Email Privacy

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By Ulrich Wuermeling

On January 10, 2017, the European Commission proposed a new ePrivacy Regulation (Proposal). Compared to the internal draft that was leaked in December, the official Proposal has been substantially modified. However, the general approach taken by the European Commission has not changed. The Proposal includes provisions with a broad scope of application covering over-the-top (OTT) services as well as communication between devices and all data stored on a device.

In the internal draft, the European Commission suggested…

By Ulrich Wuermeling

An internal Commission draft of a new ePrivacy Regulation (Draft) has been leaked to the public. The Commission plans to propose it in early 2017, but the content of the Draft does not seem near a final proposal. It is either older or still needs some time to be finalized. The Draft reveals the Commission’s priorities of extending the scope of the Regulation, reducing the number of consent notices for first party cookies, increasing privacy and confidentiality of user data and applying higher fines.

If the approach proposed by the Draft were to pass, the commercial rules for the Internet could change substantially in the EU. The ability of internet service providers to monetize services with marketing would be hampered and the users would have to pick up the bill. The economic impact analysis of the Draft simply ignores these consequences by stating that website publishers would have “small” adoption costs and not mentioning any economic impact for users. Furthermore, the Regulation would in parts isolate the EU market from global innovations by fostering data localization. The approach might shield EU based companies from unwanted competition, but would ultimately slow down the development of the digital market in the EU.

By Serrin Turner

Last week saw action on two fronts regarding the Stored Communications Act (SCA) – the US federal statute regulating government searches of online accounts in criminal investigations. In Congress, a proposal to reform the SCA advanced in the House; and in the courts, Microsoft sued to challenge a provision of the SCA as unconstitutional. Although the reform bill has been portrayed as a major piece of privacy legislation, the version now under consideration is quite modest and would not substantially change how the SCA is applied in practice. However, the Microsoft lawsuit, if successful, could significantly reshape and restrict how the SCA is used by law enforcement.

What is the Stored Communications Act?

The SCA sets forth the procedures by which US law enforcement authorities can compel electronic communications service providers to disclose the contents of (and other records pertaining to) user accounts. While the SCA is applied most often in the context of email accounts, it applies equally to social-networking accounts, cloud-storage accounts, web-hosting accounts, and any other type of account where a user may store electronic communications. Like everyone else, criminals are increasingly communicating over the Internet, and as a result the SCA is now routinely used by law enforcement to obtain the contents of online accounts used by criminal suspects to communicate and do business.

A Stored Communications Act (SCA) search warrant case arising out of a New York federal  narcotics trafficking investigation is being closely watched by EU data protection authorities, privacy advocates, multinational internet service providers, and law enforcement, among others, as the  parties pursue an expedited appeal to the Second Circuit Court of Appeals. Captioned In re Search Warrant, No. 13 Mag. 2814, M9-150, the case involves  a U.S. law enforcement request for the contents of an Outlook.com email box,…

On July 17th, the Data Retention and Investigatory Powers Act (DRIPA) came into effect in the United Kingdom reinstating the Government’s powers to require communication providers to retain traffic data (also known as metadata) and enabling the Government to serve warrants to intercept communications data on companies outside of the United Kingdom to the extent they were providing services to UK users.  DRIPA became law following emergency “fast-tracked” procedures on the basis that its enactment was essential to ensure continued…

By Kevin Boyle and Alex Stout

On Wednesday, the Attorney General of California released a new privacy guide, titled Making Your Privacy Practices Public.  The guide doesn’t purport to be a restatement of California law (or other law) and expressly disclaims that, but it does present what the AG’s office views as a best practice approach to crafting privacy disclosure materials while covering some unique California requirements.  It also highlights recent revisions to California’s online privacy law (known as…

By Kevin Boyle & Alex Stout

heartbleed.pngHardly a day passes now without some new report of a security vulnerability with inevitable breaches that follow, but Monday’s news about the two-year old vulnerability in OpenSSL is (or should be) catching everyone’s attention.  The problem is a coding error in a widely used cryptographic software library for implementing secure connections between a website (or web interface on a hardware device) and its user (typically indicated by a reassuring padlock in the status…

By Kevin Boyle and Aryeh Richmond

Here is a reminder that the Federal Trade Commission’s revisions to its Children’s Online Privacy Protection Rule become effective on July 1.  If you haven’t already, now is the time to make sure you have revisions to meet the rule in place as FTC and state attorney general inquiries and formal investigations are sure to follow the extensive public notices about the new rule as well as the need to comply on time. 

First…

By Omar Elsayed

Although some surveys of privacy law suggest otherwise, privacy requirements do in fact exist in the Kingdom of Saudi Arabia (KSA)and are very relevant to companies operating there or seeking to provide services to customers in KSA.

Background

The paramount body of law in KSA is the Sharīʿah. The Sharīʿah is comprised of a collection of fundamental principles derived from a number of different sources, which include the Holy Qu’ran and the Sunnah, which are…

By Brian Murray

The Federal Communications Commission (“FCC”) is examining privacy and security issues raised by customer information stored on mobile communications devices. In a public notice released on May 25, 2012, the FCC sought comment on the privacy and data-security practices of mobile wireless service providers with respect to such information, as well as the application of existing privacy and security requirements to it–subjects on which the FCC last solicited public input five years ago. As the FCC acknowledged…