By

Christopher Fonzone

05 September 2018

Clean-Up Bill Advances to Amend the New California Consumer Privacy Act

On Friday, August 31, the California legislature unanimously passed a host of “clean-up” amendments to the new California Consumer Privacy Act (CCPA), AB 375, as it set about addressing flaws and other concerns in the state’s groundbreaking data privacy law. These amendments are now awaiting Governor Brown’s signature. (more…)

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16 August 2018

Coalition Groups Weigh In on CCPA Clean Up Legislation

On June 29, the day after California Governor Jerry Brown signed the California Consumer Privacy Act (CCPA) into law, Data Matters provided a summary of the important new legislation.  In doing so, we noted that the law was scheduled to go into effect on January 1, 2020 and that, if and when it did, it would be the “broadest privacy law in the United States” and “may well have an outsize influence on privacy laws nationwide.”  Because of this, we further predicted that “[t]he coming months will no doubt stimulate considerable legislative and litigation activity to test the acceptability of [the CCPA’s] effects on interstate commerce, free speech, commercial innovation, reasonable regulatory burdens and meaningful privacy protection.” (more…)

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15 August 2018

After LabMD, Questions Remain for the Healthcare Sector

*This article first appeared in the July 2018 issue of Digital Health Legal

Massive data breaches.  Threats to medical devices. The Internet of Persons.  Healthcare entities are all too familiar with the rising cyber threat.  But they are also familiar with the complex array of laws and regulations in the United States that attempt to address the threat and the potentially significant compliance costs and risks caused by that complexity.  The US Court of Appeals for the Eleventh Circuit’s recent and long-awaited decision in LabMD v. Federal Trade Commission, which trimmed the sails of one of the primary regulators of the healthcare information security landscape, may thus appear to some, at first blush, to be a necessary corrective. Yet closer inspection shows that the Eleventh Circuit’s decision raises more questions than it answers – and that its true implications will only become clear once we see how federal regulators, the courts, and perhaps Congress respond.

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30 July 2018

South Carolina Becomes the First State to Enact the National Association of Insurance Commissioners (NAIC) Insurance Data Security Model Law

In October 2017, the National Association of Insurance Commissioners (NAIC) adopted an Insurance Data Security Model Law.  According to NAIC’s news release announcing this development, the Model Law was meant to build on the organization’s cybersecurity progress and create a “platform that enhances our mission of protecting consumers.”  (For more information on the development of the Model Law, see our prior coverage.)  (more…)

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29 June 2018

California Enacts Broad Privacy Laws Modeled on GDPR

On June 28, 2018, California Gov. Jerry Brown signed into law the California Consumer Privacy Act of 2018 (AB 375). According to the bill’s author, it was consciously designed to emulate the new European General Data Protection Regulation (GDPR) that went into effect on May 25, and if and when it goes into effect, it would constitute the broadest privacy law in the United States. It is intended to give consumers more transparency regarding and control over their data and establishes highly detailed requirements for what companies that collect personal data about California residents must disclose.    (more…)

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25 June 2018

A Flurry of Recent Cybersecurity Activity from the Trump Administration

Soon after he took office, President Trump issued Executive Order (EO) 13800, Strengthening the Cybersecurity of Federal Networks and Critical Infrastructure.  Given that the President spent much of his campaign and early Presidency trying to distance his Administration from that of his predecessor, commentators noted a surprising amount of continuity between Trump’s cybersecurity EO and the Obama Administration’s approach to cybersecurity.  A focus on critical infrastructure and transparency from publicly traded companies that control it; an emphasis on the public and private sectors working together; reliance on standards promulgated by the National Institute of Standards and Technology; a focus on protecting the Federal Government’s networks, including by taking steps toward using shared infrastructure such as the cloud – EO 13800 builds on existing policies and initiatives in each of these areas and others.    (more…)

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12 June 2018

11th Circuit Vacates LabMD Enforcement Order; Casts Doubt on Decades of FTC Cybersecurity Enforcement Practices

In recent years, the Federal Trade Commission has increasingly exercised its enforcement authority to target deceptive and unfair information security practices.  During this time, enforcement actions have targeted companies for failing to honor their promises to implement “reasonable” or “industry standard” security practices, defend against well-known security threats, put in place basic security measures, or take many other basic data security steps.  And despite challengers arguing that the FTC provided insufficient notice before pursuing these actions or that the actions otherwise exceeded the FTC’s Section 5 enforcement authority, the Commission generally has a track record of successfully defending its prerogatives.     (more…)

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29 May 2018

Amid Growing Threats, White House Dismantles Top Cybersecurity Post

On May 15, 2018, various media outlets reported that the Trump administration decided to eliminate the position of White House Cybersecurity Coordinator. According to reports, John Bolton, appointed as National Security Adviser effective April 2018, had been instrumental in the decision that the position was no longer necessary based on the reasoning that the role was already addressed by other members of President Trump’s national security staff. The administration’s decision was met with sharp criticism, including from Democrats in Congress such as U.S. Senator Mark R. Warner (D-VA) who called the move “mindboggling” and cybersecurity expert Bruce Schneier, who called it “a spectacularly bad idea.”

(more…)

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22 May 2018

Supreme Court Finds Expectation of Privacy for Rental Car Driver

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…)

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15 May 2018

DFAR Cybersecurity FAQs Provide Practical Guidance Highlighting Expansive Scope of Contractor Requirements

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…)

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