GDPR and Data Privacy at the ABA TECHSHOW

GDPRBy Meredith Capps

I recently attended the ABA TECHSHOW in Chicago, IL (along with quite a few other law librarians, an impressive turnout!), primarily to stay current on recent e-discovery practices and platforms as my library’s resident e-discovery expert, per my prior life as a law firm associate.  As an FCIL librarian, however, I was compelled to step out of former-litigator mode and attend what proved to be a fascinating session on the EU’s General Data Protection Regulation (GDPR) and data privacy laws.  The speakers, Steven M. Puiszis and Judy Shelby, described the ways in which the practices of U.S. law firms and their clients regarding personal information may run afoul of the law, and how U.S. entities should analyze their risk and approach compliance.

Puiszis and Shelby discussed the GDPR’s expansive reach, noting that even minimal activity in an EU state may render a foreign entity “established” in the EU for purposes of the regulation, and that even data that is not “processed” in the EU is covered by the regulation.  They emphasized that “personal information” is defined in a manner far broader than U.S. lawyers would expect, that there is no small business exception to the regulation, and that this information may reside in many repositories maintained by the typical U.S. firm or business, such as human resource databases, marketing databases, client databases, and, of course, email correspondence.  They discussed lawful bases to process personal information, noting that a law firm conflict check should qualify as information necessary for the defense of legal claims, and discussed anonymizing data as one means of ensuring compliance with GDPR.   Though there is uncertainty as to how GDPR will impact requests for documents in U.S. litigation, Shelby noted that federal courts are generally not receptive to enforcing foreign blocking statutes, and that the typical U.S. approach to discovery runs counter to GDPR’s goals of minimum storage.  Cautious U.S. litigants should nevertheless consider narrowly targeting requests for data that may be subject to GDPR, and consider whether anonymized data would suit their purposes.

Their discussion raised a few issues that brought to mind research questions well suited to a course on FCIL research:

  1. National law: Though as a regulation, rather than a directive, GDPR is directly applicable to member states and does not require domestic implementing measures, Puiszis emphasized that EU states maintain their own privacy laws and policies that U.S. entities must consider in addition to GDPR.  Furthermore, I found that European Commission guidance issued in May 2018 specifically notes that the regulation empowers member states to impose conditions and limitations beyond those imposed by GDPR, and contemplates individual member state determinations as to the applicability of the rules in certain sectors.  The EC also states that interpretation of the regulation will be left to European national courts.  In constructing an EU research question concerning GDPR, instructors could well introduce foreign law questions into their hypothetical research problem–questions for which researchers would not enjoy the benefit of the national transposition measures list provided only for directives in EUR-Lex.
  2. Cyber-insurance: Shelby discussed the possibility of obtaining cyber insurance to cover fines associated with GDPR violations, but noted that these fines may not be insurable under the domestic law of some states, raising another potential foreign law companion question.
  3. Recognition of foreign judgments: Though due to time constraints they could not discuss enforcement issues in depth, the speakers mentioned difficulties surrounding the imposition of fines when an entity lacks assets in the EU, and that international treaties or domestic laws such as the U.S. Uniform Foreign Money Judgements Recognition Act may provide mechanisms for cross-border enforcement.  As enforcement proceedings inevitably proceed, they should raise interesting examples involving a mix of foreign and international law.
  4. Data Protection/Processing Agreements (DPAs): Puiszis discussed the importance of entering into, and modifying per GDPR, agreements with vendors and third parties with whom firms, and their clients, may share personal information.  Asking students to locate sample agreements would be an excellent way to reinforce research instruction from 1L and Advanced Legal Research courses regarding publications containing forms and sample contracts.

Introducing…Heather Casey as the March 2019 FCIL Member of the Month

heather casey

1. Where did you grow up?

We lived in a lot of places but mainly Virginia and Ohio. I’ve also lived in Utah, Nevada, France, Louisiana, and Rhode Island (one of those is not like the others…).

2. Why did you select law librarianship as a career?

I’d gotten my library degree before I went to law school and always thought of law librarianship as something fun to do in retirement. But then the financial crisis of 2008 hit just as I was about to graduate from law school and all these visions I’d had of driving away from graduation in a Mercedes while lighting a cigar with a $100 bill went up in smoke. Suddenly, law librarianship wasn’t something to amuse myself with in old age, but the only viable career path. I have no regrets with how things have worked out. I don’t even like cigars anyway.

3. When did you develop an interest in foreign, comparative, and international law?

Having lived abroad for a couple of years in my early 20s, I had an appreciation for the differences between how societies handled basic rights like healthcare and immigration long before law school was even an idea in my mind. Thus, once I finally attended law school, it was with an eye to taking classes on international and foreign laws when they were available.

4. Who is your current employer? How long have  you worked there?

I’m at Georgetown and have been here for almost 6 years. 

5. Do you speak any foreign languages?

I butcher French with a savagery that brings tears to French speakers’ eyes (I just pretend they’re tears of joy). Other languages I can mangle include Spanish and Italian.

6. What is your most significant professional achievement?

I’m quite proud of the workshops in Africa that I’ve participated in with Sonia Poulin and others. We’ve worked to strengthen the law library network there, both among anglophones and francophones and it’s one of the things I’m most grateful to have been a part of. I’ve made lasting friendships and feel like I understand the challenges and successes of librarians there in a way I wouldn’t otherwise comprehend. It’s been incredible to realize how many similarities we, as law librarians, share, regardless of our jurisdiction. We all want to accomplish the same goals – provide access to legal information for our patrons in a way that helps patrons better understand the materials they need.

7. What is your biggest food weakness?

Pretty sure we don’t have enough room for all my food indulgences. It suffices that I didn’t get my ample figure from saying no to a second serving or twelve.

8. What song makes you want to get up and sing/dance?

This depends on my mood. How shameful is it if I admit I still enjoy Despacito from time to time? That shameful? Oh okay.

9. What ability or skill do you most wish you had (that you don’t have already)? Time travel would be nice. A faster metabolism…wait, am I supposed to be talking about skills and abilities I can actually acquire?

10. Aside from the basic necessities, what is one thing you can’t go a day without?

I have to make the bed every morning. My day is ruined if I know the bed is messy and unmade. When I travel and my husband stays home, I know he isn’t making the bed but that’s okay because I make the bed at the hotel I’m in and ignore the fact that he’s reliving his glory days in college at home (because I know he’ll have it all cleaned up before I return). It’s just a weird quirk – like my mind isn’t organized if my living space isn’t.

11. Anything else you would like to share with us?

I think I’ve said enough to give you all fodder for humiliation. 

GlobaLex February 2019 Issue is Live

By Lucie Olejnikova

As Globalex celebrates its 14th birthday this month, we are happy to bring you the February 2019 issue with four great updates: Microstates and Small Jurisdictions of Europe, Chile, Canada, and Dominican Republic. Congratulations and big thanks to all of our authors!  Webmasters and content managers, please update your pages.

UPDATE: Finding the Law of the Micro-States and Small Jurisdictions of Europe by Andrew Grossman at http://www.nyulawglobal.org/globalex/Microstates1.html.

Andrew Grossman is a retired U.S. Foreign Service Officer who served in Seoul, Abidjan, London, Tehran, Algiers and Geneva. He holds the degrees of B.A. in Economics (Clark), LL.B. (Columbia), M.A. in L.I.S. (University College London) and of Licencié en droit européen et international, Maître & Docteur en droit (Louvain-la-Neuve) and is a member of the New York Bar. He now lives in London and in Switzerland, where he researches private international law issues, especially in the fields of nationality and tax. Among his publications are “Conflict of Laws in the Discharge of Debts in Bankruptcy”, 5 Int’l Insolvency Rev. 1 (1996), “Nationality and the Unrecognized State”, 50 Int’l & Comp. L.Q. 849 (2001), “Birthright citizenship as nationality of convenience”, Proceedings, Council of Europe, Third Conference on Nationality, Strasbourg, Oct. 11-12, 2004; and “‘Islamic land’: Group Rights, National Identity and Law”, 3 UCLA J. Islamic & Near E.L. 53 (2004).

UPDATE: Researching Canadian Law by Kim Nayyer at http://www.nyulawglobal.org/globalex/Canada1.html.

Kim Nayyer is the Associate University Librarian (Law, Legal Research & Writing Program) for the UVic Libraries and an Adjunct Associate Professor for the Faculty of Law at the University of Victoria in Victoria, BC, Canada. She oversees the Diana M Priestly Law Library at UVic and teaches legal research and writing, and advanced legal research and writing courses. She regularly presents a module on the Canadian Legal System and Canadian Legal Research for graduate students in the Faculty of Law. In 2017 Kim was invited to present the Canadian Legal Research: What US Law Professors Need to Knowat the annual meeting of the Association of American Law Schools. Before joining UVic, she practiced as a research lawyer, managed library and knowledge resources, and developed and delivered legal research and writing instruction at law firms in Toronto, Calgary, and Edmonton, and as a Legal Counsel at the Court of Appeal of Alberta. After law school and before practice Kim served as a Clerk to Associate Chief Justice Jerome at the Federal Court of Canada.

UPDATE: Essential Issues of the Chilean Legal System by Sergio Endress Gómez at http://www.nyulawglobal.org/globalex/Chile1.html.

Sergio Endress has a master’s in law from the Universidad de Chile. He is a lawyer and has been a Professor of Taxation and Trial Taxation at the School of Law of the Universidad de Chile since 1994. He is also a partner of Endress y Cía., Tax Advisors. He has published “Las inversiones en materia Tributaria” (Investment from tax perspective), Editorial Conosur, 1994-1998; “Manual de Impuesto a la Renta” (Income Tax Handbook), by Patricio Figueroa V., Editorial Jurídica de Chile, 1997, reprinted in 2004, (in collaboration); “Tributación del Propietario de Empresa”, (Shareholders and Partners Taxation in Chile), Editorial Jurídica de Chile, 2005 and 2006; and several articles about taxation. Since 2007 to 2010, he was the Director of “Manual de Consultas Tributarias”, a monthly tax review published by Thompson Reuters (ex Lexisnexis) Chile.

UPDATE: Legal Research in the Dominican Republic by Marisol Florén Romero at http://www.nyulawglobal.org/globalex/Dominican_Republic1.html.

Marisol Florén Romero is the Assistant Director for Library Services and Foreign & International Law Librarian at Florida International University (FIU) College of Law. Marisol Florén-Romero manages FIU Law Library legal reference, outreach and legal research instruction activities. She oversees the acquisition and development of FIU Law Library’s foreign and international collection and is the Special Collections librarian. Dr. Florén-Romero received her B.A. in History summa cum laude from the University of Navarra, in Pamplona, Spain; a M.L.S. with a minor in Latin American Librarianship from the University of Texas at Austin; and a Ph.D. in Library and Information Science from the University of Illinois at Urbana-Champaign.

 

For more articles, visit http://www.nyulawglobal.org/globalex/index.html.

 

 

Locating UK and EU Guidance on Brexit

By Alison Shea

Brexit
Over the past week, two things happened which inspired me to write this post.  First I read this story on how the Dutch government had set up a website to provide guidance to its citizens on how to prepare for Brexit, and of course I immediately imagined how awesome it would be if the Dutch Brexit monster featured in the story teamed up with Gritty for a buddy comedy.  Second, I read FCIL-SIS Chair Catherine Deane’s column in the FCIL Newsletter asking for people to volunteer to write a blog post for Diplawmatic Dialogues.

As much as I know you were hoping to read my script ideas for the Gritty/Brexit monster buddy comedy, I began wondering if any other countries had created a comprehensive guidance site for its citizens and businesses in advance of Brexit (and especially a no-deal Brexit).  It had previously occurred to me that teaching an EU and/or UK research classes this semester would be very challenging given the timing of Brexit, and I figured the best thing I could recommend to students given this uncertainty would be to look for and follow government guidance documents.

Why recommend government guidance documents?  Because the actual withdrawal of the United Kingdom from the EU – currently scheduled to occur at 11pm GMT on March 29 – now looks like it will be very abrupt (if it happens at all), it will not be possible to amend all relevant laws to reflect the changes immediately (check out this blog post for a brief overview of the magnitude of changes that need to occur).  Thus, it will be important for anyone with an interest in Brexit to follow the government’s guidance on how to deal with it until the law can catch up.  Not only is the guidance going to be crucial for those living and working in the UK, it will also be extremely important for any country that currently engages with the UK in its (soon to be former?) capacity as a fellow EU member.   Therefore, a list of places to locate government guidance seemed like a good tool to create for librarians and FCIL instructors to have in their toolbox over the coming month(s).

After spending a few days searching and locating guidance information for most of the EU member states, I realized that the EU had already beaten me to creating a list of the relevant government guidance sites.  This was an extremely disappointing discovery, since I had already pitched this as a great blog post to Alyson and Susan and was really proud of my advanced Google (and Google Translate) skills.  However, from all my searching I can at least share my top research tip: because “Brexit” isn’t a real word, it’s a great search term to use in any language!   In the end, Alyson and Susan convinced me that there could still be value in my post, and so I humbly present a (shorter) list of relevant sites for locating government guidance on Brexit.

It should go without saying that this is what I was able to locate as of February 26, 2019; the landscape of Brexit guidance will undoubtedly change the closer we get to “B-day”, and will also change if the UK government takes new action in the interim (the latest update is that a “meaningful vote” will be held by March 12), so stay tuned!*

United Kingdom guidance

European Union guidance

Individual European country guidance

Even non-EU member states are finding it necessary to prepare for Brexit, as these countries interact with the United Kingdom under various bilateral agreements with the European Union and the European Economic Area; see, for example, this recent agreement on arrangements of citizen’s rights for many of these non-EU countries.  Three countries that have especially close ties with the UK are listed here:

 

*Looking for suggestions on how to “stay tuned” to the ever-changing world of Brexit?  Here are some of my go-to sources for Brexit coverage:

FCIL-SIS Awards

By Catherine Deane

Awards

The Executive Committee would like your input and help in identifying our esteemed FCIL-SIS colleagues who are deserving of these prestigious awards.

Have you, or an FCIL-SIS member you know, made a significant contribution to the profession in the last year? If so, please nominate yourself or a colleague for one of the three special awards that the FCIL-SIS presents each year during the FCIL-SIS Business Meeting.

The Daniel L. Wade FCIL-SIS Outstanding Service Award

This award honors an FCIL-SIS member who has made outstanding contributions to the Section in the areas of section activity and professional service.

Criteria include but not limited to:

  • Outstanding leadership in the Section, at meetings, and in committee work.
  • Special and notable service to the Section, such as participation in special projects.
  • Participation in Section educational programs and public-speaking activities.
  • Mentoring activities that encourage others in the Section.
  • Activities that encourage others to join the Section.

Past winners include: Dan Wade; Marci Hoffman; Mary Rumsey; Maria Smolka-Day; Teresa Miguel-Stearns; Mila Rush; Ellen Schaffer; Marylin Raisch; Dennis Sears; Mirela Roznovschi; Lyonette Louis-Jacques; Alison Shea; Jonathan Pratter; James Hart; Sergio Stone; and Victor Essien.

The Thomas H. Reynolds and Arturo A. Flores FCIL-SIS Publications Award

This award is given to an FCIL-SIS member or members who have greatly contributed to the professional development of their AALL colleagues, by enhancing the professional knowledge and capabilities of law librarians during any given year. The winning “publications” may be print, digital, or electronic initiatives.

Previous winners include Teresa Miguel-Stearns and Alison Shea; Marci Hoffman and Mary Rumsey; Wei Luo; Ralph Gaebler and Alison Shea; Mirela Roznovschi; Timothy G. Kearley; the authors of the Mexican Law and Legal Research Guide: Bianca T. Anderson, Marisol Floren-Romero, Julienne E. Grant, Jootaek Lee, Lyonette Louis-Jacques, Teresa M. Miguel-Stearns, Jonathan Pratter, and Sergio Stone; Sherry Leysen and Alena Wolotira; Heidi Frostestad Kuehl and Megan A. O’Brien. You can see the publications for which they won this award on the Reynolds & Flores Publication Award website.

The Spirit of the FCIL-SIS Award

This award, my personal favorite, is presented each year to members whose work furthers our mission, serves the entire FCIL-SIS, and inspires others to act. Award winners for the past 5 years include: Loren Turner; Yemisi Dina; Thomas Mills; Sherry Leysen; Evelyn Ma; Alyson Drake; Susan Gualtier; Jootaek “Juice” Lee; Joan Policastri; Julienne Grant; Ryan Harrington; Jim Hart; and Carmen Valero.

All past award winners are listed on the Spirit Of The FCIL-SIS Award website.

More details for each award can be found the FCIL-SIS Awards and Grants Website.

Award nominations are due March 31.

You may send your nomination to anyone on the Executive Committee, Catherine Deane, Loren Turner, Sabrina Sondhi, Alex Zhang.

From the Reference Desk: Is There An Annotated European Union Code?

By Amy Flick

“Is there an annotated European Union Code? I have an EU directive, and I need to find some cases that interpret it.”

First, having just taught a class on U.S. statutory legal research, I’m thrilled that a student thought to use an annotated code to find cases interpreting legislation.

There isn’t a European Union code, not exactly. But the European Union does have a classification system for its law, and there are sources for finding cases on a particular EU directive, from the European Court of Justice and from national courts.

The student was looking for cases on Directive 98/44/EC on patents for biotechnological inventions.

Although European Union law isn’t codified, the closest thing to a codification would be the Directory of Legal Acts on EUR-Lex. It arranges EU legislation in force by subject and includes consolidated acts incorporating amendments. Directive 98/44/EC is classified with Intellectual Property legislation at 17.20, but with a general heading at 17 of “Law relating to Undertakings,” I’m not sure I would have found it without already having found the Directory Classification. There is also the EuroVoc thesaurus for browsing legislation (and caselaw) by subject. Either the thesaurus terms or the Directory codes can be used in the EUR-Lex Advanced Search, along with text and other criteria (including type of legislation). In this case, a text search for “biotechnology AND patents” worked just as well.

The student already had the citation for Directive 98/44/EC, but I recommended that he look at the Directorate-General on Internal Market, Industry, Entrepreneurship and SMEs. The European Commission’s executive agencies are a great source for finding current legislation that they administer, with links to EUR-Lex. The DG’s page on Protection of Biotechnological Inventions includes the Biotech Directive with a summary, reports, and related documents, plus a State of Play of the Implementation of Directive 98/44/EC that has dates and citations for national legislation implementing the directive.

Summaries of EU Legislation on EUR-Lex are also a good way to find legislation by subject, including by general topic or to search. Again, a search for “biotechnology and patents” retrieved the summary for Directive 98/44/EC.

With a directive citation in hand, my student can find cases interpreting the directive. The EUR-Lex Document Information for the directive includes a “Relationship between documents” section that has links to Court of Justice judgments as published in the Official Journal of the European Communities.

The European Court of Justice’s CURIA site has an advanced search page with a field for “references to case law or legislation,” including directives by number. It even allows searching for pinpoint references to paragraphs within the directive.

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Since directives require that EU member states implement them with national legislation, there are also national laws and cases in national courts on the directive.

Once a directive is found in EUR-Lex, the links in the left navigational side bar include “National Transposition.” These National Transpositions by Member State provide the citations to each member state’s implementing laws for the directive. He could also use EUR-Lex’s Advanced Search Form. Choose National Transposition as the collection and search by directive number (1998 and 44).

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For this particular directive, that “State of Play” from the Directorate-General cites national implementing legislation. If a Google search doesn’t retrieve the cited legislation, the student could use the Foreign Law Guide database or the Law Library of Congress’ Guide to Law Online to find sources for national legislation.  There’s also the European Union’s N-Lex gateway to search for national legislation in N-Lex with the directive citation.

Back to looking for cases interpreting the directive, the EUR-Lex advanced search can be used to search national caselaw as well. He could use the same EUR-Lex Advanced Search Form, choose National Case Law as the collection, and enter the directive number in the Instruments Cited field.

The European Union’s Association of the Councils of State and Supreme Administrative Jurisdictions has its own Dec.Nat. database for searching national decisions on European Union law. The search page includes a field for Provision of European Union Law for searching by directive number, or other EU legislation. The results list includes country, date, title of the case, and parties, with case details including a citation to the national law and link to related ECJ judgements.

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So, the European Union doesn’t have annotated code, not is there an “EU Code.” But it does have subject resources for finding legislation. And it offers multiple ways through EUR-Lex and other EU databases to find cases that interpret an EU directive, and national legislation implementing the directive.

And my thanks to Alison Shea for sharing her European Union expertise!

Go-To Resources for the Non-FCIL Librarian

Int_lComArb_Wordle_Word_Cloud__on_Navy__2016By Janet Kearney & Michelle Penn

Hello DipLawMatic Dialogues readers! This is the first in a set of posts from Michelle and Janet on FCIL for non-FCIL librarians; the next post will focus on teaching. Michelle and Janet are both from Fordham Law Library, where Michelle is Faculty Services Librarian and Janet just made the leap from Reference Librarian to FCIL Law Librarian. Thanks for having us!

Where can I find Singapore cases on surrogacy? How do I cite check this Russian statute?  How do I find the main sources of international humanitarian law? As librarians, we often receive questions that we don’t know the answers to. What sets us apart is the ability to strategize and efficiently learn the answer. So for those of us who dabble in FCIL or only rarely get questions or are just interested, here’s a collection – a research guide of research guides and a couple of databases. While this is from the perspective of two academic librarians, these should get you started and answer the most frequently asked questions regardless of your work environment!

Research Guides:

GlobaLex – For those of you on the FCIL-SIS listserv, you have probably seen the great (and frequent!) updates to Globalex. From the publisher,       “The guides and articles published are written by scholars well known in their respective fields and are recommended as a legal resource by universities, library schools, and legal training courses.” What does this mean for users? It provides the location of various documents, but it also puts the documents in the context of their legal system. This is helpful for both those incredibly specific (and seemingly random) journal student requests and questions with broad strokes. “I need Icelandic adoption laws” – Globalex will get you started. “I want to establish a standard as customary international law” – Globalex will help you there too! Available for free online, http://www.nyulawglobal.org/globalex/index.html.

UN Library Research Guides, are unsurprisingly, wonderful resources for areas of law involving the United Nations. The researcher should keep in mind though, that the guides apply to United Nations resources and are thus not complete regarding international law as a whole. For example, the resource guides on international law may inadvertently give the novice researcher the impression that international law begins and ends with the United Nations. Available for free online, http://research.un.org/en?b=s&group_id=2087.

Databases

The World Legal Information Institution, (World LII), is home to a number of free and non-profit databases helpful to the FCIL researcher, developed by the Australasian Legal Information Institution, British and Irish Legal Information Institute, Canadian Legal Information Institute, Cornell’s Legal Information Institute, Pacific Islands Legal Information Institute, and Wits University School of Law. The searchable databases include case law, legislation, treaties, law reform, law journals, and specialist subject databases from 123 jurisdictions. Though the interface may not be as flashy as those of paid resources, it allows for an impressive level of advanced Boolean searching, including proximity searching. Note that coverage and currency can vary widely by jurisdiction. http://www.worldlii.org/databases.html

vLex Global is similar to World LII, but it is a subscription resource. It also contains case law and statutes, occasional regulations, and journal articles from over 100+ jurisdictions. The added value comes from a wider variety of materials such as forms, administrative decisions, regulations, and legislation from countries that can be harder to navigate, especially when you do not speak the language. What really gets me excited about this is the translation tool and the ability to navigate collections in my native language – sure I can use Google translate and try to parse things out, but this eliminates some of the guesswork. Translations, although not perfect, can be made between multiple languages and is not limited to English. https://vlex.com/p/vlex-global/

For primary and secondary source research, HeinOnline is home to many databases helpful to the foreign and international legal researcher. One of the most useful databases is the World Treaty Library, which includes over 160,000 treaties from 1648 to the present, as well as related articles and publications. While much of the material on Hein’s World Constitutions Illustrated is available on free websites, the database is still a useful resource, consolidating constitutional information in one place with quality English translations. For secondary sources, Hein’s Index to Foreign and Legal Periodicals is the the go-to index for over 500 legal journals. https://home.heinonline.org/