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New data privacy rules for IT/BPO companies come into effect in India

July 29, 2011 By Leave a Comment

India recently issued new data privacy rules that impose considerable restrictions on how businesses handle personal information. The Information Technology Rules, 2011 (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information), or “Privacy Rules” were issued in April.

The Privacy Rules, which implement an existing law (India’s Information Technology Act, 2008 and its recent amendment in 2008) can significantly affect businesses including multinational companies with back offices in India, IT and outsourcing companies in India and overseas companies that contract IT and outsourcing services with Indian companies.

As per the Privacy Rules, organizations must:

Notify individuals when their personal information is collected via letter, fax, or email,

Make a privacy policy available,

Take steps to secure personal information,

Offer a dispute resolution process related to the collection and use of personal information, etc.

Any personal data collected within India or moved into and outside India from another country comes under the preview of the Privacy Rules.

via New data privacy rules for IT/BPO companies come into effect in India.

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Dissent to Order Adopting Mandatory Meet and Confer Rule Highlights Tension in Addressing Cost and Efficiency in E-Discovery : Electronic Discovery Law

December 3, 2010 By Leave a Comment

In the matter of amendment of Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07, No. 09-01A (Wis. Nov. 10, 2010)

On November 10, 2010, despite the opinion of the Judicial Council Evidence and Civil Procedure Committee that Wisconsin did not need a mandatory confer rule, the Wisconsin Supreme Court entered an order adopting an amendment to Wis. Stat. § 804.01 prohibiting parties from engaging in electronic discovery until after the parties confer regarding several specified issues.  The rule states that “[n]o party may serve a request to produce or inspect under s. 804.09 seeking the discovery of electronically stored information or respond to an interrogatory under s. 804.08(3) by producing electronically stored information, until after the parties confer regarding all of the following, unless excused by the court …”  The mandated issues for discussion include the scope of electronic discovery, the preservation of ESI, the format of production, and the costs of the proposed discovery and the extent to which such costs shall be limited, among other things.  If a party fails to participate or if agreement cannot be reached, judicial intervention may be sought.  The purpose of such a rule, as expressed in its attendant note, is to “manage the costs of the discovery of electronically stored information.”

The amendment was adopted despite a strong dissent which expressed the concern that such a mandate “has the potential to diminish both fairness and efficiency along with the potential of increasing the time and expense of litigation.”  The dissent reviewed the Judicial Council’s recommendation which reasoned that unlike the federal courts, Wisconsin state courts “do not have many cases involving a large number of documents and electronic discovery disputes” and that such a rule would “impose ‘significant added burden on litigants while yielding little benefit.’”  Additionally, the dissent cited the Seventh Circuit’s ongoing electronic discovery pilot program and the report on phase one of that program which indicated that “a majority of attorneys who responded to a survey opined that the principles underpinning the new federal rules, which included a mandatory meet and confer, neither enhanced nor increased efficiency” and expressed its agreement that the newly adopted rule “has the potential to diminish” both fairness and efficiency.  Specifically, the dissent asserted that “[a] mandate to confer can diminish fairness if used as a sword against unrepresented litigants” and that “[i]t has the potential to decrease efficiency by spawning satellite litigation regarding compliance issues.”

via Dissent to Order Adopting Mandatory Meet and Confer Rule Highlights Tension in Addressing Cost and Efficiency in E-Discovery : Electronic Discovery Law.

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Court rejects warrantless GPS tracking – Computerworld

August 10, 2010 By Leave a Comment

The U.S. Court of Appeals for the District of Columbia circuit has rejected claims by the government that federal agents have the right to conduct around-the-clock warrantless GPS tracking of suspects.

In a 41-page ruling last Friday, the appellate court dismissed government arguments about the constitutional validity of such searches and maintained that the evidence gathered from the warrantless GPS tracking in the case was obtained in violation of the Fourth Amendment.

“It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work,” Judge Douglas Ginsburg wrote on behalf of the three-judge panel that reviewed the case.

via Court rejects warrantless GPS tracking – Computerworld.

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Compliance Advisers Reduce FCPA Risk | Corporate Counsel

May 26, 2010 By Leave a Comment
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Several high-profile cases — including the recent guilty plea by BAE Systems plc and the FBI‘s dramatic anti-bribery sting operation against executives at military supply companies — have thrust the Foreign Corrupt Practices Act (FCPA), the federal law banning bribery of foreign officials, back into the headlines.

Recent proposed changes to the U.S. Sentencing Guidelines have been less in the spotlight, but they ought to capture the attention of corporate counsel concerned about FCPA risks.

For the first time, a proposed amendment to the sentencing guidelines would recognize retaining an outside professional compliance adviser as an effective remedial action that can help companies that have detected FCPA violations avoid the most stringent sanctions. This step could lead to lower fines and perhaps even avoid a requirement for a government-appointed compliance monitor.

The proposal is to amend the application note for § 8B2.1, subsection (b)(7) governing how an “effective compliance and ethics program” should handle detected violations. The relevant part reads: “The steps taken [after detecting a violation] … may include the use of an outside professional adviser to ensure adequate assessment and implementation of any modifications” to the company’s compliance program. Because recent trends point toward increasing FCPA prosecutions and ever larger penalties, this proposal could provide your company with an important avenue to control risk after a violation emerges internally, but before the government imposes remediation.

Several differences exist between the professional compliance adviser envisioned in the proposed amendment and the independent monitors that are often imposed in FCPA deferred prosecution agreements (DPAs) or non-prosecution agreements (NPAs) with the Department of Justice.

First, your company would engage the adviser voluntarily, leaving the scope of the engagement in your hands, not the government’s. Second, attorney-client privilege would exist between the adviser and your company. Third, because your company determines the scope of the adviser’s role, that enables a more efficient and less cumbersome and costly endeavor than a mandatory monitorship.

This last point is especially significant because the major cost for a company required to engage a monitor is often not the monitor’s fees, but rather the cost of implementing the monitor’s policy recommendations. For example, imagine that a monitor identifies deficiencies in expense reporting or agent due diligence procedures.

The cost of implementing the new policies, tools, and personnel required to address those problems throughout a large global business in a limited time frame will often dwarf the cost of the monitor’s review.

via Compliance Advisers Reduce FCPA Risk.

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China Moves to Tighten Data Controls – NYTimes.com

April 28, 2010 By Leave a Comment

China is on the verge of requiring telecommunications companies and Internet service providers to halt and report leaks of what the government deems to be state secrets, the latest in a series of moves intended to strengthen the government’s control over private communications.

The proposed amendment to the state secrets law, reported Tuesday by the state news media, defines a state secret broadly and loosely as information that, if disclosed, would damage China’s security or interests in political, economic, defense and other realms.

The amendment was submitted Monday to the Standing Committee of the National People’s Congress, China’s legislature, for a third reading, the final step before being signed into law. Few measures reach that point in China without being adopted.

The wording of the amendment, as cited by the state-controlled newspaper China Daily, suggested that Internet and telecommunications companies would have to take a more proactive stance in identifying leaks of state secrets and their sources. The paper said companies must detect, report and delete unauthorized disclosures.

But reports by the state-run news agency Xinhua seemed less definitive about whether the companies must independently scour online transmissions for forbidden information or simply cooperate with the authorities if they suspect transgressions.

via China Moves to Tighten Data Controls – NYTimes.com.

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High Court to Decide if Calif. Can Regulate Video Games | Law.com

April 26, 2010 By Leave a Comment

The U.S. Supreme Court, wading into a clash between free-speech rights and laws protecting children, agreed Monday to decide whether California can ban the sale or rental of violent video games to minors.

The court will review a federal court’s decision to throw out California’s ban. The 9th U.S. Circuit Court of Appeals in San Francisco said the law violated minors’ constitutional rights under the First and Fourteenth amendments.

California’ law would have prohibited the sale or rental of violent games to anyone under 18. It also would have created strict labeling requirements for video game manufacturers. Retailers who violated the act would have been fined up to $1,000 for each violation.

The law never took effect, and was challenged shortly after it was signed by Gov. Arnold Schwarzenegger. A U.S. District Court blocked it after the industry sued the state, citing constitutional concerns.

Schwarzenegger said he was pleased the high court will review that decision. “We have a responsibility to our kids and our communities to protect against the effects of games that depict ultra-violent actions, just as we already do with movies,” the governor said.

Opponents of the law note that video games already are labeled with a rating system that lets parents decide what games their children can purchase and play. They also argue that the video games — which the Entertainment Software Association says were played in 68 percent of American households — are protected forms of expression under the First Amendment.

The decision to hear this case comes only a week after the high court voted overwhelmingly to strike down a federal law banning videos showing animal cruelty. The California case poses similar free speech concerns, although the state law is aimed at protecting children, raising an additional issue that could affect the high court's consideration.

Michael D. Gallagher, president of the Entertainment Software Association, said video games should get the same First Amendment protections as the court reaffirmed last week for videos.

Given last week’s ruling, “we are hopeful that the court will reject California’s invitation to break from these settled principles by treating depictions of violence, especially those in creative works, as unprotected by the First Amendment,” he said.

via Law.com – High Court to Decide if Calif. Can Regulate Video Games.

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