On October 1, 2020, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) released an advisory regarding potential sanctions risks related to facilitating ransomware payments, as covered in this post from Foley Hoag’s Security, Privacy, and the Law blog.
OFAC is the federal agency responsible for implementing and enforcing U.S. sanctions against individuals, entities, and foreign governments involved in terrorism,… More
As founding counsel and a continuing member of the Advanced Cybersecurity Center, Foley Hoag is pleased to invite you to join us in these two programs, part of the ACSC’s 10th annual conference.
Foley Hoag partner Colin Zick weighs in on large health systems putting substantial resources into IT. “It’s not being ignored, but it’s a tough problem. Ransomware is turning into a big business.”
Click here to read the full Fierce Healthcare article. More
On October 1, 2020, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) issued an advisory to alert companies that might pay ransomware attackers of the potential sanctions risks for facilitating ransomware payments. In particular, the alert targeted “financial institutions, cyber insurance firms, and companies involved in digital forensics and incident response….” While this is an advisory and does not have the force of law,… More
With apologies to John Donne, ask not for whom the bells tolls, HIPAA business associates, it tolls for thee! While it has been the law for some time that business associates could be held directly liable for breaches, enforcement actions against them have been few and far between. But a sizable settlement announced on September 23, 2020 by the Office for Civil Rights at the U.S.… More
What are best practices for handling a data security incident? Every phase of a data security incident requires thoughtful and measured action – from discovery, to investigation, to post-investigation compliance. Even planning for an incident before it happens is important to lay the groundwork for the most effective response.
Foley Hoag partners Chris Hart and Veronica Jennings talk through best practices in responding to,… 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
In the wake of the Schrems II decision invalidating the the EU-US Privacy Shield, the US Department of Commerce has decided it should make lemonade out of the Schrems lemons. The Department recently issued a set of FAQs, which go on at length about how the Swiss-US Privacy Shield is still in place and the steps that businesses can take to participate:
The Swiss-U.S.… More
On July 23, 2020, the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA), joined by the National Security Agency (NSA), issued a cybersecurity alert to operators of critical infrastructure. This cybersecurity alert outlines a series of “immediate actions” companies should take to reduce the risk of operational interference resulting from cyberattack. Unlike the bulletin issued by the Department of Homeland Security in January of 2020,… More
On Wednesday, June 24, 2020, the Federal Energy Regulatory Commission (FERC or “the Commission”) published a Notice of Inquiry (NOI) in the Federal Register soliciting comments on 
potential enhancements to the Critical Infrastructure Protection (CIP) Reliability Standards[1] that currently exist to help our energy infrastructure protect itself from attack. (Initial Comments are due by August 24, 2020, and Reply Comments are due by September 22,… More
On July 16, 2020, the European Court of Justice issued one of its most important decisions on data privacy law (Schrems II), holding that the EU-US Privacy Shield is no longer a viable mechanism for EU-US data transfers under the European General Data Protection Regulation (GDPR). Entities that relied on the Privacy Shield will immediately need to find another basis for their EU-US personal data transfers.… More
The coronavirus pandemic has required a rapid and dramatic shift to remote work, raising important implications for workplace privacy and information security. Some of these concerns are new; others are the same concerns that employers have always held, now amplified by the increasingly blurred lines between work and home. All of these concerns will remain as the workplace travels from the office to the home and, in the near future,… More
Chris Hart and Colin Zick, both Partners at Foley Hoag and Co-Chairs of the Privacy and Data Security Practice joined Mass Technology Leadership Council for their regular update on CCPA and other global and state privacy regulations.
This program, which was planned prior to the COVID-19 outbreak in the US, did provide an update on what California is currently enforcing and who is leading the charge.… More
On March 21, 2020, the last of the features of the NY Stop Hacks and Improve Electronic Data Security Act (“SHIELD Act”) became effective: its data security requirements. The SHIELD Act is a sweeping statute governing individual rights relating to data breaches. It was adopted in July 2019 and has been rolled out in the months since then: its breach notification provisions took effect on October 23, 2019, and its data security requirements have now taken effect. … More
Very interesting discussion in the most recent Journal of the American Medical Association, “Information Technology–Based Tracing Strategy in Response to COVID-19 in South Korea—Privacy Controversies.”
The sources of information are staggering in their breadth: mobile phone carriers, immigration services, law enforcement, credit card companies, public transit companies, government agencies, health insurers and health care providers. It is difficult to imagine this type of tracing in the United States.… More
Colin Zick, co-chair of Foley Hoag’s Health Care Practice and Chair of the Privacy and Data Security Practice, spoke with Bloomberg Law’s Ayanna Alexander regarding the Department of Health and Human Services’ decision to hold off on enforcing new health information data-sharing rules. His recommendation: prepare now, as the new requirements aren’t going away. “They will go easy on you if you are trying to comply, but the pandemic makes it difficult or impossible,” Zick said.… More
The Federal Energy Regulatory Commission (“FERC” or “Commission”) recently issued an Order approving a request 
by the North American Electric Reliability Corporation (“NERC”) to defer the implementation of several Reliability Standards scheduled to take effect later this year. This action, along with others discussed in an earlier post here, are the latest measures approved by FERC that demonstrate the Commission’s intent to exercise discretion in easing reliability compliance burdens in light of the national emergency related to the coronavirus pandemic.… More
Both legally and practically, there need not be an exclusive choice between health information privacy and using GPS and other technology to gather and provide information about COVID-19. Foley Hoag’s Jeremy Meisinger shares more in this GPS World article.
On January 4, 2020, the US Department of Homeland Security posted at National Terrorism Advisory System Bulletin, in the wake of the killing of a senior Iranian military leader by a US drone. That DHS advisory states:
The United States designated Iran a “State Sponsor of Terrorism” in 1984 and since then, Iran has actively engaged in or directed an array of violent and deadly acts against the United States and its citizens globally.… More
For the first time in over a decade, the U.S. Department of Education (DoE) and the Office for Civil Rights at the U.S. Department of Health and Human Services (OCR) have released updated joint guidance addressing the application of the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule to records maintained on students.… 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
In 2018, privacy and data security crossed a number of thresholds. In the public mind, through high-profile data breaches and revelations about unexpected uses of personal information, questions of privacy became much more salient. In the legal and regulatory arena, both the GDPR and the California Consumer Privacy Act became clear catalysts for a global transformation in the coming years of privacy practices. Finally, new technologies suggest that flux and complexity we are currently experiencing will continue,… More
On January 10, 2019, Massachusetts Governor Charlie Baker signed a new law that amends its data breach reporting law, and requires credit reporting agencies such as Equifax to provide a free credit freeze to consumers. The new law, “An Act Relative to Consumer Protection from Security Breaches,” also requires companies to offer up to three years of free credit monitoring to victims of a security breach,… More
Ten years ago today, on October 23, 2008, we posted our first blog entry on Security, Privacy and the Law. Since then, we have over 650 posts, on subjects ranging from FTC Red Flags to blockchain. We want to thank our many authors, and our many readers, and we look forward to another 10 years — I’m sure there will be plenty to write about! 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
On June 7, 2018, the French Data Protection Authority (the CNIL) published a decision (issued one month earlier) in which it imposed a record 250,000 euros fine on Optical Center (which, although its name does not indicate, is a French company) for having insufficiently secured the personal data of its customers.
The CNIL noted that customers could access more than 300,000 documents (mainly invoices) of other customers on Optical Center’s website site rather easily,… More
I am attending BIO 2018 in Boston, just steps from our Boston office. Naturally, I was drawn to yesterday’s session on “Life Sciences Cyber Exposures and Risk Mitigation Considerations.” But I came away disappointed. First of all, the session was held in a small room and even then, it was only one-third full (maybe 30 people of the 16,000 attending BIO 2018 chose to attend).… More
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
Recent federal legislation indicates a growing federal interest in blockchain as a potentially integral technology in cybersecurity systems. This comes on the heels of recent legislation in the New York Assembly also suggesting state level interest in blockchain.
On December 12th, H.R. 2810, the “National Defense Authorization Act for Fiscal Year 2018,” was signed into law. This law was, first and foremost,… More
Recent legislation in the New York State Assembly reflects a growing governmental interest in blockchain as a technology in cybersecurity systems. On November 27, four different bills addressing blockchain technologies were introduced into the New York State Assembly. Most significant among these is Assembly Bill 8793, which would establish a task force to study and report on the potential implementation of blockchain technology in state record keeping,… More
In case you missed it:
In case you missed it . . .
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:
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
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
Great article in the Wall Street Journal this week (paywall), on the history of passwords and password management. I did not know that the seeming obsession with passwords featuring a strange mixing of capital letters, numbers and !@#$%^&*()+ derives from a 2003 National Institute of Standards and Technology report, “NIST Special Publication 800-63. Appendix A.” This report advised computer users to protect their accounts by using the now familiar mélange of characters,… 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
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
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
Very interesting thought piece from the FTC’s Chief Technologist. Do mandatory password resets actually make us less secure? Not necessarily, but they could, if we do not train users to be aware of the subconscious pitfalls. 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 October 16, 2015, EU authorities gave the U.S. and European Union until the end of January 2016 to find a replacement for the former US-EU Safe Harbor regime, or enforcement actions could begin. The full statement of the EU Working Party is provided below:
Following the landmark ruling of the Court of Justice of the European Union (CJEU) of 6 October 2015 in the Maximilian Schrems v Data Protection Commissioner case (C-362- 14),… More
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
Cross-posting from our State Attorney General blog on the Conference of Western Attorneys General, where cyber security was on the agenda. More
With the heart of the summer vacation season upon us, it seems like a good time for some reflection. Here, it comes in the form of excerpts from an essay by privacy maven, Deborah Hurley. The one time Director of the Harvard Information Infrastructure Project at Harvard University, she has been thinking and writing about privacy issues for two decades. Her entire essay can be found in the book,… More
The next MIT Enterprise Forum of Cambridge Innovation Series event, “Building a Proactive Cyber Defense Strategy, from Tools to Tactics,” will take place tomorrow, May 27, beginning at 5:30 p.m. at the Stata Center, 32 Vassar Street, Cambridge. There is a great line-up of speakers, including our own Christopher Hart. More
am just back from presenting at the New York Stock Exchange’s program on Cyber Risks and the Boardroom, where I presented on The Role of Cyber Insurance. My presentation is here: 2015_04_21_The_Role_of_Cyber_Insurance_NYSE_Presentation. It was evident from this program that the C-suite is very concerned about cyber issues, but management and their boards often lack the expertise to deal with them effectively. With specific regard to cyber insurance,… More
Our colleagues Catherine M. Anderson and Kate Leonard of our Investment Management group have summarized the February 3, 2015 findings by the Office of Compliance Inspections and Examinations (OCIE) of its Cybersecurity Examination Sweep, which sought to evaluate the breadth of cybersecurity policies implemented by investment advisers (as well as by broker-dealers). For more details on the sweep, see our previous Foley Adviser update: SEC Issues Risk Alert on Cybersecurity Initiative for Investment Advisers.… More
The SplashData list of worst passwords of 2014 was just published, and it looks very similar to the list in 2013, 2012, 2011, etc.:
Rank
Password
Change from 2013
1
123456
No Change
2
password
No Change
3
12345
Up 17
4
12345678
Down 1
5
qwerty
Down 1
6
123456789
No Change
7
1234
Up 9
8
baseball
New
9
dragon
New
10
football
New
11
1234567
Down 4
12
monkey
Up 5
13
letmein
Up 1
14
abc123
Down 9
15
111111
Down 8
16
mustang
New
17
access
New
18
shadow
Unchanged
19
master
New
20
michael
New
21
superman
New
22
696969
New
23
123123
Down 12
24
batman
New
25
trustno1
Down 1
Sadly,… More
Data privacy and security have never been more top of mind for business than they are right now. As I noted in this article in Law360:
“The outlook in 2015 is that we’ll have more breaches, but I think we’ll also continue to have more conversations as people get used to breaches as a way of life about what we expect to be kept private,… More
Our colleages have analyzed a significant NLRB decision in Purple Communications Inc. that, in most circumstances, employees have a right to use employer email systems for non-business purposes during non-working time. This decision reversed the NLRB’s 2007 decision in Register Guard, in which it found that employers could limit employee use of email systems to “business purposes only” and that employers could “specifically prohibit” certain email system uses by employees:
I’ve looked at clouds from both sides now
From up and down, and still somehow
It’s cloud illusions I recall
I really don’t know clouds at all
Joni Mitchell, “Both Sides Now”
Until recently, many cloud users felt like Joni Mitchell in her classic song, “Both Sides Now.” No matter how you looked at clouds,… 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
The FTC recently filed a comment on the National Highway Traffic Safety Administration’s advance notice of proposed rulemaking related to vehicle-to-vehicle communications. The comment left no doubt that the FTC wants to regulate the Internet and everything connected to it.
Nonetheless, the FTC’s specific comments about vehicle security were noteworthy:
First, participants expressed concern about the ability of connected car technology to track consumers’ precise geolocation over time.… More
If you were not able to join us for our October 17 program with Kroll, Data Breach Prevention and Response: Avoiding Potential Pitfalls and Implementing Best Practices to Protect Your Company, we are happy to provide you with an electronic copy of the presentation materials.
The highly publicized hacking of the iCloud accounts of dozens of celebrities was disclosed over Labor Day weekend and has raised larger, more serious concerns regarding the security of personal and corporate data held in the cloud.
Several explanations for how the hack was achieved have been offered, with some initial pointing the finger at potential flaws in Apple’s security system.… More
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
With help from the FTC, here are five steps that you can take to protect yourself from fraud if you or your business use eBay:
As previously discussed here, Target suffered a massive data breach that compromised the credit and debit cards of many of its customers. Now that the dust has started to settle, the extent of the breach is becoming clearer. In December, Target announced that 40 million credit and debit card numbers were stolen in this hack. Further investigation has uncovered that hackers also obtained the “names,… More
In what may be a sign of things to come, a recent HHS OCR resolution agreement with a dermatology practice cites not only the loss of some 2,200 records on a thumb drive, but the lack of an “accurate and thorough analysis of the potential risks and vulnerabilities to the confidentiality of ePHI” and “[t]he Covered Entity did not … have written policies and procedures and train members of its workforce”;… More
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:
Our own Michele Whitham was one of the presenters at the recent 2013 Annual Advanced Cyber Security Center Conference on “Cyber Security Threat Sharing: A Roadmap for Collaborative Defense.”
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
Managed care company WellPoint Inc. has agreed to pay the U.S. Department of Health and Human Services $1.7 million to settle potential HIPAA Privacy and Security Rule violations committed in 2009 and 2010.
As so often happens, HHS OCR began its investigation following a self-report of the breach by WellPoint. That report “indicated that security weaknesses in an online application database left the electronic protected health information (ePHI) of 612,402 individuals accessible to unauthorized individuals over the Internet.… More
This week, the Computer & Communications Industry Association (CCIA) released the report Fair Use in the U.S. Economy (.pdf) concluding that industries that rely on the “fair use” exception in copyright law contributed $4.7 trillion or 16% of the U.S. gross domestic product in 2007, growing faster than the other sectors of the U.S. economy. The report credits the fair use of copyrighted works for the success of search engines,… More