Earlier today, the Supreme Court of the United States denied certiorari in CareFirst v. Attias, a closely watched case that some thought provided the Court with an opportunity to clarify the standing analysis under Spokeo v. Robins in data breach class actions.

In January, we blogged about CareFirst.  We noted that the core issue in the case – whether fear of identity theft flowing from a data breach is an “injury in fact” sufficient to trigger Article III standing – could have major impact on the viability of future data breach class actions. The district court’s finding in favor of CareFirst on the standing issue was reversed and remanded last August by the U.S. Court of Appeals for the D.C. Circuit, which held that plaintiffs had alleged a risk of future injury because it was at least “plausible” that the cybercriminals had the intent and ability to use the stolen data for wrongful purposes. CareFirst then filed a petition for certiorari to the United States Supreme Court, which today denied the petition leaving in place the D.C. Circuit’s ruling in favor of Plaintiffs. Continue Reading Supreme Court Denies Cert Petition in CareFirst v. Attias

As we were the first in the nation to report, in January, Colorado lawmakers proposed legislation that would significantly change the way in which entities operating in Colorado must protect confidential information and disclose breaches involving same.

Last week, the bill’s sponsors submitted an amended bill that revises a number of key provisions. Among other changes, the amended bill would require entities to notify Colorado residents within 30 days of discovery of a data breach.  If enacted, Colorado would have the shortest time frame for disclosure in the country. Continue Reading Colorado Legislature Continues to Push Privacy and Data Security Legislation in Wake of Equifax

With the New Year comes new data breach compliance obligations! Two Mid-Atlantic states have cybersecurity related compliance statutes that have – or will soon – take effect. Are you ready?

New Year’s Day ushered into effect the amended Maryland Personal Information Protection Act, which expands the definition of “personal information,” creates a 45-day deadline for providing notice of a breach, allows for substitute service when the breach enables an individual’s e-mail to be accessed, and increases the class of information subject to Maryland’s destruction of records laws. To the customary litany of data elements comprising “personal information,” Maryland has added personal health and health insurance information, biometric data, online account credentials and passport/government ID numbers. The amended data destruction provision now applies to customer and employee/former employee records containing personal information. See our prior alert detailing the amendments here. Continue Reading New 2018 Data Breach Compliance Obligations Begin Going into Effect

2018 is shaping up to be a potentially momentous year for data privacy, with a number of pending cases whose impact could fundamentally alter the scope of future privacy lawsuits and criminal investigations. This post will take a look at some of these cases and their potential impact.

Carpenter v. United States

We’ll start with Carpenter, which is pending in the U.S. Supreme Court and focuses on whether the Fourth Amendment requires the government to secure a search warrant to obtain a criminal defendant’s cell phone records from his or her cellular service provider. Continue Reading Data Privacy Cases to Watch in 2018

Consumers are not the only ones suing retailers for payment card data breaches. The U.S. District Court for the Western District of Washington recently denied, in large part, a motion to dismiss a data breach class action brought by Veridian Credit Union, on behalf of itself and other financial institutions, against Eddie Bauer, LLC. The class action relates to a January 2016 payment card data breach that allegedly impacted “every Eddie Bauer store in the United States and Canada.”

The court dismissed Veridian’s negligence per se claim, but allowed Veridian’s negligence and state statutory claims to proceed. The court’s analysis of choice of law and negligence issues is worth a read. Continue Reading Federal Court Allows Credit Union Data Breach Class Action to Proceed Against Eddie Bauer

The FTC has released its annual report summarizing its activity during 2017 relating to privacy and data security issues.  In its self-declared role as “the nation’s primary privacy and data security enforcer,” the FTC outlines 10 privacy cases and 4 data security cases that it brought in 2017, including Uber Technologies (transportation service), Vizio (television manufacturer), Blue Global (lead generator), Upromise (college rewards program), ACDI Group (an alleged debt buyer), TaxSlayer (tax preparation service), and D-Link (wireless routers and Internet cameras). In addition, the FTC also brought its first actions to enforce the EU-US Privacy Shield in 2017. The FTC report also described its activities relating to international enforcement, children’s privacy, and Do-Not-Call. Continue Reading FTC Releases Annual Privacy and Data Security Update