Data Protection Law Compliance

On March 15, Fox Rothschild partner Scott Vernick will participate in a panel discussion on Developments in Data Privacy & Security as part of the 2017 Argyle Chief Legal Officer Leadership Forum. The Forum will take place from 8 a.m. to 5 p.m. at the Convene Conference Center at 730 3rd Ave in New York City.

Scott L. Vernick, Partner, Fox Rothschild LLPScott and his fellow panelists will discuss the evolution of the GC role to include cybersecurity and data privacy, how cybersecurity fits into an organization’s risk management structure, as well as proactive risk assessments GCs can use to identify and prioritize critical assets and data for their business. Attendees will also receive information on new regulatory challenges, how GCs can best collaborate with and advise other organization leaders on the topic of cybersecurity, and working with outside counsel on these and related issues. The panel discussion is scheduled from 10:10 a.m. to 11:00 a.m.

To register for the event, please visit the Argyle Forum event page.

In my previous post, I reviewed the New York State Department of Financial Services’ (NYDFS) findings and conclusions of survey results of financial institutions and insurers’ programs, costs, and future plans related to cybersecurity.

Anthony J. Albanese – Acting Superintendent of Financial Services – writes in a November 9, 2015 letter to Financial and Banking Information Infrastructure Committee (FBIIC) Members that these conclusions have demonstrated a need for new cybersecurity regulations for financial institutions.

Such “robust regulatory action” would be a coordinated effort between state and federal agencies to create a thorough cybersecurity framework addressing critical concerns as well as covering New York-specific interests.

Potential regulations implemented by the NYDFS would require covered financial entities to meet specific cybersecurity obligations in the following areas:

  • Cybersecurity policies and procedures;
  • Third-party service provider management;
  • Multi-factor authentication (i.e., requiring covered entities to apply such authentication to customer, internal, and privileged access to confidential information as well as any access to internal systems or data from an internal network);
  • Chief Information Security Officer (i.e., covered entities will be required to have a CISO responsible for overseeing and implementing a cybersecurity policy, among other duties);
  • Application security (i.e., covered entities must have and set forth written policies, procedures, and guidelines to ensure the security of all applications utilized by the entity which need to be updated annually by the CISO);
  • Cybersecurity personnel and intelligence (i.e., covered entities will need to hire cybersecurity personnel who can handle certain cyber risks and perform core functions of “identify, protect, detect, respond and recover,” as well as providing mandatory training to such personnel);
  • An audit function; and
  • Notice of cybersecurity incidents.

Some of these proposed requirements are set forth in more detail below.

 

Cybersecurity Policies and Procedures

Covered entities, Albanese writes, would need to implement and maintain written cybersecurity policies and procedures addressing the following areas:

(1) information security;

(2) data governance and classification;

(3) access controls and identity management;

(4) business continuity and disaster recovery planning and resources;

(5) capacity and performance planning;

(6) systems operations and availability concerns;

(7) systems and network security;

(8) systems and application development and quality assurance;

(9) physical security and environmental controls;

(10) customer data privacy;

(11) vendor and third-party service provider management; and

(12) incident response, including by setting clearly defined roles and decision making authority.

 

Third-party Service Provider Management

Albanese wants covered entities to ensure that third-party cybersecurity policies and procedures are implemented. Third-party service providers who hold or have access to sensitive data or systems will need to adhere to certain contractual terms, including the following provisions:

(1) the use of multi-factor authentication to limit access to sensitive data and systems;

(2) the use of encryption to protect sensitive data in transit and at rest;

(3) notice to be provided in the event of a cyber security incident;

(4) the indemnification of the entity in the event of a cyber security incident that results in loss;

(5) the ability of the entity or its agents to perform cyber security audits of the third party vendor; and

(6) representations and warranties by the third party vendors concerning information security.

 

Audits

Annual penetration testing as well as quarterly vulnerability assessments will be a new requirement for covered entities. Such entities will also be responsible for maintenance of an audit trail system that perform the following functions:

(1) logs privileged user access to critical systems;

(2) protects log data stored as part of the audit trail from alteration or tampering;

(3) protects the integrity of hardware from alteration or tampering; and

(4) logs system events, including access and alterations made to audit trail systems.

 

Notice of Cybersecurity Incidents

Covered entities, Albanese writes, will need to immediately notify the NYDFS of any cyber security incident that is reasonably likely to materially affect such entity’s normal operation, including a cybersecurity incident

(1) that triggers certain other notice provisions under New York Law;

(2) of which the entity’s board is notified; or

(3) that involves the compromise of “nonpublic personal health information” and “private information” as defined under New York Law, payment card information or any biometric data.

 

These potential requirements are subject to further review and revision by the NYDFS, and there is no timetable for when these requirements will become the law of the land in New York. It will be interesting to see if and when covered entities begin implementing these requirements in advance of a legal obligation to do so. Will other states’ regulatory agencies enact similar regulations modeled on the NYDFS proposals? Look for developments on this topic in the news and on this website.

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Randall J. Collins is a law clerk in Fox Rothschild’s Philadelphia office.

In reaction to two surveys of more than 150 regulated banking organizations and 43 regulated insurers in New York, the state’s Acting Superintendent of Financial Services issued a letter to all Financial and Banking Information Infrastructure Committee (FBIIC) Members addressing the need for potential new cybersecurity regulations in the financial sector.

The New York State Department of Financial Services (NYDFS) expects that the November 9, 2015 letter will trigger more “dialogue, collaboration and, ultimately, regulatory convergence” among New York agencies on “strong” cybersecurity norms for financial institutions.

In the letter, Anthony J. Albanese – Acting Superintendent of Financial Services – discusses the NYDFS’ review of the two surveys which were conducted in 2013 and 2014. The surveys asked about the banks’ and insurers’ programs, costs, and future plans pertaining to cybersecurity. Albanese writes that the findings of those surveys led to some additional actions:

  • The NYDFS expanded its information technology examination procedures to focus more attention on cybersecurity;
  • NYDFS began conducting risk assessments of its financial institutions in late 2014 and early 2014 to compile information about risks and vulnerabilities;
  • In response to a realization of the financial industry’s reliance on third-party service providers for banking and insurance functions, the NYDFS conducted an additional survey of regulated banks in October 2014, specifically pertaining to banks’ management of third-party service providers; and
  • NYDFS published an April 2015 update to its earlier report with the most critical observations.

Those reports and risk assessments as well as the “dozens of discussions” the NYDFS has held with New York financial entities, cybersecurity experts, and other stakeholders have led to several “broad conclusions,” Albanese writes:

  • Financial institutions need to stay “dynamic” to keep pace with ever-changing technological advances and sophisticated cyberthreats;
  • Financial institutions’ third-party service providers must also have sufficient cybersecurity protections as these service providers often have access to an institution’s sensitive data and information technology systems; and
  • Cybersecurity is a “global concern” that affects every industry as evidenced by recent data breaches.

My next post will analyze the proposed regulatory actions and requirements NYDFS is considering for financial institutions and insurers.

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Randall J. Collins is a law clerk in Fox Rothschild’s Philadelphia office.

The White House is building on recent laws addressing cybersecurity in the United States with the release of a new Cybersecurity National Action Plan (“CNAP”). The plan focuses on:

  • improving cybersecurity awareness and protections;
  • additional privacy and security protections for individuals through the creation of a permanent Federal Privacy Council;
  • maintenance of public safety, economic security and national security through a new Commission on Enhancing National Security; and
  • encouraging citizens to take better control of their digital information and security.

CNAP includes a request to Congress to invest over $19 billion for the 2017 Fiscal Year Budget, which is a 35% increase to resources allocated to cybersecurity during FY 2016.

The plan is highlighted by a new Commission on Enhancing National Security (“Commission”). The Commission will be comprised of top technical, strategic, and business advisors in the private sector chosen by bipartisan Congressional leadership.  It will make detailed recommendations to improve cybersecurity awareness both inside and outside the government.  The Commission will also make specific findings about improving national security and empowering citizens to better handle their digital security.  These recommendations and findings must be reported to the President before the end of this year.

The White House looks to make significant improvements in government cybersecurity as part of a $3.1 billion Information Technology Modernization Fund, which will allow agencies to modernize outdated IT infrastructure, networks and systems. A new Federal Chief Information Security Officer will be solely dedicated to developing, managing, and coordinating cybersecurity policies, strategies and operations in the federal government.  The Department of Homeland Security will have new federal civilian cyber defense teams to protect associated networks, systems and data.  The plan also calls for disrupting cyberattacks and improving cyber incident response.

CNAP’s concern for citizens’ privacy and security is reflected in an Executive Order making the Federal Privacy Council permanent. Privacy officials from across the government will help ensure that more strategic and comprehensive federal privacy guidelines are implemented.  The Administration wants citizens to leverage multiple layers of authentication when logging into online accounts instead of just a password. Extra factors like a fingerprint or a single use code via text message are ways to improve online security. The federal government is accelerating adoption of this approach for citizen-to-government digital services, such as tax and health benefit information.  The White House’s new milestones for the 2014 BuySecure Initiative will build upon the already 2.5 million issued Chip-and-PIN payment cards.

Research and development will continue to be a focus with a new Federal Cybersecurity Research and Development Strategic Plan. The strategic plan outlines research and development goals so that U.S. can advance cybersecurity technologies.  CNAP further mentions working with the Linux Foundation’s Core Infrastructure Initiative to maintain and improve internet infrastructure.

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Randall J. Collins is a law clerk in Fox Rothschild’s Philadelphia office.

The “new age” of internet and dispersed private data is not so new anymore but that doesn’t mean the law has caught up.  A few years ago, plaintiffs’ cases naming defendants like Google, Apple, and Facebook were at an all-time high but now, plaintiffs firms aren’t interested anymore.  According to a report in The Recorder, a San Francisco based legal newspaper, privacy lawsuits against these three digital behemoths have dropped from upwards of thirty cases in the Northern District of California i 2012 to less than five in 2015.   Although some have succeeded monumentally—with Facebook writing a $20 million check to settle a case over the fact that it was using users’ images without their permission on its “sponsored stories” section—this type of payout is not the majority.  One of the issues is that much of the law in this arena hasn’t developed yet.  Since there is no federal privacy law directly pertaining to the digital realm, many complaints depend on old laws like the Electronic Communications Privacy Act and Stored Communications Act (1986) as well as the Video Privacy Protection Act (1988).  The internet and its capacities was likely not the target of these laws—instead they were meant to prohibit such behavior as tapping a neighbor’s phone or collecting someone’s videotape rental history.

Further, it seems unavoidable now to have personal data somewhere somehow.  Privacy lawsuits attempting to become class actions have a difficulty in succeeding in a similar way that data breach class actions do: the plaintiffs face the challenge of proving concrete harms.  In a case later this year, Spokeo v. Robins, the Supreme Court may change this area of law because it will decide whether an unemployed plaintiff can sue Spokeo for violating the Fair Credits Reporting Act because Spokeo stated that he was wealthy and held a graduate degree.  The issue will turn on proving actual harm.  Companies that deal with private information on a consistent basis should protect themselves by developing privacy policies that, at the very least, may limit their liability.   The reality is that data is everywhere and businesses will constantly be finding creative and profitable ways to use it.

To keep up with the Spokeo v. Robins case, check out the SCOTUSblog here.

http://www.scotusblog.com/case-files/cases/spokeo-inc-v-robins/

New innovations come hand in hand with new privacy issues.  Privacy policies may seem like a last minute add-on to some app developers but they are actually an important aspect of an app.  Data breaches are an imminent risk and a business’s first defense to potential problems is a privacy policy.

Fordham University in New York hosted its Ninth Law and Information Society Symposium last week where policy and technology leaders came together to discuss current privacy pitfalls and solutions.  Joanne McNabb, the California attorney general’s privacy education director and a leader in policies affecting the privacy agreements of companies such as Google and Apple, emphasized in a panel that she “wants to make the case for the unread privacy policy.”  She noted that the policy mainly promotes “governance and accountability [and] it forces an organization to be aware of their data practices to some degree, express them and then therefore to stand behind them.”  The privacy policy still matters because it protects businesses from the risks associated with having a high level of data. It is especially necessary for those businesses that depend solely on private information because they are at a higher risk of breach.

The FTC (Federal Trade Commission) has suggested using an approach called “Privacy By Design” which is a method of imbedding privacy protections into the infrastructure of the app.  This approach removes the concern of implementing privacy policies post-development. Another method of simplifying the privacy policy is the alert prompt that some apps have employed to consistently give consumers notice of when and where their information is used. McNabb and her fellow panelists found this method of “short, timely notices” helpful in closing the gap between the unread privacy policies and the claimed “surprise” of consumers who blame an app for the dissemination of information.

As the industry moves forward, privacy will become an even greater part of the equation. Whether a privacy policy is read is insignificant. The protections it puts in place for all parties involved are crucial. As apps and technologies become more connected to the private preferences of consumers, businesses with a leg up on privacy protections will thrive against the backdrop of those who view privacy as a second tier requirement.

For more information on “Privacy By Design” click here.

The freedom from automated calls at random hours of the evening may seem like the true American dream these days as more and more companies rely on these calls to reach out and communicate with customers.  Unfortunately, now that the Federal Communications Commission (“FCC”) voted to expand the Telephone Consumer Protection Act (“TCPA”) to include stringent yet vague restrictions on telemarketing robocalls, it may not be a dream for everyone. 

In June of this year, in a 3-2 vote, the FCC voted on adding the rule to the TCPA that entails barring companies from using “autodialers” to dial consumers, disallowing more than one phone call to numbers that have been reassigned to different customers, and mandating a stop to calls under a customer’s wishes.  These restriction may seem reasonable but dissenting Commissioner, Ajit Pai, recognized that the rule’s broad language will create issues because it does not distinguish between legitimate businesses trying to reach their customers and unwanted telemarketers.  Some attorneys have further commented on the rule stating that its use of “autodialer” opens up a can of worms of interpretations and can really be viewed as any device with even the potential to randomly sequence numbers, including a smartphone.  Companies using even slightly modernized tactics to reach out to their customer base are now at risk of facing litigation—and it won’t stop there.  Businesses that legitimately need to reach out to their customers will be caught between a rock and a hard place as they face a one-call restriction now and may also open themselves up to litigation if a customer decides to take that route.

The FCC Chairman, Tom Wheeler, attempted to quash concerns by stating that “Legitimate businesses seeking to provide legitimate information will not have difficulties.”  This statement unfortunately won’t stop plaintiff’s attorneys from greasing their wheels to go after companies who even make “good faith efforts” to abide by the new rule.  Attorneys who defend businesses have recognized that the rule is ridden with issues that could potentially harm companies that simply do not have the mechanisms to fully control and restrict repeated calls or the technology that makes those calls.  But, long story short, just because this rule has been put in motion, does not mean it will stand as is. Litigation and court action will likely be a natural consequence and that may result in changes for the future.  For now, businesses that utilize automated phone calls should be wary of the technology used and attempt to at least keep track of numbers and phone calls made.  When in doubt, talk to an attorney to make sure you are taking the appropriate precautions.

In February 2013, President Obama issued his Improving Critical Infrastructure Cybersecurity executive order, which presented a plan to decrease the risk of cyberattacks on critical infrastructure.  The US Department of Commerce’s National Institute of Standards and Technology (NIST) was charged with creating the plan, which became known as the Framework for Improving Critical Infrastructure Cybersecurity (Framework).  The NIST worked with over three thousand individuals and business organizations to create the Framework.  The goal of the Framework is to help businesses develop cybersecurity programs within their organizations and to create industry standards for dealing with cybersecurity issues.

The Framework is designed to work with businesses to reach a sufficient level of cybersecurity protection regardless of size, sector, or level of security.  The Framework consists of three parts (1) The Framework Core, (2) The Framework Implementation Tiers, and (3) The Framework Profiles.  The Framework Core is a grouping of cybersecurity activities based on industry indicators, desired outcomes, and practices.  It assists businesses in developing Framework Profiles, which are used to create cybersecurity plans.  Essentially, the Core characterizes all aspects of a business’ cybersecurity protection so that the Framework can assist the business in creating a secure network.

The Framework Implementation Tiers assess how a business acknowledges cybersecurity issues and ranks the business into one of four tiers.  Ranked from weakest to strongest the four tiers are: (1) Partial, (2) Risk Informed, (3) Repeatable, and (4) Adaptive.  The Partial Tier is for businesses that may not consult risk objectives or environmental threats when deciding cybersecurity issues.  The Risk Informed Tier is for businesses that have cybersecurity risk management processes, but may not implement them across the entire organization.  The Repeatable Tier is for businesses that regularly update their cybersecurity practices based on risk management.  The Adaptive Tier is for businesses that adapt cybersecurity procedures frequently and implement knowledge gained from past experiences and risk indicators.  The Tier assignment helps a business better understand the impact of cybersecurity issues on its organizational procedures.

After a business has gone through the necessary steps with the Framework Core and Implementation Tiers, it can create a Framework Profile based on its individual characteristics.  A “Current” Profile allows a business to have a clear sense of where it stands in terms of cybersecurity and what aspects of its cybersecurity program need improvement.  A “Target” Profile represents the cybersecurity state that a business wants to achieve through the use of the Framework.  By comparing its “Current” Profile and “Target” Profile, a business is able to prioritize its actions and measure its progress.

There are several resources that support the Framework including the NIST’s Roadmap for Improving Critical Infrastructure Cybersecurity, the NIST’s Cybersecurity Framework Reference Tool, and The Department of Homeland Security’s Critical Infrastructure Cyber Community C3 Voluntary Program.  A business that wants to utilize the Framework should visit the NIST’s Framework website at:  http://www.nist.gov/cyberframework/.

On July 20, 2015, in Remijas v. Neiman Marcus Group, LLC, No. 14-3122 (7th Cir. 2015), the Seventh Circuit held that the United States District Court for the Northern District of Illinois wrongfully dismissed a class action suit brought against Neiman Marcus after hackers stole their customers’ data and debit card information.  The District Court originally dismissed the plaintiffs’ claims because they had not alleged sufficient injury to establish standing.  The District Court based its ruling on a United States Supreme Court decision, Clapper v. Amnesty Int’l USA, 133 S.Ct. 1138 (2013), which held that to establish Article III standing, an injury must be “concrete, particularized, and actual or imminent.”

However, the Seventh Circuit clarified that Clapper “does not, as the district court thought, foreclose any use whatsoever of future injuries to support Article III standing.”  Rather, “injuries associated with resolving fraudulent charges and protecting oneself against future identity theft” are sufficient to confer standing.

In Remijas, the Seventh Circuit explained that there is a reasonable likelihood that the hackers will use the plaintiffs’ information to commit identity theft or credit card fraud.  “Why else would hackers break into a store’s database and steal consumers’ private information?” – the Seventh Circuit asked.  The Seventh Circuit held that the plaintiffs should not have to wait until the hackers commit these crimes to file suit.

The Seventh Circuit also considered that some of the plaintiffs have already paid for credit monitoring services to protect their data, which it held is a concrete injury.  Neiman Marcus also offered one year of credit monitoring services to its customers affected by the breach, which the Seventh Circuit considered an acknowledgment by the company that there was a likelihood that their customers’ information would be used for fraudulent purposes.

Ultimately, this decision may serve to soften the blow dealt by Clapper to data breach plaintiffs.  Specifically, based on this ruling, plaintiffs who have not incurred any fraudulent charges, but have purchased credit monitoring services, or have spent time and money protecting themselves against potential fraud may argue that they have standing.

Guest Blogger: Violetta Abinaked, Summer Associate

As noted in Dittman et al. v. The University of Pittsburgh Medical Center, Case No. GD-14-003285, previously reported on here, Pennsylvania has firmly adopted the approach that the Risk of Harm is Not Enough in Data Breach Actions. Still, data breaches have become some of the most noteworthy headlines in recent news. An increase in litigation has brought with it efforts to shrink the case load through the Article III requirement of standing. This means that courts are finding that the plaintiffs have not sufficiently established a concrete injury in order to seek remedies from the court. One of the main issues with data breaches is that once the data has been extracted or accessed, it is not necessarily always true that tangible harm will follow. Due to that nature, the Third Circuit established that when it comes to data breach actions, simply the risk of future harm does not suffice to save the claim. The seminal case of Reilly v. Ceridian Corp. held that where no actual misuse is alleged, “allegations of hypothetical, future injury do not establish standing under Article III.” 664 F. 3d 38 at 41 (3rd Circuit 2011).

The courts are making it tougher to carry out a data breach claim if the plaintiff can’t show actual or certainly impending misuse of the information. Reilly’s narrow definition of standing is leading the courts’ decisions in dismissing cases. A defendant will likely have a higher chance of getting a dismissal in a data breach action if the plaintiff is not able to provide any actual misuse of the information—at least in the Third Circuit. As a company which may be at risk for a data breach, this heightened need for tangible damage from the plaintiff may be a saving grace if future litigation arises.