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Mintz Levin : Data Compliance & Security, Employee Privacy Lawyer & Attorney

Viacom and Google Win Important Dismissal in Online Tracking Class Action

Posted in Class Action Litigation

Last week the United States District Court for the District of New Jersey dismissed, with prejudice, class action claims against Google and Viacom concerning targeted advertising and the online tracking of children through cookies.  Perhaps surprisingly, the claims did not involve allegations that the parties violated the Children’s Online Privacy Protection Act (COPPA).  The suit arose from allegations that when users register on Viacom’s Nick.com website, they are asked to input their gender and birthday and create a username.  Viacom collects this information and gives each user a unique internal code that reflects their gender and age.  Viacom then places a cookie on each user’s computer, which tracks the user’s IP address, browser settings, unique device identifier, certain system and browser information, and the URLs and videos requested from Viacom’s children’s websites.  Viacom would share with Google its unique internal code, along with the record of what parts of the site users interacted with, and Google would place its own cookie on each user’s computer.  Google and Viacom would then use this information to target the user’s with advertising.

The plaintiff’s alleged violations of the Wiretap Act, Stored Communications Act, California’s Invasion of Privacy Act, the Video Privacy Protection Act (VPPA), New Jersey’s Computer Related Offenses Act (CROA), and two New Jersey torts, including Intrusion upon Seclusion.  The plaintiffs did not allege violations of the Children’s Online Privacy Protection Act (COPPA).  In July 2014, the Court dismissed with prejudice all claims except the VPPA claim against Viacom and the CROA and Intrusion upon Seclusion claims against both defendants, about which the court allowed the plaintiffs to amend their complaint.

In January 2015, the court dismissed the amended complaints with prejudice.  With regard to the VPPA claim against Viacom, the court found that the plaintiffs had not alleged sufficient facts to show that the information collected by Viacom could actually identify the plaintiffs.  The Court noted that the VPPA requires disclosure of personally identifiable information (PII) concerning a consumer, but that there is no support for the proposition that PII includes the kind of information Viacom collected and shared, such as IP address, gender, and age.  Further, the court found that this information was insufficient to identify an individual plaintiff and a video that plaintiff watched, as required for a violation of the VPPA to be found.  Therefore, the court holds that the VPPA claim fails. Continue Reading

It’s Data Privacy Day 2015

Posted in Cybersecurity, Data Compliance & Security, Federal Trade Commission

Today is Data Privacy Day, and as you might expect, we have a few bits and bytes for you.

Use the Opportunity 

Data Privacy Day is another opportunity to push out a note to employees regarding their own privacy and security — and how that can help the company.   Emails with articles and reminders are helpful.   Here are some that might be interesting to your company:

Happy Data Privacy Day – Now Lock Your Cellphone

Celebrate Data Privacy Day

8 Ways to Celebrate Data Privacy Day Securely

And finally – International Privacy Day – Protect Your Digital Footprint

The concept reinforces corporate privacy programs, while encouraging employees to take steps to protect their personal data.

The Federal Trade Commission Issues IoT (Internet of Things) Report

Following up on its November 2013 workshop on the Internet of Things, the Federal Trade Commission (“FTC”) has released a staff report on privacy and security in the context of the Internet of Things (“IoT”), “Internet of Things: Privacy & Security in a Connected World” along with a document that summarizes the best practices for businesses contained in the Report.  The primary focus of the Report is the application of four of the Fair Information Practice Principles (“FIPPs”) to the IoT – data security, data minimization, notice, and choice.

The report begins by defining IoT for the FTC’s purposes as “‘things’ such as devices or sensors – other than computers, smartphones, or tablets – that connect, communicate or transmit information with or between each other through the Internet,” but limits this to devices that are sold to or used by consumers, rather than businesses, in line with the FTC’s consumer protection mandate.  Before discussing the best practices, the FTC goes on to delineate several benefits and risks of the IoT.  Among the benefits are (1) improvements to health care, such as insulin pumps and blood-pressure cuffs that allow people avoid trips to the doctor the tools to monitor their own vital signs from home; (2) more efficient energy use at home, through smart meters and home automation systems; and (3) safer roadways as connected cars can notify drivers of dangerous road conditions and offer real-time diagnostics of a vehicle.

The risks highlighted by the Report include, among others, (1) unauthorized access and misuse of personal information; (2) unexpected uses of personal information; (3) collection of unexpected types of information; (4) security vulnerabilities in IoT devices that could facilitate attacks on other systems; and (5) risks to physical safety, such as may arise from hacking an insulin pump.

In light of these risks, the FTC staff suggests a number of best practices based on four FIPPs. At the workshop from which this report was generated, all participants agreed on the importance of applying the data security principle.  However, participants disagreed concerning the suitability of applying the data minimization, notice, and choice principles to the IoT, arguing that minimization might limit potential opportunities for IoT devices, and notice and choice might not be practical depending on the device’s interface – for example, some do not have screens.  The FTC recognized these concerns but still proposed best practices based on these principles.


Data Security Best Practices:

  • Security by design.  This includes building in security from the outset and constantly reconsidering security at every stage of development. It also includes testing products thoroughly and conducting risk assessments throughout a product’s development
  • Personnel practices.  Responsibility for product security should rests at an appropriate level within the organization.  This could be a Chief Privacy Officer, but the higher-up the responsible part, the better off a product and company will be.
  • Oversee third party providers.  Companies should provide sufficient oversight of their service providers and require reasonable security by contract.
  • Defense-in-depth.  Security measures should be considered at each level at which data is collected stored, and transmitted, including a customer’s home Wi-Fi network over which the data collected will travel.  Sensitive data should be encrypted.
  • Reasonable access control.  Strong authentication and identity validation techniques will help to protect against unauthorized access to devices and customer data.

Data Minimization Best Practices:

  • Carefully consider data collected.  Companies should be fully cognizant of why some category of data is collected and how long that data should be stored.
  • Only collect necessary data.  Avoid collecting data that is not needed to serve the purpose for which a customer purchases the device. Establish a reasonable retention limit on data the device does collect.
  • Deidentify data where possible.  If deidentified data would be sufficient companies should only maintain such data in a deidentified form and work to prevent reidentification.

Notice and Choice Best Practices:  The FTC initially notes that the context in which data is collected may mean that notice and choice is not necessary. For example, when information is collected to support the specific purpose for which the device was purchased.

When notice or choice are necessary, the FTC offers several suggestions for how a company might give or obtain that, including (1) offer choice at point of sale; (2) direct customers to online tutorials; (3) print QR codes on the device that take customers to a website for notice and choice; provide choices during initial set-up; (4) provide icons to convey important privacy-relevant information, such a flashing light that appears when a device connects to the Internet; (5) provide notice through emails or texts when requested by consumers; and (6) make use of a user experience approach, such personalizing privacy preferences based on the choices a customer already made on another device.

Legislation.  The FTC staff recommends against IoT-specific legislation in the Report, citing the infancy of the industry and the potential for federal legislation to stifle innovation.  Instead, the FTC recommends technology-neutral privacy and data security legislation.  Without saying it explicitly, this appears to be a recommendation for something akin to the Consumer Privacy Bill of Rights recently proposed by the President, along with giving the FTC authority to enforce certain privacy protections, including notice and choice, even in the absence of a showing of deceptive or unfair acts or practices.

In the meantime, the FTC notes that it will continue to provide privacy and data security oversight of IoT as it has in other areas of privacy.  Specifically, the FTC would continue to enforce the FTC Act, the Children’s Online Privacy Protection Act, and other relevant statutes.  Other initiatives would include developing education materials, advocating on behalf of consumer privacy, and participating in multi-stakeholder groups to develop IoT guidelines for industry.




Blizzards can affect even “virtual” events — tomorrow’s “How to Survive a HIPAA Audit” webinar has been rescheduled to February 4th.  You can still register here.

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Privacy Monday – January 26, 2015

Posted in Cybersecurity, Data Breach, HIPAA/HITECH, Legislation, Privacy Monday, Privacy Regulation, Uncategorized

Good Monday – The East Coast prepares for Apocalypse (Sn)ow.

In the meantime, here are three privacy-related tidbits for your day.

Privacy Concerns Cause Scale Back of Release of HealthCare.gov Data

We spend a fair amount of time warning about third party vendors and the risk that such vendors can pose to sensitive data.   Just ask Target.   Last week, the Associated Press revealed that the healthcare insurance exchange, HealthCare.gov, was connecting with third party analytics sites and others and operating much like any commercial website — except that it is not.  The AP reported over the weekend that the Obama Administration has “reversed itself” and scaled back the release of (or access to) consumer data — including anonymized data.     According to the AP’s Saturday follow-up, an analysis of the Federal exchange showed that the number of third party companies with connections embedded in the site, thus giving them access to consumer data, “dropped from 50 to 30.”

Read more:

The Hill — The Centers for Medicare and Medicaid Services will encrypt additional data when customers use the Window Shopping feature on HealthCare.gov.

New York Times — Is the data usage “industry standard” and much ado about SOP?

CNN Money


Continue Reading

Cybersecurity and Privacy in State of the Union Address

Posted in Children, Cybersecurity, Data Breach, Data Breach Notification, Data Compliance & Security, Legislation, Privacy Regulation, Security

As expected in his State of the Union address last night, President Obama made it very clear that cybersecurity is on his agenda for 2015.  After stating that:

 “No foreign nation, no hacker should be able to shut down our networks, steal our trade secrets or invade the privacy of American families, especially our kids,”

the President urged Congress to “finally” pass “legislation we need to better meet the evolving threat of cyber attacks, combat identity theft, and protect our children’s information” and cautioned law makers that “if we don’t act, we leave our nation and our economy vulnerable.”

Just days before the State of the Union address, in a speech delivered at the Federal Trade Commission on January 12, the President highlighted the measures he discussed in the State of the Union and unveiled the next steps in his comprehensive approach to better protect American companies, consumers, and infrastructure against cyber threats. These steps include:

  1. Improving consumer security by establishing a national standard for companies to notify employees and customers about security breaches and identifying and preventing identity theft. For more information about the proposed Personal Data Notification & Protection Act, please see our prior blog post. The President announced that in an effort to tackle identity theft and assist consumers in spotting identity theft early on, several large financial companies have committed to offer free credit scores to their customers, joining an existing list of financial companies that already engage in this practice.
  2. Improving consumer confidence online by passing a Consumer Privacy Bill of Rights to establish an enforceable code of conduct for online interactions and protect consumers’ privacy. This proposed legislation will be based on the Obama Administration’s 2012 Consumer Privacy Bill of Rights and is expected to be released within the next month and a half.
  3. Safeguarding student data in the classroom and beyond by passing legislation to promote student privacy, convening the private sector to pledge to help enhance the privacy of students, and offering  new tools via the Department of Education  to help schools and teachers better protect the privacy of students. Sometime in the next two months, the Obama administration will release a proposal to update the Family Educational Rights and Privacy Act (FERPA). The President highlighted that the proposed Student Digital Privacy Act would: (i) limit the use of data collected “in an educational context” to educational purposes; (ii) prohibit companies from selling student data to third parties for unrelated purposes; and (iii) prohibit targeted advertising derived from data collected in school, however, the bill would still permit the use of such data for certain types of research, as well as for improving the effectiveness of learning technology products. The President noted that the bill would be modeled on a recently passed California law covering the collection and use of student data. For more information on the California law, please see our prior blog post.
  4. According to a recent White House press release on the subject, as part of the Obama Administration’s comprehensive plan to better protect the privacy of consumers, on January 12, the Department of Energy and the Federal Smart Grid Task Force released a new Voluntary Code of Conduct (VCC) “for utilities and third parties providing consumer energy use services that will addresses privacy related to data enabled by smart grid technologies.” For more information about this initiative, please click here.

The next item on the law makers’ agenda is a hearing before the House Energy and Commerce subcommittee next Tuesday entitled “What are the Elements of Sound Data Breach Legislation?” According to new subcommittee Chairman Michael Burgess (R-TX), “data security will be the focus of our subcommittee’s first hearing as we drill down on what components should be included in a bill that will give consumers the peace of mind they deserve.”

We will keep you updated on proposed legislation and new initiatives that are part of the Administration’s cyber security plan.

If cybersecurity and data privacy are on the President’s agenda, shouldn’t those issues be on the top of your company’s agenda this year?!


Privacy Monday – January 19, 2015: New Additions to Mintz Levin’s Privacy & Security Group

Posted in Privacy Monday

We are pleased to announce important additions to Mintz Levin that clearly strengthen the Privacy & Security Group’s bench.

Mark Robinson, Member (Boston) – Mark is a nationally recognized authority in government investigations and enforcement and cybersecurity defense, and a former deputy chief of the Criminal Division of the US Department of Justice (DOJ).   He serves as Co-chair of the firm’s White Collar Defense Practice.

Mark represents public and private sector clients in connection with internal investigations, regulatory enforcement actions, commercial litigation, and large scale data breaches. He has been called upon by CEOs, directors and officers, audit committees, and senior executives in industries as varied as energy, automotive, media, health care, and financial services. His areas of focus include data breaches and cyber incidents, securities and procurement fraud, bid rigging, pharmaceutical pricing practices, accounting misconduct, false claims, and commercial bribery.  Mark’s already been quoted in last week’s Wall Street Journal article, “The Rise of Cybercrime Extortion” (registration may be required).

Ari Moskowitz, Associate (Washington, DC) – Ari provides guidance to clients on complying with various federal and state privacy laws, including the Children’s Online Privacy Protection Act, cross-border data protection regulation, and data breach notification laws.   With Ari, Mintz Levin’s Privacy & Security Group now boasts five attorneys with Certified Information Privacy Professional (CIPP) credentials.

Peter Day, Associate (San Diego) – Our newest addition (joining today!), Peter advises and defends companies responding to governmental inquiries. He has represented clients facing inquiries from congressional committees, the Department of Justice, the Securities and Exchange Commission, the Federal Trade Commission, numerous state attorneys general, and several foreign regulators.   Peter represents clients in connection with data breaches, breach notification laws, post-data breach remediation, network security, corporate compliance, and the Payment Card Industry Data Security Standard (PCI DSS). He has also represented and advised clients in the financial services, defense, technology, and retail sectors regarding the collection, use, and disclosure of personal information, financial information, and geo-location information.


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You’re Invited: Tips for Surviving a HIPAA Audit


Celebrate Data Privacy Day!  On Wednesday January 28th, Mintz Levin’s Dianne Bourque, will be presenting a webinar on how to survive a HIPAA audit. 

With the New Year in full swing, the HHS Office of Civil Rights (“OCR”) is resuming its random audit program to assess compliance with HIPAA privacy, security and breach notification rules.  While Phase I of the OCR audit program involved on-site visits, OCR will conduct Phase II audits by performing desk review of documentation.  Findings during a Phase II audit can lead to enforcement and failure to comply can lead to the imposition of civil monetary penalties.

During this webinar, Dianne will discuss lessons learned from Phase I of the audit program and how best to incorporate those lessons into Phase II preparations.  She will also discuss how to identify and eliminate compliance gaps, in case you are chosen for an audit.

Phase II audits can happen to covered entities and business associates alike.

Learn more about how you should be preparing and register for this webinar by clicking here.

White House Proposes National Data Breach Notification Standard

Posted in Cybersecurity, Data Breach, Data Breach Notification, Federal Trade Commission, Legislation, Privacy Regulation

Written by Cynthia Larose, CIPP and Ari Moskowitz, CIPP

This has been a big week for cybersecurity announcements from Washington.   In what the White House has called a series of “SOTU Spoilers,” President Obama announced his intention to follow through on some of the recommendations in his administration’s Big Data report — the culmination of the White House’s 90-day “Big Data” review in 2014.  Specifically, the President proposed following through on the report’s recommendations that the following legislation be passed:  a consumer privacy bill of rights, a national data breach notification law, and a law to promote student privacy. Continue Reading

Privacy Monday – January 12, 2015

Posted in Cybersecurity, Data Breach Notification, Data Compliance & Security, Employee Privacy, Federal Trade Commission, Legislation, Privacy Monday, Privacy Regulation, Security

Three privacy/security stories that you should know as you start your week:


President Obama to Offer Cybersecurity/Privacy Previews to State of the Union Proposals

In a series of speeches this week, President Obama will preview important issues to appear in his January 20th State of the Union address.    A White House official said in a statement to reporters over the weekend that the president would “lay out a series of legislative proposals and executive actions that will be in his State of the Union that will tackle identity theft and privacy issues, cybersecurity, and access to the Internet.”   The President will reportedly speak at an event at the Federal Trade Commission today and outline a plan to tackle identity theft and improve consumer and student privacy.    Tuesday, the President will discuss cybersecurity at the National Cybersecurity and Communications Integration Center.    We will keep readers updated on what the White House is calling “SOTU Spoilers.”

Read more here:Privacy and Security Updates Monday



New York Times


ICYMI:  The January 2015 Edition of the Mintz Matrix Is Out — and State Changes are in the Works

On Friday, we released the updated version of the Mintz Matrix of state data breach notification laws.   In case you missed it, you can get the updated chart here.

Now that the state legislatures are getting into session, we are expecting more action amending and tightening up state laws.    For example, legislators in Washington state have already filed an amendment to that state’s data breach notification law.

At the end of 2014, several proposals were introduced and we will be following where these bills head in the  2015 session.     New York‘s proposal (Bill A10190) imposes requirements on entities conducting business in New York and which own/license computerized data that includes private information that are nearly identical to those required under Massachusetts 201 CMR 17.   Most importantly (as you will recall), the Massachusetts regulations require that entities develop, implement and maintain a comprehensive written information security program.     A proposed New Jersey amendment would expand the definition of “personal information” to include a combination of user name or email address with any password or security question and answer that would permit access to the online account.  Attorneys general in Indiana and Oregon closed out the year with calls for more robust data breach protection legislation in their states.    Stay tuned.


Tax Time is a Good Time For a “Security Check”

Businesses and their employees are all dealing with receipt of documents, filings, etc. during this taxing time of year.  Tax season is also a prime time for personal information scams and can expose lax internal controls.   Here are a few things to remember as you begin preparing for tax season:

Secure your data – Do you prepare your business’ taxes on a company computer? If so, you likely have some very sensitive financial information on your hard drive. Make sure your files are secured with password-protected directories and accounts, and that your entire system is protected from outside threats. Also, if you plan to use a wireless network to electronically file your taxes, be sure to use a secure Internet connection and never use public wireless hotspots.  Do NOT send personal information to employees or service providers via email.   Make sure that you only use secure transmission methods for sending W2 and other forms that contain Social Security or other sensitive information.   If a tax preparer asks you to send documents via unencrypted email — find another tax preparer.

Back up financial data – When was the last time you backed up your company data?  If you don’t already follow a backup schedule, tax season can be a great reminder that you need to regularly back up your data. Regularly backing up your data not only protects you at tax time in the event your data is compromised, it can also help protect you against future events such a natural disaster.  Remember that whether you back up to the cloud or a separate physical device/location, electronic data needs to be kept in a secure environment.

Keep your security software updated – You don’t have the time or resources to keep track of each and every new scam, phishing attack, or threat that comes around – that’s what your security software is supposed to do. But just as you can file your taxes without the most accurate tax information, your security software can’t do its job if it’s not up-to-date. The threat landscape changes daily, so keeping your security software up-to-date helps ensure that it will be able to address the most current threats to your information. After all, your ability to run an effective business depends on making sure your confidential data is safe and secure from outside threats.

Remind employees of phishing threats — Use this time of year as an opportunity to remind employees to protect themselves from tax-related phishing scams.    The IRS will never ask for personal information via email.  Ever.    Some of these reminders from the IRS may be useful to send to your employees as a reminder to protect themselves — and as a result, protect your business.

Have a safe and secure week!

For the New Year – A New Mintz Matrix of State Data Breach Notification Laws

Posted in Data Breach, Data Breach Notification, Legislation, Privacy Regulation, Uncategorized

Make sure to get your January 2015 Mintz Matrix!    

Available here for downloading and always linked through the blog right hand navigation bar.

Things you will not want to miss:

  • California has significantly amended its breach notification requirements
  • Kentucky’s new data breach law (2014) is expanded effective January 1
As always, this chart is for informational purposes only and does not constitute legal advice or opinions regarding any specific facts relating to specific data breach incidents. You should seek the advice of experienced legal counsel (e.g., the Mintz Levin privacy team) when reviewing options and obligations in responding to a particular data security breach.
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