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There are no consent or opt-out requirements for sending marketing materials through postal mail. It is noted that the Federal Trade Commission, which regulates deceptive practices, has brought enforcement actions relating to the transmission of marketing emails or telemarketing calls by companies who have made promises in their publicly posted privacy policies that personal information will not be used for marketing purposes. If so, are there any best practice recommendations on using such lists? The federal Computer Fraud and Abuse Act has been used to assert legal claims against the use of cookies for behavioural advertising, where the cookies enable deep packet inspection of the computer on which they are placed.

If so, what are the relevant factors? The Computer Fraud and Abuse Act and the Electronic Communications Privacy, as well as state surveillance laws, may come into play where cookies collect information from the computer on which they are placed and report that information to the entity placing the cookies without proper consent. Yes, the FTC has brought regulatory enforcement actions against companies that failed to disclose or misrepresented their use of cookies. This is left to the discretion of the company, as the U. With respect to receiving data from abroad, the EU-U. Privacy Shield Framework provides a mechanism to comply with data protection requirements when transferring personal data from the European Union to the United States.

Please describe which types of transfers require approval or notification, what those steps involve, and how long they typically take. The federal Whistleblower Protection Act of protects federal employees, and some states have similar statutes protecting state employees.

Public companies subject to the Sarbanes-Oxley Act also are required to have a Whistleblower policy which must be approved by the board of directors and create a procedure for receiving complaints from whistleblowers. If it is prohibited or discouraged, how do businesses typically address this issue?

Data protection

Anonymous reporting generally is permitted. Rule 10A-3 of the Securities Exchange Act of , for example, requires that audit committees of publicly listed companies establish procedures for the confidential, anonymous submission by employees of concerns regarding questionable accounting or auditing matters. Employee privacy rights, like those of any individual, are based on the principle that an individual has an expectation of privacy unless that expectation has been diminished or eliminated by context, agreement, notice, or statute.

Monitoring of employees generally is permitted to the same extent as it is with the public, including when the employer makes clear disclosure regarding the type and scope of monitoring in which it engages, and subject to generally applicable surveillance laws regarding inherently private locations as well as employee-specific laws, such as those regarding the privacy of union member activities. Describe how employers typically obtain consent or provide notice. Consent and notice rights are state-specific, as is the use of hidden cameras.

How does the GDPR affect email?

When required or voluntarily obtained, employers typically obtain consent for employee monitoring through the acceptance of employee handbooks, and may provide notice by appropriately posting signs. The National Labor Relations Act prohibits employers from monitoring their employees while they are engaged in protected union activities.

If so, which entities are responsible for ensuring that data are kept secure e. Certain federal statutes and certain individual state statutes also impose an obligation to ensure the security of personal information. Some states impose data security obligations on certain entities that collect, hold or transmit limited types of personal information. The regulations also mandate the reporting of cybersecurity events, like data breaches and attempted infiltrations, to regulators. Covered entities include those banks, mortgage companies, insurance companies, and check-cashers otherwise regulated by the NYDFS. If so, describe what details must be reported, to whom, and within what timeframe.

If no legal requirement exists, describe under what circumstances the relevant data protection authority ies expects voluntary breach reporting. If the breach involves more than individuals, such notification must be made within 60 days of discovery of the breach. Information to be submitted includes information about the entity suffering the breach, the nature of the breach, the timing start and end of the breach, the timing of discovery of the breach, the type of information exposed, safeguards in place prior to the breach, and actions taken following the breach, including notifications sent to impacted individuals and remedial actions.

Understanding data protection and compliance

While not specifically a data breach notification obligation, the Securities and Exchange Act and associated regulations, including Regulation S-K, require public companies to disclose in filings with the Securities and Exchange Commission when material events, including cyber incidents, occur. Registrants are required to disclose conclusions on the effectiveness of disclosure controls and procedures. Some state statutes require the reporting of data breaches to a state agency or Attorney General under certain conditions.

The information to be submitted varies by state but generally includes a description of the incident, the number of individuals impacted, the types of information exposed, the timing of the incident and the discovery, actions taken to prevent future occurrences, copies of notices sent to impacted individuals, and any services offered to impacted individuals, such as credit monitoring.

If no legal requirement exists, describe under what circumstances the relevant data protection authority ies expect s voluntary breach reporting.


At the federal level, HIPAA requires covered entities to report data breaches to impacted individuals without unreasonable delay, and in no case later than 60 days. Notice should include a description of the breach, to include: the types of information that were involved; the steps individuals should take to protect themselves, including who they can contact at the covered entity for more information; as well as what the covered entity is doing to investigate the breach, mitigate the harm, and prevent further breaches.

For breaches affecting more than residents of a state or jurisdiction, covered entities must provide local media notice in addition to individual notice. Virgin Islands have statutes that require the reporting of data breaches, as defined in each statute, to impacted individuals. These statutes are triggered by the exposure of personal information of a resident of the jurisdiction, so if a breach occurs involving residents of multiple states, then multiple state laws must be followed.

Standards for when disclosure is required vary from unauthorised access to personal information, to unauthorised acquisition of personal information, to misuse of or risk of harm to personal information.

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Most states require notification as soon as practical, and often within 30 to 60 days of discovery of the incident depending on the statute. The information to be submitted varies by state but generally includes a description of the incident, the types of information exposed, the timing of the incident and its discovery, actions taken to prevent future occurrences, information about steps individuals should take to protect themselves, information resources, and any services offered to impacted individuals such as credit monitoring.

Penalties are statute- and fact-specific. Please see questions If so, does such a ban require a court order? The U. Enforcement authority is specified in the relevant statutes. Some include only federal government enforcement, some allow for federal or state government enforcement, and some allow for enforcement through a private right of action by aggrieved consumers.

The GDPR refers to pseudonymisation as a process that is required when data is stored as an alternative to the other option of complete data anonymisation [22] to transform personal data in such a way that the resulting data cannot be attributed to a specific data subject without the use of additional information.

An example is encryption , which renders the original data unintelligible and the process cannot be reversed without access to the correct decryption key. The GDPR requires for the additional information such as the decryption key to be kept separately from the pseudonymised data. Another example of pseudonymisation is tokenisation , which is a non-mathematical approach to protecting data at rest that replaces sensitive data with non-sensitive substitutes, referred to as tokens.

While the tokens have no extrinsic or exploitable meaning or value, they allow for specific data to be fully or partially visible for processing and analytics while sensitive information is kept hidden. Tokenisation does not alter the type or length of data, which means it can be processed by legacy systems such as databases that may be sensitive to data length and type. This also requires much fewer computational resources to process and less storage space in databases than traditionally-encrypted data. Pseudonymisation is a privacy-enhancing technology and is recommended to reduce the risks to the concerned data subjects and also to help controllers and processors to meet their data protection obligations Recital Records of processing activities must be maintained that include purposes of the processing, categories involved and envisaged time limits.

The records must be made available to the supervisory authority on request Article Article 33 states the data controller is under a legal obligation to notify the supervisory authority without undue delay unless the breach is unlikely to result in a risk to the rights and freedoms of the individuals. There is a maximum of 72 hours after becoming aware of the data breach to make the report. Individuals have to be notified if a high risk of an adverse impact is determined Article In addition, the data processor will have to notify the controller without undue delay after becoming aware of a personal data breach Article However, the notice to data subjects is not required if the data controller has implemented appropriate technical and organisational protection measures that render the personal data unintelligible to any person who is not authorised to access it, such as encryption Article Article 37 requires appointment of a data protection officer.

If processing is carried out by a public authority except for courts or independent judicial authorities when acting in their judicial capacity , or if processing operations involve regular and systematic monitoring of data subjects on a large scale, or if processing on a large scale of special categories of data and personal data relating to criminal convictions and offences Articles 9 and Article 10 , [25] a data protection officer DPO —a person with expert knowledge of data protection law and practices—must be designated to assist the controller or processor in monitoring their internal compliance with the Regulation.

A designated DPO can be a current member of staff of a controller or processor, or the role can be outsourced to an external person or agency through a service contract. In any case, the processing body must make sure that there is no conflict of interest in other roles or interests that a DPO may hold. The contact details for the DPO must be published by the processing organisation for example, in a privacy notice and registered with the supervisory authority. The DPO is similar to a compliance officer and is also expected to be proficient at managing IT processes, data security including dealing with cyberattacks and other critical business continuity issues associated with the holding and processing of personal and sensitive data.

The skill set required stretches beyond understanding legal compliance with data protection laws and regulations, the DPO must maintain a living data inventory of all data collected and stored on behalf of the organization. This is a distinct role from a DPO, although there is overlap in responsibilities that suggest that this role can also be held by the designated DPO. A natural individual or moral corporation person can play the role of an EU Representative. However, a non-EU establishment is exempted from designating an EU Representative when the processing is only occasional and does not include, on a large scale, processing of special categories of data as referred to in Article 9 1 GDPR or processing of personal data relating to criminal convictions and offences referred to in Article 10 GDPR, and such processing is unlikely to result in a risk to the rights and freedoms of natural persons, taking into account the nature, context, scope and purposes of the processing.

Non-EU public authorities and bodies are equally exempted. If a foreign company that is subject to the GDPR refuses to designate an EU Representative as required, then the former is infringing the GDPR and runs the risk of being imposed an administrative fine of up to ten million Euros or up to 2 percent of a company's total worldwide annual turnover of the preceding financial year, whichever is higher. Ignorance of the GDPR would not be an excuse, and the intentional or negligent willful blindness character of the infringement failure to designate an EU Representative may rather constitute aggravating factors.

Just like Heads of State designate their ambassadors with letters of credence, the non-EU establishment must issue a duly signed document letter of accreditation designating a given individual or company as its EU Representative.

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  • Besides the definitions as a criminal offence according to national law following Article 83 GDPR the following sanctions can be imposed:. Under the GDPR, there are six equally valid grounds to process personal data. There are two of these which are relevant to direct B2B marketing, they are consent or legitimate interest. Recital 47 of the GDPR states that "The processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest.


    Using legitimate interest as the basis for B2B marketing involves ensuring key conditions are met:. Additionally, Article 6 1 f of the GDPR states that the processing is lawful if it is "Necessary for the purposes of the legitimate interests pursued by the controller or by a third-party, except where such interests are overridden by the interests or fundamental rights and freedoms of the individual which require protection of personal information, in particular where the individual is a child".

    Therefore, companies can continue to use marketing data for the purposes of B2B engagement as long as the appropriate steps are taken to ensure the data is aligned to a specific objective or campaign. One phrase that is now being used is "Correct Marketing to the Correct Person".