On March 16, 2018, the U.S. Court of Appeals for the D.C. Circuit issued a long-awaited ruling on a challenge to the Federal Communications Commission’s 2015 order that expanded the scope of the Telephone Consumer Protection Act (“TCPA”). In ACA International v. FCC, No. 15-1211, the court invalidated a rule that had broadly defined automatic telephone dialing systems, or “auto-dialers”; it also struck down the FCC’s approach to situations where a caller obtains a party’s consent to be called but then, unbeknownst to the caller, the consenting party’s wireless number is reassigned. In the same ruling, the court upheld the FCC’s decision to allow parties who have consented to be called to revoke their consent in “any reasonable way,” as well as the FCC’s decision to limit the scope of an exemption to the TCPA’s consent requirement for certain healthcare-related calls.
On Jan. 3, the United States Court of Appeals for the Sixth Circuit issued a decision that effectively required a company to turn over materials relating to a privileged forensic data breach investigation because, the court concluded, the company had implicitly waived privilege when it disclosed certain of the forensic firm’s conclusions in response to a discovery request. The Sixth Circuit’s decision emphasizes the need for caution by litigants wishing to raise a defense that relies on privileged investigations and reports, including third-party forensic reports, or otherwise disclosing the conclusions of such investigations and reports. (more…)
The fourth edition of The Privacy, Data Protection and Cybersecurity Law Review takes a look at the evolving global privacy, data protection and cybersecurity landscape in a time when mega breaches are becoming more common and businesses are coming under increased scrutiny from regulators, Boards of Directors and their customers. Several lawyers from Sidley’s global Privacy and Cybersecurity practice have contributed to this publication. See the links below for a closer look at this developing area of law. (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.
*This post originally appeared in BNA’s Corporate Law & Accountability Report on November 6, 2017.
Cyberattacks and data breaches are increasingly the subject of front-page headlines and can have material effects on our personal lives. And yet, reports suggest that many corporate directors and managers remain relatively unaware of important cybersecurity issues, risks, and strategies that directly relate to their organizations.
For example: imagine that your company has fallen victim to a successful cyberattack and customer data was stolen. In the aftermath, the securities plaintiffs’ bar undoubtedly will be searching for stockholders to(among other things) pursue claims for violations of state and federal securities laws and/or for breaches of fiduciary duty against the company’s board. Are you, your colleagues, managers, and directors prepared to respond to and manage this type of incident and the subsequent litigation and regulatory investigations? Have you documented your diligence in governing cybersecurity risk? For many, the answer may be no.
This article discusses the scope of this problem, how it can directly impact you and your company, and steps you can take now to help prepare for the unknown. It is certainly true that even the best cybersecurity programs cannot guarantee deterrence of all attacks. But such programs unquestionably mitigate the risk of a breach, support organizational resilience, and help control the fallout should one occur.
On October 16, 2017, the U.S. Supreme Court granted the U.S. government’s request for review of a lower court decision that rejected the government’s construction of the Stored Communications Act (SCA) and embraced a more restrictive view that Microsoft had advanced, backed by much of the tech industry and many privacy groups. (more…)
An Irish High Court ruling may have a significant impact on one of the main mechanisms that global companies use to transfer personal data out of the European Economic Area (“EEA”). The Irish High Court ruled on 3 October 2017 that the Standard Contractual Clauses (“SCCs”) used by companies to transfer data from the EEA to US, also frequently referred to as “Model Contracts,” must be the subject of review by the Court of Justice of the European Union. (more…)
On 5 September 2017, the Grand Chamber of the European Court of Human Rights (the “ECHR”) overturned the previous decision of the ECHR (sitting as a Chamber) and ruled that the Romanian courts had failed to strike a fair balance between the interest of an employer to monitor its employees’ electronic communications to ensure the smooth operation of the company and the employee’s right to respect for his private life and correspondence under Article 8 of the European Convention on Human Rights. However, in a question and answer section on its website the EHCR made it clear that the ruling does not mean that employers cannot monitor employee’s communications at work. Employers may still monitor their employee’s communications as long as such a measure is accompanied by “adequate and sufficient safeguards against abuse.” (more…)
The Eighth Circuit held on August 21 that, in the absence of actual injury in a data breach case, “massive class action litigation should be based on more than allegations of worry and inconvenience.” The Court found that no customers of the defendant securities brokerage firm had suffered fraud or identity theft resulting in financial loss from a 2013 data security incident.* Kuhns v. Scottrade, Inc., Nos. 16-3426, 16-3542 (8th Cir. Aug. 21, 2017).
In a decision that is replete with great holdings and quotable language for defendants in data breach litigation, the Eighth Circuit demonstrated that even where constitutional standing is found, plaintiffs will not likely succeed if they can allege no real injury even years after the hack occurred. (more…)