Identifying the Standards: DOJ, SEC and FTC Offer Guidance for Cybersecurity Preparedness

Although a frequent topic of discussion on Capitol Hill, no single standard for private-sector cybersecurity programs has yet to emerge. The National Institute of Standards and Technology (NIST) Cybersecurity Framework is often considered foremost among existing guidance, but several other agencies are also expressing views, including the following recent guidance from the Department of Justice (DOJ), the Securities and Exchange Commission (SEC) and the Federal Trade Commission (FTC). Significantly, both the DOJ and FTC tout the advantages of cooperating with law enforcement after a data breach by noting that such cooperation may lead to “regulatory” benefits.

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Google Inc. v. Vidal-Hall: Opening the Doors to EU Data Protection Litigation?

The English Court of Appeal has recently issued a landmark judgment against Google which could open the door to data privacy litigation in the EU.

The case concerned the collection by Google of Safari users’ browser information, allegedly without their knowledge or consent. In its opinion, the Court of Appeal held that four individuals who used Safari browsers can bring a claim for breach of privacy and that the damages claimed can include distress – even in circumstances where there is no financial loss, as this had been the intention of the EU’s Data Protection Directive. To reach this result, the Court relied on EU legal authorities to override and displace limitations on recovery under the UK Data Protection Act.

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ONC and OCR Release Updated Guide to Privacy and Security of Electronic Health Information

Recently, the Office of the National Coordinator for Health Information Technology (ONC) and the Office for Civil Rights (OCR) published new guidance on the privacy and security of electronic health information (the “Guide”). Although the Guide was drafted primarily for the benefit of smaller healthcare providers, it provides useful information on privacy and security issues that is potentially valuable to providers of all sizes. The Guide, last published in 2011, provides updated information about compliance with Medicare and Medicaid Electronic Health Record (EHR) Incentive Programs (“Meaningful Use Programs”) and the HIPAA Privacy, Security and Breach Notification Rules.

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Connecticut AG creates new department focusing exclusively on privacy and data security

Connecticut Attorney General George Jepsen has announced the creation of a new Privacy and Data Security Department within the AG’s office. The Department will be tasked with handling all consumer privacy investigations and litigation, as well as educating the public and businesses about protecting sensitive data. Assistant Attorney General Matthew Fitzsimmons, who previously chaired a privacy and data security task force within the AG’s office, will head the new department and its dedicated team of lawyers. The AG has not received any additional funding for the Department.

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Data Protection Legislative Hot Topic

Cyberthreat Sharing Bills Gain Momentum.  On March 12, the Senate Intelligence Committee approved the Cybersecurity Information Sharing Act of 2015 (“CISA”) to increase sharing of cybersecurity threat information by U.S. companies on a vote of 14-1. The legislation grants liability protections for companies that voluntarily share cybersecurity threat information with the government or industry partners. The measure should be scheduled for a vote on the Senate floor shortly.

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New U.S. Sanctions Program Targets Malicious Foreign-Origin Cyber Activities

Yesterday, the United States established a new sanctions program designed to deter and financially target foreign parties who engage in, support or profit from “significant malicious cyber-enabled activities.” Declaring a national emergency, President Barack Obama issued an executive order authorizing the Secretary of the Treasury, in consultation with the Attorney General and Secretary of State, to identify as Specially Designated Nationals and Blocked Persons (SDNs) cyber-actors whose activities significantly harm the national security, foreign policy or economic health or financial stability of the United States. The U.S. government has not yet designated any parties under this new sanctions program. Once parties are so designated, U.S. companies must cease doing business with them and report any blocked property to the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC).

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