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With the Australian Privacy Principles in effect, the data protection regulation vote in the European Parliament and the announcement of the EU and APEC working toward a data transfer mechanism, it’s been a busy couple of weeks. Privacy Tracker has the information you need on the latest action, plus updates to U.S. state and federal initiatives and some opinions on where privacy law is headed. Looking forward to March Madness? U.S. Rep. Jared Polis (D-CO) is hoping that Congress is, too, and that his latest plea will help get support for the E-mail Privacy Act. (IAPP member login required.)

Latest News

College Hoops Meets U.S. Privacy Legislation
Rep. Jared Polis (D-CO) is pushing Congress to pass the E-mail Privacy Act and, in doing so, appealing to the all-important March Madness bracket. "Ever think Eric Holder’s March Madness bracket looked a lot like yours? Stop the madness, cosponsor the E-mail Privacy Act!" Polis wrote in his tongue-in-cheek letter to Congress. The Hill reports that Polis introduced the legislation last year with Reps. Kevin Yoder (R-KS) and Tom Graves (R-GA). The bill would require police to get a warrant before accessing individuals’ e-mails. The bill has more than 180 cosponsors in the House, and Sen. Patrick Leahy (D-VT) has introduced a companion measure in the upper chamber, which has the backing of some major tech firms.

Maryland Committees Hear Testimony on Cellphone Privacy Bill
The Maryland House Judiciary Committee and Senate Judicial Proceedings Committee heard testimony both for and against a package of bills that would limit law enforcement’s ability to monitor citizens. The bills would require police to obtain a warrant prior to monitoring citizens through cellphones, limit their use of drones and the length of time license-plate scanning records are kept. The Capital Gazette reports that members of the American Civil Liberties Union spoke in favor of the package, voicing concerns that laws have not kept up with technology, and law enforcement officials questioned the need for the laws, adding concerns that they may hamper investigations.

Minnesota Committee Advances Anti-Surveillance Bills
The Minnesota House Public Safety Committee advanced two bills that would require police to get a warrant before collecting data from cellphones and other electronic location devices in most cases, and notify cellphone owners within a few months that their information was accessed, reports the Associated Press.

New Hampshire House Votes To Regulate Drone Use
The New Hampshire House, in a voice vote, approved measures to limit drone use in order to protect privacy, the Associated Press reports. The legislation would require police to get a warrant prior to using data obtained with drones and also limits commercial and institutional use of drones.

Oregon Cell and License-Plate Privacy Bills Fail
The Oregonian reports on four privacy bills proposed recently and where they ended up. Two bills creating exemptions under Oregon public records laws passed, while two others—involving law enforcement’s use of cellphone and license-plate data—failed. Sen. Larry George (R-Sherwood) has vowed to put together an informal workgroup to create a ballot initiative on privacy protections in 2016. George authored cellphone privacy bill SB 1583, which died in a Senate committee, as did license-plate privacy bill SB 1522.

Opinion: Pace, Relevance of Legislation Will Increase
Peter Waterhouse writes in this Information Week op-ed that between whistleblowing and high-profile data incidents, he expects “the pace and relevance of regulation to increase and improve.” Citing the EU breach notification regulation, which allows for fines of up to five percent of annual revenue, Waterhouse advocates for laws with sharp teeth, imagining what these kinds of fines might mean in situations like the Target and Mt. Gox incidents. “Failing to protect against the latest security events and associated risks will have profound implications for businesses when legislation catches up to technology and gains more teeth,” writes Waterhouse. 


An Update on the EU and APEC Roadmap
Senior Counsel for Privacy and Information Governance John Kropf, CIPP/US, CIPP/G, together with Malcolm Crompton, CIPP/US, have recently suggested “that the challenge for global data flows was interoperability but that there was reason for optimism between the world’s two largest economic entities: the EU and the Asia-Pacific Economic Cooperation (APEC).” Since then, the Article 29 Working Party and the APEC Data Privacy Subgroup released their review. “This may be one of the EU’s most significant developments in the area of cross-border data transfers,” Kropf writes in this Privacy Perspectives installment, “and potentially positive news for companies operating in both the EU and APEC regions.”
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The Global Competition Between Privacy Models
“Countries around the world are struggling to decide whether to adopt data protection law based on the proposed EU Data Protection Regulation or to use a U.S. approach to privacy protection,” writes Christopher Kuner of Wilson Sonsini. The result, he notes, is a “competition in global data protection policymaking, with the European Commission on the one side and the U.S. government on the other side, both lobbying other countries to follow their respective models.” In this post for Privacy Perspectives, Kuner looks into the global competition and analyzes, as an example, the current reform efforts in Japan through the lens of the U.S. and EU data protection approaches.
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Group Alarmed Over Potential OECD Changes
IT World Canada reports that a group of privacy regulators and experts have raised alarm at a potential privacy change in the Organisation for Economic Co-operation and Development (OECD) guidelines. Ontario Information and Privacy Commissioner Ann Cavoukian, University of Ottawa Prof. Khaled El Emam and German Data Protection Commissioner for the State of Berlin Alexander Dix—all of whom wrote a Privacy Perspectives blog post here—recently published a report expressing concern about a proposal they say will diminish privacy in the OECD guidelines. The report that caught their attention was written by Indiana Law Prof. Fred Cate, Microsoft’s Peter Cullen and Oxford Prof. Victor Mayer-Schonberger—who wrote an earlier blog post here—and recommends restoring “the balance between privacy and the free flow of information … and avoid(ing) suppressing innovation with overly restrictive or inflexible data privacy laws.” Cavoukian has called the proposals “alarming,” the report states.
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In Lieu of Federal Drone Laws, States Legislate on Their Own
While there are increasing incentives for both private and public use of drones in myriad applications, privacy advocates are urging states to legislate such use before privacy violations are as numerous, the Associated Press reports. This year, 35 states will consider legislation, some of which include ways to “attract an industry that could generate billions and restrictions on drone use and data collection,” the report states. States are left to legislate on their own in lieu of federal legislation on the matter.
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Drones: Aren’t the Laws Already on the Books?
"The grandfathers of privacy wouldn't argue for new, drone-specific privacy rules," writes Jeff Kosseff, CIPP/US. Rather, the common-law privacy torts they articulated more than a century ago would apply equally to drones as they do to older information-gathering technologies. In part one of a three-part series on drones, Kosseff looks at existing U.S. laws to be considered when it comes to the use of drones for gathering information. Look for part two, on private-sector drone use, in the April edition of The Privacy Advisor.
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Seattle Police Department Wins Right To Use Facial Recognition
A Seattle City Council vote Monday means the Seattle Police Department will now be able to use facial-recognition software to identify suspects caught on video, NBC News reports. “We are already doing this work, but it’s manual,” said police spokesman Mark Jamieson. “This would just speed up the process.” The program is funded by a $1.64 million grant from the Department of Homeland Security. The plan’s approval follows a recent vote regulating the use of unmanned drones by law enforcement after the city bought two. Now, law enforcement can’t use drones without warrants, except in emergency situations.
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Bell Canada Case: A Challenge to Interest-Based Advertising
Should telecommunications providers be able to use their subscribers’ behavioral information to sell advertising? And are rules stricter than the Personal Information Protection and Electronic Documents Act (PIPEDA) needed for telecoms? A complaint over Bell Canada’s practices brought before the Canadian Radio-television Telecommunications Commission (CRTC) may end up determining the answers to these questions. Timothy Banks of Dentons Canada LLP writes in this Privacy Tracker post that if the CRTC agrees with the Public Interest Advocacy Centre and the Consumers’ Association of Canada that “more detailed privacy rules are needed for telecommunications carriers … this could represent one of the most important developments in the evolution of privacy law in Canada since the enactment of PIPEDA.” (IAPP member login required.)
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Parliament Overwhelmingly Votes for Regulation; Reding Calls It "Irreversible"
The European Parliament voted Wednesday with overwhelming support for the proposed European General Data Protection Regulation (GDPR). The procedural move ensures that the regulation, which has been in legislative process for more than two years, stays on the table, even after this May’s parliamentary elections. In this exclusive for Privacy Tracker, Covington & Burling Special Counsel Monika Kuschewsky and European data protection expert Eduardo Ustaran, CIPP/E, provide analysis of the vote and look forward to the next steps in the long evolution of the proposed GDPR and what businesses can expect moving forward.
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Asia Pacific

New Laws Now In Effect In Australia
The Australian Privacy Principles are now in effect, replacing the National Privacy Principles and Information Privacy Principles, Smart Company reports. Under the new rules, businesses generating more than $3 million a year in revenue may be fined up to $1.7 million for mining Big Data or sharing or storing information without consent, the report states. One expert said the new laws are going to make it more difficult for companies to build profiles of their customers. Meanwhile, Business Insider reports on Coles’ revised privacy policy, which allows it to share customers’ information with companies in at least 23 countries, noting the policy “was released just before the new Australian Privacy Principles come into force this week, which make businesses list likely overseas recipients of personal data and conform with stricter rules.” And, the country’s healthcare and point-of-sale industries are expected to be “focal points for efforts to improve privacy protections in the wake of new privacy controls,” CSO reports. IAPP Westin Research Fellow Dennis Holmes provides a detailed overview of the newly enacted APPs in this installment of the Privacy Tracker blog.
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Financial Firms Will Face Steep Breach Fines in South Korea
South Korea’s financial regulator has announced financial firms may be fined as much as three percent of their global turnover when responsible for breaches of personal information, according to Yonhapp News Agency. Additionally, clients will be granted an option to revoke consent to provide their personal information. The Financial Services Commission also said financial firms must delete clients’ data after termination of financial transactions and may not share the data with affiliates beyond a given time limit. The proposed measures are slated to go into effect in the second half of this year.
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