retention schedules & file plans

We’re witnessing a “rapid, unscheduled disassembly” (thanks SpaceX) of comprehensive consumer privacy laws across the United States. While these new state laws generally have a different, sleeker structure than California’s CCPA/CPRA, they share a similar impact – each such law incents covered businesses to delete unnecessary data.
Continue Reading Less Data #6: Explosion of new state consumer privacy laws compels deletion of unnecessary data

Last month California finalized its updated regulations under the California Consumer Privacy Act (CCPA), as amended by the California Privacy Rights Act (CPRA). With the CPRA, California has upped the ante on requiring data retention schedules and disposal of unnecessary data.

As always, to fully appreciate where we are, we need to remember from where

Illinois court rules that failure to establish a biometric data retention schedule is an actionable BIPA violation. What may this mean for other states’ privacy laws that require data minimization and storage limitation policies?
Continue Reading Less Data #4: Illinois court rules that lack of data retention schedule violates BIPA

We’ve already seen how new FTC regulations for GLBA-regulated financial institutions require retention schedules and disposal of unnecessary data as essential data security controls. The FTC is now also taking that position for all businesses under Section 5 of the FTC Act, as seen in a slew of recent FTC data security enforcement actions.

Two

The FTC has updated its data security regulations for the financial institutions it regulates under the Gramm-Leach-Bliley Act (GLBA). The FTC’s revised requirements for information security programs, effective June 1, 2023, will now mandate data retention policies and disposal of unnecessary customer information.

To appreciate what this means, we must take a quick look at

Two years ago I made a prediction: “For the 2020s, the dots already connect clearly – the new impetus for managing information retention and disposal will be data privacy and security compliance.  Buckle up.”

This was the last line of a 2021 blog series exploring then-recent developments in United States’ data privacy and security

In this series we’ve looked at recent developments in United States’ data privacy and security laws, primarily at the state level, that are transforming retention schedules and data disposal from merely prudent practices into compliance requirements:

Businesses in the United States have a new imperative to carefully manage records retention and promptly dispose of unnecessary information (and no, it’s not due to GDPR or other global privacy law developments).  Recent changes in U.S. data security and privacy laws, and the trends they portend, are elevating the disposal of unnecessary data from a risk management strategy to a compliance requirement.

Managing data volumes has always been prudent.  Using retention schedules to curb relentless data growth remains an established, sensible way to keep business operations efficient, manage storage expense, mitigate ediscovery costs, and limit data security and privacy exposures.  Perhaps the most trenchant explanation was offered by former U.S. District Court Magistrate Judge John Facciola:  “If your clients don’t have a records management system, they may as well take their money out into the parking lot and set it on fire.”

But as a matter of pure legal compliance, U.S. federal and state laws have historically followed a “mandatory minimum” retention approach, requiring that businesses keep specified records for at least a mandated retention period, but not compelling disposal.  With precious few exceptions, U.S. businesses have not been legally required to (1) manage data with retention schedules and (2) dispose of unnecessary data.  And U.S. privacy and data security laws have generally been silent on retention periods for protected information.  For example, HIPAA and its Privacy and Security Standards impose no retention period on covered entities for protected health information (PHI); the Gramm-Leach-Bliley Act (GLBA) and its federal functional regulators’ privacy regulations and Interagency Security Guidelines do not explicitly require financial institutions to dispose of unnecessary nonpublic customer information (NPI); and the FACTA Disposal Rule only speaks to how, not when, to compliantly dispose of consumer report information.

Well … that was then, and this is a new now, driven by recent changes in U.S. data security and privacy laws.  I’ll dig deeper into these developments in upcoming posts, but here are the high points:
Continue Reading For U.S. businesses, less data is more than ever