The validity of Model Clauses for EU personal data transfer to the United States is now in real doubt as a result of a new Irish High Court judgment stating that there are “well founded grounds” to find the Model Clauses invalid. The issue of Model Clauses as a legitimate data transfer mechanism will now be adjudicated by the European Court of Justice (ECJ), the same court that previously overturned the Safe Harbor arrangement. EU and US companies will need to consider various strategies in anticipation of this decision.
Michael Morgan is a leader of the Firm’s Global Privacy and Cybersecurity practice. Recognized as one of the nation’s leading lawyers in cyber incident response, Mike has guided clients through some of the largest and most complex data breaches, including state-sponsored attacks, breaches involving more than 50 million records, and incidents affecting persons in more than 100 countries around the world. He represents clients in the defense of breach-related government investigations and class action litigation as well as pre-breach planning and post-breach remediation. Read Michael Morgan's full bio.
The US Department of Transportation’s National Highway Traffic Safety Administration recently released A Vision for Safety 2.0, an update to its prior guidance on automated driving systems. The new guidance adopts a voluntary, flexible approach to regulation of automated driving systems and clarifies that it alone, and not the states, is responsible for regulating the safety design and performance aspects of such systems.
New cybersecurity regulations issued by the NYDFS define the nonpublic information they regulate in exceptionally broad terms. This expanded definition of Nonpublic Information will create major challenges for regulated companies and their third-party service providers that will likely ripple through other ancillary industries.
The government is continuing to ask for more help from the private sector to defend against cyber attacks. The National Infrastructure Advisory Council (NIAC) recently published a report discussing current cyber threats and urging private companies and executives to join forces with the government to better address those threats. The report proposes “public-private and company-to-company information sharing of cyber threats at network speed,” among other things discussed here.
On 6 August 2017, the UK government released ‘The Key Principles of Vehicle Cyber Security for Connected and Automated Vehicles’, guidance aimed at ensuring minimum cybersecurity protections for consumers in the manufacture and operation of connected and automated vehicles.
Connected and automated vehicles fall into the category of so-called ‘smart cars’. Connected vehicles have gained, and will continue to gain, adoption in the market and, indeed, are expected to make up more than half of new vehicles by 2020. Such cars have the ability through the use of various technologies to communicate with the driver, other cars, application providers, traffic infrastructure and the Cloud. Automated vehicles, also known as autonomous vehicles, include self-driving features that allow the vehicle to control key functions–like observing the vehicle’s environment, steering, acceleration, parking, and lane changes–that traditionally have been performed by a human driver. Consumers in certain markets have been able to purchase vehicles with certain autonomous driving features for the past few years, and vehicle manufacturers have announced plans to enable vehicles to be fully self-driving under certain conditions, in the near future.
On July 28, 2016, US Department of Health and Human Services (HHS) issued guidance (guidance) under the Health Insurance Portability and Accountability Act (HIPAA) on what covered entities and business associates can do to prevent and recover from ransomware attacks. Ransomware attacks can also trigger concerns under state data breach notification laws.
The HIPAA Security Rule requires covered entities and business associates to implement security measures. It also requires covered entities and business associates to conduct an accurate and thorough risk analysis of the potential risks and vulnerabilities to the confidentiality, integrity and availability of electronic protected health information (ePHI) the entities create, receive, maintain or transmit and to implement security measures sufficient to reduce those identified risks and vulnerabilities to a reasonable and appropriate level. The HIPAA Security Rule establishes a floor for the security of ePHI, although additional and/or more stringent security measures are certainly permissible and may be required under state law. Compliance with HIPAA’s existing requirements provides covered entities and business associates with guidance on how to prevent and address breaches that compromise protected health information. The new HIPAA guidance specific to ransomware reinforces how the existing requirements can help an entity protect sensitive information.
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