Category Archives: Legislation & Regulation

The Federal Trade Commission has issued revised guidance designed to help businesses comply with the requirements of the Red Flags Rule, which protects consumers by requiring businesses to watch for and respond to warning signs or “red flags” of identity theft.  The guidance outlines which businesses – financial institutions and some creditors – are covered [...]

Posted on March 15th, 2013 by Brian P. Bialas on our sister blog, Massachusetts Noncompete Law.               I’ve written many times about the significant split in circuit courts’ interpretation of the Computer Fraud and Abuse Act (CFAA), which affects whether an employer can sue an employee for violating computer use restrictions, usually embodied in a [...]

The revised HIPAA regulations were formally published today in the Federal Register.  In this form, they only take up 138 pages! Law360 has a brief piece on the revised HIPAA rules, with the perspectives of various attorneys (including me) on the changes.  While I’m not sure I agree with the quote that “This is a [...]

On January 18, 2013, nearly four years after the passage of the HITECH Act and its amendments to HIPAA, and nearly three years after it proposed regulatory amendments, the U.S. Department of Health and Human Services (“HHS”) has finally issued major “omnibus” revisions to HIPAA’s privacy and security regulations. In the 563 pages of the regulations and related regulatory comments, [...]

Nearly four years after the passage of the HITECH Act and its amendments to HIPAA, and nearly three years after it proposed regulatory amendments, the U.S. Department of Health and Human Services (“HHS”) has finally issued major revisions to HIPAA’s privacy and security regulations. While we are still making our way through all 563 pages of the regulations and related regulatory comments (and will [...]

In a post from earlier today, my colleagues, Lyndsey Kruzer and Mike Rosen, discuss the NLRB’s conclusion that social media comments can be protected activity: The National Labor Relations Board (NLRB) recently issued a significant decision – solidifying the position it has staked out over the past 18 months – that an employee’s posts on social media may be entitled to [...]

The FTC announced today that it has, at long last, modified its Red Flags Rule to match the language of theRed Flag Clarification Act of 2010.  As this blog explained in 2010: As originally drafted, “creditors” would have included anyone “who regularly extends, renews, or continues credit” or “who regularly arranges for the extension, renewal, or continuation of credit,” [...]

Today’s Law360 addresses “HHS Data-Scrubbing Guidance” with quotes from me and others on the subject: Clarifying the types of data that need to be removed from data sets can also help companies maximize the value of the information that they hold as the value of and ability to use this data for research and public [...]

On November 26, HHS OCR released guidance regarding methods for de-identification of protected health information in accordance with the HIPAA Privacy Rule. This guidance fulfills the American Recovery and Reinvestment Act of 2009 (ARRA) mandate that HHS issue such guidance. Following the passage of ARRA, OCR collected research and views regarding de-identification approaches, best practices for [...]

At the end of what was an interesting, but rather ordinary interview in the Wall Street Journal, FTC Chair Jon Leibowitz dropped this interesting nugget: MS. ANGWIN: The EU has a very different approach to privacy, and there has been concern about whether we’re going to move in that direction. What’s your view? MR. LEIBOWITZ: My sense [...]

The FTC has announced a preliminary agenda for a program it calls “The Big Picture: Comprehensive Data Collection.”  This workshop ”will explore the practices and privacy implications of comprehensive data collection.” The program will be held in Washington, DC, on Dec. 6, 2012, and is free and open to the public. The workshop will be webcast live and a [...]

Gant Redmon of Co3 Systems has an interesting take on the differences in U.S. and EU privacy regimes in a Security Week column entitled, “Privacy:  Why Europeans Think You’re Inadequate.”  In his column, he addresses three key issues:  “First, what does privacy mean to folks in the US versus the EU? Second, how has history played a role in defining privacy in the US [...]

Late yesterday, the HHS Office for Civil Rights (“OCR”) announced that it had reached a $1.5 million settlement with Massachusetts Eye and Ear Infirmary and Massachusetts Eye and Ear Associates, Inc. (“MEEI“) to settle potential HIPAA Security violations.  As part of the settlement, MEEI also agreed to a Corrective Action Plan to improve policies and procedures to safeguard the privacy and security [...]

In a case that has received wide attention, the Massachusetts Supreme Judicial Court has issued a decision barring ethics investigators from asking a Massachusetts judge how he reached individual decisions during his 21 years on the bench. This is one of the few published decision to recognize a deliberative privilege for the judiciary, with the court concluding [...]

As posted earlier today by Brian P. Bialas on the Massachusetts Non-Compete blog, a recent case from the U.S. District Court for the District of New Hampshire highlights the split between the District of New Hampshire and the District of Massachusetts over the proper interpretation of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, [...]

The Obama Administration officially put its weight behind Sen. Lieberman’s Cybersecurity Act of 2012, with the issuance of the following Statement of Administration Policy: 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. [...]

In the past few months, data privacy and security laws in Connecticut, Hawaii and Vermont have been updated, without much fanfare. Although these are not revolutionary changes, they are material and they raise the compliance bar. This webinar will review the details of these legislative updates and spell out what they may mean for your [...]

As you may recall, the Health Information Technology for Clinical and Economic Health (HITECH) Act  gives state Attorneys General the authority to bring civil actions on behalf of state residents for violations of the HIPAA Privacy and Security Rules.  Some states, like Massachusetts, have already started to use this authority to bring and settle cases.  To [...]

You may have missed it, because it came without fanfare and does not seem to have made the data security trade press, but in early May, the State of Vermont updated its data security law. In particular, these revisions to 9 V.S.A. chapter 62 do the following: change the information protected to “personally identifiable information” [...]

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 [...]

The Federal Trade Commission has joined the Department of Justice and the Consumer Financial Protection Bureau in filing a memorandum in support of the constitutionality of the Fair Credit Reporting Act. This issue arose in Shamara King v. General Information Services, Inc., a "consumer class action based upon Defendant’s willful violation of the Fair Credit Reporting [...]

The Massachusetts Office of Consumer Affairs and Business Regulation has issued its first annual report on data breaches. Since Massachusetts has one of the more strict state laws on data security and breach reporting, this report bears close attention for trends across the nation. Some of the highlights in this summary, which covers 2007-2011: Through [...]

The Stanford Law Review has an interesting series of articles on privacy in its most recent edition: A Reasonableness Approach to Searches After the Jones GPS Tracking Case by Peter Swire In the oral argument this fall in United States v. Jones, several Supreme Court Justices struggled with the government’s view that it can place [...]

A bill to adopt the Uniform Trade Secrets Act (“UTSA”) has been pending in the Massachusetts Legislature since late January. Forms of the UTSA have been adopted in 46 states, as well as the District of Columbia, Puerto Rico, and the U.S. Virgin Islands. Only New York, Texas, North Carolina, and Massachusetts have not adopted [...]

FTC has today, at last, released the final version of its original 2010 Report — “Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers.”  As we have discussed previously, comments on the draft report were taken through January 31, 2011 and the final report had been expected in 2011. The [...]

Employers increasingly are suing former employees who have left to join or form competing companies using the civil remedies available under the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030. They use the CFAA to prevent their former employees from using sensitive information obtained from the former employer’s computer system. The scope of the CFAA, [...]

Here is a video discussion I had with LexBlog on the new White House Data Privacy report, “Consumer Data Privacy in a Networked World: A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy.” In this conversation, we discussed the report’s four primary elements: a Consumer Privacy Bill of Rights, a multistakeholder [...]

In a case brought by Facebook, a U.S. district court recently concluded that a website that offered to integrate multiple social networking accounts into a single social networking “experience” violated the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM Act”), the Computer Fraud and Abuse Act (“CFAA”), and California Penal Code § 502. [...]

The White House has finally released its long-anticipated report on consumer privacy.The 60-page White House report, “Consumer Data Privacy in a Networked World: A Framework for Protecting Privacy and Promoting Innovation in the Global Digital Economy,” is the start of what promises to be a fascinating legislative and regulatory process.  It is curious that the [...]

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 [...]

If you haven’t Googled yourself in a while, this might be a good time. My own self-search reveals, among other things, a page at mylife.com.  I didn’t put it there, and I’d rather it not be there. However, right now, there isn’t a right to have your personal or professional information be deleted from social media, review sites, [...]

Interesting article in the Wall Street Journal about Google’s iPhone tracking. Google Inc. and other advertising companies have been bypassing the privacy settings of millions of people using Apple Inc.’s Web browser on their iPhones and computers—tracking the Web-browsing habits of people who intended for that kind of monitoring to be blocked. The companies used [...]

Our colleagues have reminded us that on March 1, 2012, the contract grandfathering provisions of the Massachusetts Data Security Law and Regulations will expire: by Catherine M. Anderson, Jeffrey D. Collins  As we previously noted in our Foley Adviser dated February 3, 2010, “New Massachusetts Data Security Law and Regulations-Comprehensive Information Security Plan required before March [...]

A decision in Tyler v. Michaels Stores earlier this month from the United States District Court for the District of Massachusetts, the use of a consumer’s Zip Code to find her address and send her mailings was held to be a statutory violation, but did not give rise to a claim for damages. Melissa Tyler brought [...]

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. The most recent issue of Inside Counsel follows up on the latest views on this Guidance, including a quote from [...]

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: [...]

In a settlement announced today by the Federal Trade Commission and Facebook, the social networking service agreed to settle ”charges that it deceived consumers by telling them they could keep their information on Facebook private, and then repeatedly allowing it to be shared and made public,” according to the FTC’s press release. In its complaint, the FTC [...]

My colleague Dayle Cristinzio, former Legislative Director for Senator Harry Reid, has provided me with the amendments to Senate Bill1867, the Department of Defense Authorization Act.  Among these amendments is one from Sen. McCain, amendment #1229, which could provide greater cybersecurity collaboration between the Department of Defense and the Department of Homeland Security.

According to a November 16, 2011 letter from Senate Majority Leader Harry Reid to his Republican counterpart, Minority Leader Mitch McConnell, it is his "intent to bring comprehensive cyber security legislation to the Senate floor for consideration during the first Senate work period next year."  This is by no means a guarantee of legislative action, but [...]

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 [...]

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 [...]

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.

The latest legislator to enter into the federal data security and privacy sweepstakes is Senator Richard Blumenthal (D-CT) who introduced legislation, S. 1535, on September 8.  This bill, if passed, would require companies dealing with consumers to strengthen their data security and privacy policies.  In particular, Senator Blumenthal’s bill, ”The Personal Data Protection and Breach Accountability Act,” would required businesses [...]

I just completed a webinar for the Association of Corporate Counsel, with Ed Palmieri of Facebook, discussing "What Every In-House Counsel Needs to Know About Data Security and Privacy."  The program slides can be found at this link.

When we last looked at OCR’s reporting on HIPAA breaches impacting 500 or more individuals, back in May 2011, there had been 265.  This was up from September 2010, when there had been 191 such breaches. As of today, there as 292 listed.  Given that the last reported date of breach on the OCR’s list is May [...]

In another sign that OCR is continuing to seek significant penalties for HIPAA violations, it announced on July 7 that the UCLA Health System ("UCLAHS") has agreed to settle potential violations of the HIPAA Privacy and Security Rules for $865,500 and has committed to a corrective action plan aimed at remedying gaps in its compliance with [...]

As promised in our earlier entry, here is our detailed discussion of  the Supreme Court’s decision in Sorrell v IMS Health, Inc.,written by Colin J. Zick, Pat A. Cerundolo, Tad Heuer  On Thursday, June 23, the United States Supreme Court voted 6-3 to strike down a Vermont statute that sought to impose significant restrictions on pharmaceutical [...]

The Supreme Court this morning voted 6-3 to strike down a Vermont statute that sought to impose significant restrictions on pharmaceutical data mining activities. Justice Kennedy’s opinion in the closely-watched case of IMS v. Sorrell held that the Vermont statute was an unconstitutional regulation of commercial speech. The first paragraph of Justice Kennedy’s opinion provides a [...]

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: Epsilon: breach of customer email addresses; RSA: compromise of security tokens (possibly impacting [...]

Attached is my presentation given at a recent CloudCamp, on the subject:   What Law Applies In “the Cloud”?  (CloudCamp is an unconference where early adopters of Cloud Computing technologies exchange ideas.)

A recent settlement in a data breach case exemplifies how the government can go beyond a statutory scheme and use private industry standards to protect personal information and impose sanctions on violators. The Massachusetts AG filed suit against the Briar Group, the owner of a number of bars in the Boston area (including two of my [...]

When we last looked at OCR’s reporting on HIPAA breaches impacting 500 or more individuals, back in September 2010, there had been 191 such breaches. In the intervening 7 months, that number has jumped to 265 such breaches listed on OCR’s website.  It’s safe to expect these figures will continue to climb for the foreseeable future.

InformationWeek has published an interesting Analytics Brief on "Information Security in the Age of WikiLeaks."  (Subscription required.)  The brief discusses the following subjects: 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 [...]

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 [...]

Earlier today, I delivered a presentation on "Data Security and Privacy for Medical Device, Pharmaceutical and Life Sciences Companies:  How to manage your obligations under HIPAA, the HITECH Act and other federal and state data privacy and security laws" with colleagues Ara Gershengorn and Sarah Altschuller.

In March 16, 2011 testimony before the Senate Committee on Commerce, Science, and Transportation, the Obama Administration formally asked Congress to pass a "consumer privacy bill of rights" enforced by the FTC: Legislation to provide a stronger statutory framework to protect consumers’ online privacy interests should contain three key elements. First, the Administration recommends that legislation [...]

Targeted online advertising has been the focus of much discussion since the release of the FTC’s “Do Not Track” proposals late last year. User tracking for advertising purposes is also the focus of the FTC’s latest privacy enforcement action, which has resulted in a consent agreement with an online advertising company, Massachusetts-based Chitika, Inc., which creates ads [...]

As we noted earlier this month, Massachusetts General Hospital recently entered into a $1 million Resolution Agreement  and Corrective Action Plan with the Department of Health and Human Services’ Office of Civil Rights.  This settlement stemmed from an incident on March 9, 2009, when a MGH employee was commuting on the subway, "removed documents containing PHI from her bag and placed [...]

While the effect of the federal legislation modifying the FTC Red Flags Rule has been known for a while, the court proceedings that challenged the rule have now caught up.  The American Bar Association’s suit has been dismissed, and the American Medical Association announced it is voluntarily dismissing its case:  "The lawsuit filed by the Litigation [...]

In a March 1, 2011 decision that has received much publicity (despite stating a fairly obvious conclusion), the Supreme Court ruled that the term "personal privacy" does not apply to corporations, at least in the context of the Freedom of Information Act ("FOIA").  The decision, FCC v. AT&T Inc., reflects the Supreme Court application of a particular exemption [...]

In the recently-released fiscal 2012 budget for HHS, a dirty little secret has been acknowledged:  the Office of Civil Rights does not have the resources to review all reported breaches of health information.  In fact, if you have a breach that impacts up to 499 people, you are unlikely to hear from OCR at all: Current [...]

If Tuesday night’s failure to give fast-track approval to an extension of certain surveillance powers under the Patriot Act is any indication, Congress is in the mood to protect individual privacy. As such, a series of anticipated online privacy protection bills are likely to garner bipartisan support in the weeks and months ahead. Proposals will come [...]

I was on a panel today with Stuart N. Brotman, former Special Assistant to Communications and the President’s principal communications policy adviser and Chief of Staff at the National Telecommunications and Information Administration.  My slides are here.

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 [...]

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 [...]

The Council for Responsible Genetics has published a guide to the world’s DNA databases.  According to the guide, 56 countries (and in the U.S., all 50 states) maintain DNA databases. CRG describes itself as a "catalyst and thought leader in the movement to steer biotechnology toward the advancement of public health, environmental protection, equal justice [...]

On December 18, 2010, President Obama signed into law the Red Flag Clarification Act of 2010.  The Act will change a single definition in prior law and reduce the scope of the FTC Red Flags Rule, ending a two-year long saga over the scope of its enforcement. As we have noted in past entries about Red Flags Rule compliance, [...]

Our colleagues in Foley Hoag’s Emerging Enterprise Center have summarized the FTC preliminary staff report, “Protecting Consumer Privacy in an Era of Rapid Change:  A Proposed Framework for Businesses and Policymakers,” which we posted on December 1.  We are cross-posting the analysis from their blog below. It seems likely that the next two years will bring significant changes to this [...]

The following item was posted recently on Foley Hoag’s Law and Environment blog, and we thought it would be of interest to our readers. Posted on September 17, 2010 by Rebecca L. Puskas Discussion of the Smart Grid usually focuses on efficiencies that may be achieved by a system that responds to real time information [...]

The Substance Abuse and Mental Health Services Administration (“SAMHSA”), in close cooperation with the Department of Health and Human Services Office for Civil Rights (“OCR”), is conducting a study of the “Confidentiality and Privacy Issues Related to Psychological Testing Data.”  This study was specifically called for in section 13424 of the Health Information Technology for Economic [...]

Does the “compelling need” for patient records by a state body that oversees and regulates physicians trump the statute that protects the confidentiality of psychotherapy records?  Not in Massachusetts, according to a September 2, 2010 decision of the Supreme Judicial Court, Board of Registration in Medicine v. John Doe, No. SJC-10556. At issue in this case [...]

Today, the Federal Trade Commission issued a press release and an Enforcement Policy extending the deadline for enforcement of the FTC’s Red Flags Rule through December 31, 2010. The agency cited requests from members of Congress for a postponement of the deadline while legislators tinker with federal law to exclude certain businesses from application of the Rule.

Earlier this month, Congressmen Rick Boucher and Cliff Stearns released a discussion draft of comprehensive federal privacy legislation (.pdf). Among the many provisions of the draft bill is the requirement that any entity that collects information on individuals such as name, address, email address and telephone number, maintain “appropriate administrative, technical, and physical safeguards” to [...]

Many digital copiers are now able to store the scanned documents on flash memory or hard drives.  This could pose a privacy/security risk, if the drives are improperly accessed, or if they are lost or resold without being scrubbed first. Even the simple act of making a photocopy now poses privacy risks.  In response to [...]

The Department of Health and Human Services announced it will release proposed HIPAA/HITECH Act regulations later this month, according to the HHS’s recently-published regulatory agenda, available at 75 Fed. Reg. 217821.  The announcement itself was pretty cryptic: 120. MODIFICATIONS TO THE HIPAA PRIVACY, SECURITY, AND ENFORCEMENT RULES UNDER THE HEALTH INFORMATION TECHNOLOGY FOR ECONOMIC AND CLINICAL HEALTH ACT Legal [...]

Last week a number of federal regulatory agencies rolled out an online privacy notice builder for financial institutions subject to one or more of the Gramm Leach Bliley Act (GLBA) regulations.   The agencies involved include the Federal Trade Commission (FTC), Securities and Exchange Commission (SEC), Office of Comptroller of Currency (OCC), Federal Deposit Insurance [...]

In a notice apparently posted March 17, 2010, the Office of Civic Rights of the Department of Health and Human Services (“OCR”) acknowledged its delay in issuing regulations for HIPAA business associate agreements.  Those regulations are now a month overdue and from OCR’s language, they do not appear imminent: OCR will implement important privacy and security [...]

In the past several days, three important information privacy and security deadlines have arrived.  To recap, they are: February 17, 2010:  the provisions of the HITECH Act regarding HIPAA business associates went into effect (albeit without regulations, which are expected to be issued any day now).  Many HIPAA covered entities have been revising their Business Associate [...]

The FTC Red Flags Rule faces another likely challenge, based on a January 27, 2010 letter sent to the FTC by the American Medical Association, the American Osteopathic Association, the American Dental Association, and the American Veterinary Medical Association.  In that letter, the four health care organizations requested that the Red Flags Rule not be applied to health care professionals (based [...]

Last week the American Institute of Certified Public Accountants (AICPA) filed papers seeking summary judgment in the lawsuit filed against the Federal Trade Commission  (FTC) to exempt accountants from the FTC’s Red Flags Rules.  We first posted on this case in November, when the AICPA filed a complaint asking the federal court in Washington, D.C. [...]

Is the FTC moving to a "Post-Disclosure Era," in which consumer online privacy would be regulated in a radically different manner than the status quo?  That was a suggestion made by the chairman of the FTC, Jon Leibowitz, and David Vladeck, chief of the FTC’s Bureau of Consumer Protection, during a recent on-the-record discussion about online privacy, reported in the New [...]

Following the lead of the American Bar Association (ABA), on November 10, 2009, the American Institute of Certified Public Accountants (AICPA) has filed suit in the U.S. District Court for the District of Columbia, asking the Court to rule that the Federal Trade Commission’s (FTC) Red Flags Rule may not be applied to accountants.

It appears that certain groups, such as the American Bar Association (ABA), may be partially successful in their efforts to convince Congress to narrow the scope of the FTC Red Flags Rules, which are currently scheduled to go into effect on November 1.  According to the BNA Privacy & Security Law Report, the House Financial Services Committee has [...]

This morning, the Massachusetts Office of Consumer Affairs and Business Regulations (OCABR) held a public hearing in connection with its promulgation of revisions to the Commonwealth’s information privacy regulations, 201 CMR 17.00.  The standing-room-only crowd endured a modest, unventilated conference room in the Transportation Building to make comments on the stringent regulations.  OCABR Undersecretary Barbara Anthony [...]

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.”  [...]

As we reported on August 17th, the Massachusetts Office of Consumer Affairs and Business Regulation (OCABR) has promulgated a revised set of information security regulations (201 CMR 17.00 et seq.) and will hold a meeting for public comment on September 22, 2009.  For those who are still wondering what revisions were made, here is a [...]

Amidst calls from the legal community, the Federal Trade Commission’s (FTC) announced this morning that it was delaying enforcement of the FTC’s Red Flag Rules until November 1, 2009.  The FTC’s announcement of the delay emerged almost as a footnote to a public statement devoted largely to the FTC’s "redoubled" efforts to "provid[e] additional resources [...]

On June 18, 2009, the House Subcommittee on Commerce, Trade and Consumer Protection held a joint hearing with the Subcommittee on Communications, Technology, and the Internet on the topic of “Behavioral Advertising: Industry Practices and Consumer Expectations.” The subcommittee members explained that they hoped the hearing would help determine the need and possible parameters for new legislation governing [...]

A federal suit has been filed that challenges the legality of the federal HITECH Act.  In the course of 30 often rambling pages, this complaint alleges that "HIPAA codified the Hippocratic Oath" and that HITECH improperly undermines both.  This complaint appears to be the work of a gadfly or two.  The plaintiff’s lawyer is her husband; interestingly, he was described [...]

Earlier this week, on Monday, June 22, 2009, the American Bar Association (ABA) President H. Thomas Wells, Jr. issued a public statement urging Congress and the FTC to exempt lawyers from the requirements of the federal Red Flags Rules, stating: The Rule, adopted under the Fair and Accurate Credit Transactions Act, or FACT Act, is [...]

On March 15, 2006, the European Parliament issued Directive 2006/24/EC (.pdf), outlining a new program that woud require internet service providers (ISPs) and telecommunications carriers to begin retaining comprehensive records of customer communications.  Specifically, the Directive required member states to ensure that a range of communications data be retained by service providers, including: The names, addresses, [...]

With the deadline for complying with the Massachusetts identity theft law just six months away, at least one state senator is still seeking changes to that law.  In Senate Bill S173, which until now  has received little public notice, State Senator Michael Morrissey proposes to make it easier for small businesses to comply, by requiring the [...]

On May 27, 2009, Information Security and Privacy Advisory Board (ISPAB) issued a report entitled “Toward A 21st Century Framework for Federal Government Privacy Policy” (.pdf) that calls on Congress to amend the Privacy Act of 1974, establish the position of Chief Privacy Officer in numerous executive agencies and develop a Chief Privacy Officers’ Council. ISPAB is a [...]

A contact at the American Bar Association (ABA) confirmed by telephone today that the ABA Board of Governors is meeting this Saturday, June 13, 2009 to determine what position the ABA will take on whether lawyers and law firms are (or should be) considered "creditors" subject to federal Red Flags Rules.  Many among the legal community are hoping that the ABA urges the FTC [...]

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 [...]

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 [...]

In an April 2009 press release (.pdf), the Public Access to Court Electronic Records system (“PACER") announced that 99% of all federal courts nationwide have implemented electronic systems allowing litigants to file and review documents online. The near-complete implementation of these online systems marks an important technological and environmental milestone for the legal profession; however, it comes [...]

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 [...]

On March 5, 2005, the Article 29 Working Party, an independent European advisory body on data protection and privacy, adopted Opinion 3/2009 (.pdf). The opinion comments on European Commission proposals designed to ensure that all data processors, including contractors hired by other data processors, are contractually required to protect sensitive data.

As the May 1, 2009 deadline for compliance with federal Red Flags Rules nears, the FTC’s staff has informally mentioned that helpful guidance would be forthcoming. As of today, the FTC has launched a new website and a series of materials to assist businesses pushing to meet the May 1st deadline.

On Tuesday, March 24, 2009, FTC Chairman Jon Liebowitz testified before the U.S. House Subcommittee on Commerce, Trade and Consumer Protection seeking enhanced legal powers “[t]o allow the FTC to perform a greater and more effective role in protecting consumers.”

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 [...]

In a recent letter (.pdf) to the healthcare industry, the Federal Trade Commission (“FTC”) has issued its clearest pronouncement yet on which entities must comply with federal “Red Flag Rules” — the identity theft regulations that will go into effect for many businesses on May 1, 2009 (and have been in effect for banks and financial institutions since November 1, 2008). This latest guidance strongly suggests that if you are wondering whether the new federal regulations apply to you — then they probably do. In this post, we will recap the FTC’s recent guidance on who should be complying with the Rules.

On Wednesday, February 11, 2009, the Data Protection Working Party, an independent European advisory body on data protection and privacy, released its Working Document 1-2009 (.pdf) on pre-trial discovery for cross border civil litigation.  The Working Document attempts to reconcile the tension between U.S. discovery rules and the European Union’s Directive 95/46/EC (.pdf), which outlines the EU’s privacy requirements.  [...]

On Thursday, March 5, 2009, Congresswoman Mary Bono Mack (R-CA), Congressman John Barrow (D-GA) and Congressman Joe Barton (R-TX) introduced the Informed P2P User Act (H.R. 1319) which requires peer-to-peer ("P2P") software makers to make certain changes to their software to prevent users from inadvertently sharing files from their computers.  The proposed law would require both [...]

Between March 11, 2009 and March 13, 2009, the International Association of Privacy Professionals (IAPP) hosted a Privacy Summit in Washington, D.C. that featured keynote presentations from fraud expert Frank W. Abagnale and information security guru Bruce Schneier. The three-day event included dozens of breakout sessions with industry experts and government officials.  Read some of the highlights below.

On Monday the Department of Justice released a previously classified opinion entitled “Authority for Use of Military Force To Combat Terrorist Activities Within the United States” (.pdf), which concluded, among other things, that “the Fourth Amendment [of the U.S. Constitution] does not apply to domestic military operations designed to deter and prevent further terrorist attacks.” This may come [...]

In early February, I noted that a group called the Consumer Privacy Legislative Forum (“CPLF”), which includes companies such as eBay, Microsoft, Google and Hewlett Packard, had released a statement calling for comprehensive harmonized federal privacy legislation and would be outlining recommendations for such legislation this month. Apparently, the CPLF’s focus has shifted. According to a BNA [...]

On Tuesday, February 24, 2009, the Federal Communications Commission (FCC) issued an Omnibus Notice of Apparent Liability alleging that more than 600 telecommunications carriers have violated Section 222 of the Communications Act which "imposes the general duty on all telecommunications carriers to protect the confidentiality of their subscribers’ proprietary information" and the EPIC Customer Proprietary Network Information (CPNI) [...]

For those who want to see the source document, we have provided this link to the text of the American Recovery and Reinvestment Act of 2009.  The health security and privacy provisions start at Section 13000, around page 112.

On Tuesday, February 17, 2009, President Obama signed into law the widely-debated federal economic stimulus package, officially titled the American Recovery and Reinvestment Act of 2009, and with it, enacted the Health Information Technology for Economic and Clinical Health Act (HITECH Act). Much of the media attention on the HITECH Act has focused on the policies [...]

If you are confused about whether you, your company or your clients are subject to federal identity theft regulations, you are not alone. When the Federal Trade Commission (FTC) announced on October 22, 2008 that they were delaying enforcement of the new Red Flags regulations by six months, until May 1, 2009 (which we reported here and [...]

By Stacy Anderson and Gabriel M. Helmer. As an ever-increasing number of states enact legislation governing identity theft, customer data and personal information, pressure for clear federal legislation governing information security has mounted. For example, in December 2008, the FTC joined the growing number of voices calling on Congress to enact a legislation to create a [...]

On January 6, 2009, Senator Dianne Feinstein (D-Cal.) introduced two bills related to data breaches and protection of social security numbers. Bill S. 139, entitled the "Data Breach Notification Act," would require any federal agency or business entity to notify an individual of a security breach involving personal information “without unreasonable delay.” The proposed bill defines “reasonable delay” [...]

High-profile Massachusetts businesses and industry groups have sent Massachusetts governor Deval Patrick a letter requesting that the governor reissue existing identity theft regulations and give battered businesses two additional years to develop information security programs.

On Wednesday, January 14, 2009, the Boston Bar Association’s Privacy Law Committee hosted FTC Chief Privacy Officer Mark Groman for a brown bag lunch presentation entitled “The View from the Federal Trade Commission’s Chief Privacy Officer.” Here are a couple of highlights from the presentation:  Mr. Groman views law firms as businesses subject to FTC Red [...]

Anyone mystified by what practices the FTC wants businesses to improve on or abandon in response to federal “Red Flags” regulations received some specific guidance in December, when the FTC released the report Security in Numbers – SSNs and ID Theft. For anyone subject to new federal and state identity theft regulations, the Report helps identify some specific steps they should consider implementing by May 1, 2009, the deadline for businesses to adopt compliant identity theft prevention programs.

On Friday, November 14, 2008, Massachusetts regulators announced that they will give affected businesses until May 1, 2009 to comply with new identity theft regulations. This move parallels the October announcement by the Federal Trade Commission that it is delaying enforcement of federal identity theft regulations until the same day.

On Wednesday, October 22, 2008, the Federal Trade Commission issued an Enforcement Policy Statement that it will delay some elements of enforcement of recent “Red Flags” regulations until May 1, 2009, instead of the original November 1, 2008 date. Citing uncertainty and confusion within many industries over whether they are covered by the new regulations, the FTC indicated that it will not seek to enforce the regulations on November 1, 2008, when all affected businesses were originally required to come into compliance.