privacy-compliance

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Global Privacy Landscape

EU General Data Protection Regulation (GDPR)

Territorial reach: Governs the processing of personal data belonging to individuals located in the EU/EEA, irrespective of where the processing entity is based.

Core obligations for in-house legal teams:

• Legal basis documentation: Every processing activity must rest on one of six recognized grounds -- consent, contractual necessity, legitimate interest, statutory obligation, protection of vital interests, or public authority function
• Individual rights fulfillment: Requests for access, correction, deletion, portability, processing restriction, and objection must be resolved within one calendar month, with a two-month extension available for particularly involved requests
• Impact assessments (DPIAs): Mandatory when processing is expected to create elevated risk for individuals
• Incident reporting: The competent supervisory authority must be notified within 72 hours of detecting a personal data breach; affected individuals require prompt notification when the breach poses high risk
• Processing inventory: Maintain the register of processing activities mandated by Article 30
• Cross-border safeguards: Transfers outside the EEA require valid mechanisms such as Standard Contractual Clauses, adequacy determinations, or Binding Corporate Rules
• Data Protection Officer: Appointment is required in specific situations -- public bodies, organizations conducting large-scale processing of sensitive categories, or those engaged in systematic large-scale monitoring

Where in-house teams most often engage:

• Evaluating vendor DPAs for regulatory alignment
• Counseling product teams on embedding privacy into design
• Managing communications with supervisory authorities
• Maintaining and updating transfer mechanisms
• Reviewing consent flows and privacy disclosures

California CCPA / CPRA

Territorial reach: Applies to businesses handling the personal information of California residents that satisfy specified revenue, data volume, or data monetization thresholds.

Core obligations:

• Disclosure right: Individuals may request a full accounting of personal information collected, used, and disclosed
• Deletion right: Individuals may demand erasure of their personal information
• Opt-out right: Individuals may prohibit the sale or sharing of their personal information
• Correction right: Individuals may require amendment of inaccurate records (added by CPRA)
• Sensitive data limitation: Individuals may restrict the use of sensitive personal information to enumerated purposes (added by CPRA)
• Equal treatment: Organizations may not penalize individuals who exercise their statutory rights
• Collection notice: A privacy disclosure must be provided at or before the point of collection, detailing categories gathered and their purposes
• Vendor agreements: Contracts with service providers must confine personal information use to the specified business function

Fulfillment deadlines:

• Acknowledge receipt: 10 business days
• Provide substantive response: 45 calendar days, with a 45-day extension available upon notice

Additional Jurisdictions to Track

Data Processing Agreement Review

When evaluating a DPA or data processing addendum, verify the presence and adequacy of the following elements.

Mandatory Components (per GDPR Article 28)

• Processing scope and timeline: Clearly articulated subject matter, duration, and boundaries
• Processing activities: Specific description of what operations will be performed and for what business reason
• Data categories: Enumeration of the types of personal data involved
• Data subject populations: Identification of whose data is being processed
• Controller prerogatives: Specification of the controller's instruction authority and oversight rights

Processor Commitments

• Instruction adherence: Processor undertakes to act solely on documented controller instructions, except where overridden by applicable law
• Personnel confidentiality: All individuals authorized to handle personal data have binding confidentiality commitments
• Security posture: Adequate technical and organizational safeguards are described, referencing Article 32 standards
• Sub-processing governance:
  • Prior written authorization requirement (general or specific)
  • For general authorization: advance notification of sub-processor changes with a meaningful objection window
  • Sub-processors contractually bound to equivalent obligations
  • Processor retains liability for sub-processor conduct
• Rights request support: Processor commits to assisting the controller with individual rights fulfillment
• Incident and assessment support: Processor provides assistance with security compliance, breach reporting, impact assessments, and prior consultation
• End-of-term data handling: Upon contract conclusion, all personal data is deleted or returned at the controller's election; residual copies are destroyed unless law mandates retention
• Verification rights: Controller holds the right to audit and inspect, or to accept independent third-party audit reports
• Breach alerting: Processor will report personal data breaches without undue delay, ideally within 24 to 48 hours, ensuring the controller can meet the 72-hour regulatory window

International Transfer Provisions

• Mechanism specified: SCCs, adequacy determination, Binding Corporate Rules, or other recognized safeguard identified
• SCC version: Current EU SCCs (adopted June 2021) employed where applicable
• Module selection: Correct SCC module chosen for the relationship (Controller-to-Processor, Controller-to-Controller, Processor-to-Processor, Processor-to-Controller)
• Transfer risk evaluation: Completed for destinations lacking an adequacy determination
• Supplemental safeguards: Technical, organizational, or contractual measures addressing gaps revealed by the transfer risk evaluation
• UK coverage: If UK personal data is within scope, the UK International Data Transfer Addendum is appended

Operational Alignment

• Liability coordination: DPA liability terms are consistent with (and do not undermine) the master services agreement
• Term synchronization: DPA duration aligns with the underlying services contract
• Geographic specificity: Processing locations are enumerated and acceptable
• Security certifications: Relevant standards or attestations required (SOC 2 Type II, ISO 27001, etc.)
• Risk transfer: Adequate insurance coverage for data processing activities confirmed

Recurring DPA Weaknesses

Individual Rights Request Management

Intake Procedure

When an individual rights request arrives:

1. Categorize the request:

   • Access (provide a copy of their personal data)
   • Correction (fix inaccurate records)
   • Erasure (remove personal data, the "right to be forgotten")
   • Processing restriction (pause certain uses)
   • Portability (deliver data in a structured, machine-readable format)
   • Objection (challenge a specific processing activity)
   • Sale/sharing opt-out (CCPA/CPRA)
   • Sensitive data use limitation (CPRA)

2. Determine governing law:

   • Where does the individual reside?
   • Which statutes apply given the organization's geographic presence and activities?
   • What specific procedural requirements and deadlines govern?

3. Authenticate the requester:

   • Confirm the individual's identity through proportionate verification measures
   • Scale verification rigor to the sensitivity of the data involved
   • Avoid demanding excessive proof that could itself become a barrier to exercising rights

4. Record the request:

   • Date of receipt
   • Request category
   • Requester identity
   • Applicable statute(s)
   • Response due date
   • Assigned team member

Statutory Deadlines

Grounds for Declining or Limiting Fulfillment

Assess whether any recognized exception applies before acting on a request:

Widely recognized exceptions:

• Establishment, exercise, or defense of legal claims
• Retention mandated by law or regulation
• Public interest or exercise of official functions
• Freedom of expression and information (erasure context)
• Archival, scientific, or historical research purposes in the public interest

Organization-specific factors:

• Active litigation hold: data under legal preservation cannot be destroyed
• Regulatory retention schedules: financial records, employment files, and other categories may have prescribed minimum retention periods
• Third-party rights: fulfilling the request could adversely affect the rights or freedoms of another individual

Fulfillment Workflow

1. Locate all personal data pertaining to the requester across organizational systems
2. Evaluate and document any applicable exceptions
3. Prepare the response: honor the request or clearly explain why it cannot be fulfilled (in whole or in part)
4. For any partial or full refusal: cite the precise legal basis
5. Advise the requester of their right to file a complaint with the relevant supervisory authority
6. Retain a complete record of the request, the response, and the supporting rationale

Staying Current with Regulatory Change

Areas to Monitor

Keep a continuous watch on:

• Supervisory authority publications: New or revised guidance from the ICO, CNIL, FTC, state attorneys general, and comparable bodies
• Enforcement activity: Penalties, orders, and settlements that reveal regulatory priorities and thresholds
• Legislative movement: Enactment of new privacy statutes, amendments to existing law, and implementing regulations
• Technical standards evolution: Revisions to ISO 27001, SOC 2, NIST frameworks, and sector-specific requirements
• Transfer mechanism developments: New or revoked adequacy decisions, SCC modifications, data localization mandates

Practical Monitoring Approach

1. Official channels: Subscribe to regulatory authority email alerts, RSS feeds, and formal gazette notices
2. Legal analysis: Follow reputable privacy law publications that contextualize new developments
3. Industry bodies: Monitor trade association and industry group communications for sector-tailored guidance
4. Compliance calendar: Maintain a timeline of known effective dates, filing deadlines, and compliance milestones
5. Team updates: Regularly brief the legal team on developments that affect the organization's data processing activities

When to Escalate

Bring regulatory developments to senior counsel or leadership attention when:

• New legislation or guidance directly impacts the organization's core processing activities
• An enforcement action in the organization's industry signals increased regulatory focus
• An approaching compliance deadline requires operational or technical changes
• A transfer mechanism the organization depends on faces legal challenge or invalidation
• A supervisory authority opens a formal inquiry or investigation involving the organization