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Kari M. Rollins is a partner in the Intellectual Property Practice Group and Office Managing Partner of the New York office.

New York recently passed the SHIELD Act, which, among other things, newly establishes data security requirements for companies that collect private information about New York residents. The data security protections required by the Act go into effect in March 2020. Companies that are already subject to and compliant with data security requirements under HIPAA, GLBA, or the NYDFS will be deemed compliant with this new law. Between now and March companies will want to think about these new data security provisions.
Continue Reading Preparing for New York’s New Data Security Requirements

Modern sock maker, Bombas, recently settled with New York over a credit card breach, agreeing to pay $65,000 in penalties.  According to the NYAG, malicious code was injected into Bombas’ Magento ecommerce platform in 2014.  The company addressed the issue over the course of 2014 and early 2015, and according to the NYAG, determined that bad actors had accessed customer information (names, addresses and credit card numbers) of almost 40,000 people. While the company notified the payment card companies at the time, it concluded that it did not need to notify impacted individuals because the payment card companies “did not require a formal PFI or otherwise pursue the matter beyond basic questions.”
Continue Reading Bombas Settles with NYAG Over Credit Card Data Breach

The SEC recently issued a risk alert warning about using vendors and cloud-based platforms. Many broker dealers and investment advisors are turning to these third parties to store customer data. In its alert, the SEC’s Office of Compliance Inspections and Examinations warns firms that relying on those third parties’ security tools is not, in and of itself, sufficient for the companies to demonstrate compliance with Regulations S-P and S-ID. These regulations require broker-dealers and investment advisers to protect customer records and detect and prevent identity theft.
Continue Reading SEC Issues Alert On Outsourcing and Data Security

New Jersey joins a growing list of states that include user name, email address or any other identifier in combination with any password or security question and answer would permit access to an online account as personal information that, if breached, would give rise to a duty to notify. Other states that include these identifiers as “triggering” of their states’ breach notice statutes include Alabama, Arizona, California, Colorado, Delaware, Florida, Nebraska, Nevada, Puerto Rico, South Dakota and Wyoming. This legislation was recently signed by Governor Phil Murphy and will be effective September 1, 2019.
Continue Reading New Jersey Breach Notice Law Expands To Cover Online Account Breaches

For the fourth year running, the Securities and Exchange Commission’s Office continues to list cybersecurity as one of the top enforcement priorities for 2019. As it relates to cybersecurity, the SEC will be focusing on ensuring companies have proper configuration of network storage devices, robust information security governance, and established policies and procedures specific to protecting retail investors’ trading information and preventing cyber intrusions into retail brokerage accounts. The SEC also wants to see that companies manage both their own systems (including legacy systems), as well as maintaining adequate oversight of the practices of their partners and affiliates.
Continue Reading SEC To Focus on Cybersecurity in 2019

Ohio recently followed South Carolina as the second state to adopt cybersecurity legislation modeled after the NAIC’s Insurance Data Security Model Law. The Ohio law, Senate Bill 273, applies to insurers authorized to do business in Ohio and goes into effect today, March 20, 2019 (the first day of Spring). Companies have, under the law, a year to put the security measures into place. The law, like the NAIC model, requires insurance providers to take several steps to protect personal information, including conducting risk assessments and having a written information security program and incident response plan. Smaller insurers -those with less than 20 employees, less than $5 million in gross annual revenue, and less than $10 million in assets- are exempt from the security program requirements. HIPAA-compliant companies are also exempt from the program requirements. The law impacts how companies select third-party service providers, and requires certification of compliance annually.
Continue Reading Happy First Day of Spring! Ohio Insurance Law Effective Today

As the first month of 2019 comes to a close, it is clear that this year will be another busy one in the world of privacy. To help get a handle on what to worry about this year, it is helpful to look back on the privacy developments from 2018 and consider what will be recurring or new themes in the year to come. To help on this front, we have put together our comprehensive “year in review” bulletin. In this document, we’ve included all of the developments we reported on in 2018, in one handy spot. You can view the summary here. There were many themes that emerged, from biometrics to targeting, breach laws to breach enforcement, 2018 was a busy year in privacy. We expect 2019 to be equally packed with privacy developments.
Continue Reading Year In Review: Eye on Privacy 2018

Canada’s national breach notification requirements are coming online November 1st, meaning companies experiencing a data breach will soon have new reporting obligations.  These requirements were created in 2015 by the Digital Privacy Act, which amended the Personal Information Protection and Electronic Documents Act (PIPEDA), Canada’s main privacy statute.  In April 2018, in preparation for the national implementation of the new law, the Office of the Privacy Commissioner of Canada (OPC), with authority to issue promulgating regulations under PIPEDA, issued Regulations that establish detailed requirements regarding the content and methodology of breach notifications to the OPC and affected individuals.  After issuing those Regulations, the OPC continued to receive requests for further clarity and guidance regarding the breach notification requirements under PIPEDA and the OPC Breach Regulations.  In response to those further requests for guidance, the OPC announced that it would issue further guidance (“What You Need To Know About Mandatory Reporting Of Breaches Of Security Safeguards”) on breach notification and reporting.  On September 17th, the OPC invited public feedback on the draft guidance.  The OPC will accept feedback until October 2, 2018.  Comments can be sent to OPC-CPVPconsult2@priv.gc.ca and must be either in the body of the email or attached as a Word or PDF document.  The OPC will publish the final guidance soon after the October 2nd deadline to ensure guidance is in place when the amendment becomes effective in November.
Continue Reading Upcoming Canadian Breach Notification Requirements Still in Flux

In a victory for online retailers, a New York federal court recently dismissed three putative class action lawsuits brought on behalf of website visitors whose mouse clicks, keystrokes, and electronic communications were tracked by a third-party marketing company. The cases were filed against three e-commerce retailers—Casper (a mattress manufacturer and retailer), Tyrwhitt (a men’s clothing company), and Moosejaw (an active outdoor retailer)—and against a marketing company named NaviStone. NaviStone offers computer code that allows e-commerce retailers to determine the identities of consumers who visit their websites and track their online behavior. The plaintiff alleged that the code offered by NaviStone, and embedded in the retailers’ websites, functioned as an illegal wiretap enabling the retailers and NaviStone to “spy” on website visitors in real time as they browse. The lawsuits alleged violations under the federal Electronic Communications Privacy Act (ECPA), the federal Stored Communications Act (SCA), and New York General Business law (NYGBL).
Continue Reading New York Federal Court Dismisses Nationwide Class Action Arising Out of Alleged Spying by E-Commerce Retailers

Last month a federal district court dismissed a putative class action lawsuit against United Airlines challenging its use of fingerprint scanning timeclocks. The lawsuit brought by United employee David Johnson alleged that the company’s collection and use of employees’ fingerprints violated the Illinois Biometric Information Privacy Act (BIPA) because the company failed to get the requisite consent from its employees for fingerprint collection and use.
Continue Reading BIPA Claims Against United Airlines Must be Arbitrated Due to Collective Bargaining Agreement