Information Security Standards

One of the most bedeviling aspects of data privacy and security law concerns the concept of “reasonable” data security, which has become the default statutory and common law standard.  The FTC began articulating a reasonableness standard in the early aughts, when the Commission first began scrutinizing companies’ data security practices.  Companies for years quietly grumbled about the vagueness of this standard, which isn’t defined in any regulations or federal statutes. Critics obtained a recent victory when the Eleventh Circuit, in LabMD v. FTC, struck down an FTC judgment on grounds that the relief sought by the FTC against LabMD– implementation of reasonable data security practices — was too vague to be enforceable. Continue Reading What Does “Reasonable” Data Security Mean, Exactly?

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.

Continue Reading Colorado Enacts Groundbreaking Privacy and Cybersecurity Legislation

The virtual world offers opportunities and obligations not found in nature.

For a couple of years, my wife has followed the adventures of a bonded eagle couple, Liberty and Freedom, residing in the hills near Hanover, Pennsylvania. A strategically positioned webcam offers a round-the-clock view of nesting activities. Last year the pair hatched two eggs and cared for the eaglets until they fledged.

This year, it appears as if calamity struck. Liberty has disappeared, and a new female, Lucy, has taken her place in the nest, destroying one of the eggs. Although the other egg remains in the nest, it is widely believed that the disturbance has rendered it unviable and that it will not hatch. It is possible that Lucy fought with the older Liberty and killed her.  The body has not been found.  It is also possible that Freedom and Lucy will now bond, but most viewers do not expect them to produce eggs this year.

In the virtual world, health care providers, health plans, health care clearinghouses, and their business associates have a responsibility to protect the treasured asset of individually identifiable information from predators and other dangers. But unlike eggs, which cannot be recovered if stolen or damaged, data is retrievable. Continue Reading Springtime for HIPAA

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:

Continue Reading Oregon Amends Data Breach Notification and Information Security Laws

South Dakota (site of Ballard’s newest office) has become the 49th State to enact a data breach notification law.  South Dakota Governor Dennis Daugaard signed SB 62 into law on March 21, 2018.  The law will take effect on July 1, 2018.

As with similar measures pending in other state legislatures, SB 62 was introduced in the South Dakota Senate on January 9, 2018, in the wake of the disclosures relating to the Equifax breaches. The law generally mirrors those of many other states, but includes a few new wrinkles. Continue Reading South Dakota Enacts Data Breach Notification Law

On February 28th, the Federal Trade Commission (FTC) released a report that offers several recommendations on ways to improve the security of mobile devices. In a press release accompanying the report, Tom Pahl, the Acting Director of the FTC’s Bureau of Consumer Protection, stated that “more needs to be done to make it easier for consumers to ensure their devices are secure.” The FTC’s recommendations center around the ongoing need to patch vulnerabilities. However, the complexity of the mobile ecosystem and the many stakeholders, including mobile device manufacturers and operating system software providers, can delay security updates from reaching the mobile devices in consumer hands. Continue Reading FTC Releases “Best Practices” to Improve Mobile Device Security

The Commodity Futures Trading Commission (CFTC) has made another foray into data security, announcing today an order settling charges against AMP Global Clearing LLC (AMP) stemming from AMP’s failure to supervise the implementation of its information systems security program. Between June 21, 2016 and April 17, 2017, AMP stored thousands of customer records  in an improperly protected internal network. This fact was discovered after an unknown third-party, with no affiliation to AMP, accessed AMP’s network and copied 97,000 files containing personally identifiable information. The third party then contacted federal authorities, and later AMP.  Although AMP cooperated with the CFTC and worked to fix the issue, the CFTC later brought charges against the company for failing to supervise the implementation of critical provisions of AMP’s information systems security program. Continue Reading CFTC Settles Charges Against AMP Global Clearing for Failing to Supervise Implementation of its Security Program

Lyft recently confirmed that it is investigating whether its employees were accessing its customer database without appropriate authorization to obtain personal information, including rides taken by Facebook CEO Mark Zuckerberg. The investigation was announced less than six months after Uber entered into a Federal Trade Commission (FTC) consent order to resolve allegations of similar behavior by its own employees.

The investigation demonstrates the importance of revisiting internal compliance measures in the wake of legal developments that may be relevant to a particular company or industry. Companies need to maintain comprehensive privacy programs to ensure the confidentiality of the personal information that they collect.  Such programs should include, at a minimum: Continue Reading Lyft Employees Demonstrate Need for Privacy Compliance Management

Federal contractors may soon be required to meet heightened requirements for information security under two new proposed rules issued by the General Services Administration (GSA). The first proposed rule, GSAR Case 2016-G511 “Information and Information Systems Security,” will require that federal contractors “protect the confidentiality, integrity and availability of unclassified GSA information and information systems from cybersecurity vulnerabilities and threats in accordance with the Federal Information Security Modernization Act of 2014 and associated Federal cybersecurity requirements.”  This proposed rule builds on new cybersecurity requirements mandated by the Department of Defense for federal contractors, DFARS Section 252.204-7012 which recently became effective. Continue Reading Proposed GSA Rules Will Require Federal Contractors to Meet New Cybersecurity Standards

A bipartisan group of Colorado legislators proposed legislation that, if enacted, would significantly change the requirements for how Colorado entities protect, transfer, secure, and dispose of documents containing personal identifying information. The proposed legislation also would expand the types of information covered by the Colorado Breach Notification Law and add additional requirements for companies that have suffered a data breach, such as a 45-day deadline to provide notice to affected individuals. Click here for a discussion of the proposed legislation.