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  • Posts by Karin M. McGinnis
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    Well versed in employment, privacy, and general commercial litigation, Karin helps clients navigate a range of complex issues. In addition to employment and privacy matters, Karin has successfully litigated a wide range of ...

McGinnis, Globalaw Provide International Perspective on COVID-19 Vaccines in the Workplace

The legal issues surrounding COVID-19 vaccines and mandates on employees are not unique to the United States. Karin McGinnis, Co-head of Moore & Van Allen's Data Privacy Team and member of Employment & Labor and Litigation Teams, recently collaborated with 11 esteemed colleagues from Globalaw™ in creating an article examining the law on COVID-19 vaccines in the workplace across five continents.  

You can find the article here

For questions and specific guidance regarding workplace vaccination regulations, contact Karin at the below link.

Resolving  a split in lower courts, the U.S. Supreme Court issued a ruling in June limiting the type of conduct that can be prosecuted under the federal Computer Fraud and Abuse Act of 1986 (CFAA), a statute often used by U.S. Attorneys to prosecute hackers.  In a 6-3 decision, SCOTUS ruled in Van Buren v. United States that Section 1030(a)(2) of the CFAA does not impose liability on individuals who use a computer to alter or obtain information they otherwise are entitled to obtain, even when they access the information for a prohibited purpose.  In so ruling, SCOTUS limited a powerful federal ...

EEOC Updated Vaccination Guidance - May 28th

The U.S. Equal Employment Opportunity Commission (EEOC) on May 28, 2021 issued updated guidance on vaccinations. The relevant excerpts are attached and the full EEOC guidance is here https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

In short:

  • During the pandemic, employers can mandate that employees receive the COVID 19, subject to exceptions such as required accommodations for persons with disabilities (see K5);
  • Employers can require employees to provide the employer documentation showing that ...
USDOL Offers Guidance on Data Security for Plan Fiduciaries and Service Providers

The Employee Benefits Security Administration of the United States Department of Labor (“EBSA”)  recently published guidance regarding cybersecurity best practices for recordkeepers and service providers responsible for plan related information technology systems and data for ERISA-covered plans, including 401k and other pension plans.

The EBSA counseled that a plan’s service providers should implement the following practices:

  1. Have a formal, well documented cybersecurity program.
  2. Conduct prudent annual risk assessments.
  3. Have a reliable annual third-party ...

Virginia’s Consumer Data Protection Act makes it the second state to pass a comprehensive data privacy law.

Schrems II Opinion Casts Doubt on EU-US Data Protection Rules

Facebook is at the center of the “Schrems” case, which exposed contradictions between U.S. and EU data privacy rules and toppled the U.S./EU Safe Harbor (Schrems I). In Schrems II, Austrian Max Schrems challenges the adequacy of standard contractual clauses and the Privacy Shield (the replacement to the Safe Harbor).  A recent opinion in Schrems II questions the adequacy of privacy protections guaranteed by the U.S. but for now preserves the Privacy Shield and standard contractual clauses as potential adequate means of transferring personal data from the EU to the U.S.

The ...

California Consumer Privacy Act Update: AB25 and AB1355 Approved by California Governor

Earlier we posted an article regarding the amendments to the California Consumer Privacy Act by AB 25 and AB1355 creating a moratorium on the application of much of the CCPA to employee personal information—subject to approval by California’s governor. Pleased to report that Governor Newsom approved both AB25 and AB1355 and therefore the moratorium will be in effect until January 1, 2021. Some welcome relief to businesses trying to comply with the CCPA’s requirements.

California Consumer Privacy Act Update: California Legislature Provides Relief for Businesses Processing Employee Data

The California Consumer Privacy Act (CCPA) imposes significant protections for California residents covered by the law, and significant burdens for companies required to comply with it.    One area of concern is whether the CCPA applied to employee data collected by a business.  The language of the CCPA was unclear, but was open to the interpretation that its protections covered such data.  With an effective date of January 1, 2020, employers have been watching to see if the California legislature would clear up the uncertainty.  The good news is that for at least until January 1, 2021, most ...

North Carolina Amendments to Data Breach Law Finally Introduced

On April 16, 2019, Representatives Saine, Jones and Reives introduced House Bill 904, the long anticipated amendments to the North Carolina Identity Theft Protection Act, N.C. Gen. Stat. § 75-61 et seq.. We first wrote about the proposed legislation in February 2018 [Two Proposed Data Security Laws Reflect National Trend Toward Affirmative Responsibilities]. The bill also amends the definition of identifying information in North Carolina’s criminal identity theft statute, N.C. Gen. Stat. § 14-113.20(b), adopted by reference in the Identity Theft Protection Act’s ...

Washington State Legislature Moves Toward Passage of Broad Consumer Data Privacy Law

Following in the footsteps of California, and the European Union’s General Data Protection Regulation, the State of Washington is taking steps to adopt a comprehensive privacy law focused on protecting consumer information. SB 5376, better known as the Washington Privacy Act, passed in the Washington State Senate on March 6, 2019 by a vote of 46 to 1 and had a public hearing in the Washington State House Committee on Innovation, Technology & Economic Development on March 22, 2019.

The bill has also received support from Microsoft General Counsel and former U.S. FTC Commissioner ...

Two Proposed Data Security Laws Reflect National Trend Toward Affirmative Responsibilities

With major consumer data breaches making headlines on a semi-regular basis, legislators around the country are starting to hold businesses more accountable for cybersecurity compliance.  Industry-specific laws such as HIPAA and the Gramm-Leach-Bliley Act (GLBA) already establish federal data security standards for some companies, and the Federal Trade Commission has taken the position that failure to have reasonable security measures is a violation of the FTC Act (see our DataPoints post here). 

From Massachusetts to New Mexico, a handful of state legislatures also have ...

New Mexico Becomes 48th State to Enact Data Breach Statute

Recently the state of New Mexico enacted the Data Breach Notification Act, making it the 48th state in the United States to enact a statute requiring notice to individuals impacted by a data breach. In doing so, New Mexico follows some trends we've been predicting at the state level.  These trends include covering encrypted data in the definition of personal information if the encryption key is accessed as well, and – importantly – requiring that companies engage in reasonable security measures to protect personal information in their possession. New Mexico also joins a handful of ...

Beck v. McDonald – 4th Circuit Weighs In on Standing in Data Breach Case

We don’t see a lot of data breach litigation here in the Fourth Circuit, so it is notable that the Fourth Circuit Court of Appeals issued an opinion recently that weighs in on the standing debate (For more on the debate: Constitutional Standing Provides Fertile Battleground In Data Breach Litigation). In Beck v. McDonald, the plaintiffs in two consolidated cases sought to establish Article III standing based on the harm from embarrassment, mental distress, inconvenience, the increased risk of future identity theft and the cost of measures to protect against it after (i) a ...

Constitutional Standing Provides Fertile Battleground In Data Breach Litigation

A common and understandable concern of companies that suffer a data breach is whether the victims can sue the company.  It is tempting to assume that the victims won’t sue if they do not suffer identity theft or monetary loss through misuse of the data.  Not all victims, or courts, agree.  As a result, standing, a constitutional prerequisite to bringing a lawsuit in federal court that is most often conceded rather than litigated, has become a focal point in data breach litigation where “risk of future harm,” rather than actual misuse of data, forms the basis of the victims’ claims.

To ...

FTC Data Security Standards: Final Order in the ASUSTeK Case; No Mercy for LabMD

The Federal Trade Commission, continuing its quest to be the enforcer of consumer privacy rights, has come down hard this month on ASUSTeK and LabMD for their failure to have adequate data security standards. Because the FTC has taken the position that its complaints and orders set the standard for adequate data security (DataPoints: Reading the Section 5(a) Tea Leaves: What the end of 2015 may suggest about the FTC priorities in 2016), companies subject to FTC jurisdiction should take heed.

LabMD cannot seem to catch a break. Although an ALJ dismissed the FTC’s claim against LabMD ...

EU Article 31 Committee Approves EU-US Privacy Shield

EU Member States (the Article 31 Committee)  approved today the EU-US Privacy Shield.  The next step is formal adoption.  The full press release can be found here.

The approval of the Privacy Shield is good news for companies who transfer personal data from the EU to the US. Although legal challenges to the Privacy Shield are likely, the Privacy Shield was designed to address the shortcomings cited by the European Court of Justice in the now invalidated Safe Harbor self-certification scheme and should have a better chance of standing up to those legal challenges.

Related DataPoints Posts:

Another Challenge for Information Governance: The Defense of Trade Secrets Act

Tandy Mathis and Karin McGinnis

Good information governance requires not only protecting the security of sensitive and proprietary information; it often requires pursuing legal action against those who threaten the secrecy and value of a company’s trade secrets.  The Defense of Trade Secrets Act (“DTSA”) both provides another tool for companies to pursue misappropriators of trade secrets and makes it more difficult for companies to quickly seize misappropriated trade secrets through court action.  Given the challenges of the DTSA, companies should bolster their efforts ...

U.S. Government Petitions to Join Data Privacy Litigation Against Facebook in Ireland

On June 13, 2016, the United States government asked the Irish High Court to be joined as amicus curiae (friend of the court) in the case brought by the Austrian privacy activist Max Schrems against Facebook attacking the use of model contract clauses to transfer EU citizens’ data from the EU to the U.S. as violating fundamental privacy rights. This is an unusual request for the U.S. government to seek to intervene in private ligation, particularly in foreign courts. However, the stakes are high should Facebook lose, and the U.S. government’s surveillance practices are at the ...

President Obama Signs New Privacy Law – Judicial Redress Act

On February 24, 2016, President Obama signed into law the Judicial Redress Act giving citizens of certain “covered countries” access to U.S. courts to protect their privacy and take legal action against U.S. government agencies if their personal data is unlawfully disclosed.  The  Act provides that the U.S. Secretary of State, the Treasury Secretary and the Secretary of Homeland Security, will designate which countries and “regional economic integration organizations” (REIOs) will be “covered countries.”  To be designated, however, the countries and REIOs must ...

US and EU “Privacy Shield” Framework for Cross-Border Data Transfers Submitted to Article 29 Working Party Today

by Privacy & Data Security Member Karin McGinnis

On the same day that groundhog Punxsutawney Phil predicted an early Spring, the EU College of Commissioners brought some sunshine of its own, announcing yesterday that it has reached an agreement with the U.S. on transfers of personal  data from the EU to the U.S.  Details on the “Privacy Shield” are sketchy, and the EU Commission still must confer with the Article 29 Working Party and draft a decision document setting forth the terms.  But this is welcome news for companies on both sides of the pond.  More good news came today.  The Article ...

Federal Trade Commission PrivacyCon 2016 Recap: Insights into the FTC’s Perspective on Privacy and Data Security

by Privacy & Data Security Member Karin McGinnis

The Federal Trade Commission’s PrivacyCon event brings together the FTC, researchers and academics to discuss the latest research and trends related to consumer privacy and data security.  Much of the discussion today centered on Big Data, coming on the heels of the FTC’s report, Big Data: A Tool for Inclusion or Exclusion? Understanding the Issues, which can be found here.  Also prominent were concerns about web transparency and whether consumers in fact understand what data is collected on them and how it will be used.  FTC ...

Social Media Password Protection: Where are we now?

In just two years, social media password protection has gone from a privacy advocate’s dream to an employer’s harsh reality in many states.  Maryland became the first state (in 2012) to enact legislation that prevented employers from requesting the user names or passwords to an employee’s or applicant’s personal social media accounts.  Two states quickly joined Maryland in 2012 by passing similar password privacy laws, and nine more states added privacy protections in 2013.

So far in 2014, six states – Louisiana, New Hampshire, Oklahoma, Rhode Island, Tennessee and ...

About Data Points: Privacy & Data Security Blog

The technology and regulatory landscape is rapidly changing, thus impacting the manner in which companies across all industries operate, specifically in the ways they collect, use and secure confidential data. We provide transparent and cutting-edge insight on critical issues and dynamics. Our team informs business decision-makers about the information they must protect, and what to do if/when security is breached.

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