With tax season in full swing, a different season is impacting businesses across all industries: “phishing season.”

Phishing scams
Copyright: fberti / 123RF Stock Photo

“Phishing” or “spear phishing” refers to cyberattack scams that target certain individuals within an organization with the hope of gaining access to valuable information.

These scams take advantage of the busy tax season, the desire to promptly respond to purported upper management and social engineering employees in order to target and trick only employees with immediate access to sensitive employee data. These scams have spread to a variety of for-profit sectors and even nonprofits and school districts.

Spear phishing attacks are virtual traps set up by criminals who, in this case, send emails to employees that appear to come from actual upper management. Typically, they are well-written and look authentic. Usually, there is some explanation or pressing reason offered for why personal information is required. The targets have increasingly become payroll and human resources personnel with the goal of stealing employees’ W-2 information during tax season.

Roughly 100 businesses with more than 125,000 employees were victims of phishing scams last year. This year has already seen a dramatic increase in phishing scams, as approximately 80 businesses have already been targeted during tax season. These are only the businesses that reported phishing scams, and the real number is certainly dramatically larger.

The IRS has previously stated that tax season is likely partly responsible for this surge in phishing emails. Last year, the IRS issued an alert to payroll and human resources professionals about emails purporting to be from company executives requesting employees’ personal information.

“Now the criminals are focusing their schemes on company payroll departments,” said IRS Commissioner John Koskinen. “If your CEO appears to be emailing you for a list of company employees, check it out before you respond. Everyone has a responsibility to remain diligent about confirming the identity of people requesting personal information about employees.”

The IRS bulleted some of the requests contained in these fake emails:

  • Kindly send me the individual 2015 W-2 (PDF) and earnings summary of all W-2 of our company staff for a quick review.
  • Can you send me the updated list of employees with full details (name, social security number, date of birth, home address, salary).
  • I want you to send me the list of W-2 copy of employees wage and tax statement for 2015, I need them in PDF file type, you can send it as an attachment. Kindly prepare the lists and email them to me ASAP.

No organization is immune during phishing season. Last year a large social media provider issued an apology and offered two years of identity theft insurance and monitoring after one of its workers inadvertently released sensitive company payroll information to a criminal. The unidentified employee opened an email that appeared to be from the victim company’s CEO. Although none of the company’s internal systems were breached and no user information was compromised, hundreds of employees had their personal information exposed to the public.

The FBI has also warned the public and has published suggestions to avoid becoming a victim during phishing season, including:

  • Keep in mind that most companies, banks, agencies, etc., don’t request personal information via email. If in doubt, give them a call (but don’t use the phone number contained in the email — that’s usually phony as well).
  • Use a phishing filter. Many of the latest web browsers have them built in or offer them as plug-ins.
  • Never follow a link to a secure site from an email. Always enter the URL manually.
  • Don’t be fooled (especially today) by the latest scams.

The Minnesota Department of Revenue recently announced its excellent Stop. Connect. Confirm. program. From the Department of Revenue’s announcement:

When a request for private/sensitive information is made, Stop. Connect. Confirm.

  1. Stop – Stop for a moment before complying with the request and sending that information.
  2. Connect – Connect with the person who sent you the request by phone or by walking over to see them. Do not respond to the email to get confirmation of the sender’s identity. The sender may be a criminal who has disguised his or her identity by spoofing your colleague’s email address.
  3. Confirm – Confirm with the executive requesting the information that the request is legitimate.

Businesses can download and print this poster and display it in their human resources and payroll departments to remind employees to Stop. Connect. Confirm. if a request for employee personal information is made.

If your employer notifies you that your W-2 or other personal information has been compromised:

  • Review the recommended actions by the Federal Trade Commission at www.identitytheft.gov or the IRS at www.irs.gov/identitytheft.
  • File a Form 14039, Identity Theft Affidavit if your tax return is rejected because of a duplicate Social Security number or if instructed to do so by the Internal Revenue Service.

More of these attacks should be expected as tax season, and phishing season, continue, so organizations should be vigilant about ensuring that all employees are aware about phishing scams.

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.

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/

Copyright: argus456 / 123RF Stock Photo
Copyright: argus456 / 123RF Stock Photo

Fox Rothschild partner Scott L. Vernick was quoted in The New York Times article, “Hacking Victims Deserve Empathy, Not Ridicule.” Full text can be found in the September 2, 2015, issue, but a synopsis is below.

While some data breach victims may face only minor frustrations – changing a password or getting a new credit card – it is a different story for the more than 30 million Ashley Madison users who had their accounts for the infidelity website compromised.

Many of the victims of this latest massive data breach have been plunged into despair, fearing they could lose jobs and families, and expecting to be humiliated among friends and colleagues.

“It’s easy to be snarky about Ashley Madison, but just because it’s unpopular or even immoral, it doesn’t mean this sort of activity shouldn’t be protected,” said Scott L. Vernick, a noted privacy attorney. “This gets at fundamental issues like freedom of speech and freedom of association – today it’s Ashley Madison, tomorrow it could be some other group that deserves protection.”

With hackers on the loose, and wire transfers as a place for them to gain unauthorized access to bank accounts, it is no wonder that when it comes to potentially intercepted wires, customers and banks are playing hot potato with who to blame. Typically, banks bear the risk of loss for unauthorized wire transfers. The Electronic Fund Transfer Act (“EFTA”) for consumer accounts and Article 4A of the Uniform Commercial Code (“UCC”) for business accounts, are two entities that govern these transfers. Both have opposing interests considering that the EFTA attempts to shield customers from paying unauthorized charges whereas the UCC has a framework in place that protects the banks and shifts the risk of loss to the customer if the bank can show that (1) a commercially reasonable security procedure was in place and, (2) the bank accepted the payment order in good faith and in compliance with the security procedure and any other written agreement or customer instruction.

Due to the flexibility of the UCC and the fact that “commercial reasonability” is a question of law, some factors that pertain to it have been interpreted differently by the judicial system. These interpretations have established divergent norms. Some factors that courts look to in their decision making are the customer’s instructions to the bank, the bank’s understanding of the customer’s situation, alternative security procedures offered to the customer, and security procedures in general that are typical of the industry.

With these criterions, courts have been able to judge bank security procedures and assess whether their efforts were adequate. For example, the Eighth Circuit found that where a customer refuses commercially reasonable security procedures such as “dual control,” which requires two independent authorized users to approve the wire transfer, the customer, in effect, assumed the risk of failure. The bank’s procedure was considered adequate because they had the security measures in place in order to protect against cyberattacks. Conversely, in a case heard in the First Circuit, Comerica was found to have failed to satisfy its burden because it did not discover that unusual activity was happening with multiple accounts when a bank dealing fairly with a customer “would have detected and/or stopped the fraudulent wire activity earlier.” The court notes some of the factors that led to this decision such as: the volume and frequency of the wire transfers when there had previously been very low activity, the fact that the destinations of the funds were in Russia, and that Comerica had knowledge of current and prior phishing attempts.

Even the most sophisticated security systems—typically found in banks—are vulnerable to hacking. With the divergence of opinions within the law about who should bear the risk when something goes wrong, customers and banks alike should make sure to take the proper precautions while making transactions of any sort.

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

With data breaches being the quickly trending “flavor of the month” criminal activity, it’s no shock that on June 4, 2015 yet another system was hit. This time though, it may be one of the largest cyberattacks in U.S. history—compromising as many as 4 million current and former federal employees’ information. The U.S. Office of Personnel Management (OPM) handles security clearances and background checks and although many would assume that its security is top-notch, the facts on the ground reveal that every place taking in sensitive information—including the government—must update its privacy infrastructure.

In his press statement on Thursday, Rep. Adam Schiff, the ranking member of the House Permanent Select Committee on Intelligence echoed that sentiment and stated that “Americans may expect that federal computer networks are maintained with state of the art defenses [but] it’s clear a substantial improvement in our cyber-databases defenses is perilously overdue. This does not only apply to systems of this magnitude.

Any business that maintains data bases with private information must invest in the proper privacy infrastructure necessary to protect that information. Cyberattacks do not discriminate. From major retailers to well-respected state universities, data breaches run the gamut and from the looks of Thursday’s attack, they are getting more sophisticated. OPM is now working closely with the FBI and the U.S. Department of Homeland Security’s U.S. Computer Emergency Readiness Team to attempt to identify the extent of the harm on federal personnel. But not everyone has the luxury of the entire U.S. government as a “crisis manager” so preventive measures for businesses will make a difference.

At this time, one of the most troubling facts of cyberattacks is that the source is difficult to locate. Sen. Susan Collins, a member of the Senate Intelligence Committee, said the hack was “extremely sophisticated,” and “that points to a nation state” as the responsible party, likely China. No conclusive source has been discovered yet but the lesson here is clear—with private information being involved in almost every aspect of business, measures must be taken to protect it.

For more information on data security click here.

On October 24, the Federal Communications Commission (FCC) threw its hat into the data security regulation ring when it announced it intends to fine two telecommunications companies $10 million for allegedly failing to safeguard the personal information of their customers.

Both TerraCom, Inc. (TerraCom) and YourTel America, Inc. (YourTel) allegedly collected customers’ personal information, including names, addresses, Social Security numbers, and driver’s licenses, and stored it on servers that were widely available on public websites online through a simple Google search.  The information could be accessed by “anyone in the world” exposing their customers “to an unacceptable risk of identity theft and other serious consumer harms.”

According to the FCC, TerraCom and YourTel violated Sections 201(b) and 222(a) of the Communications Act of 1934 by:

  • Failing to properly protect the confidentiality of consumers’ personal information, including names, addresses, Social Security numbers, driver’s licenses;
  • Failing to employ reasonable data security practices to protect consumer information;
  • Engaging in deceptive and misleading practices by representing to consumers in the companies’ privacy policies that they employed appropriate technologies to protect consumer information when they did not; and
  • Engaging in unjust and unreasonable practices by not notifying consumers that their information had been compromised by a breach.

Whether the FCC’s announcement signals its intention to become yet another regulator of data security remains to be seen.  But companies that collect and store customer personal information must take the initiative to ensure information is stored properly with appropriate data security safeguards in place.  And safeguards are not enough.  If, after investigation, a company uncovers a breach, it must timely notify customers in accordance with state law and federal regulations.

For more information about the FCC’s announcement, click here.

 

The Nevada State Bar (the “Bar”) has confirmed that “criminals” forced their way into storage facilities maintained by the Bar related to past bar exam applicants and made off with “18 records of individuals.”  The loss appears to have been first reported here at databreaches.net.  It does not sound like much, but databreaches.net further reports that at least one case of identity theft has been confirmed.  The full press release can be found here and is reproduced below.

Although the Bar notes that the records stolen were in paper form, and not electronic form, it does make one ask whether the information would have been safer in electronic form.  On its face, and making no commentary about the content of the records stolen (because we simply do not know at this time), one would think that electronic data is more secure on servers controlled by the Bar than a storage facility subject to physical attack.  The foregoing observation makes several assumptions about the effectiveness and thoroughness of the security of the Bar’s electronic network, but such a network may be far less tempting to “criminals” that have seen too many episodes of Storage Wars.

Too often we see businesses (and their security vendors) that focus only on electronic data security.  While we are happy to see businesses finally pay attention to data security, and we find IT Departments universally eager to batten down the hatches, it is often Human Resources Departments and Records Departments that have long standing, inadequate policies that create problems.

The take away (or the tl;dr, for the kids) is do not neglect your physical records security.  Have a Clean Desk Policy in place.  Consider scanning and shredding rather than paying monthly storage fees for a decade.  Lock the filing cabinets and invest in door locks for offices containing personally identifiable information.

Full content of the press release:

Notice of Admissions Breach

The State Bar of Nevada learned that criminals forced their way into a State Bar storage facility and stole some confidential records. The State Bar is working with the Las Vegas Metropolitan Police Department in an active police investigation in this incident.

The unauthorized access took place in one storage facility where the State Bar stored historical documents in paper, not electronic, form relating to past bar exam applications. Through a complete inventory of all records the State Bar has determined that the criminals forced their way into one unit. This inventory shows 18 records of individuals were stolen. All those affected by this theft have been contacted.

The State Bar has taken and continues to take all precautions to protect the confidential records held by the State Bar.

We take this crime seriously. It was a crime against the State Bar of Nevada.

For those seeking further information, please contact Dean Gould, Admissions Director or Kimberly Farmer, Executive Director, State Bar of Nevada.

Purdue University informed 7,093 former students on Monday that their Social Security numbers may have been stolen from servers at the University on April 5, 2010.  The notification comes 16 months after the discovery of the breach.

According to the (Indiana) Journal & Courier, the server contained 6.6 million nine-digit numbers in the accessed files.  After spending six months analyzing those numbers, Purdue determined that approximately 65,000 of those number combinations could be Social Security numbers.  An additional four months was spent reanalyzing the numbers and performing forensic analysis.  Based on those efforts, the University had matched 7,093 of those number combinations to Social Security numbers of former students. 

The breach was discovered only three days after it occurred, approximately April 8, 2010.  Fourteen months after discovery of the breach, Purdue notified the Office of the Indiana Attorney General.  Now, approximately two months later, the affected former students were notified.

Purdue did not offer any sort of credit monitoring and, instead, recommended to those affected to be vigilant and keep and eye on their credit activity.

The announcement by Purdue comes on the heals of an announcement by The University of Wisconsin-Milwaukee on August 10th that 75,000 of its students had been exposed to a hacking incident in May 2011, as reported earlier here

While the delay of three months may have seemed excessive last week, at least UWM beat Purdue’s delay by almost 14 months.