Category Archives: Government Enforcement

On July 13, 2023, the Biden Administration released its National Cybersecurity Strategy Implementation Plan (NCSIP) with the goal of providng transparency and coordination for its existing goals. The NCSIP details more than 65 Federal initiatives (some completed, some ongoing, others planned for the future). Each NCSIP initiative is assigned to a responsible agency and has a timeline for completion.

There are five major “pillars” to the NCSIP:

• Defending Critical Infrastructure
• Disrupting and Dismantling Threat Actors
• Shaping Market Forces and Driving Security and Resilience
• Investing in a Resilient Future
• Forging International Partnerships to Pursue Shared Goals

Some NCSIP initiatives,… More

In the FTC’s first case focused on the privacy and security of genetic information, the FTC alleges that San Francisco-based Vitagene, Inc. – now known as 1Health.io – failed to live up to its promises and unfairly changed material privacy terms without customers’ consent.

After consumers paid between $29 and $259, sent a saliva sample to Vitagene, and answered an online questionnaire about their health history,… More

On May 23, 2023, CISA, the Federal Bureau of Investigation (FBI), the National Security Agency (NSA), and the Multi-State Information Sharing and Analysis Center (MS-ISAC) published an updated version of the #StopRansomware Guide, as ransomware actors have accelerated their tactics and techniques since its initial release in 2020. The update incorporates lessons learned from the past two years and includes additional recommended actions,… More

The Notifications of Enforcement Discretion issued under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Health Information Technology for Economic and Clinical Health (HITECH) Act during the COVID-19 public health emergency expired at 11:59 pm on May 11, 2023, due to the expiration of the COVID-19 public health emergency.

As previously announced, the HHS Office for Civil Rights (“OCR”) is providing a 90-calendar day transition period for covered health care providers to come into compliance with the HIPAA Rules with respect to the provision of telehealth in particular.… More

Like many regulatory standards, enforcement of HIPAA was relaxed as part of the COVID-19 pandemic response.  With the end of the public health emergency declaration on May 11, 2023, the broad relaxed HIPAA enforcement also will be coming to an end.

“OCR exercised HIPAA enforcement discretion throughout the COVID-19 public health emergency to support the health care sector and the public in responding to this pandemic,” said Melanie Fontes Rainer,… More

In a very comprehensive post from the Federal Trade Commission’s Office of Technology, the FTC takes what it calls “[a] deep dive into the technical side of FTC’s recent cases on digital health platforms, GoodRx & BetterHelp.”

As most readers know, the FTC recently took enforcement action against GoodRx and BetterHelp, two digital healthcare platforms, for allegedly sharing user health data with third parties for advertising.… More

On August 22, 2022, the Federal Trade Commission (“FTC”) indicated through the Advanced Notice of Proposed Rulemaking its intent to limit commercial surveillance – the common corporate practice of collecting, analyzing, and monetizing consumers’ data. As slews of data breaches resulted in millions of dollars in settlement and countless consumers whose data had been jeopardized, 33 states, including Massachusetts, New York, and Texas, showed support for the FTC’s proposed rule through a comment letter dated November 17,… More

Governor Charlie Baker recently took steps to strengthen cybersecurity in Massachusetts by signing an executive order on December 14, 2022 creating an advisory panel to improve the state’s cyber defense. The new state task force will assess existing resources, develop contingency plans, and identify strategies for preventing future cyberattacks.  The goal of the task force is to ensure that the Bay State is at the forefront of the ever-evolving cybersecurity landscape.… More

On December 1, 2022, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services issued a bulletin to highlight the obligations of Health Insurance Portability and Accountability Act of 1996 (HIPAA) on covered entities and business associates under the HIPAA Privacy, Security, and Breach Notification Rules (“HIPAA Rules”) when using online tracking technologies.  These online tracking technologies, like Google Analytics or Meta Pixel,… More

Every October, in recognition of National Cybersecurity Awareness Month, the federal government and its partners work to educate stakeholders on cybersecurity awareness and how best to protect the privacy and security of confidential data. Within the health care industry, the HIPAA Security Rule applies to covered entities and their business associates (“regulated entities”) and electronic protected health information (ePHI).  Because ePHI identifies individuals and includes information relating to an individual’s health,… More

Since Massachusetts becoming a trailblazer among states with the passage of privacy legislation in 2007 and subsequent regulations, Massachusetts’ own privacy laws have been passed by those of other states, most notably California.  The proposed Massachusetts Information Privacy and Security Act (“MIPSA”) would bring Massachusetts back to the forefront of state regulation of privacy and data security.

The 65 page long bill would,… More

On September 30, 2021, the U.S. Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) issued guidance to help the public understand when the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule applies to disclosures and requests for information about whether a person has received a COVID-19 vaccine.

The guidance reminds the public that the HIPAA Privacy Rule does not apply to employers or employment records.… More

On July 28, 2021, President Biden issued a Memorandum on Improving Cybersecurity for Critical Infrastructure Control Systems.  The Memo recognizes that the protection of the nation’s critical infrastructure lies not only with government, i.e., at the federal, state, local, tribal, and territorial levels, but with critical infrastructure owners and operators.  In addition, the Memo states that cybersecurity threats to critical infrastructure, and the systems that control and operate it,… More

On March 2, 2021, Governor Ralph Northam signed the Virginia Consumer Data Protection Act (VCDPA) into law. This made Virginia the second state to enact a consumer privacy and data security law, and follows hot the heels of California’s Consumer Privacy Act (CCPA) and the newly-enacted California Privacy Rights and Enforcement Act (CPRA). Virginia will not be the last to regulate the relationship between consumers and businesses holding their data;… More

On May 27, 2021, the Department of Homeland Security’s Transportation Security Administration (TSA) announced a Security Directive that will enable DHS to better identify, protect against, and respond to threats to critical companies in the pipeline sector.  (And for those in other business sectors, this is a potential preview of cybersecurity regulation to come.)

“The cybersecurity landscape is constantly evolving and we must adapt to address new and emerging threats,” said Secretary of Homeland Security Alejandro N.… More

On May 12, 2021, President Biden signed an Executive Order which is aimed at improving the nation’s cybersecurity and protecting federal government networks.  The Executive Order has been in the works for some time, but the timing of its release is a response to the Colonial Pipeline ransomware attack.

According to the Fact Sheet issued by the White House, this Executive Order will:

• Remove barriers to threat information sharing between government and the private sector
• Modernize and implement stronger cybersecurity standards in the Federal Government
• Improve software supply chain security
• Establish a Cybersecurity Safety Review Board
• Create a standard playbook for responding to cyber incidents
• Improve detection of cybersecurity incidents on Federal Government networks
• Improve investigative and remediation capabilities

The overall impact of the Executive Order is limited,… More

By now, you have heard about the SolarWinds Orion hack. But what do you need to know about it?

First, if you want or need the technical details, the Cybersecurity and Infrastructure Security Agency (CISA) has them. In particular, on December 13, 2020, CISA released Emergency Directive 21-01: Mitigate SolarWinds Orion Code Compromise, ordering federal civilian executive branch departments and agencies to disconnect affected devices.… More

On October 6, 2020, the Department of Homeland Security (“DHS”) released a 2020 Homeland Threat Assessment (“HTA”).  According to Acting Secretary Chad F. Wolf, the “first of its kind report” identifies the primary threats facing the nation and analyzes the vast array of information coming from all DHS operational components that crosses his desk on a daily basis.  “When the American people read this HTA they will be more aware of the traditional threats facing the Homeland like terrorism and organized crime.  … More

Massachusetts Attorney General Maura Healey recently announced the creation of the Data Privacy and Security Division within her office, with the stated goal of “protect[ing] consumers from the surge of threats to the privacy and security of their data in an ever-changing digital economy.”

The leadership of the Office of the Attorney General’s (OAG’s) privacy and security efforts will not change:  Sara Cable,… More

What do businesses need to do to comply with privacy and data security laws?  The first place to look is to relevant statutes.  If you store or process the personal information of Massachusetts residents, then you will at least be subject to the Massachusetts Data Breach Notification Statute and related security regulations.  These are important guides that require certain operational activities, such as maintaining a written information security program,… More

If you are among the many people turning to video-teleconferencing (VTC) to stay connected during the COVID-19 pandemic, you need to protect yourself from “Zoom-bombing” – the entrance of uninvited individuals into your VTC.  The FBI has received multiple reports of conferences being disrupted by offensive images and/or threatening language.

The FBI recommends the following steps to mitigate VTC hijacking threats:

• Do not make meetings or classrooms public:
  • In Zoom,…

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On March 24, 2020, the Office for Civil Rights (OCR) at the Department of Health and Human Services issued guidance on how HIPAA covered entities may disclose protected health information (PHI) about an individual who has been infected with or exposed to COVID-19 to law enforcement, paramedics, other first responders, and public health authorities in compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule.… More

On Friday, March 20, 2020, the Department of Health and Human Services Office for Civil Rights (“OCR”) announced it will “exercise its enforcement discretion and will not impose penalties for noncompliance with the regulatory requirements under the HIPAA Rules against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency.  This notification is effective immediately.”… More

The Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) just completed a stakeholder security briefing.  This was recorded and should soon be available on the CISA website, but in the interim, some key takeaways are:

• We are in the “initiation phase” of the pandemic, meaning the worst is yet to come (the “acceleration phase”).
• Covid-19 has been found in 42 states.
• The presenters declined to comment on the likelihood of mandatory quarantines.…

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Editors’ Note:  This is the fifth in our fourth-annual end-of-year series examining important trends in data privacy and cybersecurity in the coming year.  Our previous entry discussed the CCPA, energy, Brexit, and health privacy.  Next up:  trends in GDPR enforcement.

Out of all governmental agencies, state attorneys general are likely to have the greatest impact on privacy enforcement in 2020 for the average business. … More

Foley Hoag partners Colin Zick and Janine Ladislaw joined Licata Risk Advisors for a discussion on how to improve awareness and understanding of a company’s key risk exposures and how to mitigate and insure them. Topics included privacy and data security law, cybersecurity risk threat vectors, preventing IP infringement claims, and more. Click here to download the materials. More

As you may already be aware, the CCPA goes into effect on January 1, 2020. California’s Attorney General has issued draft regulations under the CCPA and final regulations are expected to be issued shortly. Below are some frequently asked questions and answers about the CCPA as a short guide to assist you with understanding what the CCPA may require.

What is the CCPA?

It is the new California Consumer Privacy Act (CCPA) that creates new “consumer” rights relating to the access to,… More

InfoTrax Systems, a Utah-based technology company, has agreed to implement a comprehensive data security program to settle Federal Trade Commission allegations that the company failed to put in place reasonable security safeguards, which allowed a hacker to access the personal information of a million consumers.  InfoTrax Systems, L.C., provides back-end operation services to multi-level marketers. This includes such services as compensation, inventory, orders, accounting, training,… More

Partner Colin Zick recently spoke at the MaHIMA Dot Wagg Memorial Legislative Seminar on HIPAA updates. Click here to download the slides. Topics included: HIPAA FAQs on right of access, CMS interoperability and the patient access proposed rule, HIPAA enforcement trends, the proposed AKS safe harbors, and more. More

On 26 July 2019, the Greek Supervisory Authority (SA) found Pricewaterhouse Coopers (“PwC”) not compliant with General Data Protection Regulation (GDPR) in relation to the processing of its Greek employees’ personal data. The SA issued a €150,000 fine and an injunction requiring PwC to take measures to comply within three months (which is has apparently done). A summary of the decision in English is available on the Greek SA’s website.… More

As data breaches are seemingly reported on a daily basis, cybersecurity has emerged as a top enforcement priority for federal and state regulators and a key concern for companies of all sizes in a diverse range of industries. For example, compliance with federal cybersecurity regulations is required by nearly every government contract and the New York Division of Financial Services adopted a vast set of regulations that is applicable to all entities operating under NYDFS licensure.… More

On October 1, 2019, China’s new regulation to protect personal data related to children – called the “Measures on Online Protection of Children’s Personal Data” – went into effect.

As we wrote in June, when a draft of the regulation was released by the Cyberspace Administration of China, the regulation contains elements similar to those found in both the United States’ Children’s Online Privacy Protection Act (“COPPA”) and the European Union’s General Data Protection Regulation (“GDPR”).… More

Attorneys Colin Zick and Chris Hart recently led a Q&A discussion for MassTLC members on new trends in data privacy. Click here to download the slides. Topics included: recent GDPR enforcement actions, the California Consumer Privacy Act, recent changes to the Massachusetts data breach statute and more. More

Data scraping is a technique where information on one platform is exported onto another.  The practice is widespread and is used for all sort of reasons, like market analysis or advertising.  The kind of information located and extracted is as varied as the kind of information that exists on the internet–which is to say, anything and everything–but where it becomes particularly interesting is when personal information is being scraped.… More

Today, in the first settlement of its kind, the Office for Civil Rights at the U.S. Department of Health and Human Services (“OCR”) announced that Bayfront Health St. Petersburg (“Bayfront”) has paid $85,000 to OCR and has adopted a corrective action plan to settle a potential violation of the right of access provision of the Health Insurance Portability and Accountability Act (HIPAA).  This is also the first enforcement action under OCR’s Right of Access Initiative,… More

Investment advisers and managers of private investment funds organized in the Cayman Islands should take note that on September 30, 2019, the Data Protection Law, 2017 (the “DPL”), is set to come into effect.

In general terms, this will bring the Cayman Islands into line with many other countries who have recently enacted enhanced data privacy laws, including the European Union’s GDPR. The DPL is designed to protect individuals’ data and give them greater control over its use.… More

New Trends in Data Privacy: GDPR, CCPA and Beyond

Changes to data privacy laws and regulations continue to happen at a rapid clip. Join Foley Hoag’s Colin Zick and Chris Hart for a question and answer discussion about recent GDPR enforcement actions, the latest status on the California Consumer Privacy Act, recent changes to the Massachusetts data breach statute, and what other changes are in store nationally and internationally in the world of privacy and data security.… More

Partner Colin Zick will speak at the “A Day at the Breach: Cybersecurity and Privacy for Your Business” event in Boston on August 14, 2019.

Description

Inadequate Cybersecurity processes can bring business operations to a halt, and cost thousands of dollars in litigation and lost revenue. This networking program will feature an expert panel discussion on recent trends in Cybersecurity and Privacy issues and best practices.… More

The California Consumer Privacy Act (“CCPA”) is expected to become operative on January 1, 2020 and will usher in a new era of data privacy for consumers across the United States. The CCPA establishes various rights for individuals, most notably the right to know about the collection, sale, and disclosure of their personal information, the right to opt-out of the sale of their personal information, and – the subject of today’s post – a limited right to request that their personal information be deleted.… More

The EU Commission issued today a “Communication to the European Parliament and the Council” which is entitled “Data protection rules as a trust enabler in the EU and beyond- taking stock”, which outlines the current state of EU data protection, with particular focus on the impact of GDPR.

1. The implementation of GDPR in the EU

The Commission notes that all EU Member States have updated their national data protection laws except for three (Greece,… More

Local governments may not be in the headlines as much as their state and federal counterparts, but last week saw local governments getting their turn on the news.  In politics, the Democratic presidential primary debates saw a total of 6 current or former mayors take the stage. (Free trivia fact: By comparison, only 3 presidents in American history have previously served as mayors!)  And the City of Somerville, Massachusetts banned governmental use of facial recognition technology.… More

New York’s state legislature is considering a new data privacy law that would set the standard for data privacy in the U.S.  The New York Privacy Act (the “NYPA” or the “Act”), which is currently being considered by the state Senate’s Consumer Protection Committee, would provide New York consumers with a robust set of data privacy rights, would place fiduciary duties on businesses that control and process data,… More

In early June, the Cyberspace Administration of China released for public comment new draft regulations applicable to the collection of personal information relating to children under 14 by online service providers.

The draft regulations share many of the same structures as those utilized by the Children’s Online Privacy Protection Act (“COPPA”) in the United States:

• online service operators will have to obtain parental consent based on a comprehensive disclosure about the collection,…

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The California Consumer Privacy Act (“CCPA”) has been lauded as a “huge step forward” that could set a standard for other states and the federal government that enact increasingly robust data privacy legislation.  Indeed, some federal lawmakers view the law so favorably that they do not want future federal legislation to replace it. In the words of Rep. Jackie Speier (D-Calif.) to Politico: “California’s bill is the best.… More

On May 9, 2019, a coalition of consumer groups submitted a complaint to the Federal Trade Commission (“FTC”) regarding Amazon’s Echo Dot Kids Edition, arguing that the device runs afoul of the Children’s Online Privacy Protection Act (“COPPA”).  The Echo Dot Kids Edition is a child-focused version of Amazon’s popular voice-activated smart speaker device that utilizes Amazon’s Alexa digital assistant.… More

In a Notification of Enforcement Discretion Regarding HIPAA Civil Money Penalties issued on April 23, 2019, the Department of Health and Human Services (HHS) exercised “its discretion in how it applies HHS regulations concerning the assessment of Civil Money Penalties (CMPs) under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as such provision was amended by the Health Information Technology for Economic and Clinical Health (HITECH) Act” to reduce the maximum annual fines it will impose for HIPAA violations.… More

Bloomberg Law interviewed partner Colin Zick as part of a Special Report on how businesses are adjusting to recent data and privacy rules. Zick discusses why companies should be prepared to deal not only with GDPR requirements, but also a patchwork of state laws that may carry compliance requirements as well.

“We’re in the midst of a large public policy debate about what we’re going to do when it comes to data privacy laws,”… More

It has been rough weather for Google in France. Three weeks after the French ‎Data Protection Authority imposed a record fine against Google for non-compliance with the GDPR, the Paris District Court (“Tribunal de Grande Instance”) invalidated 38 clauses of Google’s Privacy Policy and Terms of Use for Google+, the Internet-based social media network owned and operated by Google.  This decision was rendered on February 12,… More

Taking stock of the current privacy and security environment is critical. The legal world around data privacy continues to shift and the technical challenges to solving data security needs continue to increase in complexity.

Join Foley Hoag’s Chris Hart and Rapid7’s Jeremiah Dewey for a conversation about understanding and meeting today’s data privacy and security challenges. They will discuss the following:

• What does the current threat environment look like?…

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Partner Colin Zick speaks to Bloomberg Law about how big law firms are expanding their state-focused practices to help clients deal with heavy state fines for alleged privacy violations.

Companies are turning to state-centric practices “because they see the threats from individual state enforcers,” Zick said. They want expertise from former officials, like former Massachusetts Attorney General Martha Coakley, who know the proper approach to limit enforcement risks,… More

‎On January 23, 2019, the European Data Protection Board (“EDPB”) issued an interesting opinion about personal data processed in relation to clinical trials.

The main role of the EDPB – which succeeded the Article 29 Working Party – is to contribute to the consistent application of the GDPR throughout the European Union. Its tasks include providing general guidance to clarify the law and advising the European Commission on data protection issues and new legislations.… More

Start-up companies know that, when potential investors kick the tires, they will look carefully at the company’s business model and IP portfolio.  These days, investors are also likely to look at whether the company is in compliance with privacy and data security laws.  Cybersecurity has become increasingly important for business of all sizes.  While identity thieves may focus on the target rich environments of large-scale enterprises,… More

On 21 January 2019, the French Data Protection Authority (the “French DPA”) fined Google LLC 50 million euros for breach of the GDPR.

As we reported on this blog, just after GDPR became applicable, noyb.eu (None of Your Business), the non-profit privacy organization set up by Max Schrems, the Austrian lawyer who initiated the action against Facebook that led to the invalidation of the Safe Harbor,… More

Can a fingerprint alone provide “testimony” about a person?  Earlier this month, a federal court in California said yes.  But the court was not engaging in a highly-localized form of palm-reading; rather, the question arose in the ever-evolving field of how to balance law enforcement needs and individual citizens’ privacy interests as new technologies emerge.

The United States District Court for the Northern District of California has been a hotspot for privacy-related litigation,… More

On January 10, 2019, Advocate General Szpunar issued his much awaited opinion in the Google case that was referred to the European Court of Justice by the French “Conseil d’Etat”, the highest administrative court of the country.  The Conseil d’Etat basically asked the European Court of Justice to follow-up on its Google Spain decision: is the right to be forgotten –… More

Data breaches – always critically important to those with responsibility for storing, transporting and protecting electronic information – have become an all-consuming topic of late. Stories about data theft dominate political headlines, boardroom discussions, and family meetings around the dinner table.  They, of course, have also been the subject of government investigations and private litigation.

The current environment is not unlike other moments in our recent past that seemed to have captured the attention of Wall Street,… More

Editors’ Note:  This is the third in our third annual end-of-year series examining important trends in data privacy and cybersecurity during the coming year.  Our previous entries were on comparing the GDPR with COPPA and on energy and security.  Up next:  emerging threats.

Whether it was a Blue Wave or a “Big Victory,” the midterm elections unequivocally transformed state regulatory and enforcement landscapes by sweeping in four new Democratic Attorneys General and earning Democrats a majority of those key policymaking positions. … More

As noted recently in the Wall Street Journal, “New cybersecurity rules will give Chinese authorities sweeping powers to inspect companies’ information technology and access proprietary information—steps that are likely to deepen concerns among foreign businesses about their China operations.”  These regulations were issued pursuant to the Cybersecurity Law of the People’s Republic of China, which came into force on June 1, 2017.… More

Senator Mark Warner of Virginia has released a white paper outlining policy proposals for regulating social media and technology companies. The paper has gained significance in recent weeks as pressure builds on Congress to pass federal data privacy legislation. In the wake of Europe’s GDPR and California’s Consumer Privacy Act, industry groups, tech companies, and privacy activists alike have urged Congress to act.… More

As summarized nicely in the FTC FAQs below, there is a new law, the Economic Growth, Regulatory Relief, and Consumer Protection Act, that makes credit freezes free and extends fraud alerts to last a full year.  Here are some of the most common questions raised about this new law, and the FTC’s answers:

Q: I already had a credit freeze in place when the new law took effect on September 21,… More

Four months after the GDPR came into effect, the French Data Protection Authority (“CNIL“) published a first assessment with some impressive figures:

• It received more than 600 personal data breach notifications, ‎i.e., about 7 notifications each day, involving approximately 15 million individuals.
• It received 3,767 complaints from individuals. As we commented on this blog,…

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Our experience in advising clients about GDPR and assisting them in the compliance process is that there are often misconceptions about the so-called “right to be forgotten”. The purpose of this post is to address some of these misconceptions.

• The “right to be forgotten” was not created by the GDPR

The GDPR replaced the EU’s 1995 Directive which provided in Article 12(b) that “Member States must guarantee every data subject the right to obtain from the controller: (…),… More

In a recent decision from the District of Massachusetts, the alleged perpetrator of cyber-attacks against Wayside Youth and Family Support Network and Boston Children’s Hospital (“BCH”) failed in his attempt to assert a novel defense:  necessity.  In what most would view as a positive development, the court found that the defendant and alleged hacker did not “offer[] competent evidence that it was objectively reasonable to anticipate a causal relationship between the alleged cyber attack and the purported harm to be averted.”… More

As if having to deal with all the EU’s Data Protection Authorities wasn’t challenge enough for companies trying to comply with GDPR, the FTC has now asserted that it has a role in GDPR enforcement.  In particular, the FTC says it has a role in making sure that US companies live up to the GDPR-related promises that they make.  This position came to fruition in a proposed FTC settlement with California-based employment training company,… More

With legislative activity last month in Louisiana, South Carolina, Vermont, and Colorado adding to activity in South Dakota, Arizona, Oregon, and Alabama earlier in the year, it appears that 2018 could be a significant year for state information privacy law reform. Much has been predicted in this area following the enactment in 2017 of significant regulations in New York and the passage of substantial amendments to a statute in Illinois both of which were aimed at protecting against data breaches.… More

As noted in the FTC alert below from Lisa Weintraub Schifferle, an attorney with the FTC’s Division of Consumer & Business Education, thanks to a new federal law, soon you can get free credit freezes and year-long fraud alerts. Here’s what to look forward to when the law takes effect on September 21st:

Free credit freezes

• What is it? A credit freeze restricts access to your credit file,…

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The long-anticipated decision in LabMD v. FTC has finally arrived. The 11th Circuit held that the FTC’s cease-and-desist order against LabMD is unenforceable:

In sum, assuming arguendo that LabMD’s negligent failure to implement and maintain a reasonable data-security program constituted an unfair act or practice under Section 5(a), the Commission’s cease and desist order is nonetheless unenforceable. It does not enjoin a specific act or practice.… More

Perhaps in the spirit of the saying “if you can’t beat them, join them,” the Securities and Exchange Commission recently launched an initial coin offering website of its own – HoweyCoins.com.  No, the SEC has not suddenly decided to join the coin offering craze.  But the Office of Investor Education and Advocacy has launched this new mock site to illustrate the dangers of such offerings to retail investors. … More

On Friday, May 25, the day when GDPR became effective, noyb.eu (None of Your Business), the non-profit privacy organization recently set up by Max Schrems, filed the first complaints based on GDPR.

Max Schrems is the Austrian privacy lawyer who had complained about the transfer of his data to the United States by Facebook:  he argued that, in light of the Snowden revelations,… More

The French National Assembly voted on May 14, 2018 to adopt changes that bring its existing Data Protection Act of 1978 in line with the EU’s General Data Protection Regulation (GDPR).

Paradoxically, while France was the first EU Member State to adopt a data protection act, it is one of the latest EU countries to adapt to GDPR,… 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

Attorneys Colin Zick, Catherine Muyl and Marion Cavalier recently presented a webinar for MichBio U on what the EU’s  General Data Protection Regulation means for U.S. healthcare and life science companies.

Click here to download the presentation. More

As many of you may already be aware, the European GDPR goes into effect during May 2018. Below are some frequently asked questions and answers about GDPR as a short guide to assist investment advisers and private fund managers with initial GDPR analysis.

What is GDPR?

It is the new General Data Protection Regulation (GDPR) adopted by the European Union that is intended to protect the “personal data” of natural persons in the European Union.… 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

A lot of information has been circulating about GDPR in the last months from all kinds of sources, some more reliable than others, and you may have the feeling that you are quite knowledgeable about it. We have designed this quiz to enable you to check how knowledgeable you really are.

If you get all the answers right except for one or two, you are a true expert!… More

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

A recent Security Breach Report published by the North Carolina Attorney General’s Office provides a snapshot of the various data security threats currently riling the state’s public and private sectors.  Since 2006, the year North Carolina businesses and government entities became statutorily obligated to report breaches to the Attorney General’s Office, reported data breaches have skyrocketed from 86 to over one thousand.  In turn,… More

Recently, Austrian privacy activist Maximilian Schrems won a partial victory in his continuing battles with Facebook. We discuss that case below. But first, we review his prior tilts with Facebook.

Schrems in Ireland’s Courts

When Schrems was a college student, he heard a Facebook representative at a conference talk about European privacy rules with a lack of consideration that shocked him. Since then, Schrems has been fighting Facebook on many fronts.… More

In the United States, the Federal Trade Commission has long been the trend-setter for what constitutes reasonable behavior in protecting data privacy.  It does so through its broad Section 5 authority, which federal courts have held allows the FTC to regulate the data privacy space, but the breadth of which is under challenge.  With news that the Trump Administration has nominated a slate of four new Commissioners to head the agency —… More

On January 17, 2018, the Massachusetts Securities Division Enforcement Section filed a complaint against the company Caviar and its founder Kirill Bensonoff for violations of the Massachusetts Uniform Securities Act in connection with an ongoing initial coin offering (ICO).

This is Secretary of the Commonwealth William F. Galvin’s first enforcement action related to an ICO. Last month, Secretary Galvin announced that the Massachusetts Securities Division would conduct a sweep of Massachusetts entities engaged in ICOs.… More

Those of our readers who frequent social media may have noticed a newly-popular juxtaposition between selfies and art (or perhaps one should say between selfies and other forms of art)—a feature in the Google Arts & Culture app that matches a user’s selfie to a portrait in Google’s database.

But not every aspiring selfie artist can compare their work with that of the great painters of yesteryear. … More

The FTC’s COPPA Guidance does an admirable job explaining the basics of what a business needs to do to comply with COPPA, but is vague as to how a business must protect personal information collected from children. The COPPA Guidance requires that a company use “reasonable procedures” to protect such information from unauthorized access or use, but does not explain what “reasonable procedures” means. This is,… More

On December 19, the US Department of Health and Human Services’ (HHS) Office of the Inspector General (OIG) released a report indicating continued cybersecurity vulnerabilities among HHS’ four operating divisions based on FY 2016 penetration testing.  According to the report, OIG “determined that security controls across the four HHS OPDIVs needed improvement to more effectively detect and prevent certain cyberattacks” and “identified configuration management and access control vulnerabilities.”

OIG provided HHS with a restricted “rollup” report of the four operating divisions,… More

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

Editors’ Note:  This is the eighth in a multi-part end-of-year series examining important trends in data privacy and cybersecurity during the coming year.  Previous installments include analyses of HIPAA compliance, emerging security threats, federal enforcement trends, state enforcement trends, … More

The Massachusetts Securities Division has announced that it will conduct an exam sweep of Massachusetts entities engaged in initial coin offerings (ICOs).

In the announcement, released on Friday, Massachusetts Secretary of the Commonwealth William Galvin said that he views ICOs as securities that must be registered with the state.

“Blockchain may or may not change the way banks transfer money or the way credit payments are made,… More

The end of net neutrality — for now — is big news, because it’s a big deal; there’s just no getting around the fact that the way consumers experience the internet is going to change.  What are some of the practical consequences?

On cybersecurity, it’s not at all obvious what the effect will be.  Essentially, slowing down, speeding up, or blocking traffic can be both good and bad. … More

For the second time in less than a month (click here for a prior enforcement action), the SEC’s newly created Cyber Unit has shut down an initial coin offering (ICO).  This time the ICO was for Munchee, Inc., a California-based developer of an iPhone application for people to review restaurant meals.  The recent enforcement activity follows several policy statements and warnings regarding ICOs.  … More

‎On November 28, 2017, the EU’s Article 29 Working Party issued its report on the First Annual Joint Review of the EU-US Privacy Shield, which was conducted on September 18-19, 2017.

In this 38 page report, the WP analyzed the Privacy Shield’s commercial and government aspects (as it did in its earlier opinion, issued in April 2016 when the Privacy Shield was still a draft;… 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

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,…

More

The new GDPR is much more detailed than the 1995 Directive. The GDPR has 99 articles, versus 34 in the Directive. And a few new key concepts clearly require new guidance.

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

Editors’ Note:  This is the first of a multi-part end-of-year series examining important trends in data privacy and cybersecurity during the coming year. Up next:  the emerging threat landscape.

Like many things in Washington, the HIPAA landscape in 2018 will be shaped by the shifting priorities of President Trump’s new administration.  Early signs point to less funding for the Office of Civil Rights (“OCR”) within the Department of Health and Human Services,… More

A 152 page judgment was rendered today by the Irish High Court in Schrems II:  DPC v Facebook.

Not surprisingly, the court decided to refer the case to the Court of Justice of the European Union to make a decision about the validity of the three decisions ‎issued by the Commission for the Standard Contractual Clauses.

Ms. Justice Caroline Costello referred these issues because she concurred with the Irish Data Protection Commissioner’s view there are “well founded”… More

The current challenge to Facebook’s privacy practices in Ireland (“Schrems II”) may be coming to a head.  You will recall that in Schrems I, the challenge to Facebook’s privacy practices led to a decision issued by the European Court of Justice that invalidated the US-EU Safe Harbor.  Following the invalidation of the Safe Harbor, Facebook switched to the Commission’s Standard Contractual Clauses (SCC) and the Schrems complaint was reformulated to challenge the SCC.… 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,…

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.

As in-house counsel,… More

As we have noted before in this space, states have begun going through the process of amending their data breach notification laws.  California, for example, recently amended its data breach notification statute to expand the definition of personal information.  Illinois did the same, and adjusted its safe harbor provision.  And New York created first-of-its-kind financial sector cybersecurity regulations.  … More

This is the third post in a three-part series designed to provide a summary of some of the GDPR features that are likely to have the most substantial impact on healthcare/life science related businesses. (Links for Part One and Part Two) 

GDPR Features that Apply Specifically to the Healthcare/Life Science Sectors

Even though the GDPR is a general regulation,… More

This is the second post in a three-part series designed to provide a summary of some of the GDPR features that are likely to have the most substantial impact on healthcare/life science related businesses. (Links for Part One and Part Three) 

New General Features of the GDPR

Some of the GDPR general features may be of particular interest for companies in the healthcare/life science sectors.… More

This is the first post in a three-part series designed to provide a summary of some of the GDPR features that are likely to have the most substantial impact on healthcare/life science related businesses. (Links for Part Two and Part Three)

The clock is ticking: on May 25, 2018, in less than a year from now, the General Data Protection Regulation (“the GDPR”) will apply in all Member States of the European Union (“EU”) and will replace the Directive 95/46/CE (“the Directive”).… 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

What happens when state and local governments respond to significant data breaches?  They often turn to the private sector for breach response capabilities in order to mitigate damages.  Speed is the name of the game, and state and local governments often move with alacrity to save face.

But what about procurement laws?

The rush to hire sophisticated private entities to support data breach response efforts is in tension with statutory competitive bidding mandates. … 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

On June 21, 2017, the FTC updated its COPPA Compliance Guidance for businesses. The new guidance includes new descriptions of services and products covered by COPPA, and new methods for obtaining parental consent.

Though the guidance is new, the subjects of the guidance generally are not; for example, “internet-enabled location-based services” have long been within the ambit of COPPA because geolocation information has long been part of the definition of “personal information” of children that COPPA regulates.… More

The Federal Trade Commission (FTC) has been a critically important regulator of cybersecurity practices in the US, using its authority under Section 5 of the FTC Act to bring enforcement actions against companies for failing to protect their consumers’ private data. This past January, Trump appointed Republican Maureen Ohlhausen as the Commission’s new acting chairwoman. Here’s what you need to know about her approach to data security.… More

We recently posted on the Ohio Attorney General’s CyberOhio initiative and forecasted that the Ohio Attorney General might be the first of many Attorneys General to join forces with industry in the struggle to protect consumer information.  Ohio Deputy General Counsel Craig Rapp, Director of CyberOhio, contacted our blog not only to agree with our prediction, but also to shed more light on what is transpiring in his state. … 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

The Economist certainly thinks computer security is broken (and it’s hard to argue the contrary).  In its April 8 edition, The Economist’s cover story proclaims, “Why computers will never be safe.”  While that’s good news for some of us (at least in the short run), for most of us it’s a daunting proposition.  So how to address the problem?  Do we need more regulation, as The Economist suggests? … 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

The new (EU) 2016/679 General Data Protection Regulation (GDPR) will enter into force on 25 May 2018. Its scope is broader than that of the current 95/46/CE Directive, which means that more companies headquartered outside of the EU will have to comply with European data protection rules than under the current regime.

The 95/46/CE Directive set up a European body, the Article 29 Working Party,… More

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

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

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,…

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

As part of the ongoing HHS OCR HIPAA audit initiative, it is conducting “HIPAA desk audits.”  These audits don’t involve auditors coming in your facility.  Instead, covered entities are being asked to submit documents on:

     (1) their risk analysis and risk management plans under the HIPAA security rule;

     (2) the content and timeliness for following the HIPAA breach notification rule; or

     (3) the notice of the entity’s privacy practices for health information and patients’… More

Does your business collect and share consumer health information? Check out these tips from the FTC for complying with HIPAA and the FTC Act.

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HIPAA
The HIPAA Privacy Rule applies to HIPAA covered entities— a health plan, most health care providers, or a health care clearinghouse. It also applies if you are a business associate – a person or company that helps a covered entity carry out its health care activities and functions.… More

Reuters reported earlier this month that, according to three former employees, Yahoo Inc. had “complied with a classified U.S. government demand, scanning hundreds of millions of Yahoo mail accounts at the behest of the NSA or FBI.” Yahoo responded that the article was misleading, but did not deny the scanning had occurred.

The New York Times reported further details about this scanning:  Yahoo had modified a system intended to scan emails for child pornography and spam in order to satisfy a secret court order requiring it to search for messages containing a computer “signature” tied to the communications of a state-sponsored terrorist organization.… More

On July 6, 2016, the European Union adopted Directive (EU) 2016/1148, “concerning measures for a high common level of security of network and information systems across the Union,” otherwise known as the Network and Information Security Directive. (A directive, in EU parlance, is an instruction to member states to achieve a particular objective and a general framework for how to do so.  This differs from a regulation, which is immediately binding on all member states.)  Pursuant to this Directive,… More

Article 29 Working Party on the EU-US Privacy Shield:

The EU’s Article 29 Working Party analyzed the final version of the Privacy Shield and issued a statement on July 26, 2016.  What does this mean?

• Recap: Where are we and how did we get here?

On February 29, 2016, the European Commission issued a draft adequacy decision reflecting the outcome of its negotiations with US authorities in relation to the Privacy Shield,… 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

Key takeaways:

• The Privacy Shield will now go into effect.
• The preliminary start date for companies to be certified under the Privacy Shield is August 1, 2016.
• Expect more challenges to the Privacy Shield before all is said and done.

The Details:

Following the invalidation of the US-EU Safe Harbor by the European Court of Justice in the Schrems case,… 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

A cross-post from our colleagues contact Catherine M. Anderson and Kate Leonard of the firm’s Investment Management group, with the reminder that “[m]aintenance of critical operations and systems, and the protection, backup, and recovery of data in the event of a significant business disruption….” 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

The full text of the General Data Protection Regulation (GDPR) was published on 4 May 2016. Although the GDPR will not be effective until 25 May 2018, it is worth looking into it right now given the major changes it makes to the rules in the 1995 Directive.

Application of the GDPR

The GDPR applies to the processing of personal data by companies having an “establishment” in the European Union,… 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

The summer movie season is now officially in full swing, with the release of three informational videos regarding HIPAA and the right of individuals to access their medical records, published by the Office of Civil Rights of the Department of Health and Human Services. 

The video trilogy, and accompanying infographic, are the eagerly-awaited sequel to OCR’s guidance “Individuals’ Right under HIPAA to Access their Health Information 45 CFR § 164.525,” issued earlier this year. … More

After the European Court of Justice invalidated Safe Harbor on October 6, ‎2015, the Article 29 Working Party announced in an October 16, 2015 statement that US companies that were Safe Harbor certified had until the end of January 2016 to find alternative means to transfer data to the US and, if they failed to do so, EU Data Protection Authorities would pursue enforcement measures.… 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

On 29 February the European Commission released its draft adequacy decision about the proposed Privacy Shield, which is intended to replace the invalidated EU-US Safe Harbor.  While Microsoft stated on April 11 that they “pledged to sign up for the Privacy Shield,” the European authorities have so far been much more skeptical.

• Article 29 Working Party
  On 13 April,…

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

On May 25, 2016, partners Catherine Muyl, Colin Zick and Daniel Schimmel participated in a panel discussion on how companies can transfer personal data and remain compliant. The event, co-sponsored by The French-American Chamber of Commerce, Foley Hoag LLP and The Consulate General of France in New York, was part of the FACC’s “Tech, Media & Entertainment”… More

On May 11, 2016, President Obama signed the Defend Trade Secrets Act of 2016 (“DTSA”) into law.  Previously, companies could only bring misappropriation of trade secrets claims under state law.  (Unless they were able to convince federal prosecutors to bring criminal charges under the Economic Espionage Act, which rarely ever happens.)  Now, companies have the option of pursuing a federal cause of action for misappropriation of trade secrets,… 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

After years of intense discussions, the EU General Data Protection Regulation (GDPR) was finally adopted on 14 April 2016.

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,…

More

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

As a follow-up to our recent discussion of IRS-related phishing attempts, here are a few quick tips to stay out of the phishing traps:

• In general, the IRS does not communicate with taxpayers via e-mail, so any time someone receives an e-mail from the “IRS,” they should be suspicious at the outset.
• Even if the IRS did correspond with taxpayers via e-mail,…

More

What is the future of data privacy regulation in Massachusetts?

On March 24, 2016, the Massachusetts Attorney General’s Office gave us a glimpse. In collaboration with Harvard’s Berkman Center for Internet and Society, and MIT’s Internet Policy Research Initiative and Computer Science and Artificial Intelligence Laboratory, the AG’s Office convened a “Forum on Data Privacy.”  In this first-of-its-kind conference,… More

You have seen all the hysterical headlines — “The HIPAA audits are coming, the HIPAA audits are coming….” But when you really think about it, what is the big deal?  If you are a HIPAA covered entity, you surely know by now what you are supposed to be doing.  And you probably have been doing it– so just check around to make sure before you get the dreaded letter from HHS OCR. … More

Last month we presented a webinar detailing what you need to know about the EU-U.S. Privacy Shield and what your company should do now. Watch the recording here:

To download a copy of the presentation, click here. More

Tax 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

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:

• It authorizes the U.S. Department of Justice to designate specific foreign countries or regional economic integration organizations (i.e., the EU) whose natural citizens may bring civil actions under the U.S.…

More

As noted in our earlier Foley Adviser, March 1, 2016 is the effective date for NFA member firms (including futures commissions merchants, commodity trading advisors, commodity pool operators, introducing brokers, retail foreign exchange dealers, swap dealers, and major swap participants) to adopt and enforce written policies and procedures to secure customer data and access to their electronic systems.

If you have any questions regarding implementation of these policies and procedures,… More

The COPPA Rule requires website and online service operators to give notice to parents and obtain verifiable parental consent before collecting children’s “personal information” online.  16 CFR §§ 312.4, 312.5.  The definition of “personal information” encompasses some obvious pieces of data – name and address, for example – and some less-obvious ones, such as screen names, geolocation data, and “persistent identifiers.”  A “persistent identifier” is a piece of information “that can be used to recognize a user over time and across different web sites or online services,” such as “a cookie,… More

This article was originally published in Law360 with permission to reprint.

How much does the question of harm matter in cybersecurity law? The answer is: It depends on who is bringing the claim.

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

In response to the announcement of the EU-U.S. Privacy Shield, the Article 29 Working Party issued its own statement, the key elements of which are as follows:

• The Working Party will not blindly accept the EU-US Privacy Shield.
  It welcomes the conclusion of the negotiations, but also is asking to see all documents pertaining to the new EU-US Privacy Shield by the end of February.…

More

What follows below is the EU’s press release regarding the agreement on a replacement for the EU-US Safe Harbor.  We are working to get details and will schedule a webinar on the new framework shortly.

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The European Commission and the United States have agreed on a new framework for transatlantic data flows: the EU-US Privacy Shield.

Today, the College of Commissioners approved the political agreement reached and has mandated Vice-President Ansip and Commissioner Jourová to prepare the necessary steps to put in place the new arrangement.… 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

On January 22, 2016, I had the pleasure to present to the Massachusetts Health Information Management Association’s Winter Meeting, to discuss “Compliance Beyond HIPAA.”  The presentation slides from the program are available here, and reflect discussion of:

• recent HHS OCR guidance on “Individuals’ Right under HIPAA to Access their Health Information 45 CFR §164.524”
• a new HHS OCR FAQ on EHR incentives and their interaction with HIPAA;…

More

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

On December 4, 2015, President Obama signed the Fixing America’s Surface Transportation Act (the ‘‘FAST Act’’) into law. Although the FAST Act’s main focus is on improving the country’s surface transportation infrastructure, the law also contains a provision that modified the annual privacy notice requirement under the Gramm-Leach-Bliley Act (“GLBA”).

Previously under the GLBA privacy regulations, financial institutions (which includes registered investment advisers,… More

As the Wall Street Journal noted yesterday, banks are being deluged with phishing attacks.  These attacks are especially fierce around the holiday season, when more personnel are absent and normal procedures are ignored or bypassed.  The FBI and other law enforcement agencies are focused on these attacks, but it only takes one employee to “believe” a phishing email for the trouble to start.… More

On 15 December 2015, the three main European institutions, the Commission, the Parliament and the Council, agreed on the final text of the General Data Protection Regulation (GDPR) which has been on the table since January 2012. This is a major achievement, given the number of obstacles that still needed to be overcome a few weeks ago in order to meet the end of 2015 deadline for finalizing the GDPR. … More

Today, Wyndham and the FTC settled the enforcement action brought by the FTC that had led to a significant decision by the Third Circuit in August of this year.  (Wyndham’s statement on the settlement can be found here; the FTC’s statement can be found here; my earlier analysis of the Third Circuit’s decision can be found here.)  While the details of the settlement are interesting in their own right – Wyndham will not be paying anything by way of a fine or monetary damages and is not required to admit liability,… More

While the Schrems decision invalidating the US-EU Safe Harbor Program is rightly attracting a great deal of attention (as well as blogging and webinars) – and leaving many wondering what to do in the absence of the US-EU Safe Harbor System – companies doing business in the EU need also to consider the impact of another recent decision,… 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.

However,… More

On November 19, Foley Hoag and UK Trade & Investment presented a webinar discussing the latest developments following ECJ’s decision to invalidate the US-EU Safe Harbor system. Watch the recording here:

Click here to download the slides. More

Hosted by Foley Hoag LLP and UK Trade & Investment, The British Consulate General in Boston

On October 6, 2015, the European Court of Justice issued a landmark decision invalidating the US-EU Safe Harbor system. In practice, this means that US organizations can no longer rely on the Safe Harbor system to permit the transfer of personal data from the European Union to the US consistent with Directive 95/46/EC.… More

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

What makes data privacy law interesting for academics, challenging for lawyers, and frustrating for businesses is its shape-shifting structure in the face of rapidly changing technology.  The recent change in the invalidation of US-EU “safe harbor” system is a useful reminder of the differences between the way the European Union and the U.S. handle questions of data privacy:  whereas, generally speaking, in the EU data privacy standards are relatively uniform,… More

The European Court of Justice has just issued a decision (ECJ 6 October 2015 Case C-362/14, Maximillian Schrems v. Data Protection Commissioner) that invalidates the so-called US-EU “Safe Harbor” system. Suddenly, what 3,500 U.S. Companies (including some of the largest companies in the world) have been doing with personal data now potentially becomes illegal.

What is the background to this decision?

In 1995,… More

By now, you have no doubt heard that the European Union’s highest court today invalidated the U.S.-EU Safe Harbor Program.  The European Court of Justice overturned the European Commission’s 15 year old decision finding that the privacy principles of the U.S.-EU Safe Harbor provide an adequate level of protection of the data of EU citizens. Among other things, the court cited concerns that the data may be subject to U.S.… 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

On June 12, 2015 the French Data Protection Authority (Commission Nationale de l’Informatique et des Libertés – CNIL) issued a notice ordering Google to draw all the consequences of the CJEU May 13, 2014 ruling and to apply delisting not only to the national domain of the individual who requests delisting but on all of the search engine’s domains, including google.com (see our article The Right to be Forgotten: Another Scuffle between Google and The French Data Protection Authority | Security,… 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

In recent years, the SEC has been focused on cybersecurity. It has issued risk alerts, conducted examinations and provided guidance about what the agency sees as widespread weaknesses in many policies and procedures to protect against cyberthreats. The SEC has now taken the next step: a few days ago, the SEC brought its first-ever enforcement action for a violation of Regulation S-P, 17 C.F.R. § 248.30(a) – known as the “Safeguards Rule” – against an investment adviser that was itself the victim of a security breach in which hackers stole customer information.… More

From our colleagues Catherine Anderson and Lauren Tran, we present this update on OCIE’s 2015 Cybersecurity Examination Initiative:  Second Round of Cybersecurity Examinations to Begin

*   *   *

On September 15, 2015, the Office of Compliance Inspections and Examinations (OCIE) of the Securities and Exchange Commission (SEC) issued a Risk Alert announcing a second round of examinations of registered investment advisers and broker-dealers under its cybersecurity examination initiative.… 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.

DOPPA goes further than its federal cousin,… More

The FTC’s COPPA (the Children’s Online Privacy Protection Act) Rule requires website operators to obtain “verifiable parental consent” prior to collecting, using, or disclosing personal information from children. Though the COPPA Rule enumerates several methods for obtaining consent, the FTC, sensitive to how fluid technological developments in this space can be, also allows pre-approval of new methods not listed in the Rule. 16 CFR 312.12(a).… More

On 13 May 2014 the Court of Justice of the European Union (CJEU) issued a judgment which Google called a “landmark ruling” (Google v. Costeja Gonzalez case, C-131/12). The court held, based on the 95/46 Directive on protection of personal data that “the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages,… More

A key distinguishing feature of U.S. data privacy laws is their patchwork nature.  There are industry-specific data privacy laws at the federal level (think HIPAA or the GLBA), yet there are no comprehensive federal standards that governs an entity’s obligations in the event of a data breach like the EU’s Data Privacy Directive.  For data breach response, in addition to the possible application of an industry-specific law or regulation,… 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,…

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By Gwen Jaramillo and Shrutih V. Tewarie

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

Smart grids – electrical grids that allow two-way communication between utilities and consumers – represent an exciting frontier in the Internet of Things, with ramifications for energy efficiency, weather resiliency and climate change, among others. As the Department of Energy writes, “[t]he Smart Grid represents an unprecedented opportunity to move the energy industry into a new era of reliability, availability, and efficiency that will contribute to our economic and environmental health.”

But like many aspects of the Internet of Things,… More

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:

1. Companies are only as secure as their most vulnerable employee.…

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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

In an age when many of us briskly scroll through website terms and conditions and check, “I agree” without thinking, how should businesses design their websites to obtain proper authorization to access users’ sensitive information? The announcement of the settlement of a pair of recent FTC complaints against PaymentsMD, a medical billing services provider and its former CEO, and the resulting settlement, provide some important guidance,… More

Our friends at Co3Systems and IOD recently produced a webinar, “Ready or Not, Here They Come: Preparing For Phase 2 HIPAA Compliance Audits” that provides a succinct overview of what is coming down the pike for HIPAA covered entities.

You can access the slides from the presentation here and view the webinar recording here. More

In a first for the FCC, it announced on October 24 that it intends to fine two telecom companies $10 million for data security violations:

The FCC intends to fine TerraCom, Inc. and YourTel America, Inc. $10 million for several violations of laws protecting the privacy of phone customers’ personal information. According to an investigation by the Enforcement Bureau, TerraCom and YourTel apparently stored Social Security numbers, names,… More

Yelp’s $450,000 settlement with the FTC in September should serve as an important reminder for all owners and operators of websites or mobile apps – even if your site is not for kids, you need to know and abidge by what the Children’s Online Privacy Protection Act (COPPA), and the related COPPA Rule, requires.

Yelp allows registered users to write reviews of local businesses. A user can access Yelp through desktop and mobile websites,… More

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

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

The FTC’s July 10, 2014 complaint filed against Amazon has left app developers with concerns about how to make apps that target kids and still comply with the law. The complaint, brought under Section 5(a) of the FTC Act, alleged that Amazon failed to obtain parents’ or account holders’ informed consent to in-app charges incurred by children. While the complaint was not brought under the Children’s Online Privacy Protection Act (COPPA),… More

In a unanimous decision issued today, the Supreme Court ruled that police cannot search the cell phones of arrested individuals without a warrant. In reaching its decision, the Court recognized that there is an immense amount of personal information on smart phones and held that access to that information would constitute a significant invasion of individual privacy. With the relatively recent invention of cell phones and the sudden pervasiveness of smart phones in the United States,… More

The revised Children’s Online Privacy Protection Act (“COPPA”) Rules, as discussed here previously were meant to bring regulations in line with, in the FTC’s words, the “rapid-fire pace of technological changes to the online environment” that  have taken place since COPPA was passed in 2000.  This week’s Boston Globe article about the new public television production, WGBH’s “Plum Landing,” provides an interesting illustration of the impact of the revised COPPA Rule.… More

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

(This was originally posted May 13, 2014 on CRS and the Law.)

Today’s decision by the European Court of Justice (ECJ) that individuals enjoy the right to have truthful yet unflattering information about them “forgotten” from online search results is generating a great deal of controversy in Europe and beyond. In a case brought by Spanish national Mario Costeja Gonzalez against Google demanding that the search giant remove results referring to a years-old newspaper notice of a tax auction of his property,… More

In a 110 page report issued yesterday, the Federal Trade Commission suggested that data brokers operate without transparency and asked Congress to consider enacting legislation to make data broker practices more visible to consumers and to give consumers greater control over personal information that is collected and shared by data brokers.

The report, “Data Brokers: A Call for Transparency and Accountability” is the result of a study of nine data brokers undertaken by the FTC to shed light on the data broker industry. … More

Data breach law in the United States might have just become a lot less patchy, but a little more uncertain.  On April 7, 2014, the District Court of New Jersey decided FTC v. Wyndham Worldwide Corp., et al., No. 13-1887-ES.  This case arises out of a FTC action, brought under the deception and unfairness prongs of Section 5(a) of the FTCA (15 USC s.… More

On February 20, the U.S. Department of Health and Human Services Office of Civil Rights (HHS OCR) released new guidance explaining how the HIPAA Privacy Rule operates to protect individuals’ privacy rights with respect to their mental health information and in what circumstances the Privacy Rule permits health care providers to communicate with patients’ family members and others to enhance treatment and assure safety.

The guidance is essentially a set of answers to frequently asked questions. … More

In a previous post, I wrote about privacy concerns surrounding data storage nonprofit inBloom and its partnership with the New York State Education Department (“NYSED”).  On February 5, 2014, New York State Supreme Court Justice Thomas A. Breslin dismissed the lawsuit filed by parents seeking to block NYSED from sharing and storing student data with inBloom.  In his order,… More

Privacy concerns have threatened the plans of the New York State Department of Education to use third party contractor, inBloom, to store and integrate student data in a cloud-based system.  On January 10, the Department announced that it would delay release of additional student data to inBloom.  The delay, which the Department said is normal for a project of its size, comes after a class of parents filed suit in November and New York legislators proposed a bill requiring parental consent before sharing such data.… More

Have you wanted to read up on the many cyber security issues that have arisen over the past year but which you did not have time to follow in detail?  We have just the thing — four reports from the Congressional Research Service, the low-key public policy research branch of the U.S. Congress (so low-key that they do not have a web site).

Four recent CRS reports on timely cyber topics are:

• The 2013 Cybersecurity Executive Order:   Overview and Considerations for Congress

• Federal Laws Relating to Cybersecurity:  Overview and Discussion of Proposed Revisions

• Cybersecurity: Selected Legal Issues

• Cybersecurity:  Authoritative Reports and Resources

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.…

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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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The United States District Court for the Northern District of California recently refused to dismiss a Computer Fraud and Abuse Act (CFAA) claim with an unusual twist:  the defendant allegedly circumvented an IP address block after receiving a cease-and-desist letter from the plaintiff and therefore is alleged to have acted “without authorization” in violation of the CFAA.

The dispute began with Craigslist Inc.… More

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

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

Originally posted on July 30th, 2013 by Brian P. Bialas

            An interesting article by Jeffrey Spear that appeared in the New Hampshire Bar News in July shows that the federal district court in New Hampshire is struggling with the same question as the district court in Massachusetts: What is the proper interpretation of the Computer Fraud and Abuse Act (“CFAA”)? … More

In order to “keep up with technology,” the FTC revised the Children’s Online Privacy Protection Rule (COPPA) in 2012.  As a result of those revisions, some companies that may not have been covered by COPPA may now be covered, and the effective date of those changes is today, given the July 1st effective date of the revised COPPA Rule.  To streamline your response to these issues, the FTC has developed a six-step COPPA compliance guide:

Step 1: Determine if Your Company is a Website or Online Service that Collects Personal Information from Kids Under 13.… More

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 by the Rule and what is required of businesses to protect consumers from identity theft. … More

            In a recent decision, the Massachusetts Supreme Judicial Court (SJC) determined that customer ZIP Codes are “personal identification information” that retailers are prohibited from collecting during credit card transactions.  With this decision, the Massachusetts high court may have set off a wave of new class-action lawsuits against retailers that collected customer ZIP Codes.  Especially vulnerable are those retailers that collected customer ZIP Codes and used them to send unwanted marketing materials or sold the ZIP Codes or information derived from them to third parties. … More

Posted on March 15th, 2013 by Brian P. Bialas
on our sister blog, Massachusetts Noncompete Law.
 
            I’ve written many times More 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 confidentiality agreement or company IT policy, when an employee downloads confidential information he is permitted to access but then takes that information to a competitor. …

Feb 18, 2013
U.S. Supreme Court takes pass on CFAA lawsuit; uncertainty remains
In 1st Circuit, ‘ball in employer’s court’

By Correy E. Stephenson More

The U.S. Supreme Court’s denial of certiorari in a Computer Fraud and Abuse Act case leaves employment lawyers in the 1st Circuit and beyond with continuing uncertainty.Employers frequently add a CFAA claim to suits against former employees that take confidential information from company computer systems.…

Merchants who accept credit cards have a duty to protect customer information, not only by law (see, e.g., 201 CMR 17.00), but also because the credit card companies tell them so.  The Payment Card Industry Security Standards Council was created by Visa, MasterCard and American Express to tell merchants precisely what they are supposed to do to protect consumers.  Merchants must follow the Payment Card Industry Data Security Standard (PCI DSS) or risk fines or losing the ability to process credit cards. … 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,…

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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 paradigm shift in the privacy world,” I do agree that this is “definitely something for all businesses to pay attention to.”  Similarly,… More

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,… More

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 have a more detailed analysis shortly in this space),… More

The Massachusetts Attorney General announced today that the former owners of a medical billing practice and four pathology groups have agreed to collectively pay $140,000 to settle allegations that medical records and patient billing information for “tens of thousands of Massachusetts patients were improperly disposed of at a public dump.”  Under the settlements, the defendants have agreed to pay a total of $140,000 for civil penalties, attorney fees,… More

The Department of Health and Human Services’ Office for Civil Rights (“HHS OCR“) announced today that it was, for the first time, entering into a monetary HIPAA settlement for a breach involving less than 500 patients: the Hospice of North Idaho (HONI) has agreed to pay HHS OCR $50,000 to settle potential HIPAA security rule violations.

HHS OCR began its investigation after HONI reported to it that an unencrypted laptop computer containing the electronic protected health information (“ePHI”) of 441 patients had been stolen in June 2010.… More

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 protection under the National Labor Relations Act (NLRA),… More

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,” 15 U.S.C.… More

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 health purposes increases, Foley Hoag LLP security and privacy practice co-chair Colin Zick added.… More

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 implementation and management of the current de-identification standard and potential changes to address policy concerns.… More

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 and EU? … More

It was a pleasure to be on a panel with members of the Massachusetts Office of the Attorney General last week at the Massachusetts Medical Society to talk about how physicians can protect health information in our presentation entitled:  “Protecting Health Information: Health Data Security Training.”   We covered the latest in federal law (HIPAA, HITECH) and Massachusetts law. More

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 that: “the best approach is to consider this privilege narrowly tailored but absolute.”… More

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, in particular the phrase “exceeds authorized access.”… More

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 advance state enforcement, HHS OCR has developed HIPAA Enforcement Training modules,… More

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:

1. change the information protected to “personally identifiable information” (it was formerly “personal information”);
2. exclude from the definition of “security breach” …

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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 from Of Counsel regarding both the substance and the business of data privacy and security law.  Lawyers from several firms (including me) talk about current and pending legislation, the mechanisms of compliance and breach response, and the pipeline for new lawyers in the field of data security and privacy. 

One of the other attorneys discussed the shortage of trained attorneys in this area as follows:

You’d think,… More

An aptly-timed article from Mass High Tech Business News noted earlier today that: “Data Breaches [Are] a Growing Problem in Health Care.”  This article focused on a recent breach at Boston Children’s Hospital involving the records of 2,000 patients.

The article was prescient, as this afternoon, the Massachusetts Attorney General announced a $750,000 settlement with suburban Boston’s South Shore Hospital, relating to a 2010 data breach.… More

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 Act,… More

The Office of the National Coordinator for Health Information Technology (“ONC”) has issued a Guide to Privacy and Security of Health Information Guide to Privacy and Security of Health Information. The guide is targeted at smaller health care providers and their administrative staff members. The 47 pages contain five chapters:

• Chapter 1: What Is Privacy & Security and Why Does It Matter?
• Chapter 2: Privacy &…

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(This post also appears in www.massachusettsnoncompetelaw.com)

Below is an article that I wrote for the June edition of Massachusetts Lawyers Journal, the monthly publication of the Massachusetts Bar Association. It discusses an important case that interprets the Computer Fraud and Abuse Act Moreand the split in the law that case has created with the First Circuit, which includes Massachusetts.The U.S. District Court for the District of Massachusetts has noted that employers are increasingly using the federal Computer Fraud and Abuse Act (CFAA) “to sue former employees and their new companies who seek a competitive edge through wrongful use of information from the former employer’s computer system.” But in April,…

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 September 30, 2011, the largest share of breaches was not in the financial sector,…

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In February 2012, following oral argument, the U.S. Court of Appeals for the Second Circuit issued a brief order reversing Sergey Aleynikov’s convictions for violating the National Stolen Property Act, 18 U.S.C. § 2314 (“NSPA”), and the Economic Espionage Act, 18 U.S.C. § 1832(b) (“EEA”), and stating a longer opinion would follow. In that promised opinion, which was issued earlier this month, see United States v. Aleynikov,… More

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 FTC received over 450 comments from businesses,… More

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, however, is subject to hot debate among the federal courts,… More

The trend toward increasingly large health information breach settlements has continued with yesterday’s announcement thatBlue Cross Blue Shield of Tennessee (BCBST) has agreed to pay the U.S. Department of Health and Human Services (HHS) $1,500,000 to settle potential violations of HIPAA’s Privacy and Security Rules, HHS’s Office of Civil Rights. BCBST also agreed to a corrective action plan to address gaps in its HIPAA compliance program.… More

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 process to specify how the principles in the Consumer Privacy Bill of Rights apply in particular business contexts,…

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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. Facebook, Inc. v. Power Ventures,… More

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 Department of Commerce has been charged with "work[ing] with other Federal agencies to convene stakeholders,… More

In a letter sent earlier today, 37 state attorneys generals (or their equivalents) wrote to Larry Page, Google’s CEO, "to express our strong concerns with the new privacy policy that Google announced it will be adopting for all of its consumer products."

According to the letter:

Google’s new privacy policy is troubling for a number of reasons. On a fundamental level, the policy appears to invade consumer privacy by automatically sharing personal information consumers input into one Google product with all Google products.… 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

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 1,… More

Here is an excerpt from my interview yesterday with Jon Mitchell of ReadWriteWeb:

"From a legal perspective, I’m not seeing anything that’s much different in what’s being proposed to take effect on March 1 and what’s in place right now," Zick says. "In particular, the language about sharing across services has been in [Google’s policies] for a long time."

Zick points out that all the past versions of Google’s privacy policies are on the website,… 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

The Supreme Court today issued an opinion holding that police cannot track a suspect using GPS without first getting a warrant.

Justice Scalia wrote the opinion, for a unanimous court, and concluded:  “We hold that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’  It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information.”… More

This report from the Office of the Inspector General for the Department of Health and Human Services reveals significant holes in Medicare contractor security.  Here’s a notable excerpt:

Security Awareness Training
The Computer Security Act of 1987 (P.L. No. 100-235) requires periodic training in computer security awareness and accepted computer practices for all employees who manage, use, or operate Federal computer systems. Additionally,… 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.

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

My colleagues Jen Audeh and Jeff Collins have analyzed the SEC’s guidance on the use of social media by investment advisors.  Because of the overlap this issue has with data privacy and security, we are providing this except and a link to their summary:

On January 4, 2012 the SEC’s Office of Compliance Inspections and Examinations issued an exam alert to registered investment advisers which included guidance on the use of social media.… More

Until yesterday, I did not know there was a Congressional Cyber Security Caucus.  It is not clear what it has been up to, as it hasn’t had a media release in eleven months. More

In an article in today’s New York Times, we get some real-life insight into the difficulties in responding to a data breach.  Even simple questions, like whether or not to report the breach and who is responsible for reporting it, take on unforeseen complexity.

The particular breach in question happened at the Massachusetts eHealth Collaborative, when an employee’s car was broken into and a company laptop stolen. … More

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 alleged,… More

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.…

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

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

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 that collect the personal information of over 10,000 customers to employ specific privacy and security measures,… More

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. More

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 those rules.  This follows on the heels of Massachusetts General Hospital’s $1 million settlement with OCR.… More

hackers Anonymous “Lulz Security”

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 brief summary of the posture of the case and of the Court’s decision:

Vermont law restricts the sale,… 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:

• Epsilon: breach of customer email addresses;
• RSA: compromise of security tokens (possibly impacting Lockheed Martin);…

More

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.) More

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 personal favorites, the Harp and Ned Devine’s) in the wake of a 2009 data breach involving credit card numbers and other personal data. … More

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

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 You Really Know Who Your Friends Are?…

More

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

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 set forth baseline consumer data privacy protections—that is, a “consumer privacy bill of rights.”… More

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 for such major publishers as the Hearst Corporation and Salary.com.… More

On March 14, the California-based managed care organization, Health Net, Inc., announced that it cannot account for "several server drives" that contained protected health information.  According to California regulators, these servers appear to contain the data of 1.9 million people nationwide:

The company announced today that nine of its server drives containing personal information for 1.9 million current and past enrollees nationwide are missing, including records for more than 622,000 enrollees in Health Net products regulated by the DMHC,… More

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 them on the seat beside her. The documents were not in an envelope and were bound with a rubber band.… More

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 Center of the AMA and the State Medical Societies,… More

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 to FOIA.  Exemption 7(C) covers law enforcement records the disclosure of which “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”… More

My slides from this presentation, "Compliance Approaches in the Changing HIT Privacy and Security Landscape:  How You Can Nurture a Culture of Health Information Security and Privacy" cover HIPAA and HITECH developments and compliance, with a focus on breaches and OCR settlements/penalties, including:

• §Resolution Agreement with Providence Health & Services–July 16, 2008
  Settlement:  $100,000
• §Resolution Agreement with CVS Pharmacy,…

More

As we noted back in May, digital copiers have caught the eye of government privacy enforcers.  If you have a digital copier at your business, you should review the FTC’s Copier Data Security: A Guide for Businesses.  In that Guide, the FTC suggests that “your information security plans .  . . should cover the digital copiers your company uses. If the data on your copiers gets into the wrong hands,… More

Earlier today, the U.S. Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) issued a Notice of Final Determination finding that Cignet Health of Prince George’s County, Md., (Cignet) violated the Privacy Rule of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). HHS imposed a civil money penalty (CMP) of $4.3 million for the violations, representing what OCR said was "the first CMP issued by the Department for a covered entity’s violations of the HIPAA Privacy Rule." … More

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 OCR practice is to validate, post to the HHS website,… More

The Department of Homeland Security has released its latest update to its internal guide to handling personally identifiable information.  The "Handbook for Safeguarding Sensitive PII at DHS" has been around since 2008; even if you do not have direct dealings with DHS, it provides a useful point of comparison for your own policies and procedures.  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

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 and respect for human rights."  Although CRG has its own unique perspective on whether DNA databases should exist and how they should be used,… More

Earlier this month, the Federal Trade Commission (“FTC”) released a preliminary staff report entitled, “Protecting Consumer Privacy in an Era of Rapid Change:  A Proposed Framework for Businesses and Policymakers.” According to the FTC, the report is intended “to inform policymakers, including Congress, as they develop solutions, policies, and potential laws governing privacy, and guide and motivate industry as it develops more robust and effective best practices and self-regulatory guidelines.” Judging from the initial wave of public commentary,… More

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,… More

Posted below is another contribution from my colleague David Broadwin on our Emerging Enterprise Center blog about the potential for legislative change in 2011. I agree with the conclusions he draws:

1. This is an area where bipartisan concensus is possible.
2. The industry powers will fight against “Do Not Track” and will win that fight.
3. Industry will accept some other form of regulation in exchange for defeating “Do Not Track.”

We could see passage of a federal data security and privacy statute,… More

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 area,… More

Earlier today, the FTC released a preliminary staff report entitled, “Protecting Consumer Privacy in an Era of Rapid Change:  A Proposed Framework for Businesses and Policymakers.”  The report is over 100 pages long and suggests that changes need to be made regarding consumer privacy, stating:

Industry must do better. For every business, privacy should be a basic consideration –
similar to keeping track of costs and revenues,… More

In a complaint filed with the FTC on November 23, four advocacy groups asked for "Investigation, Public Disclosure, Injunction, and Other Relief" against several online health giants, including Google, Microsoft, QualityHealth, WebMD, Yahoo, AOL, HealthCentral, Healthline, and Everyday Health. 

The advocacy groups behind this complaint are the Center for Digital Democracy,… More

On November 19, the California Department of Public Health (CDPH) announced that eight health care facilities (mostly hospitals) have been assessed administrative penalties and fines totaling $792,500 after a determination that the facilities failed to prevent unauthorized access to confidential patient medical information.

The fines ranged from a low of $5,000 to a high of $250,000:

1. Biggs Gridley Memorial Hospital, Gridley, Butte County: The hospital was assessed a $5,000 fine after the facility failed to prevent unauthorized access of one patient’s medical information by two employees on three occasions.…

More

The following post was drafted by my colleagues Rob Fisher and Brian Bialas; although their focus is on the employment law aspects of this issue, the implications for corporate security/privacy policies are significant.  In particular, they note that such policies must not prohibit employees from criticizing their employer.  Time to check your existing policies on this point.

*  *  *

The rise of social media websites has created a host of challenges for employers.… More

On November 8, 2010, the Connecticut Insurance Commissioner, Thomas Sullivan announced that the state’s Insurance Department has reached an agreement with Health Net of Connecticut to pay $375,000 in penalties levied for what the Insurance Department characterized as "failures to safeguard the personal information of its members from misuse by third parties."  This included what the Insurance Department considered untimely notification of the 2009 loss of a disk drive resulting in the loss of personal health information of approximately 500,000 Connecticut members. … More

In a recent decision by the United States Court of Appeals for the First Circuit, Martin Boroiang v. Robert S. Mueller, III, et al., No. 09-1630, the First Circuit rejected a challenge to the requirement that a blood sample be given by a federal offender for purposes of creating a DNA profile and entering it into a centralized government database.

The DNA Analysis Backlog Elimination Act of 2000 (“DNA Act”) applies to individuals who have been convicted of a “qualifying federal offense”… More

On July 6, 2010, Connecticut Attorney General Richard Blumenthal announced a settlement with Health Net and its affiliates (Health Net of the Northeast, Inc., Health Net of Connecticut Inc., and parent companies UnitedHealth Group Inc. and Oxford Health Plans.) of a suit that cited failure to secure private patient medical records and financial information on nearly a half million Connecticut enrollees and promptly notify consumers endangered by the breach.… More

On June 25, 2010, federal district court judge Reggie B. Walton of the United States District Court for the District of Columbia entered a stipulated court order (.pdf) directing the  Federal Trade Commission (FTC) to delay enforcement of the FTC’s Red Flags Rule against doctors and medical practices represented by the American Medical Association (AMA) and American Osteopathic Association.  The FTC and AMA agreed to this delay in a Joint Stipulation (.pdf),… More

This week, the Center for Democracy & Technology (CDT) submitted a complaint (.pdf) to the Federal Trade Commission (FTC) alleging that the data broker website Spokeo was violating federal financial privacy law by not taking adequate safeguards to protect consumers.  Spokeo is a website that bills itself as a search engine that allows users the ability to look up “people-related information from phone books,… More

Today, the Federal Trade Commission (FTC) and Twitter announced that Twitter has agreed to settle FTC charges that the company failed to take sufficient security measures to protect user privacy settings.

The FTC charges stem from breaches in security that occurred in 2009, when hackers accessed Twitter employee accounts and used administrative controls to access the Twitter accounts of high-profile users,… More

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.

This Tuesday, June 1, 2010, marks the official deadline for compliance with the Federal Trade Commission’s Red Flags Rule. The deadline for enforcement of the Red Flags Rule has been delayed repeatedly since its original deadline in November 2008, but the FTC has remained silent on further delays since it announced the current deadline in October of last year.
The FTC’s Red Flags Rule is a set of regulations that require financial institutions and creditors to adopt written identity theft prevention programs. The FTC sparked considerable controversy when it announced that the Rule applies broadly to a range of businesses unused to being subjected to financial industry regulation (i.e., any individual or company that bills its customers after it provides goods or services). As a result, a number of industry groups have filed lawsuits to challenge the FTC’s application of the Red Flags Rules to lawyers, accountants and, most recently, medical professionals.

This week Google rolled out its Government Requests tool that quantifies the number of government requests it receives from various countries around the world.  The move was announced by David Drummond, Google’s Chief Legal Officer on Tuesday on the official Google blog.  In his post, Drummond stated:

So it’s no surprise that Google, like other technology and telecommunications companies, regularly receives demands from government agencies to remove content from our services.… More

On Monday, the Financial Industry Regulatory Authority (FINRA) announced that brokerage firm D.A. Davidson & Co. had consented to the imposition of a $375,000 fine for lax security measures that allowed hackers working for an “international crime group” to obtain personal information on thousands of customers.

The breach itself occurred in December 2007 when hackers used a “SQL injection” attack to obtain data on over 100,000 Davidson’s customers from the firm’s online account system. … More

LifeLock, Inc., a self-proclaimed “industry leader in the rapidly growing field of identity theft protection” has agreed to pay $11 million to the Federal Trade Commission and $1 million to a group of 35 state attorneys general to settle charges that Lifelock falsely promoted its identity theft protection services. Lifelock publicized its services through advertisements that publicly disclosed its CEO’s Social Security number. As part of the settlement,… More

The February 27 issue of The Economist has an excellent special report, "Data, data everywhere:  A special report on managing information."  It features a series of articles on the volume of information that is overtaking business and society, and the means by which business and governments are responding. More

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.  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

It has been well over a decade since the passage of HIPAA in 1996. HIPAA has caused many changes in the way the business of health care works, including going a long way to create the position of “health information professional.” One area where HIPAA has, as yet, had little impact has been in enforcement. The history of enforcement of HIPAA’s privacy and security rules has been slim and almost none. The changes in behavior that have occurred have been done out of a desire to follow the law,… More

The Massachusetts Office of Consumer Affairs and Business Regulation (OCABR) has filed its final information security regulations and will be making them public this week. The final rules appear to have been tweaked only slightly from the draft regulations issued on August 17, 2009.

Two days before they were scheduled to go into effect, and on the same day that a federal judge ruled that lawyers should be excluded from enforcement, the Federal Trade Commission (FTC) announced today that it was delaying enforcement of its Red Flags Rule until June 1, 2010. Given the timing of the announcement, the most likely explanation for the delay is that the FTC wants to give itself time to appeal the district court’s decision in the ABA suit.

In an order entered this morning, Federal District Judge Reggie B. Walton granted the American Bar Association’s (ABA) request that lawyers be excluded from enforcement of the Federal Trade Commission’s (FTC’s) controversial Red Flags Rules. This comes as the legal community steeled itself for the FTC’s imminent November 1st enforcement deadline.

Reddit co-founder Aaron Swartz was apparently the subject of an FBI investigation for “participating in a project to take the publicly owned US court records from the PACER database (where they were very expensive to access) and put them on the web.” 

Mr. Swartz has made this information public by releasing the contents of his FBI file, obtained through a Freedom of Information Act request. His file reveals that the FBI was treating his access of PACER as a crime which cost the victim,… More

Declassified documents obtained (but not published) by WIRED Magazine indicate that the FBI has been hard at work expanding a database of Americans’ personal and financial information.  According to WIRED, the FBI’s National Security Branch Analysis Center (NSAC) has compiled a database of  “more than 1.5 billion government and private-sector records” and has been mining this database for use in criminal investigations. The data, which apparently has been obtained from a number of private companies,… More

Earlier this year, the Wisconsin and New York state courts split on whether police may install a covert GPS tracking device on a suspect’s car without a warrant.  On September 17, the Massachusetts Supreme Judicial Court addressed the GPS tracking device issue, ruling that Article 14 of the Massachusetts Declaration of Rights requires a warrant before such a device may be installed and used. 

The defendant,… More

The Federal Trade Commission will host a series of public "roundtable discussions" to explore the privacy challenges posed by "technology and business practices that collect and use consumer data," including social networking, cloud computing, online behavioral advertising, mobile marketing, and the collection and use of information by retailers, data brokers, third-party applications, and other diverse businesses. The FTC’s expressed goal of the meetings is to determine how best to protect consumer privacy while supporting beneficial uses.… More

In a move threatened but not expected this soon, the American Bar Association today sued the Federal Trade Commission, in an effort to stop the application of the Red Flags Rule to lawyers.  The Red Flags Rule is scheduled to go into effect on November 1, 2009. 

The complaint (.pdf), which was filed in federal district court in Washington, D.C., seeks declaratory and injunctive relief, with the goal of making clear that lawyers are not "creditors"… More

On July 13, a federal judge in Miami granted a joint motion to stay an evidentiary hearing that was to be held as a result of a petition from the United States that the Swiss bank UBS be compelled to disclose the names of 52,000 American clients who were suspected of tax evasion.  The case has raised concerns about the effects of privacy laws in other nations on the ability of the federal government to enforce its own laws and created tension between the Justice Department,… More

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 and guidance to clarify whether businesses are covered by the Rule and what they must do to comply." … More

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 privacy and behavioral advertising. More

In an email to its listserv earlier today, the federal Department of Health and Human Services announced it "is expanding its health information privacy enforcement team."  In particular, HHS is hiring for two new positions are located in HHS’s "Office of the Secretary, Office for Civil Rights (OCR), Office of the Deputy Director Health Information Privacy (ODDHIP)."  As described on USAJOBS.GOV, the people to be hired "will be responsible for reviewing,… More

On June 11, 2009, six federal agencies issued answers to a set of frequently asked questions (FAQ) (.pdf) to “assist financial institutions, creditors, users of consumer reports and card issuers in complying with the final rulemaking” on identity theft.  The agencies behind the FAQ are those that originally promulgated the Red Flags Rules (and issued Guidelines to assist covered entities in designing compliance programs): the Federal Trade Commission (FTC),… More

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 and Congress to exempt lawyers from compliance with federal Red Flags Rules or takes some other action to limit the scope of the FTC’s enforcement. … More

On Friday, June 5, 2009, Suffolk University Law School’s Center for Advanced Legal Studies organized a thorough presentation on the Massachusetts information security rules.  These presentations were led by  a pair of notable Massachusetts regulators: Scott D. Schafer, the head of privacy enforcement for the Massachusetts Attorney General and David A. Murray, the chief architect of the Massachusetts identity theft regulations for the Officer of Consumer Affairs and Business Regulation (OCABR).… More

From the increasingly populated intersection of the Fourth Amendment and modern technology, comes this story from Wired’s "Threat Level."  The Federal Communications Commission (FCC) claims the right enter onto any property to inspect — without a warrant — any radio equipment, regardless of whether it is licensed or unlicensed.  In an interview with Wired, an FCC spokesperson claimed that the FCC’s right to inspect radio equipment extends to “anything using RF energy.” … More

According to the Chicago Tribune, on May 7, 2009, a three-judge panel of Wisconsin Court of Appeals unanimously ruled that police "can attach GPS to cars to secretly track anybody’s movements without obtaining search warrants" without violating the Fourth Amendment.  The court’s opinion in State v. Sveum can be found here.  The defendant Sveum was under investigation for stalking when the police obtained a warrant to secretly place a GPS device on his car while it was parked in the his driveway. … More

On Tuesday, May 5, 2009, in a press release devoted largely to the FTC’s congressional testimony on peer-to-peer file sharing, the FTC announced that it had reached a settlement  of its claims against James B. Nutter & Company, a mortgage company that did not implement information security measures to meet federal minimums.  According to the FTC, the result of this alleged failure was that an intruder in the company’s systems sent "millions of outgoing spam emails"… More

On Thursday, April 30, 2009, the day before federal Red Flags Rules were set to go into effect for a wide range of businesses, the FTC published a notice on its website indicating that it is postponing the deadline (yet again) until August 1, 2009. Importantly, this delay appears to be imposed so that the FTC can provide businesses, many of which are confused about how to comply, a “template” identity theft prevention program. “For entities that have a low risk of identity theft, such as businesses that know their customers personally, the Commission will soon release a template to help them comply with the law.” The FTC indicates that it will make the template available through their website.

On Thursday, March 5, 2009, the FTC announced that it had reached a settlement with financial research firm Rental Research Services, Inc. (RRS) and its managing officer, Lee Mikkelson, to resolve the FTC’s claims that the firm had failed to provide adequate security for sensitive consumer information provided to identity thieves posing as legitimate users. This case provides a number of key lessons for businesses who have not considered whether their security practices amount to “unfair or deceptive acts or practices” under federal and state laws.

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

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.”

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. More

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) Order (22 FCC Rcd 6927), which requires each carrier to certify compliance with the regulations governing customer information. … More