Colorado has enacted groundbreaking privacy and cybersecurity legislation that will require covered entities to implement and maintain reasonable security procedures, dispose of documents containing confidential information properly, ensure that confidential information is protected when transferred to third parties, and notify affected individuals of data breaches in the shortest time frame in the country. The new law was spearheaded by the Colorado Attorney General’s office, which is charged with enforcing its requirements. As a result of the legislation, covered entities should consider implementing written information security programs, third party vendor management controls, and incident response plans to best position themselves against potential enforcement actions and civil litigation in the future.

Ballard Spahr attorneys David Stauss and Gregory Szewczyk will host a webinar on Monday, June 4, 2018, at noon PT/1 p.m. MT/3 p.m. ET to provide an in-depth analysis of the new law and to discuss what covered entities must do to ensure compliance. Messrs. Stauss and Szewczyk are uniquely situated to discuss the new law, having assisted in developing the legislation, including Mr. Stauss testifying on the bill in front of the House Committee on State, Veterans, & Military Affairs. Click here for more information and to register.

The most notable provisions of the new law are discussed below.


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South Carolina has become the first state to enact a version of the Insurance Data Security Model Law, which was drafted by the National Association of Insurance Commissioners (NAIC) in 2017. Governor Henry McMaster signed the South Carolina Insurance Data Security Act into law on May 14, 2018. The Act will become effective on January 1, 2019.

South Carolina Insurance Director Raymond G. Farmer chaired the NAIC Cybersecurity Working Group that drafted the model law. The South Carolina Act appears to follow the Model Law closely, and bears similarities to cybersecurity laws and regulations enacted in other states and at the federal level – including the New York Department of Financial Services cybersecurity regulations, the new Alabama data breach law, and HIPAA/HITECH data security/breach notification requirements.
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The fallout from the Yahoo data breaches continues to illustrate how cyberattacks thrust companies into the competing roles of crime victim, regulatory enforcement target and civil litigant.

Yahoo, which is now known as Altaba, recently became the first public company to be fined ($35 million) by the Securities and Exchange Commission for filing statements that failed to disclose known data breaches. This is on top of the $80 million federal securities class action settlement that Yahoo reached in March 2018—the first of its kind based on a cyberattack. Shareholder derivative actions remain pending in state courts, and consumer data breach class actions have survived initial motions to dismiss and remain consolidated in California for pre-trial proceedings. At the other end of the spectrum, a federal judge has balked at the U.S. Department of Justice’s (DOJ) request that a hacker-for-hire indicted in the Yahoo attacks be sentenced to eight years in prison for a digital crime spree that dates back to 2010.
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As part of the Rocky Mountain Information Security Conference hosted in Denver from May 8 to 10, 2018, Ballard Spahr Privacy and Data Security attorney David Stauss sat down with Robb Reck, Chief Information Security Officer for Ping Identity and Alex Wood, Chief Information Security Officer for Pulte Financial Services. The group discussed a wide-range on cybersecurity issues as well as Robb and Alex’s involvement with the RMISC and their weekly podcast Colorado = Security.

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The ACC Foundation will be hosting a second webcast on May 1, 2018 at 12:00 EDT to discuss the results of the Foundation’s State of Cybersecurity Report.  You can sign up for the webcast here.

The Report surveyed 600 in-house counsel from around the world on a range of cybersecurity issues including data breach

The Arizona Legislature has significantly expanded and strengthened the state’s data breach notification law. The legislation was signed by Arizona Governor Doug Ducey on April 11, 2018.

Members of Ballard Spahr’s Privacy and Data Security Group will host a webinar on Wednesday, April 25, 2018, at noon PT/1 p.m. MT/3 p.m. ET to provide in-depth analysis of the new law and place it into context with similar legislation enacted by other states over the past few months. Visit www.ballardspahr.com/AZwebinar to register and for more information.

Below we discuss the most notable changes:


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The ACC Foundation will be hosting a webcast on April 18, 2018 at 12:00 EDT to discuss the preliminary results of the Foundation’s State of Cybersecurity Report.  This is the second Report of its kind that the ACC Foundation has published.  You can sign up for the webcast here.

The Report surveyed 600 in-house

The U.S. Court of Appeals for the Seventh Circuit has reinstated a data breach class action filed against Barnes & Noble (B&N).  The litigation, styled as Dieffenbach v. Barnes & Noble, Inc., now heads back to the U.S. District Court for the Northern District of Illinois, which previously dismissed the complaint three times for lack of standing and/or failure to state a claim.

The lawsuit stems from a September 2012 data breach in which “skimmers” gained access to the payment card readers in B&N stores and siphoned off customer names, payment card numbers, expiration dates, and PINs.  “Skimming” is an ‘old school’ hacking technique involving tampering with the PIN pad terminals to exfiltrate the payment card data that runs through them when a card is swiped.  Payment card data was skimmed from PIN terminals in 63 B&N stores, located in 9 states.
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Plaintiff lawyers’ continued search for damage theories to assert in claims arising from a data breach – or fear of a breach – received a potential setback this week when Chief Judge Michael Reagan of the United States District Court for the Southern District of Illinois permitted Fiat Chrysler and Harmon International to seek an interlocutory appeal of the court’s earlier ruling in Flynn v. Fiat Chrysler US that class plaintiffs had standing to bring their “car hacking” claims in federal court.  The ruling comes just one month before the scheduled start of trial. Fiat Chrysler and Harmon moved for an appeal after the Ninth Circuit ruled in a similar case, Cahen v. Toyota Motor Corp, that plaintiffs did not have standing to pursue diminution in value damages against Toyota based on a fear that the vehicles were susceptible to hacking.  
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In March, we reported that the Oregon legislature was considering amending its data breach notification and information security laws. That legislation has now passed the Oregon legislature and been signed into law by Oregon’s governor.  A copy of the new law is available here. The most notable changes are as follows:

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