Internet of Things (IoT)

Facial recognition technology (“FRT”) has attracted a fair amount of attention over the years, including in the EU (e.g., see our posts on the European Parliament vote and CNIL guidance), the UK (e.g., ICO opinion and High Court decision) and the U.S. (e.g., Washington state and NTIA guidelines). This post summarizes two recent developments in this space: (i) the UK Information Commissioner’s Office (“ICO”)’s announcement of a £7.5-million fine and enforcement notice against Clearview AI (“Clearview”), and (ii) the EDPB’s release of draft guidelines on the use of FRT in law enforcement.

I. ICO Fines Clearview AI £7.5m

In the past year, Clearview has been subject to investigations into its data processing activities by the French and Italian authorities, and a joint investigation by the ICO and the Australian Information Commissioner. All four regulators held that Clearview’s processing of biometric data scraped from over 20 billion facial images from across the internet, including from social media sites, breached data protection laws.

On 26 May 2022, the ICO released its monetary penalty notice and enforcement notice against Clearview. The ICO concluded that Clearview’s activities infringed a number of the GDPR and UK GDPR’s provisions, including:

  • Failing to process data in a way that is fair and transparent under Article 5(1)(a) GDPR. The ICO concluded that people were not made aware or would not reasonably expect their images to be scraped, added to a worldwide database, and made available to a wide range of customers for the purpose of matching images on the company’s database.
  • Failing to process data in a way that is lawful under the GDPR. The ICO ruled that Clearview’s processing did not meet any of the conditions for lawful processing set out in Article 6, nor, for biometric data, in Article 9(2) GDPR.
  • Failing to have a data retention policy and thus being unable to ensure that personal data are not retained for longer than necessary under Article 5(1)(e) GDPR. There was no indication as to when (or whether) any images are ever removed from Clearview’s database.
  • Failing to provide data subjects with the necessary information under Article 14 GDPR. According to the ICO’s investigation, the only way in which data subjects could obtain that information was by contacting Clearview and directly requesting it.
  • Impeding the exercise of data subject rights under Articles 15, 16, 17, 21 and 22 GDPR. In order to exercise these rights, data subjects needed to provide Clearview with additional personal data, by providing a photograph of themselves that can be matched against the Clearview Database.
  • Failing to conduct a Data Protection Impact Assessment (“DPIA”) under Article 35 GDPR. The ICO found that Clearview failed at any time to conduct a DPIA in respect of its processing of the personal data of UK residents.

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Continue Reading Facial Recognition Update: UK ICO Fines Clearview AI £7.5m & EDPB Adopts Draft Guidelines on Use of FRT by Law Enforcement

            On April 28, 2022, Covington convened experts across our practice groups for the Covington Robotics Forum, which explored recent developments and forecasts relevant to industries affected by robotics.  Sam Jungyun Choi, Associate in Covington’s Technology Regulatory Group, and Anna Oberschelp, Associate in Covington’s Data Privacy & Cybersecurity Practice Group, discussed global regulatory trends that affect robotics, highlights of which are captured here.  A recording of the forum is available here until May 31, 2022.

Trends on Regulating Artificial Intelligence

            According to the Organization for Economic Cooperation and Development  Artificial Intelligence Policy Observatory (“OECD”), since 2017, at least 60 countries have adopted some form of AI policy, a torrent of government activity that nearly matches the pace of modern AI adoption.  Countries around the world are establishing governmental and intergovernmental strategies and initiatives to guide the development of AI.  These AI initiatives include: (1) AI regulation or policy; (2) AI enablers (e.g., research and public awareness); and (3) financial support (e.g., procurement programs for AI R&D).  The anticipated introduction of AI regulations raises concerns about looming challenges for international cooperation.…

Continue Reading Robotics Spotlight: Global Regulatory Trends Affecting Robotics

          On April 28, 2022, Covington convened experts across our practice groups for the Covington Robotics Forum, which explored recent developments and forecasts relevant to industries affected by robotics.  One segment of the Robotics Forum covered risks of automation and AI, highlights of which are captured here.  A full recording of the Robotics Forum is available here until May 31, 2022.

            As AI and robotics technologies mature, the use-cases are expected to grow in increasingly complex areas and to pose new risks. Because lawsuits have settled prior to a court deciding liability questions, no settled case law yet exists to identify where the liability rests between robotics engineers, AI designers, and manufacturers.  Scholars and researchers have proposed addressing these issues through products liability and discrimination doctrines, including the creation of new legal remedies specific to AI technology and particular use-cases, such as self-driving cars.  Proposed approaches for liability through existing doctrines have included:…

Continue Reading Robotics Spotlight: Risks of Automation and AI

            On April 28, 2022, Covington convened experts across our practice groups for the Covington Robotics Forum, which explored recent developments and forecasts relevant to industries affected by robotics.  Winslow Taub, Partner in Covington’s Technology Transactions Practice Group, and Jennifer Plitsch, Chair of Covington’s Government Contracts Practice Group, discussed the robotics issues presented in private transactions…

This quarterly update summarizes key federal legislative and regulatory developments in the first quarter of 2022 related to artificial intelligence (“AI”), the Internet of Things (“IoT”), connected and automated vehicles (“CAVs”), and data privacy, and highlights a few particularly notable developments in the States.  In the first quarter of 2022, Congress and the Administration focused…

A recent AAA study revealed that, although the pandemic has resulted in fewer cars on the road, traffic deaths have surged.  Speeding, alcohol-impairment, and reckless driving has caused the highest levels of crashes seen in decades, and the National Safety Council estimates a 9% increase in roadway fatalities from 2020.  Autonomous vehicles (AVs) have the…

In 2021, European lawmakers and agencies issued a number of proposals to regulate artificial intelligence (“AI”), the Internet of Things (“IoT”), connected and automated vehicles (“CAV”), and data privacy, as well as reports and funding programs to pursue the developments in these emerging areas.  From the adoption of more stringent cybersecurity standards for IoT devices to the deployment of standards-based autonomous vehicles, federal lawmakers and agencies have also promulgated new rules and guidance to promote consumer awareness and safety. While our team tracks developments across EMEA, this roundup focuses on a summary of the key developments in Europe in 2021 and what is likely to happen in 2022.

Part I: Internet of Things

With digital policy being a core priority for the current European Commission, the EU has pursued a range of initiatives in the area of IoT.  These developments tend to be interspersed throughout a range of policy and legislative decisions, which are highlighted below.

Connecting Europe Facility and IoT Funding

In July 2021, the European Parliament and Council of the EU adopted a regulation establishing the Connecting Europe Facility (€33.7 billion for 2021-2027) to accelerate investment in trans-European networks while respecting technological neutrality.  In particular, the regulation noted that the viability of “Internet of Things” services will require uninterrupted cross-border coverage with 5G systems, to enable users and objects to remain connected while on the move.  Given that 5G deployment in Europe is still sparse, road corridors and train connections are expected to be key areas for the first phase of new applications in the area of connected mobility and therefore constitute vital cross-border projects for funding under the Connecting Europe Facility.  The Parliament had also called earlier for “stable and adequate funding” for investments in AI and IoT, as well as for building transport and ICT infrastructure for intelligent transport systems (ITS), to ensure the success of the EU’s data economy.

In May 2021, the Council adopted a decision establishing a specific research funding programme (€83.4 billion for 2021-2027) under Horizon Europe.  In specifying the EU’s priorities, the decision identified the importance of IoT in health care, cybersecurity, key digital technologies including quantum technologies, next generation Internet, space, and satellite communications.
Continue Reading EMEA IoT & CAV Legislative and Regulatory Roundup 2021 and Forecast 2022

In his State of the Union address last week, President Biden declared that he wants to: “strengthen privacy protections, ban targeted advertising to children, and demand tech companies stop collecting personal data on our children.”  This statement comes just a couple of weeks after Senators Richard Blumenthal (D-CT) and Marsha Blackburn (R-TN) introduced the Kids…

On February 4, 2022, the National Institute of Standards and Technology (“NIST”) published its Recommended Criteria for Cybersecurity Labeling for Consumer Internet of Things (IoT) Products (“IoT Criteria”).  The IoT Criteria make recommendations for cybersecurity labeling for consumer IoT products, in other words, for IoT products intended for personal, family, or household use.

The purpose of the publication, as described by NIST, is to identify “key elements of a potential labeling scheme.”  The publication makes clear, however, that the scheme would not be established or managed by NIST, but rather “by another organization or program,” referred to in the publication as the “scheme owner.”  The identity of the scheme owner is undetermined, but it “could be a public or private sector” entity.

The publication of the IoT Criteria represents another step toward a national cybersecurity labeling scheme for consumer IoT products.  We should expect that the framework established by NIST in this publication will serve as a model for these requirements.

IoT Criteria Framework.  The IoT Criteria establish recommended considerations for three key aspects of a potential cybersecurity IoT labeling program:

  1. Baseline Product Criteria
  2. Labeling
  3. Conformity Assessments

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Continue Reading NIST Publishes Recommended Criteria for Cybersecurity Labeling for Consumer Internet of Things (IoT) Products

This is the ninth in a series of Covington blogs on implementation of Executive Order 14028, “Improving the Nation’s Cybersecurity,” issued by President Biden on May 12, 2021 (the “Cyber EO”).  The first blog summarized the Cyber EO’s key provisions and timelines, and the second, third, fourth, fifth, sixth, seventh, and eighth blogs described the actions taken by various government agencies to implement the EO from June through December 2021, respectively.

This blog summarizes key actions taken to implement the Cyber EO during January 2022.  As with steps taken during prior months, the actions described below reflect the implementation of the EO within Government.  However, these activities portend further actions in February 2022 that are likely to impact government contractors, particularly those who provide software products or services to government agencies.

National Security Memorandum Issued on Application of Cyber EO Requirements to National Security Systems

On January 19, 2022, President Biden signed National Security Memorandum-8, “Memorandum on Improving the Cybersecurity of National Security, Department of Defense, and Intelligence Community Systems” (the NSM).  The NSM sets forth requirements for National Security Systems (NSS) that are equivalent to or exceed the cyber requirements for Federal Information Systems set forth in the Cyber EO. The NSM also establishes methods for obtaining exceptions to these requirements for unique mission needs.

Section 1 of the NSM addresses how requirements set forth in the Cyber EO will be applied to NSS.  In general, NSS are systems that involve:  intelligence activities, cryptologic activities related to national security, command and control of military forces, equipment that is an integral part of a weapon or weapons system, or are critical to the direct fulfillment of military or intelligence missions.[1]  The NSM states that Cyber EO Sections 1 (“Policy”) and 2 (“Removing Barriers to Sharing Threat Information”) apply to NSS in their entirety, except that the Director of the National Security Agency (“NSA”) (defined as the “National Manager”) shall exercise with respect to NSS the authorities granted the OMB Director and the Secretary of Homeland Security under Section 2 of the Cyber EO.  This means, among other things, that companies that contract with DOD and other national security agencies and whose performance involves NSS, may be subject to the cyber incident reporting and standard contractual clauses promulgated in the Federal Acquisition Regulation pursuant to section 2 of the Cyber EO.

Section 1 of the NSM also requires the Committee on National Security Systems (CNSS) and the national security/intelligence agencies to take several actions to modernize NSS consistent with Section 3 of the Cyber EO.  For example, the NSM requires all agencies that own or operate NSS to update their existing plans to use cloud technology and to develop plans to implement Zero Trust Architecture by March 18, 2022.  The NSM further requires owners or operators of NSS to implement multifactor authentication and encryption of data-in-transit and data-at-rest on such systems by July 18, 2022.  The NSM also requires NSS owners and operators to adhere to the standards for enhancing software supply chain security developed under section 4 of the Cyber EO except where “otherwise authorized by law” or where the National Manager grants an exception.  Section 3 of the NSM sets forth the procedures and conditions for granting exceptions to NSS from the requirements of the Cyber EO.

In addition to the requirements described above, the NSM requires national security agencies to adhere to a process to be developed by the Director of NSA to identify and then inventory the NSS under their control according by April 19, 2022.  This guidance and inventory will be critical to defining the scope of application of the requirements of the memorandum.

The NSM also requires such agencies to report all known or suspected compromises of or unauthorized access to such NSS to the Director of NSA in accordance with procedures to be developed by the Director of NSA.  The NSM authorizes the Director of NSA to issue Emergency Directives and Binding Operational Directives to NSS owners and operators that are similar to the directives that the Cybersecurity and Infrastructure Security Agency (CISA) is authorized to issue to civilian agencies.
Continue Reading January 2022 Developments Under President Biden’s Cybersecurity Executive Order