprofit group Consumer Watchdog, reveals that Zoom may not actually be as safe for users as it once claimed to be. Other lawsuits allege privacy concerns including Zoom sending user data to Facebook. Most recently, the FTC filed a suit against Zoom on November 9th for allegations of unfair, deceptive, or abusive acts or practices (“UDAAP”) related to encryption, cloud storage, third-party safeguards, and failure to disclose information to users. Though various privacy concerns arise, the platform’s popularity continues to increase given its newfound necessity.