The growing scale of cybersecurity concerns is prompting action from government leadership on the federal level. Before the Thanksgiving recess, the House’s Committee on Energy and Commerce got in on the act when two of its subcommittees–the Communications and Technology Subcommittee, chaired by Rep. Greg Walden (R-OR), and the Commerce, Manufacturing, and Trade Subcommittee, chaired by Rep. Michael C. Burgess, M.D. (R-TX)–held a joint hearing to investigate and consider the role of Internet-enabled devices (collectively referred to as the “Internet of Things,” or “IoT”) in high-profile online attacks.  Continue Reading House Energy & Commerce Committee Holds Hearing on Security of the Internet of Things

Even president-elect Donald Trump has been the victim of a data breach. Several times actually. The payment card system for his Trump Hotel Collection was infected by malware in May 2014 and 70,000 credit card numbers were compromised by the time the hack was discovered several months later.  The hotel chain paid a penalty to the State of New York for its handling of that incident.  The hotel chain also experienced at least two additional breaches during this past year affecting various properties. From a business perspective, Mr. Trump certainly understands the high costs of cybersecurity in dollars and distraction. But from the Oval Office, it is far less clear what the Trump Administration might do to secure our country’s digital infrastructure and prosecute cybercriminals. Equally uncertain are Mr. Trump’s views on privacy rights and how his presidency might affect federal protections for personal information and cross-border transfers of data. We do not have a crystal ball, but offer some thoughts. Continue Reading The Cyber President? What To Expect From the Trump Administration On Cybersecurity And Privacy

 

 

As we previewed last week, the Federal Communications Commission (FCC) has adopted new privacy rules that govern Internet service providers’ (ISPs) handling of broadband customer information.  Though the Wireline Competition Bureau stated that it expects it will be at least several days before the final Order is released to the public, the FCC released a fact sheet describing the rules as adopted.

These rules are the culmination of a process that began in 2015 with the reclassification of Broadband Internet Access Service (BIAS) as a common carrier telecommunications service regulated under Title II of the Communications Act.  As a consequence of reclassification, the obligations established under the privacy framework adopted by the Federal Trade Commission (FTC) no longer applied to ISPs due to the common carrier exception in Section 5 of the FTC Act.  Accordingly, the FCC determined that the privacy protections governing telephone customer proprietary network information (CPNI) set forth in Section 222 of the Communications Act would now apply to ISPs’ provision of BIAS.

On April 1, 2016, the Commission released a Notice of Proposed Rulemaking setting forth proposed privacy and data security rules that would govern ISPs’ provision of BIAS.  The rules originally proposed by the FCC would have subjected ISPs to significantly greater constraints on their ability to use customer data for advertising, marketing, and offering customized services and features than the FTC’s privacy framework, which continues to apply to websites, apps, and all other entities in the Internet ecosystem other than ISPs.  For example, while the FTC framework applies differing choice mechanisms (i.e., opt-in, opt-out, or implied consent) depending on the sensitivity of the data being collected and the context of its use, the FCC initially proposed to apply a default opt-in regime to virtually all data – rejecting any distinctions based on data sensitivity.

In response to comments from the FTC and others in the proceeding, the final rules adopted by the FCC align more closely with the FTC framework, though some important differences remain.  Continue reading for key elements of the proposed rules. Continue Reading What You Need to Know about the New Broadband Privacy Regulations

BREAKING NEWS –

The FCC has voted 3-2 along party lines to require internet service providers (ISPs) to get a customer’s explicit consent before they can use or share what is termed “sensitive” personal information.  That definition raises some eyebrows: according to the FCC’s rules, “sensitive” information includes browsing history, mobile location data, TV viewing history, call and text message records, and information about what mobile apps subscribers use.

The regulation was billed by the FCC as based on transparency, consumer choice and data security.

We will have a full analysis of the new regulations tomorrow.

 

You may not realize how much personal information your insurance company has about you. Scarier still is that much of this data is sensitive and valuable to hackers – such as your Social Security number, financial information, medical history, even itemized schedules of your most expensive personal property.  As data breaches affecting insurers have piled up in the past couple of years (Anthem, Premera Blue Cross and Blue Shield, Excellus Health Plan, UCLA Health System just to name a few), so too have calls for stronger data security protections applicable to insurance data.  In response, the CyberSecurity Task Force of the National Association of Insurance Commissioners (“NAIC”), the standard-setting organization in the U.S. insurance industry created and governed by the chief insurance regulators from the 50 states, the District of Columbia, and five U.S. territories (“Task Force”) is racing to finish its Insurance Data Security Model Law (“Model Law” or “Law”) by the end of this year so that states can begin the adoption process as early as 2017.  Continue Reading Insurance Regulators Fine Tuning Cybersecurity Guidance

 

It’s time for a compliance check on those website or mobile app privacy policies, before the California Attorney General comes knocking.

Attorney General Kamala D. Harris has announced the release of a new tool for consumers to report websites, mobile applications, and other online services that may be in violation of the California Online Privacy Protection Act (CalOPPA).  The form is available at https://oag.ca.gov/reportprivacy.  As a reminder, a website owner or app operator may violate CalOPPA by failing to post privacy policies or posting incomplete or inadequate policies that do not meet the requirements of the statute.

As we have previously written on this blog, the potential cost for not meeting the CalOPPA requirements can be substantial.  Violations of CalOPPA may result in penalties of up to $2,500 per violation which, for mobile applications, means up to $2,500 for each copy of the non-compliant application that is downloaded by California consumers.

“In the information age, companies doing business in California must take every step possible to be transparent with consumers and protect their privacy,” said Attorney General Harris. “As the devices we use each day become increasingly connected and more Americans live their lives online, it’s critical that we implement robust safeguards on what information is shared online and how. By harnessing the power of technology and public-private partnerships, California can continue to lead the nation on privacy protections and adapt as innovations emerge.”

Mobile app creators should be aware that the Attorney General’s office will not only be relying on consumers to identify non-compliant apps.  The Office is also partnering with the Usable Privacy Policy Project at Carnegie Mellon University to develop a tool that will identify mobile apps that may be in violation of CalOPPA by looking for discrepancies between disclosures in a given privacy policy and the mobile app’s actual data collection and sharing practices (for example, a company might share personal information with third parties but doesn’t disclose that in its privacy policies).

If you have any questions regarding CalOPPA compliance, please do not hesitate to contact the team at Mintz Levin.

 

 

For the next few months, the Mintz Levin Privacy Webinar Series is focusing on the upcoming EU General Data Protection Regulation (GDPR) to help businesses understand the reach and scope of the GDPR and prepare for the potentially game-changing privacy regulation.   The GDPR will affect how US businesses handle and process personal data originating in the EU and may require changes to business process.

Next week, we’ll present a webinar focusing on the data security and accountability requirements of the GDPR, including reviews and documentation of internal policies and procedures and data impact assessments.   We will also take a look at the onerous breach notification requirements and recommend actions that companies can take in advance to mitigate the need for breach notification.

Make sure to join us for this important webinar!

Registration link is here.

 

The New York Department of Financial Services recently announced a new proposed rule, which would require financial institutions and insurers to implement strong policies for responding to cyberattacks and data breaches.  Specifically, the rule would require insurers, banks, and other financial institutions to develop detailed, specific plans for data breaches; to appoint a chief privacy security officer; and to increase monitoring of the handling of customer data by their vendors.

Until now, various regulators have been advancing similar rules on a voluntary basis.  This is reportedly the first time that a state regulatory agency is seeking to implement mandatory rules of this nature.

“New York, the financial capital of the world, is leading the nation in taking decisive action to protect consumers and our financial system from serious economic harm that is often perpetrated by state-sponsored organizations, global terrorist networks, and other criminal enterprises,” said New York Governor Cuomo. He added that the proposed regulation will ensure that the financial services industry upholds its commitment to protect customers and take more steps to prevent cyber-attacks.

The rule would go into effect in 45 days, subject to notice and public comment period.  Among other detailed requirements, it will mandate a detailed cybersecurity program and a written cybersecurity policy.  While larger financial institutions already likely have such policies in place, the rule puts more pressure on them to fully comply.  It also mandates the hiring of a Chief Privacy Officer at a time when privacy professionals are already in a very high demand.  To attract top talent, the financial institutions will need to allocate appropriate budgets for such hiring.

Additionally, the rules outline detailed requirements for the hiring and oversight of third-party vendors.  Regulated entities who allow their vendors to access nonpublic information will now have to engage in appropriate risk assessment, establish minimum cybersecurity practices for vendors, conduct due diligence processes and periodic assessment (at least once a year) of third-party vendors to verify that their cybersecurity practices are adequate.  More detailed specifications can be found here.  Other requirements include employment and training of cybersecurity personnel, timely destruction of nonpublic information, monitoring of unauthorized users, and encryption of all nonpublic information.  As DFS Superintendent Maria Vullo explained: “Regulated entities will be held accountable and must annually certify compliance with this regulation by assessing their specific risk profiles and designing programs that vigorously address those risks.”

Among other notable requirements, the regulations further mandate that banks notify New York’s Department of Financial Services of any material data breach within 72 hours of the breach.  The regulations come at the time when cybersecurity attacks are on the rise.  The proposed rules also follow on the heels of recent legislative initiatives in 4 other states to bolster their cybersecurity laws, as we previously discussed.

The regulations are sweeping in nature in that they potentially affect not only New-York-based companies but also insurers, banks, and financial institutions who conduct business in New York or have customers who are New York residents.  If you are unsure about your company’s obligations and the impact of the proposed rules on your industry, contact Mintz Levin privacy team for a detailed analysis.

As has become typical in the data security space, there was quite a bit of activity in state legislatures over the previous year concerning data breach notification statutes.  Lawmakers are keenly aware of the high profile data breaches making headlines and the increasing concerns of constituents around identity theft and pervasive cybercrime.  In response, states are beefing up their data security statutes in order to provide greater protection for a broader range of data, to require notification to Attorneys General, and to speed up the timeline companies have to advise residents when their personal information has been compromised, to name a few steps. Please review our updated Mintz Matrix to make sure you understand the latest rules applicable to your business!

According to a recent summary published by the National Conference of State Legislatures, more than 25 states in 2016 have introduced or are currently considering security breach notification bills or resolutions.  While much legislation remains pending in statehouses across the country, statutory amendments passed in four states took effect over this past summer alone.  Here is a brief summary of significant amendments to data breach notification rules in Nebraska, Nevada, Rhode Island and Tennessee. Continue Reading Summer Round-Up: Four States Bolster Data Breach Notification Laws and More Changes on the Way

It is easy to see networks all around us. The printers at the office, your child’s videogame, the food ordering app on your phone, the fitness band or smart watch on your wrist, the electricity grid for your city, the self-driving cars being tested on our roads, all rely at least in part on networked solutions.  The ubiquity of networks is already staggering and the pace of research and development in this area is poised to increase for years to come.  As the things in our world get smarter and the network of these smart things grows larger, a little-known agency in the U.S. Department of Commerce, the National Institute of Standards and Technology (“NIST” or “Agency”), decided it was time that stakeholders smartened up about the way they discuss networks, connected “smart” things, and the privacy and security challenges associated with them.  Continue Reading Let’s talk about Networks of Things, baby. Let’s talk about you and me.