This article originally appeared in Law360 on November 3, 2021.
Sidley lawyers Brenna Jenny and Sujit Raman recently published an article in Law360 entitled How To Minimize FCA Cyber Fraud Enforcement Risk, which analyzes the implications of DOJ’s recent formation of a Civil Cyber-Fraud Initiative to use the FCA to pursue cybersecurity-related fraud. Although the Initiative focuses generally on government contractors and grant recipients—and does not, by its terms, impose any new cybersecurity requirements—the project promises in particular to attract whistleblowers in the defense industry, as recent years have witnessed high-profile FCA cases implicating alleged cybersecurity non-compliance in that sector. The healthcare industry may also see a marked increase in cybersecurity-related qui tams, especially in light of a recent Department of Health and Human Services Office of Inspector General report taking the Centers for Medicare & Medicaid Services to task for failing to hold hospitals accountable for the cybersecurity of their networked devices. Healthcare providers and medical device manufacturers, in addition to other government contractors and grantees, would do well to heed DOJ’s warning that “cybersecurity failures…are prime candidates for potential False Claims Act enforcement.”
While much of the New Year attention has been focused on California due to the effective date of the California Consumer Privacy Act, a new Oregon law also went into effect on January 1, 2020 complicating compliance with data breach obligations. The law is unique among state data breach notification laws in that it imposes a direct obligation on vendors to provide regulatory notice to the state. It also requires vendors to provide notice to the data owner within 10 days. This new regulatory notice requirement may take some control away from data “owners” that typically manage (and often contractually demand sole control over) initial regulator communications with regard to incidents impacting their data. However, the new requirement may also incentivize service providers to take more responsibility for incident response.
After months of wrangling, the California legislature has finally passed a set of significant amendments to the California Consumer Privacy Act (CCPA), a sweeping data privacy and security law commonly referred to as “California’s GDPR” (Europe’s General Data Protection Regulation). Employee personal information and personal information obtained in business-to-business (B2B) interactions are now mostly out of scope. Personal information in credit reports and other data covered by the Fair Credit Reporting Act is also largely exempt. Only personal information that is “reasonably” capable of being associated with a consumer or household is subject to the act. And aggregate or deidentified information definitively does not qualify as CCPA personal information.