It was my pleasure yesterday to speak at MedInnovation Boston 2018, and deliver a presentation on “The Interplay of HIPAA, Privacy and Data Security Principles, and Health Information Interoperability“. With constantly evolving technology and the new GDPR legal framework. achieving interoperability seems harder than ever. More
Category Archives: Cybersecurity & Cybercrime
It is the last day of Bio 2018 and I am attending a curiously titled session: Is Biotechnology Drowning in Health Related Data? The panel’s answer to that question is “no” — in fact, they all agreed there isn’t enough data yet, if we want to achieve “convergence”. That’s the new buzz word: convergence. One speaker described it as “a better quantification of humanity.” … More
It took three days, but I finally found a panel at BIO 2018 that addressed the current challenges in privacy and security regarding health data. This panel, Realizing the Potential of Clinical and Consumer Genomics, was focused on all the new genetic tests that are available (with more to come) and all the genetic data those tests are generating. I was particularly impressed with the approach of Mindstrong Health to privacy and security,… More
I am attending BIO 2018 in Boston, just steps from our Boston office. Naturally, I was drawn to yesterday’s session on “Life Sciences Cyber Exposures and Risk Mitigation Considerations.” But I came away disappointed. First of all, the session was held in a small room and even then, it was only one-third full (maybe 30 people of the 16,000 attending BIO 2018 chose to attend).… More
It’s probably not going to change anything, but the Democratic National Committee has sued Russia (and members of the Russian establishment), members of the Trump campaign, and Wikileaks regard the 2016 election security breaches. The DNC’s complaint includes almost every claim imaginable in response to a hacking incident. If nothing else, it’s a good model for lawyers to crib from. More
Partner Colin Zick Speaks to Bloomberg BNA About the Privacy Concerns of Ride-sharing and Healthcare
Reproduced with permission from Bloomberg Law: Health IT Law & Industry Report, (March 9, 2018). Copyright 2018 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com
By James Swann
Privacy and security concerns are mounting as Uber and Lyft break into the medical transportation space.
The two companies recently rolled out separate initiatives to drive patients to and from medical appointments,… More
There seems to be a new scientific study published every day—like this one that alleges that eating cheese every day might actually be healthy. Understandably, many of these studies fly under the radar — but two recently published reports regarding cybersecurity and health care should not. These two reports show that the healthcare industry in particular is continuing to struggle with cybersecurity issues. Understanding the vulnerabilities revealed by these studies is important to healthcare organizations attempting to reduce their cybersecurity risks and legal liabilities.… More
Presentation: The Legal Benefits and Practical Problems of Data Encryption in the Workplace (and Elsewhere)
Partner Colin Zick was recently invited to speak to the Union College Computer Science Department’s Seminar Series. His presentation addressed the difficulties in implementing encryption in the workplace, the challenges to encryption from law enforcement, and the future of encryption in light of U.S. v. Microsoft and the coming GDPR.
As the SEC has made clear on numerous occasions over the past year, cybersecurity will continue to be a major enforcement priority under the Commission’s new leadership. As we have previously covered, one new area of potential enforcement activity that the SEC has warned about concerns the failure of public companies to make disclosures regarding material cyber events. While the SEC had previously provided some guidance to publicly traded companies about when to disclose such events,… More
In the European Union (“EU”), “everyone has the right to the protection of personal data concerning him or her” under the Charter of Fundamental Rights. Intellectual property is also protected as a fundamental right under the Charter, as is freedom of speech. These rights can sometimes conflict. In two previous posts on cases about linking to Playboy pictures and the inspiration for Jeff Koons’ sculptures,… More
Reproduced with permission from Bloomberg Law: Privacy & Data Security, (Jan. 18, 2018). Copyright 2018 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com
By James Swann
The federal government has identified two new cyberthreats that put patients’ personal data at risk for exposure.
The threats, known as Spectre and Meltdown, exploit a vulnerability in many commercial computer chips underpinning health-care computer networks,… More
Recent federal legislation indicates a growing federal interest in blockchain as a potentially integral technology in cybersecurity systems. This comes on the heels of recent legislation in the New York Assembly also suggesting state level interest in blockchain.
As part of our Year in Preview series, we’ve recently covered both international cyberwar and the rise of cryptocurrency. Just before the holidays, both of these topics collided in a decidedly unpleasant manner.
On December 19, the South Korean cryptocurrency exchange Youbit filed for bankruptcy, disclosing that it had just suffered a hack that made off with about one fifth of the bitcoins stored on its platform. … More
Recent New York Legislation Demonstrates Growing Governmental Interest in the Use of Blockchain for Cybersecurity
Recent legislation in the New York State Assembly reflects a growing governmental interest in blockchain as a technology in cybersecurity systems. On November 27, four different bills addressing blockchain technologies were introduced into the New York State Assembly. Most significant among these is Assembly Bill 8793, which would establish a task force to study and report on the potential implementation of blockchain technology in state record keeping,… More
DHS Amplifies Call for Public-Private Partnership in Cyberdefense and Pledges to “Intervene Directly”
The worldwide WannaCry attack from May 2017 has been officially blamed on North Korea. In a press briefing publicly announcing the Administration’s declaration of North Korean culpability, the Department of Homeland Security continued to note the importance of public-private partnership in cyberdefense. While such collaboration (and desire for collaboration) is not new, the press briefing did appear to call for a newfound emphasis on the need for the government to work together with private companies. … More
This week, the Advanced Cyber Security Center (ACSC) released a new report entitled, “Cyber Security Post Equifax: Perceptions and Priorities from Massachusetts Residents.” The report highlights the results from a survey of Massachusetts residents conducted to better understand public opinion on consumer and privacy matters and cyber security related to the Internet. Click here to read in full. More
Editors’ Note: This is the third of a multi-part end-of-year series examining important trends in data privacy and cybersecurity during the coming year. Click here for our previous entry on HIPAA Compliance, and here for our entry on emerging security threats. Up next: trends in state enforcement.
This time last year, Donald Trump had just been elected,… More
Editors’ Note: The following is an excerpt from an article published by SearchSecurity. To read the full article, click here. Registration required.
A data breach is a business crisis that can have enduring ramifications. While the discovery of a breach can initiate a drill — investigating what happened, remediating the security gaps, engaging law enforcement, and complying with state and federal notification laws —… More
As you enjoy the holiday weekend, and even some Cyber Monday shopping, keep in mind these online shopping tips from the FTC:
- Know the seller and the item. Put the company or product name in a search engine, along with “review,” “complaint,” or “scam.” Read the reviews. Be sure you can contact the seller if you have a dispute.
- Avoid clicking links in emails.…
Editors’ Note: This is the second of a multi-part end-of-year series examining important trends in data privacy and cybersecurity during the coming year. Click here for our previous entry on HIPAA Compliance. Up next: trends in federal enforcement.
After one of Britain’s first victories in the Second World War, Winston Churchill declared that it was “perhaps, the end of the beginning” – a turning point in the war. … More
Partner Colin Zick will join ACSC Executive Director Michael Figueroa on a panel called “Surveillance, Security, and Privacy” at the 2017 ACSC Annual Conference on November 2. The session will examine challenges and considerations for utilizing advanced surveillance capabilities from multiple perspectives. Click here for details. More
Interesting viewpoints from this Journal of the American Medical Association article on FDA’s August 2017 notice re: cyber security issues with certain pacemakers, including:
- “This first widespread cybersecurity advisory involving a permanent medical device implant provides some insight into the ways in which the public experience with these types of medical device malfunctions might be improved.”
- “Communications regarding widely used products for which multiple vendors exist in the marketplace should serve as opportunities to highlight current FDA and industry standards,…
Since the adoption of the Regulation on 27 April 2016, the Article 29 Working Party (with representatives of the Supervisory Authorities of all Member States) has issued 3 sets of guidance on “Data portability”,… More
After repeated requests from various states, the Department of Homeland Security informed state governments which states had their election systems hacked or otherwise compromised during the 2016 general election. According to reports, 21 states had their systems compromised in some fashion, although there is no evidence voting machines themselves were tampered with and in only some instances were computer systems actually penetrated.… More
As most are aware, the Massachusetts Attorney General has won the race to the courthouse and been the first regulator to file suit against Equifax.
- The 28 page complaint is summed up on paragraph 4:Consumers do not choose to give their private information to Equifax, and they do not have any reasonable manner of preventing Equifax from collecting, processing, using, or disclosing it. Equifax largely controls how,…
Privacy and data security have rocketed to the top of the list of concerns for all corporate boards. Whether you are a technology company, a biotech, or a traditional widget maker, your company has confidential information about its products, customers and employees. And that information has to be protected as a matter of law, both by statute and under contracts with your customers and suppliers.
As in-house counsel,… More
Kaspersky Lab, a Russian-owned cybersecurity company that sells anti-virus software and other kinds of IT systems security products, has been banned from use by the federal government. This latest development comes by way of the Department of Homeland Security (DHS), which issued a directive requiring agencies to (1) identify Kaspersky products they are using, (2) create plans to stop using those products, and,… More
As we previously said, the Equifax breach affects approximately 143 million Americans. While the hackers stole data that includes addresses, birth dates, full names and Social Security numbers, there are steps you can take today that will protect you from an identity theft worst-case scenario.
Assume the hackers stole your data
While no one wants to be in a situation where personal information was exposed,… More
Me and 143 million of my closest friends may have had our personal information inappropriately accessed through a breach at Equifax–is there no safe haven anywhere? Deferring that question for another day, here are the instructions from the FTC on how to check if your data is implicated. The first time I tried, I could not access the site:
I waited an hour and went back to the site. … More
As we’ve blogged in the past, the cannabis industry is particularly susceptible to cyberattacks. With threats like a federal crackdown and workplace drug testing, customers have a vested interest in keeping their information private. Unfortunately, the newly-legal cannabis industry has limited experience with data security. While traditional industries have the benefit of expertise and mature regulatory oversight to foster best cybersecurity practices,… More
Privacy and data security have rocketed to the top of the list of concerns for all corporate boards. Whether you are a technology company, a biotech, or a traditional widget maker, your company has confidential information about its products, customers and employees. And that information has to be protected as a matter of law, both by statute and under contracts with your customers and suppliers.… More
Christopher Painter, the State Department’s “Coordinator for Cyber Issues” stepped down on July 28, 2017. Described as the Department’s “weary soldier in America’s cyber war,” Painter traveled the globe advancing U.S. interests in cyberspace. His efforts included coordinating diplomacy in cyber security matters and launching “cyber dialogues” with foreign powers. The aim of those dialogues: reducing cyber threats ranging from D-DOS attacks to the theft of intellectual property.… More
Did someone steal your tax return? You are not alone. Indeed, the rise in tax-related identity theft has been well documented. In 2015, the FTC reported a 50% increase in identity theft complaints. A primary cause for that increase was the rise in tax-related identity theft. In response to this increase, the IRS has made stopping identity theft and refund fraud a top priority. From 2011-2014, the IRS reported that it stopped 19 million suspicious returns and protected more than $63 billion in fraudulent returns. … More
A mere month and a half after the WannaCry strain of ransomware caused major havoc in European and Asian countries, another major ransomware attack hit large institutions across Europe and the United States yesterday. Hardest hit has been Ukraine, which has seen major attacks on its government, banks, and power infrastructure. Other European firms such as Germany’s Deutsche Bahn railways and Danish shipping firm A.P.… More
The Boston Municipal Research Bureau and Foley Hoag LLP Invite You to a Member Briefing on Cybersecurity in 2017
Our speakers will provide insights into some of the most significant Cybersecurity challenges facing businesses and government today, including:
- Evolving threats to how businesses & government operate
- Insider threats and what that means for the future
- Importance of being prepared and protected
- The cost of cyber crime
- Ed Davis,…
Emmanuel Macron won France’s presidential election in a landslide. He defeated his opponent, Marine Le Pen, by more than thirty percentage points. Such a high margin might lead one to think that his victory was inevitable. But on the eve of the election, it did not seem that way.
On the Friday before the Sunday election, hackers released a trove of documents they had stolen from the Macron campaign.… More
Presented by Foley Hoag LLP and PwC
A data breach is a business crisis. What should you do?
Learn first-hand as Foley Hoag LLP and PwC walk you through the practical and legal aspects of responding to a data security incident. From understanding how to be prepared to thinking through best practices, this webinar is designed to help you get a handle on an emergency that every business must confront.… More
The Computer Fraud and Abuse Act, or CFAA, is the federal “anti-hacking” statute (or sometimes referred to as a “computer trespass” statute). In essence, the CFAA prohibits intentional unauthorized access into another computer, when such action directly accesses certain protected information or otherwise causes damage or loss. The CFAA provides for both criminal penalties and civil causes of action. The scope and meaning of access “without authorization”… More
First, the basic facts about the recent ransomware attack:
- US-CERT has received multiple reports of WannaCry ransomware infections in several countries around the world.
- Ransomware is a type of malicious software that infects a computer and restricts users’ access to it until a ransom is paid to unlock it. Individuals and organizations are discouraged from paying the ransom, as this does not guarantee access will be restored.…
Those “in the know” in the cybersecurity world have been aware for more than a year of the threat posed by ransomware, a type of malware that locks victims’ access to their files until they pay a ransom. But discussion of the threat was mostly localized to cybersecurity professionals, blogs like this one, and various guidances released by federal agencies during 2016. But ransomware may just have entered the general public consciousness in a big way.… More
The saga of the cyber security executive order continues; a new draft surfaced just last week. The first draft leaked in January, shortly before the President was expected to sign a cyber-security order. He abruptly postponed. Another draft leaked in February, but the President didn’t sign that one either. Perhaps this latest draft is the final one. “Rumors had it,” Paul Rosenzweig writes,… More
The Boston Bar Association’s inaugural Privacy and Cybersecurity Conference will be held on May 24. The conference will bring together attorneys from private practice and in-house legal departments to network and discuss key topics and trends in privacy and cybersecurity. This full-day conference will cover a wide range of topics from data breach response and litigation to compliance and transactional issues. Panelists will discuss new developments in the legal and regulatory landscape,… More
U.S. Steel ITC Case Alleging Chinese Government Hacked Its Network and Stole Its Secret Formulas May Be Revived
Section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337) prohibits “unfair methods of competition and unfair acts in the importation of articles … into the Unites States,” including the importation of articles that infringe various types of intellectual property. Companies can file complaints in the ITC and administrative law judges oversee the investigations. … More
Legal marijuana is America’s fastest-growing industry. According to ArcView Market Research, cannabis revenue is expected to exceed $22 billion by 2020—nearly double that of the NFL. This past year, Colorado saw its sales reach over $1 billion. Here in Massachusetts, sales are expected to grow to $900 million within three years. Given the nationwide trend toward legalization (at the time of writing,… More
With cyber security threats on the rise, broker dealers must prioritize protection of electronic investor information. What cyber security threats exist for broker dealers? In its 2015 Report on Cyber Security Practices, the Financial Industry Regulatory Authority (FINRA) identified a wide range of actors that may attempt to compromise a broker dealers’ electronic records and functions: (1) cybercriminals seeking to steal; (2) nation states; (3) terrorist groups;… More
Held at the Courtyard Marriott in Boston on May 24 , this full-day conference will cover a wide range of topics from data breach response and litigation to compliance and transactional issues. Panelists will discuss new developments in the legal and regulatory landscape, while providing strategies to effectively prepare and respond to your client’s needs and offer insights into challenges and opportunities ahead.… More
(First in a continuing series.)
Active Cyber Defense, or ACD, is a broad category encompassing different kinds of actions that organizations can take to defend against breaches and cyberattacks. The operative word is “active.” Conventional security against breaches tend to involve anti-virus software, encryption, and other perimeter defenses that act to prevent outsiders from coming in to your organization’s systems. ACD tools are different, and involve anticipating,… More
Law360 recently announced the formation of its 2017 Privacy & Consumer Protection editorial advisory board, which includes partner Colin Zick..
The purpose of the editorial advisory board is to get feedback on Law360’s coverage and to gain insight from experts in the field on how best to shape future coverage.
The beginning of March, and a spell of unseasonably warm weather, graced the Northeast this week. So too did New York’s first-in-the-nation cybersecurity regulations. As we reported here in January, the initial launch of regulations was scuttled in response to industry concerns about scope and the inability to modify internal security measures by the established deadlines. This resistance led New York’s Department of Financial Services (“DFS”) to slightly modify the regulations and delay implementation by one month. … More
More than two weeks ago, the President postponed issuing an executive order on cybersecurity. Since then, we’ve had no word from the White House on when he intends to sign it. However, two purported drafts of the order have wound up on the Internet—the Washington Post published the first one, and Lawfare, the second. Here are a few quick impressions on those drafts,… More
Should businesses be thought of as victims or bad actors when it comes to data breaches? State attorneys general are embracing the idea that businesses are not necessarily adversaries in the struggle to protect sensitive consumer information. Over the past several years state attorneys general have exerted efforts to both educate businesses as to their data privacy responsibilities, and collaborate with businesses in constructing more robust cybersecurity policies. The spotlight now is on the Ohio Attorney General,… More
Make Cybersecurity Great Again? Cybersecurity Challenges — and Opportunities — for the Trump Administration
The Trump Administration has taken office at a time when cybersecurity has increasingly entered the public consciousness as a major challenge facing both the United States government and the business community. Cyberattacks from both criminal and state actors have bedeviled businesses and roiled politics over the past year. Against this backdrop, the administration has professed a strong commitment to cybersecurity, for instance designating former New York City Mayor Rudy Giuliani as a high-profile cybersecurity liaison to the private sector,… More
Who should you call when you suspect, or are certain of, a data breach? Data breaches and other cybersecurity incidents have become of a fact of life. Yahoo! recently disclosed that data for over one billion users was compromised in 2013. Hundreds of incidents affecting millions of records were reported in 2016 alone. So when — not if — your company suffers a breach,… More
The recent hack of the Democratic National Committee (DNC) and the United States’ subsequent decision to impose retaliatory sanctions against Russia poses an important question: what does international law have to say about state-sponsored cyberattacks? Unfortunately, and perhaps unsurprisingly, the answer is, very little. While technological innovation races ahead at warp speed, international law has lagged behind.
There are no international treaties on cyber warfare.… More
In late December, New York’s Financial Services Superintendent Maria T. Vullo announced that the New York’s Department of Financial Services’ (“DFS”) new cybersecurity regulations would not go into effect on January 1, 2017 as initially planned. These “first-in-the-nation” cybersecurity regulations were designed to help protect consumers and the financial system from the increasingly serious threat of cyberattacks. However, the regulations faced opposition from the financial services companies and insurers that would have been subject to them.… More
Editor’s note: This is the sixth and last in our end-of-year series. See our previous posts on trade secrets, state regulation and law enforcement, HIPAA compliance, emerging threats, and energy. See you in 2017!
Fragmentation in U.S. data privacy and cybersecurity law is both peril and promise. The peril? Businesses must contend with uncertainty and the costs associated with pleasing many regulatory masters. … More
Editor’s note: This is the fifth in a continuing end-of-year series. See our previous posts on trade secrets, state regulation and law enforcement, HIPAA compliance, and emerging threats. Our last post will focus on federal regulation and law enforcement.
More information from HHS OCR about the phishing threat:
- On November 28, 2016, the HHS Office for Civil Rights issued a listserv announcement warning covered entities and their business associates about a phishing email that disguises itself as an official communication from the Department. The email prompts recipients to click a link regarding possible inclusion in the HIPAA Privacy, Security, and Breach Rules Audit Program,…
Editor’s note: This is the fourth in a continuing end-of-year series. See our previous posts on trade secrets, state regulation and law enforcement, and HIPAA compliance. Our last two posts will focus on the energy industry, and federal regulation and law enforcement.
In 2016, new and alarming cybersecurity threats emerged, raising concerns in government, the business world,… More
This alert just in from HHS OCR:
“It has come to our attention that a phishing email is being circulated on mock HHS Departmental letterhead under the signature of OCR’s Director, Jocelyn Samuels. This email appears to be an official government communication, and targets employees of HIPAA covered entities and their business associates. The email prompts recipients to click a link regarding possible inclusion in the HIPAA Privacy,… More
The year ahead promises to be a busy one for those with responsibility for HIPAA compliance, as the Office of Civil Rights (OCR), charged with enforcing HIPAA, continues to lean in to compliance initiatives and addresses new questions in the rapidly-evolving healthcare information technology environment.… More
Editor’s Note: This is the second in a continuing end-of-year series. Stay tuned for our next installment, discussing HIPAA compliance.
In the patchwork of state and federal law regulating the use and maintenance of personal confidential information, states play a significant role and can often be the most important regulator and law enforcement authority. Recent events have signaled changes in how states interpret and enforce their data privacy standards —… More
Editor’s Note: This is the first of an end-of-year series of posts examining coming trends in cybersecurity. Posts will examine trends in state regulations, federal regulatory authority, the changing nature of the threat landscape, and HIPAA. This post discusses a shift in concern from personal consumer information toward company trade secrets.
When it comes to the issue of data privacy and security, especially among lawyers, the discussion generally concerns personally identifiable information. … More
The U.S. Department of Homeland Security says that all employees need to know the signs of a cyber-attack, not just those who work in the IT field. This is increasingly important as more companies move business operations online. The Department stresses employees should make passwords complex, beware of phishing emails and report all suspicious activity to their company’s IT department.
In Case You Missed It: The Federal Trade Commission has opened a public comment period to evaluate its Safeguards Rule (16. C.F.R. § 314.3). Under the Gramm-Leach-Bliley Act (GLBA), which regulates financial institutions, the FTC is empowered to promulgate regulations governing how financial institutions secure consumer information. The Safeguards Rule, as currently in force, does not have specific “how-to” requirements, but rather broad and flexible standards that financial institutions can use as guidelines in assessing risks to the data they maintain and in developing viable security plans. … More
In Case You Missed It: Sometimes data breaches crop-up in the most unlikely of places. Last week we learned that the vendor that handles fish and hunting licenses for the states of Idaho, Oregon, and Washington was hacked. The breach potentially exposed the following information for those with fishing or hunting licenses in those northwest states: names, addresses, driver’s license numbers, dates of birth, and the last four digits of Social Security numbers. … More
In Case You Missed It: In a sign of the growing importance of cyber operations in warfare, the Obama administration plans to elevate the status of the Pentagon’s Cyber Command. The U.S. Cyber Command, or USCYBERCOM, was created on June 23, 2009. Its stated mission is to, among other things, “conduct full spectrum military cyberspace operations” to “ensure US/Allied freedom of action in cyberspace and deny the same to our adversaries.” Currently,… More
In Case You Missed It: The Federal Trade Commission issued an opinion in the LabMD case, overturning an ALJ’s November 2015 decision holding that the FTC failed to meet its burden to prove that LabMD’s data security practices caused or were likely to cause substantial consumer injury. (See this blog’s previous coverage of that decision here.) The FTC’s complaint against the company concerned two different data privacy incidents that allegedly affected over 10,000 consumers. … More
Are you looking for an introduction to the European Union’s General Data Protection Regulation (GDPR)? To find out when and how it’s going to impact you and your organization, listen to this quick 10 minute podcast with, Deborah Hurley. Deborah is an adjunct professor of the practice of computer science at Brown University, fellow at the Institute for Quantitative Social Science at Harvard University, and principal at Hurley Consulting.… More
In Case You Missed It: U.S. Major party platforms address cybersecurity. The two major parties have released their 2016 election platforms, both of which include cybersecurity planks. The Republican platform’s perspective of cybersecurity is an element of national security and international relations. The platform called for harsh responses to cyber-attacks against American businesses, institutions, and government, applauded the Cybersecurity Information Sharing Act of 2015, and pledged to “explore the possibility of a free market for Cyber-Insurance.” The Democratic platform is largely as a continuation of President Obama’s cybersecurity policies.… More
HHS OCR Guidance on Ransomware Attacks: They Constitute a “Security Incident” and Are Likely a Data Breach
On July 11, 2016, the HHS Office of Civil Rights (OCR) released guidance on HIPAA covered entities’ responsibilities in a ransomware attack, a type of cyber-attack that has targeted the health care sector extensively in recent months. This guidance comes in the wake of a June 20, 2016 “Dear Colleague” letter from HHS Secretary Sylvia Burwell highlighting ransomware issues. The most notable of OCR’s statements is that ransomware attacks often constitute breaches subject to the HIPAA Breach Notification Rule.… More
This post originally appeared in Law360. Written by Allison Grande. Edited by Philip Shea and Brian Baresch
The rapid rise of the hit smartphone game “Pokemon Go” has opened the developer of the app up to heavy scrutiny from regulators and users, who may end up wielding a variety of privacy and consumer protection laws to address concerns over the type and quantity of data being collected.… More
The recently-released Pokémon Go has quickly emerged as a cultural phenomenon, with legions of players using their phones to “catch” Pokémon that emerge all around them, visible (thankfully) only to players. While catching Pokémon by phone is far less cumbersome than collecting boxes upon boxes of Pokémon cards, as some of us did in the early aughts, it does come with its own set of pitfalls. Specifically,… More
In Case You Missed It: The EU/US Privacy Shield is set to go into effect this Tuesday, July 13, pending a decision today by the EU’s College of Commissioners. On Friday, July 8, the Privacy Shield agreement (entered into in February) was adopted by EU member states. EU/US data transfer has been in limbo ever since the erstwhile Safe Harbor was invalided by the European Court of Justice last year. … More
In Case You Missed It: Ruling in FTC v. Amazon Suggests a Way Forward for Companies Responding to Actions Brought by the FTC after a Data Breach. The FTC’s recent actions in the realm of data security have been predicated on its claim of statutory authority to seek injunctive relief for the failure to maintain reasonable and appropriate data security practices. A U.S. District Court ruling last week casts some doubt on that authority. … More
In Case You Missed It
The FTC settled with mobile advertising company InMobi for $950,000 in civil penalties, along with the implementation of a privacy program, based on the FTC’s charges that InMobi impermissibly tracked the locations of both adult and child consumers for the purpose of geo-targeted advertising. The latter, of course, also implicated allegations of violations of the Children’s Online Privacy Protection Act (COPPA) rule. … More
Last week, the Department of Homeland Security (“DHS”) released its Final Rules for private-sector information-sharing under the Cybersecurity Information Sharing Act of 2015 (“CISA”). CISA permits private companies to share cyber threat information with the U.S. government and shields those companies from liability for doing so. The new CISA Rules outline exactly how this information-sharing will work, namely: how information is submitted; what information gets submitted; and what happens to the information after submission.… More
In Case You Missed It: Illinois strengthened its data privacy and security law, with the amendments going into effect in January 2017. The amendments include expanding the definition of “personal information” to include a username or email address of an Illinois resident in conjunction with a password or security question answer that would permit access to an online account. The definition is also expanded to include medical and health insurance information. … More
The FBI recently released an article discussing the spate of ransomware attacks on a variety of different entities, including hospitals. In the article, the FBI warned that ransomware attacks and the cybercriminals carrying them out are growing increasingly sophisticated. The FBI opposes paying a ransom when hit by a ransomware attack, saying that doing do incentivizes more ransomware attacks, can inadvertently fund other illegal activity, and does not always result in the restoration of access. … More
In Case You Missed It: The SEC fined Morgan Stanley $1 million for a 2014 data breach. While the FTC had declined to pursue an enforcement action, blaming the breach on technical issues rather than any actions or omissions on the part of Morgan Stanley, the SEC reached a different conclusion. The SEC faulted Morgan Stanley for, among other things, failing to have adequate and up-to-date cybersecurity policies and for failing to correct gaps and flaws in its security systems. … More
In Case You Missed It: US and EU officials signed on to the so-called “Privacy Umbrella” deal last week. The agreement is designed to protect the personal data of EU citizens when it is transferred to the US for law enforcement purposes — a sort of criminal counterpart to the sturdier-sounding Privacy Shield we discussed here last Thursday. And, like the Shield, the Umbrella has drawn its share of critics,… More
Hedge Fund Association Symposium in Boston
The Securities and Exchange Commission has reiterated that cybersecurity threats and the adoption of sufficient policies and procedures will remain a compliance and examination priority for 2016. Please join us for a discussion of the primary threats facing managers of private funds, particularly emerging managers, and practical steps that they should be taking to protect their business from cybersecurity threats.
This event is complimentary for HFA members and friends of Foley Hoag. … More
Unfortunately, health care providers are the perfect mark for theft and extortion because they have huge amounts of sensitive information and maintain such information in computer databases at risk of infiltration. On May 17, Foley Hoag presented a webinar discussing the ongoing crime sprees involving theft of patients’ identities and health information; ransomware involved in these crimes; related data security issues affecting health care providers; and how they implicate law enforcement and the criminal law aspects of HIPAA.… More
How Can Companies Transfer Personal Data and Remain Compliant?
The French-American Chamber of Commerce, Foley Hoag LLP and The Consulate General of France in New York are pleased to invite you to a timely panel discussion and networking event.
Date: Wednesday, May 25
Time: 6:00 pm – 8:00 pm
Location: Consulate General of France
934 Fifth Avenue
New York,… More
As litigators, we help clients resolve conflicts that have matured into disputes. In the realm of cybersecurity, we defend claims brought by private parties or governmental entities against companies facing the fallout from a data breach.
In advising clients in the context of litigation, we have identified tools that are available to mitigate or prevent the types of breaches that we see in litigation. In the area of cybersecurity,… More
Written by Elizabeth Snell | This article was originally published on HealthITSecurity.com
The recently announced OCR HIPAA audits are not a cause for panic, according to experts, especially of organizations have proper documentation.
The GDRP sets out uniform new rules in the field of data protection across the EU, rules that will standardize the law in the 28 EU Member States and have an impact on both European and non-European companies. For example:
- data controllers (companies collecting and using personal information) will have a wide range of new obligations,…
After the invalidation of the Safe Harbor by the European Court of Justice (“ECJ”) last October in the Schrems case, negotiations between the European Commission and US authorities led to a new agreement called the EU-US Privacy Shield. However, the EU’s 1995 Data Protection Directive provides that the Article 29 Working Party (“WP29”) has to issue an opinion on this kind of agreements and it did so on April 13.… More
Hospitals are increasingly the target of hackers, particularly in the form of “ransomware.” What follows is a primer on ransomware and how to avoid being a target of it.
What is ransomware?
The new framework dedicated to the EU / US flow of personal data is in fact a combination of several documents issued by the US and the EU.
On the US side, we have a letter sent by the U.S. Secretary of Commerce Penny Pritzker on 23 February 2016 to EU Commissioner Věra Jourová including the “package of EU-US Privacy Shield materials” (of 128 pages) which is made of 6 letters issued by various US officials (see details at the end of this article).… More
As part of implementing the EU-US Privacy Shield, on February 24, 2016, President Obama signed the Judicial Redress Act (H.R.1428/S.1600). This law is designed to give EU citizens the right to sue the U.S. government for privacy violations. In particular:
This article was originally published in Law360 with permission to reprint.
Businesses confronting data breaches can face litigation from private consumers as well as from governmental entities. Managing litigation risk varies in these contexts because of the limitations of bringing private rights of action.… More
On December 18, 2015, President Obama signed the Cybersecurity Act of 2015 (The “Act”), legislation designed to combat online threats to the federal government, state and local governments, and private entities. Within the Act are four titles, the most significant of which is Title I, the Cybersecurity Information Sharing Act (“CISA”) (which begins at p. 694).
CISA addresses the manner in which the federal government and non-federal entities may share information about cyber threats and the defensive measures they may take to combat those threats.… More
Today, the Article 29 Working Party (the advisory body on data protection and privacy composed of representatives from the national data protection authorities of all EU Member States) was to meet in Brussels to discuss, amongst other things, the consequences of the European Court of Justice ruling of 6 October 2015 in the Maximilian Schrems case, with EU-US data flow at the top of its agenda.
The scaffolding of the FTC’s powers in the realm of cybersecurity continues to be built. On Monday, the FTC’s Chief Administrative Law Judge D. Michael Chappell issued an initial decision in the FTC’s closely watched enforcement action against LabMD. The case involves a 2008 incident in which a data security company (Tiversa Holding Co.) discovered a LabMD document containing personal information of 9,300 patients was available on a P2P file sharing network. … More
I had the pleasure of moderating an excellent panel at the Advanced Cyber Security Center’s annual conference on November 4. The panel’s topic for discussion was “What is Reasonable in Cybersecurity: Responsibility and Accountability for Cybersecurity Practices.” I learned a great deal from our excellent panelists, Gus Coldebella (Fish & Richardson), Deborah Hurley (Harvard University), and John Krebs (Federal Trade Commission), as well as from the audience’s questions.… More
CFTC Approves NFA Interpretive Notice on Information Systems Security Programs, Including Cybersecurity Guidance
The CFTC recently approved the National Futures Association’s interpretive notice (the “Cybersecurity Notice”) on the general requirements that members should implement for their information systems security programs (“ISSPs”), which includes cybersecurity guidance and ongoing testing and training obligations.
The Cybersecurity Notice will be effective March 1, 2016 and applies to futures commissions merchants, commodity trading advisors,… More
Cybersecurity and Risk Management: “Navigating the Digital Age: The Definitive Cybersecurity Guide for Directors and Officers”
A timely new resource for business executives, technology professionals, and lawyers alike is the newly-published Navigating the Digital Age: The Definitive Cybersecurity Guide for Directors and Officers from the New York Stock Exchange and Palo Alto Networks. At 355 pages, the guide provides information from dozens of contributors from around the country and from various backgrounds. The guide explores 46 separate topics, focusing on such issues as prevention,… More
The Cybersecurity and Information Sharing Act (S.754), or CISA, cleared an important hurdle on Thursday when the Senate voted 83-14 to end debate on several amendments to the bill. CISA creates a cyberthreat information sharing system to, in the words of the bill, “improve cybersecurity in the United States.” Specifically, as currently drafted, the bill requires various government actors and agencies (such as the Attorney General and the Department of Homeland Security) to create specific policies and regulations relating to the sharing of cyberthreat data from private entities and within government entities. … More
This month’s edition of the Advanced Cyber Security Center’s newletter includes my discussion of lessons to be learned from the Wyndham decision:
Historically, security was an issue reserved in a back room for the IT department, if there were even a budget and ample resources. To the public, cybersecurity meant identity theft and proceeded with business as usual with the comfort of an anti-virus protection that may have come with their computer.… More
By Martha Coakley and Jon Hurst
This entry originally ran as an op-ed in the September 25, 2015 edition of The Boston Globe.
Hardly a week goes by without a news report of a new cyberattack. As any consumer affected by fraud knows, the harm is real. The impact on businesses, government, and other targets is also real,… More
Delaware Attorney General Matt Denn is serious about online privacy, and aims to make Delaware “the safest state in America for kids to use the internet.” This August, Delaware Governor Jack Markell signed into law four online privacy bills drafted by the Attorney General, the most substantial of which is the Delaware Online Privacy and Protection Act.
Over one year ago, our colleague Chris Hart argued that the District of New Jersey court’s decision in FTC v. Wyndham Worldwide Corp. et. al., No. 13-1887-ES, “point[ed] to the possibility that the FTC has potentially broad power, and a far reach, to bring actions for data breaches as a general matter.” That possibility became substantially more concrete this week,… More
This seminar was presented by Foley Hoag LLP and and a panel of industry experts on ISO 27018, the new international standard governing the processing and protection of personal information by public Cloud Service Providers (CSPs). Even though this new standard is voluntary, it is widely expected to become the benchmark for CSPs going forward.
As the first and only international privacy standard for the cloud,… More
The next MIT Enterprise Forum of Cambridge Innovation Series event, “Building a Proactive Cyber Defense Strategy, from Tools to Tactics,” will take place tomorrow, May 27, beginning at 5:30 p.m. at the Stata Center, 32 Vassar Street, Cambridge. There is a great line-up of speakers, including our own Christopher Hart. More
Last week, the Cybersecurity Unit of the Department of Justice (DOJ) issued a list of “best practices” for companies concerning preparing for and responding to cyber-attacks. The report details the lessons federal prosecutors have learned while handling cyber investigations, as well as feedback from private sector companies. Some of the key pieces of advice are:
- Identify Your “Crown Jewels”: Before creating a cyber-incident response plan,…
On April 28, 2015, the SEC’s Division of Investment Management (the “Division”) issued a Guidance Update regarding the SEC’s initiative to assess cybersecurity preparedness and threats in the securities industry, further highlighting this as an important area of focus for the SEC in its compliance initiatives.
am just back from presenting at the New York Stock Exchange’s program on Cyber Risks and the Boardroom, where I presented on The Role of Cyber Insurance. My presentation is here: 2015_04_21_The_Role_of_Cyber_Insurance_NYSE_Presentation. It was evident from this program that the C-suite is very concerned about cyber issues, but management and their boards often lack the expertise to deal with them effectively. With specific regard to cyber insurance,… More
As part of a series of measures aimed at increasing preparedness and defenses against international cyberattacks on U.S. industries and government agencies, on April 1, President Obama issued Executive Order No. 13694, authorizing the Treasury Department’s Office of Foreign Assets Control (OFAC) to sanction foreign individuals or entities committing such attacks. The new sanctions will allow the Treasury Department to block or freeze the assets of those outside the U.S.… More
We welcome this guest blog by Gene Fry, Compliance Officer, Scrypt, Inc.
The Health Insurance Portability and Accountability Act (HIPAA) sets the standard for protecting sensitive patient data. This means that any covered entity (CE) or business associate (BA) that deals with protected health information (PHI) must ensure that all the required physical, network, and process security measures are in place and followed. The HIPAA Privacy Rule addresses the storage,… More
Update on President Obama’s “Summit on Cybersecurity and Consumer Protection,” Part III: Five Key Lessons for Business
Concluding our three-part analysis of the White House’s first Summit on Cybersecurity and Consumer Protection, we turn to some practical advice coming out of the Summit’s afternoon session, including an address by Maria Contreras-Sweet, the administrator of the Small Business Administration (“SBA”), and a panel discussion among financial sector leaders moderated by Deputy Treasury Secretary Sarah Bloom Raskin.
Here are five takeaways for companies large and small:
- Companies are only as secure as their most vulnerable employee.…
Update on President Obama’s “Summit on Cybersecurity and Consumer Protection,” Part II: The Executive Order
As a follow up to our summary of the key takeaways from the White House’s first Summit on Cybersecurity and Consumer Protection, the centerpiece of which was President Obama’s signing of a new Executive Order, “Promoting Private Sector Cybersecurity Information Sharing,” what follows is an analysis of that Order.
What does the Order actually do?
The Order “promotes…encourages…and…allows” but does not require anything.… More
The first ever Summit on Cybersecurity and Consumer Protection was convened today at Stanford University, keynoted by President Obama. The purpose of the summit: to “bring together major stakeholders on consumer financial protection issues to discuss how all members of our financial system can work together to further protect American consumers and their financial data.” These stakeholders, a number of public and private sector leaders,… More
The SplashData list of worst passwords of 2014 was just published, and it looks very similar to the list in 2013, 2012, 2011, etc.:
Change from 2013
With every swipe of a credit card this holiday season, consumers put their faith in the companies that process and store their information. Yet, it is no secret that data breaches are on the rise, hitting companies large and small. Massive data breaches recently struck Target and Home Depot, to just name a few, and these two breaches alone affected hundreds of millions of consumers and cost the companies hundreds of millions of dollars.… More
I’ve looked at clouds from both sides now
From up and down, and still somehow
It’s cloud illusions I recall
I really don’t know clouds at all
Until recently, many cloud users felt like Joni Mitchell in her classic song, “Both Sides Now.” No matter how you looked at clouds,… More
Last week, the HHS Office of Inspector General released a damning report on FDA’s data security: “The objective of this review was to determine whether the FDA’s network and external Web applications were vulnerable to compromise through cyber attacks.” In short, they were vulnerable:
Overall, FDA needed to address cyber vulnerabilities on its computer network. Although we did not obtain unauthorized access to the FDA network,… More
The highly publicized hacking of the iCloud accounts of dozens of celebrities was disclosed over Labor Day weekend and has raised larger, more serious concerns regarding the security of personal and corporate data held in the cloud.
Several explanations for how the hack was achieved have been offered, with some initial pointing the finger at potential flaws in Apple’s security system.… More
Last week, the FTC announced approval of a new Safe Harbor Program under the Children’s Online Privacy Protection Act (COPPA), called iKeepSafe. The program was created by the Internet Keep Safe Coalition, a nonprofit organization that describes its goal as the “creation of positive resources for parents, educators and policymakers who teach youths how to use new media devices and platforms in safe and healthy ways.”
The COPPA Rule affords some flexibility in compliance through use of a safe harbor provision,… More
State Securities Regulators in Massachusetts and Illinois Survey Investment Advisors on Cybersecurity Practices
Picking up on the SEC’s initiative to assess cybersecurity preparedness discussed here previously, state securities regulators in Massachusetts and Illinois sent to investment advisors registered in their respective states a survey on their cybersecurity practices.
The Massachusetts surveys were sent on June 3 and a response is due on June 24. William F. Galvin, Secretary of the Commonwealth, whose jurisdiction includes the Massachusetts Securities Division,… More
To buttress the SEC’s initiative to assess cybersecurity preparedness in its risk alert discussed here previously , the SEC also has the power to bring enforcement actions against registered entities that fail to meet cybersecurity requisites. Specifically, the SEC may bring an enforcement action against registered entities that violate the safeguards rule of Regulation S-P (17 CFR § 248.30(a)) (commonly referred to as the “Safeguards Rule”).… More
Our colleagues Catherine M. Anderson and Jennifer M. Macarchuk have summarized the recent SEC Risk Alert regarding its initiative to assess cybersecurity preparedness and threats in the securities industry, including examinations of more than 50 SEC-registered investment advisers and broker-dealers.
The full text of the Risk Alert is available here.
SEC-registered investment advisers should review the Risk Alert,… More
I usually do not re-post directly from the FTC, but given the timeliness of the subject, the wide impact of the problem and the technical nature of the issue, I thought it was warranted to re-post the FTC’s guidance on Heartbleed. Talk to your IT folks about this sooner rather than later:
By Nicole Vincent Fleming
April 11, 2014 –… More
Cybersecurity remains a hot topic for regulators, including the Securities and Exchange Commission (SEC). On March 26, 2014, the SEC hosted a roundtable to discuss cybersecurity and the issues and challenges it raises for market participants. The roundtable addressed cybersecurity concerns for investment advisers, broker-dealers and public companies, and provided a forum to share information as to how they are addressing those challenges. This roundtable follows hard on the heels of the Financial Industry Regulatory Authority (FINRA) sending targeted sweep letters in January-February 2014 to broker-dealers querying their approaches to managing cybersecurity risks.… More
Rare Massachusetts Superior Court Decision Interpreting the CFAA Takes the Narrow View Without Squarely Addressing the Broad
Judge Peter M. Lauriat of the Massachusetts Superior Court decided late last year that an employee who takes confidential documents from her employer’s electronic document system to use in a discrimination lawsuit against her employer is not liable to the employer under the Computer Fraud and Abuse Act (CFAA), especially when the employer knew about the lawsuit but nonetheless did not restrict the employee’s access to those documents while she was working for the employer. … More
Sony Class Action Has A Few Lives Left; Most of Plaintiffs’ Claims Dismissed But Certain Consumer Claims Remain
On January 21, 2014, U.S. District Judge Anthony Battaglia issued a 97 page orderthat dismissed the majority of the claims in a putative class action against various Sony entities, claims relating to the 2011 hack into the computer network system that Sony used to provide online gaming and Internet connectivity through PSP handhelds and PS3 game consoles.
According to Judge Battaglia, “The fifty-one claims alleged in the FACC can be categorized into nine sub-groups: (1) negligence;… More
Now that the initial media blitz about the massive Target breach has passed, it is time to look ahead at the implications:
- Legislation: In the past, we have seen major breaches drive legislative change. But now that most states have data security statutes, it seems unlikely that much will happen at the state level. And action at the federal level has been long promised, but remains a distant vision.…
In a 68 page order issued earlier today, a federal district court judge ruled in favor of five plaintiffs challenging the NSA’s collection of phone record information, finding that the plaintiffs:
- “have standing to challenge the constitutionality of the Government’s bulk collection and querying of phone records metadata”;
- “have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim”;…
Recent news of government monitoring of phone calls and emails, both within the U.S. and abroad, has caused some to reexamine their technological companions. Many are beginning to ask, when highly confidential and sensitive information is being discussed, should our seemingly indispensable technology be checked at the door?
This month, the British government began banning the presence of iPads at certain Cabinet meetings over concerns that the devices could contain viruses that would allow third parties to take control of the microphone and transmit recorded audio. … More
Apple’s latest iteration of the iPhone (the iPhone 5S) went on sale last Friday. The phone contains a new feature called Touch ID, which allows iPhone owners to unlock and purchase content from Apple’s online store using a fingerprint reader housed in the iPhone’s home button. As expected, Apple’s use of biometric authentication has raised a number of security and privacy concerns among the public. … More
On February 12, 2013, President Obama signed an executive order entitled “Improving Critical Infrastructure Cybersecurity.” The Order has two key components.
First, the Attorney General, the Secretary of Homeland Security and the Director of National Intelligence must ensure timely production of unclassified reports of cyber threats and must rapidly disseminate the reports to the targeted entities.
Second, the National Institute of Standards and Technology (“NIST”),… More
Yesterday President Obama signed an executive order directing federal agencies to develop voluntary best cyber security practices for key industry sectors and to create a system for broader public-private information sharing, and today administration officials have been speaking at an event highlighting the order. The Order places primary responsibility for managing cyber security in the hands of the Department of Homeland Security. Under the Order, the government will also be identifying baseline data and systems requirements for the government to allow the exchange of information and intelligence,… More
In a recent article, the Washington Post reported that “The Pentagon has approved a major expansion of its cybersecurity force over the next several years, increasing its size more than fivefold to bolster the nation’s ability to defend critical computer systems and conduct offensive computer operations against foreign adversaries.”
The Pentagon’s plan would create three types of forces under the Cyber Command:
- “national mission forces” to protect computer systems that undergird electrical grids,…
A recent article in The Economist questions whether it is safe and secure to trust a company’s computer network to a Chinese company. The specific concern in that The Economist article related to “a Chinese company with connections to the Chinese government and the People’s Liberation Army (PLA)” that would be providing services inside the corporate firewall. An unnamed former member of the U.S. Joint Chief of Staffs minced no words about this: “We’d be crazy to let [that Chinese company] on our networks,… More
STATEMENT OF ADMINISTRATION POLICY
S. 3414 – Cybersecurity Act of 2012
(Sen. Lieberman, I-CT, and 4 cosponsors)
The Administration strongly supports Senate passage of S. 3414, the Cybersecurity Act of 2012. While lacking some of the key provisions of earlier bills,… More
A Few Thoughts from Deputy Undersecretary for Cybersecurity, Mark Weatherford, Department of Homeland Security
On May 16, Deputy Undersecretary for Cybersecurity, Mark Weatherford, spoke to the Advanced Cyber Security Center about DHS’s cyber security priorities: Information Sharing, R&D, and the Advanced Persistent Threat.
On Information Sharing: This is a continuing challenge, in part because of the way the federal government shares information. At present, the federal government provides cyber threat information to private sector organizations,… More
Interesting article in Forbes, "The Zero-Day Salesmen," about "government agencies who purchase such “zero-day” exploits, or hacking techniques that use undisclosed flaws in software, with the explicit intention of invading or disrupting the computers and phones of crime suspects and intelligence targets." More
What do cyberattackers want? According to a recent article in the Wall Street Journal, it depends. And the most dangerous ones are the ones that really know what they want: the Advanced Persistent Threat (APT). They APT isn’t easily defined, but think of APTs as professional thieves, going after high-value targets and using sophisticated techniques. They are Thomas Crown to the every Eddie Coynes of the world. … More
In an article that repeats a common theme in this space, this week’s Economist talks about how researchers are trying to help ordinary people toughen up their passwords. But despite the efforts of these researchers, the article’s conclusion is a gloomy one:
The upshot is that there is probably no right answer. All security is irritating (ask anyone who flies regularly), and there is a constant tension between people’s desire to be safe and their desire for things to be simple.… More
Recent press reports of massive Chinese-sponsored hacking at the one-time telecom giant Nortel might cause you to throw up your hands and say, what chance do I have against such forces? A closer look suggests that there is much that can be done, and should be done, both in IT security and in the sale and acquisition of assets.
Apparently Nortel found and investigated the breach in question,… More
An Atlanta, Georgia man was sentenced earlier this month to one year and one month in prison for intentionally accessing a computer of a competing medical practice, and taking personal information of the patients. The individual made this improper access in order to send marketing materials to patients at the other practice.
The individual worked as an information technology specialist for a perinatal medical practice in Atlanta. He separated from employment from the first practice and joined a competing perinatal medical practice, located in the same building. He then used his home computer to hack into his former employer’s patient database. … More
In its recent Annual Report to Congress on Breaches of Unsecured Protected Health Information, the Office of Civil Rights of the Department of Health and Human Services, we see confirmation of certain trends– bigger breaches and breaches involving theft of electronic media:
Between January 1, 2010 and December 31, 2010, breaches involving 500 or more individuals also made up less than one percent of reports,… More
As we noted back in October, the SEC issued CF Disclosure Guidance: Topic No. 2: Cybersecurity.
This guidance provides the Division of Corporation Finance’s views regarding disclosure obligations relating to cybersecurity risks and cyber incidents.
My overview of some of the major issues involved in signing a cloud computing agreement can be found in searchcloudcomputing, "Performing Due Diligence Before Signing a Cloud SLA."
* * *
No one is certain of all the legal risks associated with enterprises storing confidential or proprietary information outside the corporate firewall — in the cloud. However, there is growing consensus about what companies should ask cloud vendors to maintain a secure IT environment and avoid potential legal risks associated with the cloud. … More
Interesting article in Friday’s Wall Street Journal on potential cybersecurity legislation to improve information sharing between industry and government. Perhaps the best part of the article is the citation of statistics from Symantec’s annual Internet Security Threat Report: Trends for 2009 and 2010 on how many customer has updates Symantec sent out to address new attacks customers were facing:
- 2002: 20,254 updates
- 2003: 19,159 updates
- 2004: 74,981 updates
- 2005: 113,081 updates
- 2006: 167,069 updates
- 2007: 708,742 updates
- 2008: 1,691,323 updates
- 2009: 2,895,802 updates
- 2010: 10,000,000 updates
With an inflammatory title like “Foreign Spies Stealing US Economic Secrets in Cyberspace,” the Office of the National Counterintelligence Executive’s “Report to Congress on Foreign Economic Collection and Industrial Espionage, 2009-2011” is tough to ignore.
The Report’s conclusions are equally notable for their candor about the recent actions of the Chinese and Russian governments:
- “Chinese actors are the world’s most active and persistent perpetrators of economic espionage.…
cyber-security “Advanced Cyber Security Center”
There is an interesting article in this week’s Boston Business Journal on venture capital in the data security space: "Securing profits: Venture capitalists betting online security will be big money-maker." More
I was interviewed and quoted as part of a Compliance Week article on the new SEC guidance on disclosures of cyber security incidents:
Colin Zick, a partner at law firm Foley Hoag, says the guidance is too general and that companies will have to think hard when assessing what information to disclose. “There are a lot of cyber-incidents, and there are lots of ways how these will affect your business,”… More
In a story in the October 17 online edition of the New York Times, it was reported that the United States considered engaging in cyber-warfare against Libya early in the campaign to unseat Colonel Qaddafi.
What seems clear is that this was not a prize worth the price of the precedent such a cyber-attack would create, particularly as it would open the United States to similar,… More
On October 13, the SEC issued CF Disclosure Guidance: Topic No. 2: Cybersecurity.
This guidance provides the Division of Corporation Finance’s views regarding disclosure obligations relating to cybersecurity risks and cyber incidents. It follows Chairman Schapiro’s June 2011 letter to Senator Rockefeller on the subject. More
It’s a pretty technical read, but this recent Microsoft report, "Sex, Lies and Cyber-crime Surveys" by Dinei Florencio and Cormac Herley tries to support an interesting hypothesis: cyber-crime surveys that suggest huge losses from hacking and phishing aren’t reliable. Here’s an excerpt of their thinking:
First, [cyber-crime] losses are extremely concentrated, so that representative sampling of the population does not give representative sampling of the losses.… More
As noted in MassHighTech, the Advanced Cyber Security Center was officially launched on September 20. The program was opened by Massachusetts Governor Deval Patrick and featured a presentation from Attorney General Martha Coakley. As described by MassHighTech:
Touted as a first of its kind collaborative effort that brings together stakeholders in cyber security from the government,… More
Increasingly, alliances are viewed as an important way to improve data security. The Washington Post reports that the National Security Agency is now working with Internet service providers to thwart cyberattacks against defense firms by foreign adversaries. We have previously noted two other initiatives: the Advanced Cyber Security Center (to which Foley Hoag serves as legal counsel).and InfraGuard, a Federal Bureau of Investigation program. … More
We are six months into 2011, and it seems destined to be “The Year of the Breach.” In just the past few months, major American (and multi-national) corporations and institutions have reported that they have been the victims of some kind of security breach:
Wondering what your company might be able to do at the local level to help fight cybercrime? There are a growing number of public-private collaborations that are trying to get ahead of the bad guys.
One is the Advanced Cyber Security Center (to which Foley Hoag serves as legal counsel). The ACSC is a collaborative, cross-sector research facility working to address critical and sophisticated cyber security challenges.… More
In the April 22, 2011 Boston Business Journal article, entitled, "Pressure Point: Online Privacy —
Privacy is Potentially a Costly Workplace Issue," I was interviewed regarding some of the recent developments in privacy and security law for employers:
- “Most of the time, data breaches don’t come down to a failure of technology or inadequate technology. It comes down to someone doing something stupid,”…
- Could a Major Security Breach Be on the Horizon?
- The Smartphone Dilemma
- What Elements Are Currently Covered in Your Organization’s Security Awareness Program?
- Security Budgets Fare Well
- Implementing Risk Management Disciplines
- Do You Really Know Who Your Friends Are?…
On April 15, the White House formally released its National Strategy for Trusted Identities in Cyberspace. As we noted earlier, the “trusted identity” concept is intended to allow the public and private sectors to collaborate in order to raise the level of trust associated with the exposure of the identities of individuals, organizations, networks, services and devices in online transactions:
The goal of NSTIC is to create an “Identity Ecosystem”… More
The National Institute of Standards and Technology (NIST), a federal agency within the Department of Commerce, has launched a web site detailing the President Obama’s proposed National Strategy for Trusted Identities in Cyberspace (NSTIC). NSTIC, initially released for public comment in June 2010, was developed in response to the Obama Administration’s 2009 Cyberspace Policy Review, which called for the creation of a “cybersecurity-based identity management vision and strategy that addresses privacy and civil liberties interests,… More
In NASA v. Nelson, decided today by the U.S. Supreme Court, the high court rejected a challenge to “a section of a form questionnaire that asks employees about treatment or counseling for recent illegal-drug use . . . [and] to certain open-ended questions on a form sent to employees’ designated references.”
This particular challenge came from 28 employees of the Jet Propulsion Laboratory (“JPL”). JPL is staffed exclusively by contract employees. … More
If you got a new smartphone over the holidays, you’ve probably figured out how to use it by now. The next thing to worry about is security. The good news is that wireless providers are working to fortify their phones against attacks, as explained in this Wall Street Journal article.
There are some personal actions you should consider as well:
- Set a password and make it a strong one.…
Microsoft announced yesterday in its IE blog that it will be adding a tracking protection feature to Internet Explorer 9. In particular, Microsoft promises that:
- IE9 will offer consumers a new opt-in mechanism (“Tracking Protection”) to identify and block many forms of undesired tracking.
- “Tracking Protection Lists” will enable consumers to control what third-party site content can track them when they’re online.
Together with the FTC’s jump into the tracking fray last week,… More
The following item was posted recently on Foley Hoag’s Corporate Social Responsibility and the Law blog, and we thought it would be of interest to our readers. Companies seeking to develop privacy policies that both comply with national laws and respect internationally recognized human rights often face difficult challenges, especially when confronted with specific host government requests. All companies concerned with the human rights implications of their activities are advised to assess the sufficiency of existing policies as well as the company’s capacity to identify and manage potentially challenging scenarios.… More
In a recent article in the New York Times discussed the "growing tension between communications companies and governments over how to balance privacy with national security." This tension is not limited to that context, however. Nearly every workplace that uses email faces a similar tension between open access and secure communications. And this debate splits people. An ongoing informal survey by The Economist suggests that the number of people who want more control and restrictions over communication are nearly equally balanced by those who chafe at such restrictions. … More
In a federal court case decided earlier this year, United States v. Ahrndt, the court held that an individual had no reasonable expectation of privacy in the use of an unsecured wireless network. The details of this decision are instructive for those still looking at questions of network privacy and security.
This case had its start in 2007, when a woman referred to as JH was using her personal computer at her home in Oregon.… More
Last week, the Ponemon Institute and PGP Corporation released the results of their Global 2009 Annual Study on Cost of a Data Breach (.pdf) [available directly from EncryptionReports]. The highlights of the survey were announced in PGP’s press release. Ponemon surveyed companies in the U.S., UK, Germany, Australia and France and found that in 2009,… More
Last week was a tough week for Albert Gonzalez, the so-called "leader of the largest hacking and identity theft ring ever prosecuted by the U.S. government." Gonzalez received a sentence of 20 years of imprisonment in two separate federal cases against him. The hacker, known variously as "segvec," "soupnazi" and "j4guar17" pled guilty in the New Jersey and Massachusetts cases for his role as mastermind of the two largest financial data breaches ever,… More
Today, the Internet Crime Complaint Center (IC3), a federal organization run as a partnership between the FBI and National White Collar Crime Center, released its 2009 Internet Crime Report (.pdf). Highlights include:
- IC3 received 336,655 complaints in 2009, an increase of 22% over the prior year.
- The dollar loss caused by incidents reported to IC3 increased more than 100% to $559.7 million.…
FTC Tells Businesses, Schools and Local Governments: Stop Sharing Personal Information On Peer-To-Peer Filesharing Networks
The Federal Trade Commission (FTC) announced yesterday that it had notified "almost 100" companies and organizations, including schools and local governments, that sensitive personal information from those entities was being shared across peer-to-peer (P2P) filesharing networks. This has apparently resulted in circulation of customer personal information, health information, Social Security numbers and other sensitive data.
Poorly supervised use of P2P networks have frequently been the subject of unwanted attention,… More
1. Arrested: Russian Hacker Responsible for Two Minutes of Roadside Porn
The hacker who managed to compromise computer servers controlling a large commercial advertising screen in Moscow was arrested recently by Russian authorities. On January 14, 2010, commuters on Moscow’s Garden Ring Road passed a large-scale video screen and instead of the normal commercial advertisements saw two minutes of hard-core pornography. The video, as well as the resulting traffic problems,… More
1. The FTC Fines Las Vegas Man $35,000 for Dumping Customer Financial Records In Public Dumpster
This week, the FTC finalized a $35,000 settlement with Gregory Navone, the real estate broker who left 40 boxes of customer tax returns, bank statements, consumer reports and other financial records in a public dumpster behind an office building in Las Vegas. The defendant agreed to the fine, which amounts to $875 per box,… More
Incidents of the Week: Iranian Cyber Army Targets Twitter & $26 Software Application Intercepts U.S. Military Satelite Feeds In Iraq
1. Iranian Cyber Army Puts Twitter On Hold
Around 10 pm last night, popular social networking site Twitter, was apparently hacked by a group calling themselves the Iranian Cyber Army. Iran and Twitter have had a rocky relationship since last summer when Iranian citizens spread the protests over Iranian elections to the popular web site. During that time, links circulated on Twitter that allowed users to participate in DoS (Denial of Service) attacks on Iranian government websites. … More
Law firms holding sensitive data for their clients are the targets of a new round of organized cyberattacks, federal authorities cautioned this week. On Tuesday, the FBI warned that U.S. law firms and public relations firms were being targeted by hackers using “spear phishing” attacks — personalized emails drafted to look like they come from a trusted or reputable source and designed to induce the reader to click an attachment or link that will infect his or her computer with malicious software. … More
Incident of the Week: ChoicePoint Settles FTC Charges That It Failed To Turn On “Key Monitoring Tool”
This week, ChoicePoint, Inc. finalized its settlement with the Federal Trade Commission (FTC) to resolve charges stemming from a 2008 breach that compromised the personal information of 13,750 consumers. This case is notable, even though the size of the breach and the monetary payment involved are relatively modest, because the underlying breach allegedly resulted from the ineffective implementation of security tools.
Incident of the Week: Ever-Growing Breach Involving Passwords for Hotmail, Gmail, Yahoo, AOL, Earthlink and Comcast
Incident of the Week: in our first double feature, we report on the recent breach announced at the University of North Carolina and the plea agreement reached with one Massachusetts inmate who hacked the prison computer system while still behind bars.
In a press release issued last week, Massachusetts Attorney General Martha Coakley announced the opening of a "new, state-of-the-art Computer Forensics Lab in Boston" as part of the Attorney General’s Cyber Crime Initiative. Under the Initiative, the Attorney General’s office received funding from the U.S. Department of Justive to "develop a sustainable cyber crime information sharing program in Massachusetts" for the Massachusetts law inforcement community.… More
In August, Albert Gonzalez was indicted for the theft of credit and debit card information from Hartland Payment Systems, the largest known breach of its kind, while awaiting trial for a similar attack against TJX, the second largest known breach of its kind. Last week, Gonzalez pleaded guilty to nineteen charges relating to his role in the TJX breach (see Gonzalez’s 2008 indictment (.pdf) for list of the various charges).… More
Incident of the Week: Indictments Issue Against The Individuals Behind RNS, Pirate Site for “Pre-Release” Music
Yesterday, a federal indictment issued charging four individuals for their role in the "Rabid Neurosis" or RNS, an alleged "Internet music piracy group" that distributed copies of music prior to their commercial release. According to the seven-page indictment (.pdf) filed in the federal court for the Eastern District of Virginia, between 1999 and 2007, RNS obtained and distributed a number of notable albums before they were released,… More
Incident of the Week: NCUA Issues Fraud Alert Based On Fake NCUA Fraud Alert (Which Turns Out To Be Part of Security Consultant’s Penetration Testing)
The National Credit Union Administration (NCUA) issued an official NCUA Fraud Alert on August 25, 2009 reporting that someone was sending around a fake NCUA Fraud Alert (.pdf) with CDs purporting to contain security software updates, but instead contained malware. The NCUA warned “Should you receive this package or a similar package DO NOT run the CDs.” The NCUA, which regulates federally insured credit unions,… More
According to a press release from the United States Attorney’s Office for the District of New Jersey, yesterday an "indictment was returned against three individuals who are charged with being responsible for five corporate data breaches, including the single largest reported data breach in U.S. history." According to the press release, the indictment describes a scheme whereby Albert "Segvec" Gonzalez and two unnamed Russian defendants (identified as "Hacker 1"… More
Incident of the Week: Seattle Man Sentenced To Three Years In Prison For Using Peer-To-Peer Software To Steal Financial Records, Commit Identity Theft
Yesterday, Frederick Eugene Wood of Seattle was sentenced to 39 months in prison for using LimeWire peer-to-peer (P2P) software to obtain Social Security numbers, bank and financial records and tax returns, which he then used to commit identity theft. The complaint (.pdf) filed in federal court for the Western District of Washington in March alleged that Wood took advantage of the fact that users sometime install LimeWire or other peer-to-peer software on computers without limiting the directories and files made available to the peer-to-peer network. … More
Incident of the Week: Lativan Internet Service Provider Shut Down After Being Linked to Cybercrime Ring
Earlier this week, Latvian internet service provider Real Host was shut down by its upstream providers Junik and TeliaSonera after security experts linked Real Host to a number of criminal activities. Among the many activies allegedly conducted through Real Host were the use of malware to steal banking credentials, SPAM email campaigns and the service provider was running command and control servers for the Zeus botnet (i.e.,… More
According to recent reports from the Wall Street Journal and Computerworld, on June 30 the United States Secret Service, the Italian police and Italian postal service reached an agreement for the establishment of an international task force to fight cybercrime, including identity theft and computer hacking. Mark Sullivan, the director of the Secret Service, stated that cybercrime "is not a borderless crime and we believe there needs to be a reaction at an international level." … More
Incident of the Week: French Hacker Compromises Twitter Employee Passwords, Steals Company Documents
This week, Twitter co-founder Evan Williams confirmed that the company has been the victim of an attack that compromised a number of employee personal accounts at Amazon, PayPal and AT&T, employee personal email and Twitter’s internal company documents. The hacker, who goes by the handle “Hacker Croll,” has apparently emailed a collection of 310 internal Twitter documents to TechCrunch, including a presentation for a proposed reality television show called “Final Tweet”… More
On the 4th of July an organized series of Denial of Service (DOS) attacks were launched against a number of U.S. government websites (including the White House, Treasury Department and the Federal Trade Commission websites), as well as several websites associated with the South Korean government and a handful of corporate targets (the Washington Post and Nasdaq stock exchange). [If you are wondering what a DOS/DDOS attack is,… More
Incident of the Week: FBI Arrests Hacker Posing as Security Guard Who Infiltrated Texas Hospital Days Before “Devil’s Day” Attack
This week, the U.S. Attorney’s Office for the Northern District of Texas announced that the FBI has arrested Jesse William McGraw, a 25 year old contract security guard at the W. B. Carrell Memorial Clinic, a hospital in Dallas, Texas, for hacking the hospital’s computers and air conditioning system. For many businesses, an attack on ventilation systems might be an inconvenience, but the threat could be much more serious for critical care patients in healthcare institutions like the Carrell Clinic. McGraw is charged with violations of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. sec. 1030.
While the media frenzy surrounding the Conficker worm may have died down over the past several months, recent reports suggest that the computer worm is alive and well, and continues to expose PC users worldwide to the risk of identity theft and other mischief.
In recent weeks, FTC Chairman Jon Leibowitz has encouraged the behavioral advertising industry to adopt increasingly specific "self" regulatory measures to address privacy concerns. Behavioral advertising, which the FTC has described as the practice of “tracking of a consumer’s activities online . . . in order to deliver advertising targeted to the individual consumer’s interests” is a concern for consumer groups. Consumers’ concerns range from the transparency of the process to the adequacy of security measures in place to protect information compiled,… More
An appellate court in Ohio was recently called upon to analyze that state’s cybercrime statute, OCR Ann. §2913.04, which criminalizes unauthorized access to protected computers. In Ohio v. Wolf the court held that a city employee who was using a city computer during work hours to view pornography, visit adult “dating” websites, and solicit sexual activity, had exceeded his authorized access to the computer and was guilty of the felony of “unauthorized use of property;… More
Wikileaks is reported to have published a copy of the ransom note (please pardon the grammar and language in the original): "I have your [expletive] in *my* possession, right now, are 8,257,378 patient records and a total of 35,548,087 prescriptions. Also, I made an encrypted backup and deleted the original. Unfortunately for Virginia, their backups seem to have gone missing, too. Uhoh 🙁 For $10 million, I will gladly send along the password." … More
Coming on the heels of recent cyberespionage news, the Wall Street Journal reported today on Pentagon plans to create a new military command focused on cyberwarfare. The new command will coordinate both offensive and defensive cyberwarfare efforts, focusing, in the latter case, on assisting the National Security Agency (NSA) and the Department of Homeland Security’s National Cyber Security Division (NCSD), the lead agency for domestic cybersecurity efforts.… More
In February, Senator John Cornyn (R-Tx.) and Congressman Lamar Smith (R-Tx.) introduced the Internet Stopping Adults Facilitating the Exploitation of Today’s Youth ("SAFETY") Act of 2009 (S. 436, H.R. 1076), which contains a proivision that would require Internet Service Providers (ISPs) to keep subscriber data for "at least" two years. Specifically, Section 5 of the bill requires that ISPs retain "all records or other information pertaining to the identity of a user of a temporarily assigned network address."… More
According to a recent report from the Wall Street Journal, cyberspies from China, Russia and other countries have penetrated into the U.S. electrical grid and left behind software that could disrupt the system. According to officials, the spies have not actually damaged the grid or any other key infrastructure, but appear to have been attempting to navigate the electrical system. More importantly, the intruders could attempt to damage the system during a war or other national security crisis.… More
As I noted a few weeks ago, Senators Jay Rockefeller (D-W.Va.), Olympia Snowe (R-Maine) and Bill Nelson (D-Fla.) were drafting new cybersecurity legislation. Last week the Senators introduced two bills. The first, S.778 (text of the bill not yet available), would establish an Office of National Security Advisor within the Executive Office of the President. The second, S.773 (text of the bill not yet available), entitled the Cybersecurity Act of 2009, gives the President the power to limit or shut down Internet traffic to and from any federal government or United States infrastructure network. … More
The Wall Street Journal reported on Wednesday, March 18, 2009 that, worried about the dangers of attacks launched against the nation’s computer systems, the federal government is likely to spend between $15 and $30 billion on cybersecurity in the next five years. The intelligence experts interviewed by the Journal estimate that U.S. losses from data breaches to be in the billions of dollars annually and that future attacks could cause physical harm or serious financial chaos. … More
The saga of Yankee superstar Alex Rodriguez (“A-Rod”) and the revelation of his past steroid use already exemplifies the far-reaching implications of information security practices. But the story is far from over. While the media firestorm over A-Rod appears to be dying down, the fate of the identities of 103 other Major League Baseball players who tested positive for steroid use in 2003 remains undecided. And the outcome of a motion now before the United States Court of Appeals for the Ninth Circuit may affect not only those 103 baseball players,… More
Man Sentenced to 12 Months of Probation and Community Service for Illegal Access to Obama’s Passport Records
Dwayne F. Cross, the second of three people who have plead guilty to illegally accessing then Presidential Candidate Barack Obama’s passport files was sentenced to 12 months probation and 100 hours of community service on Monday. Mr. Cross admitted to accessing State Department passport records involving over 150 individuals, including celebrities, family members, and personal acquaintances, out of “idle curiosity”. These files contained a wealth of personal information including social security numbers,… More
Senators Jay Rockefeller (D-W.Va.), Chairman of the Senate Commerce, Science and Transportation Committee, Olympia Snowe (R-Maine) and Bill Nelson (D-Fla.) are drafting cybersecurity legislation that would establish a permanent national security czar reporting directly to the White House, according to a recent announcement from Senator Nelson and other reports. The proposed legislation would also
- require intelligence and Homeland Security officials to perform vulnerability assessments;…
As discussed by Mike Rosen on Foley Hoag’s Noncompete Blog here, and reported by the Washington Post and CNN, a recently released report by Symantec Corp. and the Ponemon Institute (which can be found here) revealed that 59% of ex-employees who leave their employment are stealing company information, and 67% of those who admitted to stealing company information also admitted that they used that information to leverage a new job.… More