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Cynthia Larose is a Member in Mintz Levin’s Corporate Group and leads our Privacy and Security practice. She is a Certified Information Privacy Professional, working with clients in various industries to develop comprehensive information security programs on the front end, and providing timely counsel when it becomes necessary to respond to a data breach.

June 28, 2018 will be a watershed day in the history of U.S. data privacy legislation.   California has become the first state to move away from the U.S. approach of legislating data privacy in slow bits.   Yesterday, both houses of the legislature passed – and Governor Brown signed into law – the California Consumer Privacy Act of 2018.

Earlier we wrote about the effort to pass the California Privacy Ballot Initiative No. 17-0039 (the “Ballot Initiative”) that would be put forth on the November 6th, 2018 ballot.  The Ballot Initiative would give consumers broad rights regarding their personal information, including being able to learn who their personal information is being disclosed or sold to, preventing businesses from discriminating against consumers who exercise their rights under the act including opting out of the sale of their personal information.  Further, the Ballot Initiative would have given a private right of action to consumers to sue businesses where the business experienced a security breach and failed to implement reasonable security procedures, with statutory damages of $1,000, which would increase to $3,000 for willful violations.

Continue Reading PRIVACY ALERT: California Leads the Privacy Parade Again with Groundbreaking Privacy Legislation

Manufacturers of wireless devices used for Internet of Things (IoT) applications should take heed of new Trump Administration proposals aimed at reducing the cybersecurity threats from botnets and other automated and distributed attacks.

Following a year of public and internal discussions and inquiry, the Department of Commerce and Department of Homeland Security (DHS) recently issued a Final Report on the topic, “A Report to the President on Enhancing the Resilience of the Internet and Communications Ecosystem Against Botnets and Other Automated, Distributed Threats.” The Report arises from the cybersecurity Executive Order issued by President Trump in May 2017, which required Commerce and DHS to lead a process to determine appropriate action to “dramatically reduc[e] threats perpetrated by automated and distributed attacks (e.g., botnets).” Continue Reading Trump Administration Botnet Report Will Impact IoT Device Makers – Things You Should Know

Recently, a new bill was signed by Colorado Governor John Hickenlooper, creating far reaching new requirements for entities that collect or maintain personal identifying information of Colorado residents.  These requirements, which will create one of the strictest state based privacy and data breach laws in the country, will go into effect September 1, 2018.  The Colorado Attorney General’s office led part of the effort to pass the new law, making enforcement a likely priority.

The new law requires organizations to maintain a policy for disposing documents with consumer data and notify Colorado residents of any potential personal information exposure no later than 30 days after discovering a data breach. The 30-day notification window does not provide for any specific exemptions (such as HIPAA) and is the shortest of any U.S. state.

Continue Reading Colorado Passes Far Reaching New Privacy and Cybersecurity Law

If you glance at the “countdown clock” in the left hand sidebar of our blog, you’ll see that it has reached 00:00:00.  GDPR Day is here.   But, unlike Y2K (for those of you old enough to remember the near-hysteria), 25 May 2018 is only the beginning of the GDPR compliance road and not a “completion date.”   It’s more like the new Sarbanes-Oxley.

Continue Reading HAPPY GDPR DAY!!

We are now in the 10-day countdown to the GDPR enforcement date that we’ve been talking about since 2015.   If you are a charter member of Procrastinators Anonymous, or just secretly hoped that this would all go away, the sands in the hourglass are running low.    Remember that this is not like Y2K.   May 25 just represents the date on which the EU will start to enforce the GDPR.  Compliance is ongoing and, if your company collects, processes, uses EU-origin personal data, the compliance obligation runs to you, regardless of where in the world you are located.

Here is a quick refresher list of the webinars that we’ve produced on GDPR issues.   Pick a topic and get going!

EU Data Protection GDPR for Life Sciences (3/14/2018)

https://mintz.webex.com/mintz/lsr.php?RCID=12a7441da963333b01da237ca419396b

This webinar, the ninth in our EU General Data Protection Regulation Series, focuses on topics that are vital to life sciences companies seeking to come into compliance, including handling clinical study data, other scientific research, CRO and other contractor agreements, and transferring personal data outside of the EU.

Getting Your Contracts Ready for GDPR (11/16/2017)

https://mintz.webex.com/mintz/lsr.php?RCID=fe0eed5640a85a8ebb2beb6bc83e83e8

This webinar, the eighth in our EU General Data Protection Regulation Series, reviews the GDPR’s express contract requirements and discusses additional matters that you may want to address in your contracts.

Handling Human Resources Data Under Privacy Shield and the GDPR (10/5/2017)

https://mintz.webex.com/mintz/lsr.php?RCID=880eaf4c652aad528de47cde6be78578

This webinar, the seventh in our EU General Data Protection Regulation Series, reviews current options for transferring personal data, including under Privacy Shield, and previews the new landscape under GDPR.

Access, Correction and Erasure: How to Minimize the Burden (2/16/2017)

https://mintz.webex.com/mintz/lsr.php?RCID=9f6b274207228673ad6d4fe938991ee8

This webinar, the sixth in our EU General Data Protection Regulation Series, considers companies’ obligations to give individuals access to their data and to correct or erase it.  We explore the new data portability requirements. The webinar concludes with some suggestions on how to make these requirements less burdensome.

Transferring Data from the EU (1/12/2017)

https://mintz.webex.com/mintz/lsr.php?RCID=f49a18275f1088209190e48151bec9ec

This webinar, the fifth in our EU General Data Protection Regulation Series, explores the ways in which the Regulation creates new avenues for data transfers, and narrows others. In particular, we consider sector-specific Commission decisions, privacy seals/certifications, the exception for non-repetitive, limited transfers, and the outlook for BCRs and Model Clauses.

Data Protection Officers: Do You Need One? (12/15/2016)

https://mintz.webex.com/mintz/lsr.php?RCID=86d1f2c36c05bcfc89eec5077f1cf921

This webinar, the fourth in our EU General Data Protection Regulation Series, examines the criteria that dictate whether or not your organization needs to appoint a Data Protection Officer. We discuss the role of the DPO, the significance of the “independence” requirement, and the qualifications required to hold the position.

Good-bye to the Cure-all: The New Rules on Consent (11/10/2016)

https://mintz.webex.com/mintz/lsr.php?RCID=de3b01c1f3d3828f8b8d12dc585a8cfe

This webinar, the third in our EU General Data Protection Regulation Series, reviews the new restrictions on relying on user consent to data processing and data transfers. In addition to the general “imbalance of power” problem, we consider the implications of the Directive on unfair terms in consumer contracts and changes that may need to be made to terms of use and privacy policies when dealing with consumers.

Accountability, Data Security, Data Impact Assessments and Breach Notification Requirements (10/13/2016)

https://mintz.webex.com/mintz/lsr.php?RCID=dadbef107c41c287059e1dcf0db3cc49

This webinar, the second in our EU General Data Protection Regulation Series, focuses on the data security and accountability requirements of the Regulation, including reviews and documentation of internal policies and procedures and data impact assessments. We also explore the breach notification requirements and actions that companies can take in advance to mitigate the need for breach notification.

One-Stop Shopping Mall? The New Regulatory Structure (9/14/2016)

https://mintz.webex.com/mintz/lsr.php?RCID=9b389aa85bb81e0af962ff4a5d8226df

This webinar, the first in our EU General Data Protection Regulation Series, explains the powers and role of the new European Data Protection Board, how a “lead supervisory authority” will be designated for each controller, and how the lead supervisory authority will interact with other interested supervisory authorities. We also look at the complaint process from the point of view of the individual who is claiming a violation, and explore the likely role that will be played by public interest organizations bringing group complaints.

Answering the centuries’ old question, it appears it is the Federal Trade Commission (“FTC”) that watches the watchmen. The FTC sent warning letters to a pair of foreign app developers cautioning them that their practices of collecting children’s geolocation data without parental consent may be in violation of the Children’s Online Privacy Protection Act (“COPPA”). The letters warned China-based Gator Group Co. Ltd. and recently-defunct Sweden-based Tinitell, Inc. that companies targeting U.S. children must comply with U.S. privacy laws regardless of where they are based. The FTC also sent copies of the warning letters to the Apple App Store and the Google Play Store, which make the apps available to consumers. While the apps give parents peace of mind by enabling them to track their children’s location to ensure they are safe, that benefit is negated when parents are not aware that that information is being collected and stored in a way that enables others to access that same data.

Continue Reading FTC Puts Kids’ Smart Watch Companies in Time Out for COPPA Violation

With the recent enactment of data breach notification laws in South Dakota and Alabama, all 50 US states now have laws regulating data breach notification.   We’ve updated the Mintz Matrix (maintained by the Mintz Privacy Team for nearly 10 years) to provide you with the latest information.

Managing the differing requirements remains a challenge, and points to the need for updated incident response plans.   As an example, the chart below outlines the different timelines for notification.  The Mintz Matrix contains information on all of these, and more.

Continue Reading Mintz Matrix Updated – Data Breach Laws in All 50 States

Uber Technologies, Inc. (“Uber”) has agreed to an expansion of its initial August 2017 proposed consent agreement with the Federal Trade Commission (“FTC”), in light of revelations of an additional security breach in October 2016, which it knew about but did not disclose until November 2017, after it settled over its initial May 2014 breach. The second security breach occurred right in the middle of the FTC’s nonpublic investigation into Uber’s security practices from the initial breach; nevertheless, Uber failed to disclose the breach. Both breaches resulted from Uber’s lax security practices and Acting FTC Chairman Maureen K. Ohlhausen described them as “strikingly similar.” In light of the additional information, the FTC withdrew from the original proposed settlement it reached after the May 2014 breach, expanded the terms, and threatened to fine Uber for future incidents. In an attempt by new CEO Dara Khosrowshahi to set a new tone for the company, Uber agreed to the revised terms on April 12.   Continue Reading Failure to Signal: Uber Forced to Accept Expanded Settlement after Concealing Security Breach from FTC

Alabama has joined the “crazy quilt” of state data breach notification laws with the governor’s signature of the Alabama Data Breach Notification Act of 2018.

Things to take note of under the Alabama law:

  • The law requires entities to “implement and maintain reasonable security measures” and includes a granular list of what such security measures should include.   An interesting component of reasonable security measures is “keeping the management of the covered entity, including its board of directors, if any, appropriately informed of the overall status of its security measures.”
  • Notification to residents within 45 days after a breach has been discovered if it is reasonably likely to cause substantial harm.
  • The definition of “personal information” is expanded to include health information and user name or email address in combination with a password.
  • Notice to the Alabama Attorney General if notice is provided to more than 1,000 individuals at a single time.
  • No private right of action, but the AG may enforce violations of the Act as a deceptive trade practice.
  • The Act provides for civil penalties of not more than $5,000 per day for each consecutive day that a covered entity fails to take action to comply with notice provisions.  “Knowing” violations of the Act (including a “reckless disregard in failing to comply with notice requirements”) could subject a covered entity to civil penalties of up to $500,000 per breach.

 

 

 

 

 

 

Only one U.S. state without a data breach notification law, that is.

South Dakota as become the 49th state to enact a data breach notification law, which take effect on July 1.    The South Dakota law follows the pattern of the most recent notification laws, including an expansive definition of “Personal Information”.

The law defines personal information as a person’s first name/first initial and last name in combination with any one or more of the following:

  1. Social Security Number;
  2. Driver’s license number or other unique identification number created or collected by a government body;
  3. Account, credit or debit card number, in combination with any required security code, access code, password, routing number, PIN, or any additional information that would permit access to a person’s financial account;
  4. Health information;
  5. Identification number assigned to a person by the person’s employer in combination with any required security code, access code, password, or biometric data generated from measurements or analysis of human body characteristics for authentication purposes.

There is an additional definition of “protected information” that includes (a) a username or email address in combination with a password, security question answer, or other information that permits access to an online account; and (b) account number or credit/debit card number, in combination with any required security code, access code, or password that permits access to a person’s financial account.   The definition of “protected information” does not include a person’s name.

Again, South Dakota includes an encryption “safe harbor,” but does require notification if the encryption key is compromised.   Notice to the South Dakota Attorney General is required in any breach that exceeds 250 South Dakota residents.

Notification is required within 60 days of the discovery of the breach.  A violation of the notification law is considered a deceptive act under South Dakota consumer protection laws, and the Attorney General has noted that this violation has the effect of creating a private right of action.   The AG is also authorized to enforce the law and may impose a fine of up to $10,000 per day, per violation.

Alabama remains the sole U.S. state without a breach notification law, but the Alabama Data Breach Notification Act of 2018 passed the Alabama House unanimously and is now in the state Senate.

A update to the Mintz Matrix will be forthcoming this week with further details on this new South Dakota law, as well as some amendments to existing laws.  Watch this space.