Category Archives: Uncategorized

A Privacy Shield Replaces a Safe Harbor for the Swiss, Too

US companies with employees or clients in Switzerland will be interested to hear that the new Swiss-US Privacy Shield was approved on 11 January.

Although Switzerland is not a member of the European Union, its data protection law (Federal law of ‎19 June 1992) is very similar to the European 1995 Data Protection Directive. According to the Federal law, the transfer of personal data outside of the country is not allowed if that would pose a serious threat,… More

IRS Warns of “Surge” in Tax Season Phishing Scams

tax iconTax season ‘tis the season to be phishing, according to the IRS.  The IRS has issued a warning to payroll and human resources professionals about a “surge” in phishing emails seen this year.  One of the preferred tactics of identity thieves this year appears to be impersonating CEOs and sending emails to company payroll and human resources departments asking for employee W-2s. … More

EU Safe Harbor Update: No Solution in January?

As we have noted previously, in the wake of the ECJ’s decision that undid the US-EU Safe Harbor, we were told that there would be no enforcement of the EU Directive until after January 31, to allow the US and EU to hammer out a new regime. However, Isabelle Falque-Perrotin, the chair of the EU’s Article 29 Working Party, has stated that the next meeting of the Working Party will take place on February 2.  … More

EU Gives US Until “The End of January” to Find Safe Harbor Solution or Enforcement Could Begin

On October 16, 2015, EU authorities gave the U.S. and European Union until the end of January 2016 to find a replacement for the former US-EU Safe Harbor regime, or enforcement actions could begin.  The full statement of the EU Working Party is provided below:

Following the landmark ruling of the Court of Justice of the European Union (CJEU) of 6 October 2015 in the Maximilian Schrems v Data Protection Commissioner case (C-362- 14),… More

Reflections on “Privacy in the Modern Age”

With the heart of the summer vacation season upon us, it seems like a good time for some reflection. Here, it comes in the form of excerpts from an essay by privacy maven, Deborah Hurley. The one time Director of the Harvard Information Infrastructure Project at Harvard University, she has been thinking and writing about privacy issues for two decades.  Her entire essay can be found in the book,… More

Cyber Risks and the Boardroom — The Role of Cyber Insurance

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

SEC Office of Compliance Inspections and Examinations Releases Cybersecurity Examination Sweep Summary of Investment Advisers and Broker-Dealers

Our colleagues Catherine M. Anderson and Kate Leonard of our Investment Management group have summarized the February 3, 2015 findings by the Office of Compliance Inspections and Examinations (OCIE) of its Cybersecurity Examination Sweep, which sought to evaluate the breadth of cybersecurity policies implemented by investment advisers (as well as by broker-dealers). For more details on the sweep, see our previous Foley Adviser update: SEC Issues Risk Alert on Cybersecurity Initiative for Investment Advisers.… More

One More New Year’s Resolution: Change Your Passwords Before Groundhog Day

The SplashData list of worst passwords of 2014 was just published, and it looks very similar to the list in 2013, 2012, 2011, etc.:

Rank
Password
Change from 2013

1
123456
No Change

2
password
No Change

3
12345
Up 17

4
12345678
Down 1

5
qwerty
Down 1

6
123456789
No Change

7
1234
Up 9

8
baseball
New

9
dragon
New

10
football
New

11
1234567
Down 4

12
monkey
Up 5

13
letmein
Up 1

14
abc123
Down 9

15
111111
Down 8

16
mustang
New

17
access
New

18
shadow
Unchanged

19
master
New

20
michael
New

21
superman
New

22
696969
New

23
123123
Down 12

24
batman
New

25
trustno1
Down 1

Sadly,… More

The Outlook for 2015

Data privacy and security have never been more top of mind for business than they are right now. As I noted in this article in Law360:

“The outlook in 2015 is that we’ll have more breaches, but I think we’ll also continue to have more conversations as people get used to breaches as a way of life about what we expect to be kept private,… More

NLRB Disregards Security Concerns in Ruling That Employees Have a Right to Use Employers’ Email Systems for Non-Business Purposes

Our colleages have analyzed a significant NLRB decision in Purple Communications Inc. that, in most circumstances, employees have a right to use employer email systems for non-business purposes during non-working time. This decision reversed the NLRB’s 2007 decision in Register Guard, in which it found that employers could limit employee use of email systems to “business purposes only” and that employers could “specifically prohibit” certain email system uses by employees:

  • In reaching this conclusion,…
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The FTC Wants to Regulate the Internet of Things, Including Your Car

The FTC recently filed a comment on the National Highway Traffic Safety Administration’s advance notice of proposed rulemaking related to vehicle-to-vehicle communications.  The comment left no doubt that the FTC wants to regulate the Internet and everything connected to it.

Nonetheless, the FTC’s specific comments about vehicle security were noteworthy:

First, participants expressed concern about the ability of connected car technology to track consumers’ precise geolocation over time.… More

Don’t Put Off That New HIPAA Business Associate Agreement: September 23, 2014 Deadline Looms

It’s been a while, but we have another HIPAA deadline just around the corner: September 23, 2014.

September 23, 2014 is the date by which all HIPAA business associate agreements need to be in compliance with the current HIPAA regulations (often called the Omnibus Rule). The current rules went into effect on March 26, 2013, but certain then-existing HIPAA BAAs were grandfathered and did not have to be updated immediately.… More

What eBay buyers and sellers need to know

With help from the FTC, here are five steps that you can take to protect yourself from fraud if you or your business use eBay:

  1. Change your eBay password. When you create your new password, mix letters, numbers, and special characters.
  2. If you used your eBay ID or password for other accounts, change them, too.
  3. Don’t confirm or provide personal information in response to an email or text,…
  4. More

Target Data Breach Escalates, Class Actions Begin

As previously discussed here, Target suffered a massive data breach that compromised the credit and debit cards of many of its customers.  Now that the dust has started to settle, the extent of the breach is becoming clearer.  In December, Target announced that 40 million credit and debit card numbers were stolen in this hack.  Further investigation has uncovered that hackers also obtained the “names,… More

HHS OCR Cites Faulty Risk Analysis, Lack of Policies in Addition to Breach by Physician Practice

In what may be a sign of things to come, a recent HHS OCR resolution agreement with a dermatology practice cites not only the loss of some 2,200 records on a thumb drive, but the lack of an “accurate and thorough analysis of the potential risks and vulnerabilities to the confidentiality of ePHI” and “[t]he Covered Entity did not … have written policies and procedures and train members of its workforce”;… More

Federal Judge Rules NSA Phone Record Collection Likely Unconstitutional

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”;…
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Highlights from the 2013 Annual Advanced Cyber Security Center Conference

Our own Michele Whitham was one of the presenters at the recent 2013 Annual Advanced Cyber Security Center Conference on “Cyber Security Threat Sharing:  A Roadmap for Collaborative Defense.”

  • Wirespeed Threat-Based Defense — How do you balance between what is automated and what is done by people?
  • Security, Outsourcing and the Cloud — What might companies outsource, and how do they make that decision?…
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HHS OCR Issues HIPAA Guidance on Refill Reminders, Decedent Information, Disclosure of Proof of Student Immunications and Delays CLIA Lab Enforcement

Late last night, HHS OCR issued its anticipated guidance on “The HIPAA Privacy Rule and Refill Reminders and Other Communications about a Drug or Biologic Currently Being Prescribed for the Individual.”  A new “Fact Sheet” and corresponding “Frequently Asked Questions” attempt to explain how the refill reminder exception to the marketing rule works, and seek to address both the scope of communications that fall within the exception,… More

HIPAA Unconstitutional? Maybe Not, But New Marketing Regulations Are Coming

You may have seen the recent lawsuit alleging that HIPAA’s marketing regulations are unconstitutional.  In that case, the plaintiff is a company that “provides a refill reminder service and other adherence messaging services,” Adheris, Inc.

Adheris sued the Department of Health and Human Services because HIPAA’s regulations threaten to put it out of business.  In particular, HIPAA now requires patient authorizations for its kind of patient reminders. … More

“A Million Here, a Million There”… WellPoint Settles HIPAA Breach and Security Claims with HHS OCR for $1.7 Million

Managed care company WellPoint Inc. has agreed to pay the U.S. Department of Health and Human Services $1.7 million to settle potential HIPAA Privacy and Security Rule violations committed in 2009 and 2010.   

As so often happens, HHS OCR began its investigation following a self-report of the breach by WellPoint.  That report “indicated that security weaknesses in an online application database left the electronic protected health information (ePHI) of 612,402 individuals accessible to unauthorized individuals over the Internet.… More

“Fair Use” of Copyrighted Works Contributed $4.7 Trillion to U.S. Economy in 2007, Reports CCIA

This week, the Computer & Communications Industry Association (CCIA) released the report Fair Use in the U.S. Economy (.pdf) concluding that industries that rely on the “fair use” exception in copyright law contributed $4.7 trillion or 16% of the  U.S. gross domestic product in 2007, growing faster than the other sectors of the U.S. economy.  The report credits the fair use of copyrighted works for the success of search engines,… More