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Archives: Data Compliance & Security

Mintz Levin’s Immigration Law Blog is running a series titled “Innocents Abroad” addressing issues in an increasingly globalized economy where employers assign employees all over the globe.

These are big questions, reflecting some of the practical concerns in our international marketplace.  The series focuses on the well-intentioned Global HR Director, Ned Help, who will raise hot topics and difficulties his company faces when sending their employees abroad.  We will then explore the common pitfalls and offer practical solutions to the difficulties Ned Help faces.   This month’s edition:   Privacy Considerations – follow the rest of the series at Innocents Abroad.


 

From:            Carrie Counselor

To:                  Ned Help

Date:              May 24, 2016

RE:     Privacy considerations for employees working abroad

Dear Ned,

I understand that one of your employees will be engaging a six-month temporary assignment around Europe to scope market opportunities, and you’d like to have a better understanding of what to be thinking about in terms of privacy.  Great question!  This is an area where many employers struggle because other jurisdictions protect privacy and personal data quite differently than we do here in the United States.

Generally speaking, federal and state laws applicable to employee information do not have “extraterritorial” effect beyond the information that remains in the United States, meaning that American employees working abroad (even temporarily) will not benefit from US legal protections with respect to personal information collected, stored or transmitted outside of the country.

What makes this area of the law particularly crucial and daunting for employers is that non-US countries frequently offer greater protections to employees and establish far higher compliance obligations on the part of employers.  Of particular concern for you should be the data protection landscape across the European Economic Area (referred to as the “EEA,” encompassing all European Union (EU) Member States as well as Iceland, Liechtenstein and Norway) because each country has passed its own set of national laws governing the collection, use, retention and transmission of personal data. Companies must consider these local laws before electronically monitoring an employee outside the United States or transferring an employee’s personal information back home.  Let’s talk specifics: Continue Reading Innocents Abroad: Privacy Considerations for Employers

As we reported last month, the FCC was preparing a proposed rulemaking (NPRM) to establish privacy and data security requirements for broadband internet access service (BIAS) providers.  The FCC has now released that proposal with comments and reply comments due May 27th and June 27th respectively.

The brief background to this proposal is that in 2015, the FCC adopted net neutrality rules in Open Internet Order, which reclassified BIAS as a common carrier telecommunications service subject to regulation under Title II of the Communications Act.  The Commission determined that, as a consequence of reclassification, Section 222 of the Communications Act, which is part of Title II, would now apply to BIAS providers. Section 222 regulates a telecommunications carrier’s use and disclosure of Customer Proprietary Network Information (“CPNI”) – which includes information related to the quantity, location, and amount of use of a telecommunications service.  The FCC concluded in its Open Internet Order that the rules implementing Section 222 were telephone-centric and ill-suited to BIAS, and so chose to forbear from applying those rules to ISPs.  With this latest release, the FCC is proposing a new set of rules implementing Section 222 that would apply to BIAS providers. Continue Reading FCC Broadband Privacy and Security Proposed Rulemaking Underway

As we wrote previously, the federal government released several guidance documents last month implementing The Cybersecurity Information Sharing Act (CISA).  Among these was the Guidance to Assist Non-Federal Entities to Share Cyber Threat Indicators and Defensive Measures with Federal Entities under CISA published by the Department of Homeland Security and Department of Justice.  This document provides guidance on the circumstances in which personal information of a specific individual may – or may not – need to be shared in order to adequately describe a cyber threat indicator (CTI).   In addition, the release identifies certain categories of information likely to be considered individually identifiable information unrelated to a cybersecurity threat, and provides guidance on sharing CTIs with the government in a manner covered by the Act’s liability protections. Continue Reading CISA Guidelines (Part 3): Guidance to Assist Non-Federal Entities

Look for Part 2 tomorrow:  Recommendations on how to stay out of future reportscalifornia-flag-graphic

California Attorney General Kamala Harris has released a report of the data breaches that have been reported to her office from 2012 until 2015. Although the California data breach notification law took effect in 2003, beginning in 2012, businesses and government agencies have been required to notify the Attorney General of data breaches affecting more than 500 California residents.

The number of personal records that were compromised is staggering; 178 breaches were reported during 2015 and 24 million personal records were compromised.

Continue Reading California by the Numbers (Part 1): 24 Million Compromised in 2015

In a chain of events that should be a wake-up call to any entity using and storing critical health information (and indeed, ANY kind of critical information), Hollywood Presbyterian Medical Center (“HPMC”) has announced that it paid hackers $17,000 to end a ransomware attack on the hospital’s computer systems. On February 5, HPMC fell victim to an attack that locked access to the medical center’s electronic medical record (“EMR”) system and blocked the electronic exchange of patient information. Earlier reports indicated that the hackers had originally demanded $3,400,000.Such “ransomware” attacks are caused by computer viruses that wall off or encrypt data to prevent user access. Hackers hold the data ransom, demanding payment for the decryption key necessary to unlock the data. The attacks are often caused by email phishing scams. The scams may be random or target particular businesses or entities. In the case of HPMC, the medical center’s president and CEO indicated to media outlets that the attack was random, though Brian Barrett, writing for Wiredquestioned that assertion.The medical center’s announcement of the resolution of the incident indicates that there is no evidence that patient or employee information was accessed by the hackers as part of the attack. Even if the data was not compromised, the attack led to enormous hassles at the hospital, returning it to a pre-electronic record-keeping system.

We have seen many variations of the ransomware attacks on the increase lately.   Cryptolocker and Cryptowall are the two most prevalent threats, but a Forbes article about the HPMC attack revealed that HPMC was victimized by a variant called “Locky,” which, according to the Forbes article, is infecting about 90,000 machines a day.

Details of the HPMC Incident

On February 2, 2016, three days before the HPMC attack, the Department of Health & Human Services Office for Civil Rights (“OCR”) announced the launch of its new Cyber-Awareness Initiative. That announcement included information on ransomware attacks and prevention strategies. Suggested prevention strategies from OCR included:

  1. Backing up data onto segmented networks or external devices and making sure backups are current.  That protects you from data loss of any kind, whether caused by ransomware, flood, fire, loss, etc.  If your system is adequately backed up, you may not need to pay ransom to get your data unlocked.
  2. Don’t be the low-hanging fruit:  Ensuring software patches and anti-virus are current and updated will certainly help.   Many attacks rely on exploiting security bugs that already have available fixes.
  3. Installing pop-up blockers and ad-blocking software.
  4. Implementing browser filters and smart email practices.

Most of these prevention strategies are HIPAA security and overall general business security measures that ought to be in place for companies across the board. As OCR and the FBI (see below) both indicate, smart email practices and training the workforce on them are key elements to preventing phishing scams.  If you are a HIPAA-covered entity, you should be checking in with Mintz’s Health Law & Policy Matters blog on a regular basis.

FBI on Ransomwaredigitallife03-111715

One of the big questions arising out of the HPMC and other ransomware cases is:  do we pay?   If your business is about to grind to a halt, you likely have no choice.    However, the incident should first be reported to the FBI and discussed with forensics and legal experts who have experience with ransomware in particular.    The FBI’s Ransomware information page provides some tips.  Ransomware attacks should be part of your incident response plan and the “what do we do” should be discussed at the highest levels of the company.

When in Doubt, Don’t Be a Click Monkey!

Before clicking on a link in an email or opening an attachment, consider contextual clues in the email. The following types of messages should be considered suspicious:

  • A shipping confirmation that does not appear to be related to a package you have actually sent or expect to receive.
  • A message about a sensitive topic (e.g., taxes, bank accounts, other websites with log-in information) that has multiple parties in the To: or cc: line.
  • A bank with whom you do not do business asking you to reset your password.CodeMonkey-68762_960x3601
  • A message with an attachment but no text in the body.

All businesses in any sector need to take notice of the HPMC attack and take steps to ensure that they are not the next hostages in a ransomware scheme.  

There’s no doubt businesses in the EU and US would breathe a sigh of relief if a new Safe Harbor agreement is put in place between before European data protection authorities start prosecuting companies for potentially illegal personal data transfers to the US.  But if it doesn’t happen, the US is actually not any worse off than most of the rest of the world.  No other country has a special agreement with the EU concerning personal data transfers, and only eleven countries have been deemed to be “adequate” by the European Commission: Andorra, Argentina, Canada (commercial organizations only), Faeroe Islands, Guernsey, Israel, Isle of Man, Jersey, New Zealand, Switzerland and Uruguay.

Only one of the countries on the “adequate” list, Switzerland, is a “top ten” EU trade partner, according to the latest trade statistics published by the Commission (based on 2014 figures).  Only two of the countries are in the top twenty (Canada is in twelfth place).  Japan, India, Brazil, Turkey, South Korea, all “top ten” EU trade partners, are not on the “adequate” list.  Nor is China or Russia, both of which have significant trade with the EU (coming in second and third in the “total EU trade” rankings published by the Commission).  So if the US isn’t on the “adequate” list, it is no worse off than most other major EU trade partners. Continue Reading (So) What if there’s no Safe Harbor 2.0?

The European Union Commission has issued a fact sheet on the new General Data Protection Regulation (final post-trilogue text available via Statewatch).  The Commission claims that the Regulation is good for individuals and good for business.  We’ll leave that to readers . . . and history . . . .to decide.

As regulations go, the GDPR is a page-turner, but if you don’t have time to read all 204 pages before the holidays, consider joining our webinar at 1 pm ET today. Registration is here.

 

 

As expected, the EU Parliament’s Committee on Civil Liberties, Justice and Home Affairs (also known as LIBE) voted today to adopt the new General Data Protection Regulation (see the summary we provided yesterday here).  A LIBE press release announced the vote with the proclamation “New EU rules on data protection put the citizen back in the driving seat.”  The vote was 48 for the GDPR, 4 against, and 4 abstentions.  The GDPR will go to a vote of the full EU Parliament in March or April of 2016.  It is expected to be passed based on LIBE’s endorsement.

Companies will have a grace period of two years to come into compliance, measured from the date that the GDPR is formally adopted and published in the Official Register.  That means that the key compliance date will probably fall in March or April of 2018.  Given the complexity of the 200 page Regulation and the likely need to audit and change business processes throughout organizations, we recommend starting the compliance review process immediately.

We will announce a series of webinars to drill down on specific topics under the GDPR early in the new year.

 

Updated at 8:50 pm GMT on 16 December 2015.

The new General Data Protection Regulation is effectively a “done deal” following the final trilogue meeting on December 15.  One might assume based on UK media coverage that the biggest change in EU privacy law is that kids under 16 will need their parent’s consent to sign up for social media services and apps.  As much consternation as that will cause at the breakfast table, it’s really the least of our worries.

It will take some time to process the new Regulation, and of course we don’t have the complete, official version yet (please read the important caveat at the end of this summary), but here are the key features of the Regulation in bullet point form so we can start mapping out the new legal landscape.  This summary focuses more on what’s new than what has stayed in place; generally speaking, rights of data subjects that existed under the Directive also exist under the Regulation.  On the other hand, the burdens on data controllers and processors have substantially increased. We’ll explore all of this in more detail over the coming weeks. Continue Reading The General Data Protection Regulation in Bullet Points