Data Security

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Keypoint: April 12, 2021 is the deadline to comment on a proposed rule that would require banking organizations and bank service providers to promptly report computer-security incidents.

The Office of the Comptroller of the Currency (OCC), the Board of Governors of the Federal Reserve System (Board), and the Federal Deposit Insurance Corporation (FDIC) (collectively the “agencies”) are requesting public comment on a proposed rule requiring banks to notify the applicable agency within 36 hours when the banks believe in good faith that a significant cybersecurity event has occurred. Computer-Security Incident Notification Requirements for Banking Organizations and Their Bank Service Providers, 86 Fed. Reg. 2399 (Jan. 12, 2021).

Keypoint: As leadership at the CFPB shifts, responses to the CFPB’s Notice of Proposed Rulemaking to implement Section 1033 of the Dodd Frank Act looms.

More than a decade ago, the Dodd Frank Act created the Consumer Financial Protection Bureau (CFPB) and gave it authority to promulgate rules implementing Section 1033 of the Act. Under Section 1033, upon request, a financial services provider “shall make available to a consumer information in its control or possession concerning the product or service that the consumer has obtained, including information relating to any transaction, series of transactions, or to the account including costs, charges and usage data. The information shall be made available in an electronic form usable by consumers.”

Key Point: The New York Attorney General’s Office (NYAG) reached a Consent and Stipulation Agreement with Dunkin’ Brands, Inc. (Dunkin), which obligates the company to implement and maintain a comprehensive information security program to protect customers’ private information. The terms of the consent agreement are similar to the terms New York reached with Zoom earlier this year regarding inadequate data security practices, and strongly resemble the reasonable security measures described in the Stop Hacks and Improve Electronic Data Security Act (SHIELD Act).

Neither agreement mentions the SHIELD Act, but both agreements include promises to comply with key elements contained in it. These agreements, as well as California’s legislative efforts, are creating a baseline for future enforcement cases on the adequacy of information security programs and the promises companies make to protect consumer data.

Resulting in Zoom Promising to Implement an Information Security Program, Resembling the SHIELD Act

Key point: The Letter of Agreement between the New York Attorney General and Zoom Video Communications, Inc. provides insight into what the Attorney General may consider satisfying the Reasonable Safeguards requirement under the SHIELD Act.

On May 7, 2020 Zoom Video Communications, Inc. (Zoom) became the first company to experience one of the new enforcement tools available to the New York Attorney General’s Office (NYAG) under the Stop Hacks and Improve Electronic Data Security Act (SHIELD Act).

The SHIELD Act took effect on March 21, 2020, and requires any person or business owning or licensing computerized data containing the private information of a New York resident “to develop, implement and maintain reasonable safeguards to protect the security, confidentiality and integrity of that private information.” GBL § 899-BB(2).

Keypoint: The use of no-contact temperature taking devices can be an important part of a company’s return-to-work program, but companies should fully vet these devices to ensure that they are not unintentionally violating privacy laws or exposing themselves to potential liabilities.

As U.S. companies start planning and implementing return-to-work plans, many are considering whether to use no-contact temperature taking devices.

The federal government has recognized that taking temperatures is a step that companies can take to mitigate the risk of spreading coronavirus. For example, the CDC interim guidance for critical infrastructure workers recommends that employers “measure the employee’s temperature and assess symptoms prior to them starting work.” EEOC return-to-work guidance also recognizes that employee screening “may include continuing to take temperatures . . . of all those entering the workplace.”

States and cities also have recommended taking temperatures. For example, in Colorado, the Governor’s office has encouraged large workplaces to implement symptom and temperature checks as part of the state’s gradual return-to-work strategy. New York Mayor Bill de Blasio has stated that temperature checks will be part of the City’s return-to-work program. New Jersey Governor Phil Murphy suggested that restaurants could check temperatures before allowing customers to enter.

However, the taking of temperatures creates logistical issues such as who should take the temperatures, what precautions should be in place, and when and where the temperatures should be taken. As with many other facets of this pandemic, companies have looked to technology to answer some of these questions, and there are many solutions – some old, some new – in the marketplace.

Depending on the type of device, the use of no-contact temperature taking devices can raise numerous privacy issues. As companies begin to vet and implement these devices, they will need to ensure that they do not unintentionally violate privacy laws or assume potential liabilities.

Keypoint: If properly deployed, the use of COVID-19 contact-tracing apps by employers, in combination with other measures, could be an effective way to return employees to the workforce. However, before deploying these apps, employers should take caution to fully vet the technologies being used to ensure that employee privacy is respected.

As the United States and Europe have started the process of returning to work, the development, deployment, and use of COVID-19 contact-tracing apps has become a focal point for how governments intend to mitigate risk. China, Singapore, and South Korea have already implemented national contact-tracing apps. European countries and Australia have been rapidly working towards their deployment.

In connection with the rapid development of governmental contact-tracing apps, tech companies have started to develop similar apps for employers. A handful of employer-focused contact-tracing apps are already on the market and many more are in development. Some employers are already planning to deploy these apps. For example, Ferrari recently announced that it will utilize a contact-tracing app as part of its “Back on Track” plan.

The use of these apps raises numerous privacy concerns for U.S. employers. As employers begin to vet these apps, they will need to ensure that they do not unintentionally violate privacy laws or assume liabilities by deploying them with their workforce.

Conceptual image about how a laptop computer with internet open a virtual door to worldwide information sharing.Keypoint: 2020 promises to be another ground-breaking year in privacy and cybersecurity law in the United States.

2019 was an exciting year in privacy and cybersecurity law. In the United States, the California Consumer Privacy Act (CCPA) was the most significant story, but there also were developments in states such as New York and Nevada. Numerous other states also considered consumer privacy legislation, and federal lawmakers even jumped into the fray, proposing a variety of bills and regulations. Overseas, GDPR garnered the most headlines of course, but other countries, such as Brazil, also made news.

But 2019 was just the start. There is no doubt that privacy and cybersecurity law is undergoing a fundamental change in the United States. If nothing else, the legal landscape of privacy law in the United States promises to look very different by the end of the year.

Below we discuss what we anticipate will be the biggest stories in 2020 and beyond.

Safety concept: Police on digital background

Key Point:  If you consider your cybersecurity defensive measures to be a one-time investment, that is what the criminals are banking on.

Most people enjoy improvements and innovations when it comes to consumer electronics, but the unfortunate truth is that cybercriminals are innovating and improving their techniques and tactics as well. These innovations include “getting a second bite from the ransomware apple” and using ransomware to cause “physical vulnerabilities at your business.” Hopefully the anecdotes below help to convince the decision-makers in your business to follow the Coast Guard’s motto Semper Paratus – Always Prepared.

Key Point: If signed by the Governor, the legislation will expand the types of personal information covered by the CCPA’s provision authorizing private litigants to seek statutory damages of between $100 and $750, per consumer per incident, for data breaches.

On September 6, the California legislature passed amendments to the state’s data breach notification statutes (Cal.…

Key Point: The SHIELD Act increases the statutory penalties for knowing and reckless violations of the State’s data breach notification law. It also authorizes the NY Attorney General to pursue injunctive relief and monetary penalties against persons and businesses who fail to implement reasonable safeguards to protect New York residents’ private information.

On July 25, 2019, New York Governor Andrew Cuomo signed two bills related to data privacy and identity theft. In our June 24 post, we summarized the contents of the Stop Hacks and Improve Electronic Data Security Act (SHIELD Act). The second signing was the Identity Theft Prevention and Mitigation Services bill. Highlights of the laws’ requirements and effective dates are described below.