In its preview of hot privacy and cybersecurity topics for 2018, Data Matters noted that this year the Supreme Court was scheduled to decide a number of cases with potentially substantial privacy implications. This past week, the Court issued its opinion in one such case, Byrd v. United States, a case concerning “whether a driver has a reasonable expectation of privacy in a rental car when he or she is not listed as an authorized driver on the rental agreement.” Concluding that a driver does have such an expectation, the Court issued a narrow and unanimous opinion that, as laid out below, could have implications for commercial privacy expectations in other contexts. (more…)
For defense contractors, January 1, 2018 brought with it not only a new year, but also a new era – an era in which contractors must comply with the entire set of more detailed cybersecurity requirements under Defense Federal Acquisition Regulation Supplement (DFARS) 252.204-7012. As we have flagged before on Data Matters, this DFRAS provision applies to all Department of Defense (DOD) contracts (except for those involving commercial, off-the-shelf items) and places a number of substantial obligations on contractors, including that they comply with the security requirements in National Institute of Standards and Technology (NIST) Special Publication (SP) 800-171, “Protecting Controlled Unclassified Information in Nonfederal Information Systems and Organizations,” and report certain cyber incidents to DOD. (more…)
In recent years, the rise of cloud computing has led to more and more data being stored somewhere other than the jurisdiction in which it was created. This trend increasingly has led U.S. law enforcement officials to demand access to information held abroad, just as foreign officials increasingly want access to data held inside the United States. But satisfying these growing desires for cross-border access has proven complicated. The Mutual Legal Assistance Treaty (MLAT) process has not kept pace with the Internet-fueled increase in data requests, nor has a workable alternative to that process emerged. And questions remain as to whether relevant U.S. statutes authorize extraterritorial legal process. Even if law enforcement officials do have tools that allow them to seek data held elsewhere, the holders of such data may face a conflict between their obligations to respond to one country’s lawful process and the obligations to comply with another country’s privacy protections or blocking statutes. (more…)
Few would describe 2017 as a quiet year. But it actually was a period of relative calm with respect to at least one important topic. After supporters and opponents of mandated government access to encrypted communications publicly feuded for much of 2016, reprising arguments they’ve had since at least the days of the “Clipper Chip,” these “encryption debates” seemed to quiet down for much of last year. The same tensions likely simmered beneath the surface, to be sure, but they didn’t boil over and there was accordingly less attention directed at the issue than there had been previously. (more…)
Following months of intense debate, an attempted filibuster, and close votes in both the House and Senate, Congress last week finally extended Section 702 of the Foreign Intelligence Surveillance Act (FISA).
This past year was marked by ever more significant data breaches, growing cybersecurity regulatory requirements at the state and federal levels and continued challenges in harmonizing international privacy and cybersecurity regulations. We expect each of these trends to continue in 2018.
As we begin this New Year, here is list of the top 10 privacy and cybersecurity issues for 2018: (more…)
*This article first appeared in Law360 on December 18, 2017.
For well over a year, defense contractors have had New Year’s Eve 2017 circled on their calendars, and not because they love the “auld lang syne” and a good glass of champagne. (Or at least not only for those reasons.) Dec. 31, 2017, is the deadline for when covered contractors must comply with the U.S. Department of Defense’s new Defense Federal Acquisition Regulation Supplement (DFARS) cybersecurity requirements. This holiday season contractors are thus making their lists and checking them twice in order to ensure that they will be compliant by the end of the year. And this intense focus is well warranted. The DOD is deeply committed to protecting its information, and the requirements are an important step in that regard.
But for all of the focus on Dec. 31, contractors must also remember that the focus on compliance must remain into the New Year — and beyond. New technologies will emerge. Contractors will buy new systems and hire new employees. And all the while, internal security teams will be trying to stay a step ahead of hackers and “white hat” security researchers. In short, despite contractors’ best efforts, gaps may be identified at any time. Moreover, these gaps may carry with them real consequences — not only the possibility of contract termination, but also the risk of costly and disruptive False Claims Act investigations and lawsuits, with the specter of treble damages, and the possibility of suspension and debarment, lurking. It is thus crucial that contractors continue to be vigilant about the regulations, and take steps to enable them to demonstrate their vigilance and compliance, in order to best position themselves to avoid liability.