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USDOL Offers Guidance on Data Security for Plan Fiduciaries and Service Providers

The Employee Benefits Security Administration of the United States Department of Labor (“EBSA”)  recently published guidance regarding cybersecurity best practices for recordkeepers and service providers responsible for plan related information technology systems and data for ERISA-covered plans, including 401k and other pension plans.

The EBSA counseled that a plan’s service providers should implement the following practices:

  1. Have a formal, well documented cybersecurity program.
  2. Conduct prudent annual risk assessments.
  3. Have a reliable annual third-party ...
The Wait is Over: Proposed Regulations Implementing the CCPA are Released

By Suzanne Gainey and Tandy Mathis.  On October 10, California Attorney General Xavier Becerra announced that the long-awaited proposed regulations implementing the California Consumer Privacy Act (“CCPA”) are available for public comment.  Although the regulations are not yet final, they do provide some visibility into what the Attorney General will expect from businesses that are subject to the CCPA.  While the proposed regulations add some clarity to the (sometimes unclear) language of the CCPA, the regulations also raise new questions about the application of the CCPA ...

California Consumer Privacy Act Update: AB25 and AB1355 Approved by California Governor

Earlier we posted an article regarding the amendments to the California Consumer Privacy Act by AB 25 and AB1355 creating a moratorium on the application of much of the CCPA to employee personal information—subject to approval by California’s governor. Pleased to report that Governor Newsom approved both AB25 and AB1355 and therefore the moratorium will be in effect until January 1, 2021. Some welcome relief to businesses trying to comply with the CCPA’s requirements.

California Consumer Privacy Act Update: California Legislature Provides Relief for Businesses Processing Employee Data

The California Consumer Privacy Act (CCPA) imposes significant protections for California residents covered by the law, and significant burdens for companies required to comply with it.    One area of concern is whether the CCPA applied to employee data collected by a business.  The language of the CCPA was unclear, but was open to the interpretation that its protections covered such data.  With an effective date of January 1, 2020, employers have been watching to see if the California legislature would clear up the uncertainty.  The good news is that for at least until January 1, 2021, most ...

NY Governor Signs Data Breach Security Law

As anticipated, today New York’s governor signed into law the Stop Hacks and Improve Electronic Data Security Act (SHIELD Act) discussed in our recap of US data breach laws enacted in the first half of 2019. The bill passed the state senate by a margin of 41 – 21. The law updates the body of law governing data breaches in New York by increasing the scope of information subject to current data breach notification laws and expanding notification requirements.

US Data Breach and Privacy 2019 Legislative Recap

A few weeks ago, Texas signed into law an amendment to its data breach law, capping off a busy first half of 2019 for state lawmakers in this arena.  As we gear up for the second half of 2019, we thought a recap was worthwhile.  The legislation reflects a number of trends, including increasing obligations on consumer reporting agencies (CRAs) to protect consumers (no doubt in part a reaction to the Equifax breach), and updating data breach notice and reporting to provide more transparency and more information to consumers to protect their data, and to update older laws to address ...

North Carolina Amendments to Data Breach Law Finally Introduced

On April 16, 2019, Representatives Saine, Jones and Reives introduced House Bill 904, the long anticipated amendments to the North Carolina Identity Theft Protection Act, N.C. Gen. Stat. § 75-61 et seq.. We first wrote about the proposed legislation in February 2018 [Two Proposed Data Security Laws Reflect National Trend Toward Affirmative Responsibilities]. The bill also amends the definition of identifying information in North Carolina’s criminal identity theft statute, N.C. Gen. Stat. § 14-113.20(b), adopted by reference in the Identity Theft Protection Act’s ...

Illinois Supreme Court Rules on Biometric Privacy Case

Today, the Illinois Supreme Court unanimously held that actual harm was not a necessary component of proving a breach of the state’s Biometric Information Privacy Act.  This ruling found that Stacy Rosenbach, the mother of a minor whose thumbprint was collected by Six Flags as part of a season pass holder purchase, can be considered an “aggrieved person” under the state’s biometric privacy law without alleging that her child’s data was stolen or misused.

This decision is significant because Illinois has the nation’s only biometric privacy law with a private right of ...

North Carolina Security Breach Report 2017

By Nathan White

According to the recently released North Carolina Attorney General Security Breach Report, nearly 5,337,154 North Carolinians were impacted by security breaches in 2017.  The Report highlights several trends data protection specialists and North Carolina businesses should take into consideration.

The report breaks down 1,022 data breaches occurring in North Carolina during calendar year 2017.  For the first time since reporting was required in 2005, hacking constituted a slight majority of the reported breaches at 50.49%.  This reflects a continuing trend of ...

Two Proposed Data Security Laws Reflect National Trend Toward Affirmative Responsibilities

With major consumer data breaches making headlines on a semi-regular basis, legislators around the country are starting to hold businesses more accountable for cybersecurity compliance.  Industry-specific laws such as HIPAA and the Gramm-Leach-Bliley Act (GLBA) already establish federal data security standards for some companies, and the Federal Trade Commission has taken the position that failure to have reasonable security measures is a violation of the FTC Act (see our DataPoints post here). 

From Massachusetts to New Mexico, a handful of state legislatures also have ...

Delaware Amends Personal Information Protection Law

On August 17, 2017, Delaware amended its personal information protection law, Delaware Code Title 6, Chapter 12B.  The amendment becomes effective 240 days after enactment or March 14, 2018. The amended law significantly enhances the protections afforded Delaware residents whose personal information has been – or is reasonably believed to have been – breached, by adding obligations on the part of a person or entity who conducts business in Delaware or owns, licenses and maintains “personal information” as the Delaware law defines the term. The major changes to the law are ...

D.C. Circuit Finds that Theft of Health Insurance Subscriber ID Numbers Is a Cognizable Injury in Identity Theft Litigation

By Bill Butler

Recently, the D.C. Circuit Court of Appeals ruled in Attias v. CareFirst, Inc., No. 16-7108, that customers had standing to sue a health insurer for a 2014 data breach in which the customers’ information was stolen.  In reversing the district court’s dismissal of the class action, the D.C. Circuit held that the customers’ allegations that the hackers accessed and took their Social Security numbers, credit card numbers, and health insurance subscriber ID numbers were each independently sufficient to show actual or imminent injury.  The customers’ complaint ...

MVA Seminar - Privacy and Data Security in the Trump Era: How to talk to the FBI and your IT Department in a Data Breach

PRIVACY AND DATA SECURITY IN THE TRUMP ERA: HOW TO TALK TO THE FBI AND YOUR IT DEPARTMENT IN A DATA BREACH (MAY 24, 2017): Effectively responding to a data breach requires clear communication with a web of internal and external groups. Two important groups are law enforcement and a company’s internal IT department. With the help of an FBI agent and an IT professional, this seminar will explore how to effectively work with these two groups to address a breach. Wednesday, May 24, 2017 11:30 AM - 1:00 PM. Register here.

New Mexico Becomes 48th State to Enact Data Breach Statute

Recently the state of New Mexico enacted the Data Breach Notification Act, making it the 48th state in the United States to enact a statute requiring notice to individuals impacted by a data breach. In doing so, New Mexico follows some trends we've been predicting at the state level.  These trends include covering encrypted data in the definition of personal information if the encryption key is accessed as well, and – importantly – requiring that companies engage in reasonable security measures to protect personal information in their possession. New Mexico also joins a handful of ...

Beck v. McDonald – 4th Circuit Weighs In on Standing in Data Breach Case

We don’t see a lot of data breach litigation here in the Fourth Circuit, so it is notable that the Fourth Circuit Court of Appeals issued an opinion recently that weighs in on the standing debate (For more on the debate: Constitutional Standing Provides Fertile Battleground In Data Breach Litigation). In Beck v. McDonald, the plaintiffs in two consolidated cases sought to establish Article III standing based on the harm from embarrassment, mental distress, inconvenience, the increased risk of future identity theft and the cost of measures to protect against it after (i) a ...

Constitutional Standing Provides Fertile Battleground In Data Breach Litigation

A common and understandable concern of companies that suffer a data breach is whether the victims can sue the company.  It is tempting to assume that the victims won’t sue if they do not suffer identity theft or monetary loss through misuse of the data.  Not all victims, or courts, agree.  As a result, standing, a constitutional prerequisite to bringing a lawsuit in federal court that is most often conceded rather than litigated, has become a focal point in data breach litigation where “risk of future harm,” rather than actual misuse of data, forms the basis of the victims’ claims.

To ...

The FTC Faces an Embarrassing Set-Back in its Data Security Enforcement Authority as the LabMD Saga Continues

On November 10th, the Eleventh Circuit Court of Appeals handed an embarrassing defeat to the Federal Trade Commission and an early Christmas present to LabMD, Inc. in the ongoing David and Goliath battle between the government agency and the new-defunct clinical lab.

What Happened?

It’s not easy to explain in a blog entry the complex backstory leading up to LabMD’s recent win, but here goes:

Over a thirteen year period (until it ceased business in 2014), LabMD operated a clinical laboratory that performed tests on patient specimen samples.  As part of its operations, LabMD had ...

MVA Seminar - The Nuts and Bolts of Data Security Programs: How to Put One Together for Your Company

THE NUTS AND BOLTS OF DATA SECURITY PROGRAMS: HOW TO PUT ONE TOGETHER FOR YOUR COMPANY (JUNE 2016): Privacy and data security issues impact every industry and affect almost all aspects of a company’s operations. Sales, human resources, data maintenance and storage, IT, legal and compliance, even litigation, all require careful attention to protecting the privacy of personal information as well as preserving the integrity of company, customer or third party data. Moore & Van Allen developed the Privacy & Data Security Seminar Series 2016 to help our clients and friends of the ...

MVA Seminar - Responding to a Data Breach:  What to Expect and What to Avoid
RESPONDING TO A DATA BREACH: WHAT TO EXPECT AND WHAT TO AVOID (APRIL 20, 2016): Verizon, Experian, and T-Mobile are on a growing list of entities impacted by major data breaches in the past year.  But data breaches are not just limited to large national companies or organizations. No one is immune. For most organizations—big or small—the question is not “if” they will be impacted by a data breach, but “when.” This seminar will help attendees gain a better understanding of what to do in the aftermath of a data breach, analyzing such questions as:
  • What should I expect after a ...
MVA Seminar - Privacy and Data Breach:  What Can Companies Expect in 2016?
PRIVACY AND DATA BREACH: WHAT CAN COMPANIES EXPECT IN 2016? (MARCH 16, 2016, SPEAKERS - KARIN MCGINNIS, TODD TAYLOR): 2016 promises to bring significant developments and challenges in information privacy and data security. Congress and state legislatures are continuing to focus on new laws to protect personal information while at the same time minimize the impact of cybersecurity threats. The Federal Trade Commission has made clear that it will continue to be a watchdog for privacy and data security violations affecting consumers, while at the same time the National Labor ...
Reading the Section 5(a) Tea Leaves: What the end of 2015 may suggest about the FTC priorities in 2016

by Associate Breana Jeter

The end of 2015 represented a mixed bag for the Federal Trade Commission on privacy enforcement.  In November, the FTC’s Chief Administrative Law Judge dismissed the FTC’s complaint against LabMD for a possible data breach of 1,718 patients’ insurance claim information.  The patient’s sensitive information was discovered on peer-to-peer software by a data security company seeking to sell its services to LabMD.  While LabMD maintained that the patient’s information never left the company’s network and that there was no actual ...

Federal Cybersecurity Legislation Moving Quickly, But Is It In the Wrong Direction?

By:  Marcus Lee and Omari Sealy

Federal cybersecurity legislation seeking to establish a national standard for data protection and breach response is quickly working its way through the legislative process.  The bipartisan bill, formerly known as the Data Security And Breach Notification Act of 2015 (hereafter “cybersecurity bill”), was introduced into the U.S. Senate on April 16, 2015, by Sen. Tom Carper (D-Delaware) and Sen. Roy Blunt (R-Missouri).   According to the bill, it is intended to provide a “clear set of national standards that would help the prevention of and ...

Former Uber Driver Files Class Action for Data Security Breach

Uber Technologies Inc., the internet-based taxi service, was recently hit with a putative class action lawsuit over a data breach involving the personal information of about 50,000 current and former drivers.  Uber develops, markets and operates a mobile app-based transportation network.  Its app allows consumers to submit a trip request that is then routed to crowd-sourced taxi drivers.  In March 2014, a hacker gained access to a database containing the names and driver's license numbers of tens of thousands of Uber drivers.  Uber knew of the data breach as early as September 2014 ...

MVA Seminar - Limiting Legal Liability for Potential Privacy and Data Security Issues: Practical Approaches to a Complex Problem

LIMITING LEGAL LIABILITY FOR POTENTIAL PRIVACY AND DATA SECURITY ISSUES: PRACTICAL APPROACHES TO A COMPLEX PROBLEM (APRIL 29, 2015):  You know that privacy and data security issues pose a huge risk for your company.  Regulatory penalties, litigation costs and recovery, and even just the cost of analyzing a data breach and sending out required notices can hurt a company’s bottom line not to mention its reputation.  Target’s breach cost the company over $148 million.  Fortunately, there are practical steps that your company can take now to limit liability when the inevitable ...

President Obama Proposes Legislation to Nationalize Data Breach Notification Standard

2014 was the year of the data breach as several large, high profile breaches occurred, including EBay, Target, and Home Depot, that affected the personal data of millions of Americans.  On January 12, 2015, President Obama announced his intention to introduce legislation (by way of Congress) to require notification to consumers when their personal data has been compromised by a data breach.  This proposed law, the Personal Data Notification & Protection Act, is part of a more comprehensive legislative agenda by the White House, including a consumer privacy bill of rights and a law to ...

An Early Christmas Present for Consumers? Court Rules that Retailers Can Be Liable to Banks Arising from Data Breaches.

by Privacy & Data Security Members Karin McGinnis & Robert Sumner

Cyber-Monday sales weren’t the only good thing that happened for consumers this week.  Later in the week a federal judge in Minnesota thwarted Target’s attempt to dismiss a lawsuit brought by banks and credit unions arising out of the massive data breach last year.  Although the breach and access to the credit card information of some 40 million consumers resulted from hackers obtaining the password of a Target vendor who was accessing an unrelated subsystem, the banks and credit unions claimed that Target was liable ...

Apple Strengthens Privacy Protections

Apple recently changed its privacy policy which has made headlines – it will no longer unlock iPhones and iPads for law enforcement.  Prior to this change, Apple would assist law enforcement in unlocking Apple devices when presented with a valid subpoena or court order.

According to Apple’s CEO, Tim Cook, the company attempts to avoid collecting user data when it designs new technology and services.  The most recent version of Apple’s mobile device operating system, iOS 8, encrypts the data for all iOS 8 applications, such as email, call records, and iMessage, and this data is ...

Social Media Password Protection: Where are we now?

In just two years, social media password protection has gone from a privacy advocate’s dream to an employer’s harsh reality in many states.  Maryland became the first state (in 2012) to enact legislation that prevented employers from requesting the user names or passwords to an employee’s or applicant’s personal social media accounts.  Two states quickly joined Maryland in 2012 by passing similar password privacy laws, and nine more states added privacy protections in 2013.

So far in 2014, six states – Louisiana, New Hampshire, Oklahoma, Rhode Island, Tennessee and ...

About Data Points: Privacy & Data Security Blog

The technology and regulatory landscape is rapidly changing, thus impacting the manner in which companies across all industries operate, specifically in the ways they collect, use and secure confidential data. We provide transparent and cutting-edge insight on critical issues and dynamics. Our team informs business decision-makers about the information they must protect, and what to do if/when security is breached.

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