Five on Friday – Five Recent Developments that We’ve Been Watching Closely

It’s Friday iStock_000011057325XSmalland time for another overview of developments in the field of business and human rights that we’ve been monitoring.

This week’s post includes: a federal court decision holding that U.S.-based companies may be obligated to turn over customer data stored outside the United States; an amicus brief opposing President Trump’s Executive Order establishing an entry ban on individual from seven Muslim-majority countries; and new guidance from the OECD with regard to due diligence in apparel and footwear supply chains.

  • As noted previously, on January 31, the Securities and Exchange Commission issued a call for comments on all aspects of the conflict minerals rule.  More recently, various news outlets have reported that a draft executive order has been prepared by the White House that would suspend the conflict minerals rule for at least two years. On February 10, a coalition of twenty-one civil society organizations submitted a letter to the President expressing their collective opposition to any effort to suspend the rule.
  • On February 3, a federal magistrate judge in the Eastern District of Pennsylvania ruled that Google is obligated comply with a FBI warrant that will require it to turn over e-mail content stored on servers outside the United States.  The decision stands in contrast to a July 2016 decision by the Second Circuit in which held that the Stored Communications Act (“SCA”) does not authorize U.S. law enforcement authorities to order U.S.-based companies to turn over customer e-mail content that is stored exclusively outside the United States. These cases are being closely watched by privacy advocates as well as those calling for reform of the Electronic Communications Privacy Act, including the SCA, one of its component statutes.
  • On February 5, one hundred and twenty-eight companies signed on to amicus brief filed with the Ninth Circuit Court of Appeals in opposition to the Trump Administration’s January 27 Executive Order establishing an entry ban on individuals from seven Muslim-majority countries. The brief noted that “[t]he Order makes it more difficult and expensive for U.S. companies to recruit, hire, and retain some of the world’s best employees. It disrupts ongoing business operations. And it threatens companies’ ability to attract talent, business, and investment to the United States.” On February 9, the Ninth Circuit released a decision upholding a lower court’s stay of the order.
  • On February 8, the Organisation for Economic Co-operation and Development (“OECD”) released its Due Diligence Guidance for Responsible Supply Chains in the Garment and Footwear SectorThe guidance, which was developed so as to be aligned with both the OECD Guidelines for Multinational Enterprises and the U.N. Guiding Principles on Business and Human Rights, is intended to help companies in the apparel and footwear sector assess their supply chains and identify potential adverse impacts in the areas of human rights, labor, the environment, and corruption. Developed in consultation with a wide range of stakeholders, it explicitly encourages collaborative efforts and a focus on progressive improvement. 
  • New America’s Open Technology Institute recently released a set of case studies as part of its “Do The Right Thing” project. The case studies look at the circumstances that led Internet companies to adopt one or more of the following privacy and security practices: publishing transparency reports; encrypting web traffic by default; and offered two-factor authentication for online accounts. As noted in the report, each of these actions “went from something no one did, to something one company did, to it becoming a best practice that a few companies did, to it becoming a standard practice that almost all of the major companies implemented.” Critical factors identified as part of the study include: a significant crisis; benchmarking and scorecards by outside stakeholders; engagement by privacy advocates; and the actions of a “first mover” in the industry.

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