Privacy & Information Security Law Blog

On October 25, 2022, the U.S. Department of Justice (“DOJ” or the “Department”) announced that Google had entered into an agreement to resolve a dispute over the loss of data responsive to a search warrant issued in 2016.

On October 3, 2022, the U.S. Department of Justice (“DOJ”) announced that the agreement between the U.S. Government and the UK Government on Access to Electronic Data for the Purpose of Countering Serious Crime (the “CLOUD Act Agreement”) entered into force, effective the same day. The CLOUD Act Agreement, which is authorized by the U.S. Clarifying Lawful Overseas Use of Data (“CLOUD”) Act, is the first of its kind and will allow each country’s investigators to gain access to data held by service providers in the other country, for the purpose of combating serious crime. According to DOJ, this “will greatly enhance the ability of the United States and the United Kingdom to prevent, detect, investigate and prosecute serious crime, including terrorism, transnational organized crime, and child exploitation, among others.”

On October 5, 2022, former Uber security chief Joe Sullivan was found guilty by a jury in U.S. federal court for his alleged failure to disclose a breach of Uber customer and driver data to the FTC in the midst of an ongoing FTC investigation into the company. Sullivan was charged with one count of obstructing an FTC investigation and one count of misprision, the act of concealing a felony from authorities.

The U.S. Department of Justice (the “DOJ”) has unsealed an indictment accusing nine Iranian nationals of engaging in a “massive and brazen cyber assault” against at least 176 universities, 47 private companies and 7 government agencies and non-governmental organizations, including the Federal Energy Regulatory Commission (“FERC”). According to the DOJ, the nationals worked for Mabna Institute, an Iranian-based company, as “hackers for hire,” stealing login credentials and other sensitive information to sell within Iran and for the benefit of the Iranian government.

On March 14, 2018, the Department of Justice and the Securities and Exchange Commission (“SEC”) announced insider trading charges against a former chief information officer (“CIO”) of a business unit of Equifax, Inc. According to prosecutors, the CIO exercised options and sold his shares after he learned of a cybersecurity breach and before that breach was publicly announced. Equifax has indicated that approximately 147.9 million consumers had personal information that was compromised.

On June 2, 2016, the European Union and the U.S. signed an Umbrella Agreement, which will implement a comprehensive data protection framework for criminal law enforcement cooperation. The agreement is not yet in effect and additional procedural steps are needed to finalize the agreement. The European Council will adopt a decision on the Umbrella Agreement after obtaining consent from the European Parliament.

On August 8, 2014, a court in Shanghai found a foreign couple guilty of illegal collection of personal information. British national Peter Humphrey was sentenced to two and a half years of imprisonment and a fine of RMB 200,000, and his wife was sentenced to two years of imprisonment and a fine of RMB 150,000. In addition, Humphrey will be deported after serving his term.

In March 2014, the State Postal Bureau of the People’s Republic of China (the “SPBC”) formally issued three rules (the “Rules”) establishing significant requirements regarding the protection of personal information: (1) Provisions on the Management of the Security of Personal Information of Postal and Delivery Service Users (the “Security Provisions”); (2) Provisions on the Reporting and Handling of Security Information in the Postal Sector (the “Reporting and Handling Provisions”); and (3) Provisions on the Management of Undeliverable Express Mail Items (the “Management Provisions”). The Rules, each of which became effective on its date of promulgation, were issued in draft form in November 2013 along with a request for public comment.

On November 27, 2013, the State Post Bureau of the People’s Republic of China (the “SPBC”) released five draft normative rules for solicitation of public comment. Three of these rules, respectively entitled Provisions on the Management of the Security of Personal Information of Postal and Delivery Service Users (the “Draft Provisions”), Provisions on the Reporting and Handling of Security Information in the Postal Sector (the “Reporting and Handling Provisions”), and Provisions on the Management of Undeliverable Express Mail Items (the “Management Provisions”) contain significant requirements regarding the protection of personal information. The deadline for submitting comments on the rules is December 27, 2013.

On November 14, 2013, the Minister of the Malaysian Communications and Multimedia Commission (the “Minister”) announced that Malaysia’s Personal Data Protection Act 2010 (the “Act”) would be going into effect as of November 15, marking the end of years of postponements. The following features of the law are of particular significance:

Recent news reports regarding the alleged purchase of personal information by a corporate investigative service firm in Shanghai have raised questions about the possibility of obtaining information about domestic Chinese companies from government corporate registration agencies.

In recent months, the Chinese government has focused an increasing amount of attention on the protection of personal information. As we previously reported, there have been a number of new data protection regulations in China, including the Decision on Strengthening the Protection of Information on the Internet issued by the Standing Committee of the National People’s Congress in December 2012, and new rules issued by the Ministry of Industry and Information Technology this July to protect personal information collected by telecommunications and Internet service providers. This focus also is illustrated by Shanghai authorities’ recent crackdown on crimes involving personal information.

On August 1, 2013, the United States District Court for the District of Minnesota denied a criminal defendant’s motion to suppress, holding that the defendant had no reasonable expectation of privacy in computer files he shared on a peer-to-peer network.

On July 16, 2013, the Ministry of Industry and Information Technology of the People’s Republic of China (the “MIIT”) issued a new rule entitled Provisions on the Registration of Real Identity Information of Telephone Users (the “Provisions”), which will take effect on September 1, 2013. The Provisions were issued pursuant to the Resolution of the Standing Committee of the National People’s Congress Relating to Strengthening the Protection of Information on the Internet (the “Resolution”) and the Telecommunications Regulations of the People’s Republic of China. In April 2013, the MIIT issued a draft of the Provisions and solicited public comment.

On July 16, 2013, the Ministry of Industry and Information Technology of the People’s Republic of China (the “MIIT”) issued a new rule entitled Provisions on the Protection of Personal Information of Telecommunications and Internet Users (the “Provisions”). The Provisions, which will take effect on September 1, 2013, are intended to implement the general requirements set forth in last December’s Resolution of the Standing Committee of the National People’s Congress Relating to Strengthening the Protection of Information on the Internet (the “Resolution”). The Provisions are the first specific regulations concerning personal information protection by telecommunications service providers in China.

As reported in the Hunton Employment & Labor Perspectives Blog:

In an article to be published this month in the Seton Hall University Law Review, Hunton & Williams partners Terry Connor and Kevin White question whether the Equal Employment Opportunity Commission (“EEOC”) had the statutory authority to publish its April 2012 Guidance interpreting Title VII to impose disparate impact liability on employers who consider applicants’ criminal backgrounds as part of the hiring process.

On April 29, 2013, the Belgian Privacy Commission announced that it referred a data breach case involving The National Belgian Railway Company to the Brussels Public Prosecutor. The data breach, which occurred in December 2012, resulted in the 1.46 million sets of customer data being made publicly available online. The Privacy Commission investigated the case and concluded that there had been a violation of the Belgian Data Protection Act, but since the Privacy Commission does not have the authority to impose sanctions for the violation, it referred the case to the prosecutor’s office to initiate criminal proceedings. The Privacy Commission commented that this is the first time that it has referred a data breach case to the Public Prosecutor.

On April 10, 2013, the Ministry of Industry and Information Technology of the People’s Republic of China (the “MIIT”) enacted two draft rules (“Provisions on the Protection of Personal Information of Telecommunications and Internet Users” and “Provisions on the Registration of Real Identity Information of Telephone Users”) to solicit public comments. The comment period is open until May 15, 2013. Both Drafts include proposals for substantial provisions on the protection of personal information and were enacted according to the Resolution of the Standing Committee of the National People’s Congress Relating to Strengthening the Protection of Information on the Internet (issued by the Standing Committee in December 2012) and some other telecommunications rules.

On March 8, 2013, a U.S. federal appeals court issued a decision in the case United States v. Cotterman, holding that the federal government must have “reasonable suspicion” of criminal activity to conduct a forensic search of laptops and similar devices in the possession of individuals attempting to cross the border. The case arose after Howard Cotterman attempted to enter the United States by car at a checkpoint on the Mexican border. When border agents determined that he had a criminal record related to sexual misconduct, they seized his laptop and attempted to search it. They initially discovered some password-protected files but no proof of illegal activity and allowed him to enter the country but did not return his laptop. The agents then subjected the computer to a forensic analysis and discovered it contained child pornography in portions of the hard drive that had been deleted or protected with passwords. The federal district court ordered suppression of this evidence in the criminal case against Cotterman on the ground that the agents’ forensic analysis of his computer violated the Fourth Amendment’s prohibition on warrantless searches.

On January 23, 2012, the U.S. Supreme Court issued its ruling in the landmark United States v. Jones case, holding 9-0 that attaching a GPS device to a suspect’s car to monitor the vehicle’s movements constitutes a Fourth Amendment search that requires a warrant.  Writing for the Court, Justice Scalia found that it was not necessary to determine whether Jones had a “reasonable expectation of privacy” in the underbody of his Jeep parked on a public street because the search violated the Court’s traditional common-law trespass test.  Scalia stated:

“It is important to be ...

In the past two months, Chinese national authorities amended a law, and provincial authorities in Jiangsu Province issued a new regulation, both of which include provisions concerning the protection of personal information.

Law of the People’s Republic of China on Resident Identity Cards

Any Chinese citizen who resides in China is required to obtain a resident identity card when he or she turns 16 years old. The cards carry information which generally would be considered personal information under Chinese law, such as name, gender, date of birth, home address and identity card number. The Law of the People’s Republic of China on Resident Identity Cards, a national law originally enacted in 2003, was amended on October 29, 2011, to include the following new provisions on the protection of personal information:

On November 8, 2011, the U.S. Supreme Court is set to hear oral arguments in United States v. Jones, a case examining the Fourth Amendment implications of warrantless GPS tracking of suspects’ vehicles. The Court directed the parties to brief and argue “whether the government violated respondent’s Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.”

On August 5, 2011, the Beijing Second Intermediate People’s Court announced its decision in what is reported to be the largest criminal case to date involving the misuse of personal information in Beijing, China.  The Court based its ruling on Article 7 of the Seventh Amendment to the Criminal Law, which applies to three types of criminal activities: (1) illegal sale of citizens’ personal information, (2) illegal provision of citizens’ personal information, and (3) illegal access to citizens’ personal information.

Reporting from Israel, legal consultant Dr. Omer Tene writes:

The Israeli Law, Information and Technology Authority (“ILITA”) has issued a new instruction (the “Instruction”) restricting financial institutions from using information concerning writs of execution issued against clients’ property.  Pursuant to the Instruction, if a bank or insurance company finds out that a client’s account has become subject to a writ of execution, such information may not be used to deny the client credit or to adjust the rate of his or her insurance premiums.  Information regarding writs of execution may be used only to carry out the writ.  ILITA’s Instruction is based on the purpose limitation provisions in the Israeli Privacy Protection Act, 1981, as well as a specific section in the Execution of Judgments Act, 1967.

Rejecting a defense based on compliance with the federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), a federal court in Ohio denied a medical clinic’s motion to dismiss invasion of privacy claims following the clinic’s disclosure of medical records to a grand jury.  In Turk v. Oiler, No. 09-CV-381 (N.D. Ohio Feb. 1, 2010), plaintiff Turk had been under investigation for illegally carrying a concealed weapon and for having a weapon while under disability in violation of an Ohio law which provides that “no person shall knowingly acquire, have, carry, or use any firearm” if “[t]he person is drug dependent, in danger of drug dependence, or a chronic alcoholic.”  Defendant Cleveland Clinic, where Turk was a patient, received a grand jury subpoena requesting “medical records to include but not be limited to drug and alcohol counseling and mental issues regarding James G. Turk.”  When the Cleveland Clinic disclosed Turk’s medical records in response to this subpoena, Turk sued the clinic for violating his privacy rights.

On 2 March 2009, a Belgian Criminal court (Tribunal correctionnel de Termonde, No. DE 20.95.16/08/25) fined Yahoo! Inc., €55,000 ($71,745) for refusing to disclose to a Belgian Public Prosecutor the personal data of its e-mail users who were under criminal investigation for fraud. The Criminal court also imposed a daily penalty fee of €10,000 ($13,045) in a case of non-compliance with the judgment.  This decision was reached despite Yahoo!’s argument that Belgian law did not apply because the company does not maintain a legal entity in Belgium and does not store any customer data in Belgium.

The Standing Committee of the National People’s Congress recently passed an amendment to the P.R.C. Criminal Law.  The amendment includes a provision imposing criminal liability on persons who misappropriate personal information during the course of performing their professional duties.  A previous Hunton & Williams Client Alert reported on the amendment that has now become effective as law.