On March 8, 2018, the Ninth Circuit issued its highly anticipated decision in In re Zappos.com, Inc., finding that allegations of future risk of identity theft from a data breach are sufficient to confer standing. This decision fuels an ongoing circuit split, pitting the D.C., Sixth, Seventh and now Ninth Circuits against the Second, Fourth, and Eighth Circuits over whether the mere exposure of personal information – without actual identity theft or credit/debit card fraud – establishes Article III standing.… Continue Reading
On 1 February 2018, Singapore Personal Data Protection Commission (PDPC) released its response to feedback on its public consultation on approaches to managing personal data in the digital economy, which took place in Q3 2017 (the Public Consultation). The purpose of the Public Consultation, was to seek public feedback on proposed changes to Singapore’s data protection regime, the Personal Data Protection Act (PDPA). The key proposed changes to the PDPA include the relaxation of the consent requirement to collect, use and disclose personal data in Singapore and the introduction of a mandatory data breach notification regime.
We set out below … Continue Reading
The Singapore Parliament passed the much discussed Cybersecurity Bill (the Bill) on 5 February 2018 and it is anticipated that the new law will come into force soon. The new law creates a regulatory framework for the monitoring and reporting of cybersecurity threats to essential services in Singapore through the appointment of the Commissioner of Cybersecurity. It also creates a licensing regime that will require certain data security service providers in Singapore to be registered.
We set out below four key points that you should know about this new Bill.… Continue Reading
The High Court in London has handed down a judgment establishing that, as a matter of English law, a company can be held vicariously liable in respect of data breaches caused by its employees.
In a bid to keep pace with advancements in the technological landscape, the Singapore Government has in recent months embarked on public consultations on its draft Cybersecurity Bill (the Cyber Bill) and its proposed amendments to Singapore’s Personal Data Protection Act (PDPA) to update the country’s data protection regime. These changes will have a significant impact on how companies manage personal data and secure their information systems.
This article seeks to summarise the proposed changes to the Singapore cybersecurity and data protection regulatory framework and provide some brief thoughts on how this may impact organisations operating in Singapore.… Continue Reading
On September 2, 2017, the Government of Canada published proposed new data breach regulations in the Canada Gazette.
These regulations set out specifics regarding the mandatory data breach reporting requirements under the Personal Information Protection and Electronic Documents Act.
The PIPEDA Amendments were passed in June, 2015 but are not yet in force.
The Regulations set out the proposed requirements for the reporting of data breaches of security safeguards (each, a Breach). Under the PIPEDA Amendments, a report to the Privacy Commissioner of Canada is required if it is reasonable in the circumstances to believe that the … Continue Reading
The Equifax breach will likely devour the entire breach news cycle in the near term, given the size of the incident and that it gets to the essence of the company’s business of maintaining some of the most sensitive consumer information. Still, in what for the moment might seem like a more pedestrian risk, companies continue to be affected by ransomware. One of the unique aspects of ransomware is that it does not involve just stealing information, but makes the information unavailable to the business. If critical information is unavailable, there is operational impact and often a material effect that … Continue Reading
Earlier this month, Delaware revamped its data breach notification law, with changes to go into effect April 14, 2018. Most notably, the new law requires any entity that has suffered a data breach that includes social security numbers to provide free credit monitoring services to affected residents for one year. The entity must provide all information necessary for the resident to enroll in such services as well as instructions for how to implement a credit freeze. This makes Delaware the second state to require credit monitoring services be provided to residents at no cost following a breach. (Connecticut has a … Continue Reading
On May 23, 2017, it was announced that Target Corporation had settled the investigation initiated by the Attorneys General of 47 states and the District of Columbia resulting from its 2013 data security incident. Besides the $18.5 million being paid (the largest State AG data breach settlement amount to date), it is the promised remedial measures that are of most interest to those following data breach enforcement actions.… Continue Reading
In technology vendor contracts, the vendor’s obligations to protect the customer’s data are often hotly negotiated. The vendor may want to spell out only the data security measures it currently employs, or—at most—agree to implement “reasonable” data security measures. Given the stakes if sensitive data is breached, though, the customer may insist that the vendor use its “best efforts” to protect its data. But one rarely sees a “best efforts” clause in a technology contract, especially with respect to data protection.… Continue Reading
Singapore’s Personal Data Protection Commission has on 21 March 2017 issued a warning to a local firm for disclosing a former employee’s personal information in a company WhatsApp group.
A director at the firm, Executive Coach International, had shared highly sensitive information about the former employee with 58 members of a chat group comprising staff and volunteers. The firm provides life and executive coaching services to individuals and corporate clients.
The case is the first in Singapore to find that sharing personal data via a private, members-only instant messaging group is still a breach of the Personal Data Protection Act … Continue Reading
In the data breach case, Beck v. McDonald, 848 F.3d 262 (4th Cir. 2017), the U.S. Court of Appeals for the Fourth Circuit joined at least five other circuits in analyzing whether mere allegations of future identity theft can establish injury-in-fact as required to confer Article III standing. There, the Court found that allegations of future harm were too speculative, particularly where there was no allegation or evidence that the confidential information was targeted or had been used fraudulently. The analysis aligns with distinctions made by other circuits between misplaced or stolen physical property cases, where the loss of … Continue Reading
The Superior Court of Pennsylvania last month dismissed a class action lawsuit, Dittman v. UPMC, brought by employees of the University of Pittsburgh Medical Center (“UPMC”) for a 2014 data breach. The breach impacted nearly 62,000 UPMC employees and resulted in at least 788 fraudulent tax filings. The court held that UPMC had no duty to safeguard the electronically-stored personal and financial information of its employees. This decision presents a practical analysis of the challenges facing large employers who need to store employee information electronically while also guarding against the ever-present risk of a data breach.… Continue Reading
Cloudflare, which operates a widely used web content delivery network, announced a security bug on February 23 that caused sensitive data to leak from its customers’ websites. The exact number of websites potentially affected is unknown but some estimates place the total in excess of 5 million. The Google security researcher who discovered the bug – nicknaming it “Cloudbleed” after the 2014 Heartbleed bug – reported it to Cloudflare on February 18, 2017. Cloudflare disabled the compromised software and stopped the leak later the same day.
The Eighth Circuit Court of Appeals last week reversed the district court’s approval of a settlement and settlement class in the consolidated consumer class action arising from Target Corporation’s 2013 security incident. This decision provided a new perspective on a persistent dilemma in the evolving law of data breaches: how to handle data breach victims whose data was compromised but not misused, and therefore they cannot show concrete monetary harm. Here, that issue has at least temporarily derailed a multi-million settlement of the last major lawsuit arising out of Target’s high-profile incident.… Continue Reading
On January 10, 2017, the EU Commission published a package of documents on the EU’s data economy strategy, including e-privacy, data protection and the “European Data Economy.” The Commission documents, published in the context of the Commission’s digital single market (“DSM”) initiative announced in May 2015, illustrate again the strong links between the EU’s digital regulatory strategy, data protection, intellectual property and antitrust policy, notably including the Commission’s preliminary report on its sector inquiry on e-commerce, also launched in May 2015.… Continue Reading
On November 1, 2016, the Payment Card Industry (“PCI”) Security Standards Council’s newest set of Data Security Standards (“DSS”) went into effect. Announced earlier this year, PCI DSS Version 3.2 has made a variety of changes applicable to both merchants that accept payment cards as well as “Service Providers,” which are defined as third-party entities that “store, process, or transmit cardholder data” or that “manage components such as routers, firewalls, databases, physical security, and/or servers” on behalf of merchants. Below, we provide a summary of some of the more significant changes that affect merchants and Service Providers.… Continue Reading
The U.S. District Court for the Northern District of Illinois dismissed a putative class action against Barnes & Noble last week based on an incident in 2012 in which criminals tampered with payment card PIN pad terminals to steal customer payment card information from retail stores in nine states. The court’s decision highlights an important difference between the legal concepts of an “injury-in-fact” (which is necessary to support a finding of Article III standing so as to be able to maintain a case in federal court) and “damages” (which must be alleged to maintain many causes of action, such as … Continue Reading
The U.S. Court of Appeals for the Eleventh Circuit—one of the highest federal courts below the Supreme Court—recently affirmed a decision in Silverpop Systems, Inc. v. Leading Market Technologies, Inc. finding that all damages flowing from a vendor’s data breach were barred by a standard provision in IT service contracts, disclaiming all liability for consequential damages.
The court’s analysis could apply to almost any breach of data provided to a vendor under an IT service contract, and highlights the need to carefully scrutinize a proposed waiver of consequential damages when confidential or sensitive data is involved in the contract.… Continue Reading
The U.S. Court of Appeals for the Sixth Circuit concluded that certain allegations of harm after a data breach caused by hacking are sufficiently concrete to confer Article III standing. This case may make it more difficult for companies defending data breach suits to quickly obtain dismissal of plaintiffs’ claims.… Continue Reading
The Australian Federal Parliament commenced sitting on August 30, 2016, and the long-proposed mandatory data breach notification legislation is again on the newly-elected Coalition Government’s agenda. Currently, the Australian Privacy Act 1988 (Cth) does not require an organisation or agency to notify an individual of a data breach involving their personal information, but this looks likely to change soon.… Continue Reading
On June 12, 2016, the HHS Office of Civil Rights (OCR) released guidance, entitled “FACT SHEET: Ransomware and HIPAA,” in response to the rising number of ransomware attacks perpetrated against healthcare entities. The guidance addresses Health Insurance Portability and Accountability Act (HIPAA) issues that may arise when medical records containing Protected Health Information (PHI) are compromised or stolen during a ransomware attack. OCR’s view is that compliance with HIPAA’s information security requirements assists healthcare entities in preventing and recovering from ransomware attacks.… Continue Reading
On June 15, 2016, the U.S. Department of Homeland Security (“DHS”) and Department of Justice issued Final Procedures Related to the Receipt of Cyber Threat Indicators and Defensive Measures by the Federal Government (“Final Procedures”) that provide information on how DHS will implement the Cybersecurity Information Sharing Act of 2015 (“CISA”). The Final Procedures were accompanied by Guidance to Assist Non-Federal Entities to Share Cyber Threat Indicators and Defensive Measures with Federal Entities Under the Cybersecurity Information Sharing Act of 2015 (“Guidance”). These documents represent finalized versions of interim guidance and procedures which, as we have previously reported, … Continue Reading
On May 10, 2016, the French and German antitrust authorities published a joint study on competition law and the collection and use of data, particularly so-called big data (the Big Data Study). Data protection as such is outside the scope of EU competition laws, but antitrust authorities have considered the significance of data on a number of occasions, often in the context of merger reviews such as the EU Commission’s Facebook/WhatsApp case.… Continue Reading