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Flashcards in Week1: Law & Data Privacy Deck (34)
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1

What are the 3 Branches of the U.S. Government? & What is the role of each branch?

Executive Branch
Enforces laws
President, Vice President, Cabinet and Federal Agencies

Legislative Branch
Makes laws
Congress (house of representatives and senate)

Judicial Branch
Interprets the law (determines if constitutional)
Federal courts

2

What are SOURCES of law?

U.S. Constitution
State Constitutions
Legislation
Regulations and Rules
Common Law/Case Law
Contract Law

3

What is the Supreme Law in the United States?

The U.S. Constitution

4

Where is the word “Privacy” mentioned in the U.S. Constitution?

The word Privacy is NOT mentioned in the U.S. Constitution

5

What is legislation?

Laws passed by federal and state legislatures.

6

What is Common or Case Law?

Final decisions by judges in court cases.

Judges look at precedent (past decisions) to decide how to rule in a new case that is consistent with these past decisions.

Laws/Precedents change, as technological and societal values evolve over time

7

What is required to have an enforceable (legally binding) contract?

Offer (terms of the agreement)

Acceptance (by the person to whom the offer was made), and

Consideration (bargained for exchange (e.g., money, property or services)).

8

Does the U.S. Constitution always override the State Constitution?

No, State Constitutions can create stronger rights than those provided by the U.S. Constitution

9

Do Federal Laws always override State Laws?

No, State Legislation may be stricter than national legislation. Federal law only override less strict state laws.

10

Who issues Regulations and Rules?

Regulations and Rules are issued by regulatory agencies (e.g., FTC and FCC) placing compliance expectations on industries

11

What AMENDMENTS to the United States Constitution have been interpreted to provide privacy protection?

3rd Amendment (Soldiers Quartered)
4th Amendment (Search and Seizure)
5th Amendment (Self-Incrimination)
14th Amendment (Due Process)

12

What is Jurisdiction?

The authority of a court to hear a particular case

13

What is the legal definition of “Person?”

Any entity with legal rights including:
Individuals (natural persons)
Corporations (legal person)

14

What is “Preemption?”

A superior government’s ability to have its laws supersede those of an inferior government

15

What is a “Private Right of Action?”

The ability of an individual harmed by a violation of a law to file a lawsuit against the violator

16

What are the roles and responsibilities of the Federal Trade Commission (FTC)?

General Authority to enforce rules against unfair and deceptive trade practices (including the power to bring deception enforcement actions where an organization has broken a privacy promise)
Statutory Responsibility for issues such as children’s online privacy and commercial email marketing.
Instrumental in developing U.S. privacy standards.

17

What are the roles and responsibilities of the Federal Communications Commission (FCC)?

Places significant compliance regulations on and governs the communications industry, such as television, radio, and telemarketing, and more recently, with online marketing developing such laws as the Telemarketing Sales Rule and Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act).

Along with the FTC, the FCC also enforces privacy laws.

18

What are the roles and responsibilities of the Department of Commerce (DoC)?

Leading role in federal privacy policy development
Administers the Privacy Shield Framework between the United States and the EU.
The DOC works along with the FTC on the enforcement of privacy and security standards set by organizations, particularly with those having privacy self-regulatory programs.

19

What are the roles and responsibilities of the Department of Health & Human Services (HHS)?

Creates regulations to protect the privacy and security of healthcare information.
Responsible for enforcing HIPAA laws.
The HHS shares rule-making and enforcement power with the FTC for data breaches related to medical records under the Health Information Technology for Economic and Clinical Health (HITECH) Act.

20

What are the roles and responsibilities of the two agencies responsible for regulating the Banking Industry?

Federal Reserve Board
Responsible for enforcing provisions of specific federal financial regulatory mandates, such as the Gramm-Leach-Biley Act (or GLBA).
Consumer Financial Protection Bureau An independent bureau under the Federal Reserve, has rule-making authority for laws related to financial privacy and oversees the relationship between consumers and financial product and service providers

Office of the Comptroller of the Currency (OCC)
Independent bureau of the U.S. Department of Treasury.
Regulates and supervises all national and federal banks and savings institutions, including agencies of foreign banks.
Ensures fair access to financial services and compliance with financial privacy laws and regulations.

21

What are the roles and responsibilities of the State Attorney Generals?

Chief legal advisor to the state government
State’s chief law enforcement officer. They may take enforcement action on a state’s unfair and deceptive practice law, HIPAA, GLBA, the Telemarketing Sales Rule and violations of breach notification laws

22

What are Self- Regulatory Programs?

Organizations monitor privacy through internal privacy practices, frameworks/guidelines, policies and procedures created and monitored by industry groups.
Government agencies, such as the FTC, may be involved in enforcement and adjudication

23

What are Trust Marks?

Images or logos of third party seal and certification programs that are displayed on websites to indicate that a business is a member of a professional organization or to show that it has adopted the guidelines of a program and passed a security and privacy test.
Designed to give customers confidence that they can safely engage in e-commerce transactions.

Examples include TrustArc, Norton, the Better Business Bureau, and EU-U.S. Privacy Shield

24

What is Criminal Liability?

Court proceedings for criminal prosecution
Initiated by: Government
Burden of Proof: Beyond a Reasonable Doubt
Remedy: Fines, restitution, incarceration or death
Sources of Law: Constitutions, laws and regulations

25

What is Civil Liability?

Disputes between individuals or organizations
Plaintiff (Private Party or Government) sues a Defendant to address a wrong
Burden of Proof: Preponderance of evidence
Remedy: Monetary Compensation or Injunctions

26

What is Administrative Enforcement?

Adjudication by an agency
Initiated by Agency (e.g., FTC)
Burden of Proof: Burden of Persuasion
Remedy: Actions and Fines
Sources of Law: Statutes that create agency governance

27

What is a Consent Decree?

An Agreement between the Government Agency and offending party requiring the offending party to do a specific actions and/or pay a fine.

28

Privacy Enforcement
What are the sources of law for legal liability in civil litigation?

Tort
Contract
Common law

29

What is a Tort?

A tort is a civil wrong recognized by law as having the grounds for lawsuits.
The primary goal for the lawsuit is to provide relief for damages incurred and deter others from committing the same wrongs.

30

What are the three general categories of a Tort and a description of each?

Intentional
Defendant knew or should have known that their action or inaction would cause harm

Negligent
Absence of failure to exercise proper or ordinary care. Defendant’s actions are unreasonably careless or unsafe.

Strict Liability
Defendant has legal responsibility for damages or injury even if they are not negligent or at fault (e.g. product liability)