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Executive Order on Sensitive Data: What does it mean?
Learn more about how President Biden’s latest executive order affects business operations related to sensitive data
Alexis Kateifides
Director, Privacy Research
March 14, 2024
President Biden has issued an Executive Order aimed at safeguarding Americans' sensitive personal data from foreign exploitation. This sweeping action empowers the Attorney General to curb the extensive transfer of personal information to countries deemed a threat, ensuring robust protection for data including genomic and biometric details, personal health and financial information, geolocation data, and certain personally identifiable information.
National security at the forefront of data protection
The Executive Order emphasizes a proactive approach to data protection, situating it within the broader context of national security. By addressing the vulnerabilities posed by foreign access to Americans' sensitive personal data, the Order recognizes the intricate link between individual privacy and the collective security of the nation. It mandates the establishment of regulations that not only shield personal data from exploitation by "countries of concern" but also safeguard this information from indirect access via commercial avenues. Directed at an array of federal departments, including Justice, Homeland Security, Health and Human Services, Defense, and Veterans Affairs, the Order is a comprehensive measure against the multifaceted threats of data exploitation. It underscores the idea that protecting the privacy of citizens' data is not just an individual responsibility but a critical component of our national defense strategy. Through this lens, the Executive Order propels forward the notion that ensuring the security of sensitive data is pivotal in maintaining the integrity of our nation's security infrastructure against emerging global threats.
What is each department tasked with?
Department of Justice (DOJ): Tasked with leading the initiative, with regulations to protect sensitive personal data of US citizens from being exploited by other countries. Sensitive personal data here is defined as data under the following categories:
Genomic data
Biometric data
Personal health data
Geolocation data
Financial data
Other personal identifiers
The DoJ is also tasked with protecting sensitive government data, not limited to geolocation information on government sites and data on members of the military.
Department of Homeland Security (DHS): The DHS is tasked with working together with the DoJ to set security standards on the sensitive data of US citizens – preventing its access by certain countries on the commercial front, e.g. (investments, employers, third-parties).
Department of Health and Human Services (HHS): Responsible for the protection of health and genomic data from countries of concern, also taking into account companies that are located in the US.
Department of Defense (DoD) & Department of Veterans Affairs: Both departments are charged with securing data related to national defense and veterans, ensuring that the sensitive data found in contracts, grants, and even certain awards cannot be used as an access point by countries of concern.
The Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector: This team is tasked with looking over submarine cable licenses, ensuring that there are no channels for access of sensitive data here.
The DoJ’s response to the Executive Order
The Department of Justice (DOJ) has announced an Advance Notice of Proposed Rulemaking (ANPRM), aligning with President Biden's recent Executive Order. This action emphasizes the administration's commitment to safeguarding sensitive personal information.
The DOJ plans to specifically identify six countries as primary concerns, including China, Russia, Iran, North Korea, Cuba, and Venezuela. This designation reflects a strategic approach to mitigate risks associated with data exploitation.
Who will be covered by these rules?
The ANPRM outlines four categories of covered persons, including:
- Entities controlled by or affiliated with countries of concern
- A foreign person who is an employee or contractor of
- This type of entity
- A country of concern
- This type of entity
- A foreign person who has their primary residence in a county of concern
- Any person the Attorney General deems as acting on behalf of a country of concern, or subject to the jurisdiction or direction of a country of concern
What types of data transfers will be covered?
Data transfers would be bucketed into two categories – prohibited transactions and restricted transactions.
Prohibited transactions would include those between the US and a country of concern that involved:
Selling/exchanging personal data
The transfer of any genomic data that includes bulk human genome data
Restricted transactions are those which will have more security measures involved to reduce the risk involved with these transfers. These include third-party agreements that involve goods and services, employment agreements, and investment agreements.
Exemptions
The DoJ has also listed certain entities as exempt from regulation.
The following persons will not be covered under this new Executive Order:
Any US citizen, national or permanent resident
Anyone admitted to the US as a refugee or granted asylum
Any entity that falls only under US laws/jurisdictions
Anyone located in the US
As with covered persons, there are exemptions when it comes to transfers as well. These include:
- Any business transactions that follow “business-as-usual” practices including
- Financial services
- Payroll
- Compliance with regulations
- Financial services
- US Government activities
- Transactions required/authorized by law (federal or international)
What does this mean for your business?
If your organization is based in the US and conducts large transfers of sensitive personal data with other countries of concern as a part of global operations that fall into any of the prohibited or restricted transaction buckets – this will be a space to keep an eye on. While no regulation has been formalized yet, the Executive Order hints that this could be an area that the DoJ will prioritize regarding compliance measures.
How can OneTrust help?
When dealing with sensitive data and international transfers, having your data mapped clearly throughout your organization is the first step towards compliance and effective data governance. OneTrust Data Mapping Automation can help your organization identify what personal data you hold, what regulations it’s subject to, and maintain records and processes to keep your operations privacy-first and hassle-free.
To keep track of any privacy regulations across the world, be sure to check out OneTrust DataGuidance. Our team of global privacy lawyers works around the clock to ensure real-time updates on privacy and security regulations from any part of the world, with law trackers to understand which phase a law is in, detailed reports to understand what compliance measures are required, and comparison charts to display different global privacy requirements.
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