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President’s Executive Order Seeks to Protect Certain “Bulk Sensitive Personal Data” from “Countries of Concern”

By Jason C. Gavejian & Joseph J. Lazzarotti on March 6, 2024
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On February 28, 2024, President Biden issued an Executive Order (EO) seeking to protect the sensitive personal data of Americans from potential exploitation by particular countries. The EO acknowledges that access to Americans’ “bulk sensitive personal data” and United States Government-related data by countries of concern can, among other things:

…fuel the creation and refinement of AI and other advanced technologies, thereby improving their ability to exploit the underlying data and exacerbating the national security and foreign policy threats.  In addition, access to some categories of sensitive personal data linked to populations and locations associated with the Federal Government — including the military — regardless of volume, can be used to reveal insights about those populations and locations that threaten national security.  The growing exploitation of Americans’ sensitive personal data threatens the development of an international technology ecosystem that protects our security, privacy, and human rights.

The EO also acknowledges that due to advances in technology, combined with access by countries of concern to large data sets, data that is anonymized, pseudonymized, or de-identified is increasingly able to be re-identified or de-anonymized. This prospect is significantly concerning for health information warranting additional steps to protect health data and human genomic data from threats.

The EO does not specifically define “bulk sensitive personal data” or “countries of concern,” it leaves those definitions to the Attorney General and regulations. However, under the EO, “sensitive personal data” generally refers to elements of data such as covered personal identifiers, geolocation and related sensor data, biometric identifiers, personal health data, personal financial data, or any combination thereof.

Significantly, the EO does not broadly prohibit:

United States persons from conducting commercial transactions, including exchanging financial and other data as part of the sale of commercial goods and services, with entities and individuals located in or subject to the control, direction, or jurisdiction of countries of concern, or impose measures aimed at a broader decoupling of the substantial consumer, economic, scientific, and trade relationships that the United States has with other countries. 

Instead, building on previous executive actions, such as Executive Order 13694 of April 1, 2015 (Blocking the Property of Certain Persons Engaging in Significant Malicious Cyber-Enabled Activities), the EO intends to establish “specific, carefully calibrated actions to minimize the risks associated with access to bulk sensitive personal data and United States Government-related data by countries of concern while minimizing disruption to commercial activity.”

In short, some of what the EO does includes the following:

  • Directs the Attorney General, in coordination with the Department of Homeland Security (DHS), to issue regulations that prohibit or otherwise restrict United States persons from engaging in certain transactions involving bulk sensitive personal data or United States Government-related data, including transactions that pose an unacceptable risk to the national security. Such proposed regulations, to be issued within 180 days of the EO, would identify the prohibited transactions, countries of concern, and covered persons.  
  • Directs the Secretary of Defense, the Secretary of Health and Human Services, the Secretary of Veterans Affairs, and the Director of the National Science Foundation to consider steps, including issuing regulations, guidance, etc. to prohibit the provision of assistance that enables access by countries of concern or covered persons to United States persons’ bulk sensitive personal data, including personal health data and human genomic data.  

At this point, it remains to be seen how this EO might impact certain sensitive personal information or transactions involving the same.

Jackson Lewis will continue to track developments regarding the EO and related issues in data privacy. If you have questions about the Executive Order or related issues contact a Jackson Lewis attorney to discuss.

Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix…

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix of laws governing privacy, security, and management of data. Mr. Gavejian is Co-Editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Mr. Gavejian’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Mr. Gavejian helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Mr. Gavejian assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Mr. Gavejian represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. Mr. Gavejian negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Mr. Gavejian represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. Mr. Gavejian regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Mr. Gavejian’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Mr. Gavejian’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Mr. Gavejian regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Mr. Gavejian is the Co-Chair of Jackson Lewis’ Hispanic Attorney Resource Group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. Mr. Gavejian also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Mr. Gavejian served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.

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  • Posted in:
    Employment & Labor, Privacy & Data Security
  • Blog:
    Workplace Privacy, Data Management & Security Report
  • Organization:
    Jackson Lewis P.C.
  • Article: View Original Source
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