Tune in to Ropes & Gray’s podcast series, The Data Day, brought to you by the firm’s data, privacy & cybersecurity practice. This series focuses on the day-to-day effects that data has on all of our lives as well as other exciting and interesting legal and regulatory developments in the world of data, and
Looking back on 2023, the trend of privacy-based class actions has only increased, and it doesn’t seem poised to halt or even slow down in the new year. Businesses are feeling acutely the threat of future litigation. At the end of 2022, the hundreds of cross-industry respondents to the Annual Litigation Trends Survey cited cybersecurity, data protection, and data privacy as the second-highest ranked area of future concern for class actions, and their concerns turned out to be justified. From peeved Pixel plaintiffs to data breach defendants, class actions abounded this year.Continue Reading Dashing Through 2023’s Privacy Litigation Trends
Security may not be the first word that comes to mind when thinking about GDPR and UK GDPR compliance, but recent matters indicate it should certainly be near the top of any compliance checklist.
Security of personal data is fundamental to every organization, and its significance scales depending on the type of data processing that takes place. Of the penalties issued for data protection infractions across the EU and UK in 2022 so far, over 70 include security, which is almost 20% of the total fines issued. Specifically, these fines were issued due to a breach of Article 32 of the GDPR/UK GDPR: failing to have appropriate technical and organizational measures in place to protect personal data. A breach of Article 32 of the GDPR or UK GDPR technically only attracts the “standard maximum” fine of €10/£8.7 million or 2% of global annual turnover, however the offence is often coupled with other transgressions, which has led to fines over €20 million.Continue Reading Data Protection: The Increasing GDPR/ UK GDPR Focus on Security
On October 5, 2022, Joe Sullivan, Uber’s former Chief Security Officer, was convicted of “obstruction of the proceedings of the Federal Trade Commission and misprision of felony in connection with the attempted cover-up of a 2016 hack at Uber.” He faces up to eight years in prison. The conviction marks the first time that an individual company executive has faced criminal charges related to an information security breach.Continue Reading Former Chief Security Officer of Uber Convicted for Mishandling 2016 Data Breach
On March 15, 2022, President Biden signed into law significant new federal data breach reporting legislation that could vastly expand data breach notice requirements far beyond regulated entities or entities processing personal data. Unceremoniously tucked as Division Y into the H.R. 2471 Consolidated Appropriations Act, 2022, the Cyber Incident Reporting for Critical Infrastructure Act of…
On March 1, 2022, the Senate passed a data breach and cybersecurity bill that could vastly expand data breach notice requirements. The Strengthening American Cybersecurity Act (the “Senate Bill”), which now shifts to the House of Representatives, would require organizations in certain critical infrastructure sectors to report substantial cybersecurity incidents to the Department of Homeland Security within 72 hours after the organization reasonably believes the cyberincident has occurred, among other measures intended to enhance the nation’s cybersecurity posture. Covered organizations would also be required to report ransom payments within 24 hours of making a payment in response to a ransomware attack. These provisions are not limited to data breaches affecting personal data and would significantly expand the breadth of data breach reporting requirements to many commercial enterprises that have not focused on consumer privacy issues.
While the bill was criticized by FBI Director Christopher Wray and Deputy Attorney General Lisa Monaco for shifting cyber-focus from the DOJ/FBI to DHS/CISA, it remains likely to pass the House, where similar legislation was supported last year as part of the annual defense authorization package. In addition to its breach reporting provisions, the Senate Bill would also require or encourage new cybersecurity measures for federal agencies, clarify the roles of certain cybersecurity officials and authorize the federal contractor cybersecurity FedRAMP program for five years.Continue Reading Senate Approves Breach Reporting Legislation; Likely to Pass House
Attorneys for Blackbaud and the putative class action plaintiffs allegedly impacted by the publicly-traded software company’s data breach last year were scheduled to meet last month to discuss a possible resolution of the remaining claims in the multi-district litigation. But the only filings in the case since then concern a contemplated amended complaint, suggesting the MDL is entering a new phase rather than nearing a conclusion.
The planned mediation and order regarding the expected new pleading came several days after Blackbaud announced, along with strong third-quarter financial results, that it has nearly exhausted its $50 million in relevant insurance coverage.
“Based on our review of expenses incurred to date, and upon consideration of the number of matters outstanding,” the company reported, referring to hundreds of customer requests for reimbursement in addition to the putative consumer class actions in the U.S. and Canada, “we believe that total costs related to the Security Incident will exceed the limits of our insurance coverage during the fourth quarter of 2021.” The company, whose fundraising and constituent-relationship software is widely used by nonprofits, noted that breach-related costs would “negatively impact our [Generally Accepted Accounting Principles] profitability and cash flow for the foreseeable future.”Continue Reading Blackbaud Ransomware Litigation Update
Preeminent privacy scholar and George Washington University Law School professor, Daniel Solove joined Ropes & Gray’s virtual conference on “The Future of Global Data Protection,” for a wide-ranging discussion with Edward McNicholas, co-leader of the Ropes & Gray data, privacy & cybersecurity practice, in which the pair explored:
- The state of complexity and inconsistency in the international privacy law landscape
- The inherent flaws in the models on which privacy laws are currently based
- The risks of moving toward a regulatory model
- Theories of harm in data breach cases
- The role of the courts in adjudicating privacy laws
Please see below for an overview of some of these topics, or to access a recording of the session please visit our blog: RopesDataPhiles.Continue Reading How Data Breaches Are Shaping the Global Data Protection Debate
Modern smartphones, wearables and internet-enabled devices are capable of monitoring heart rate, blood oxygen levels, steps taken, prescription adherence, and other vital health-related activities. Contrary to popular belief, HIPAA does not cover many of these applications and devices. On September 15, 2021, the Federal Trade Commission issued a Policy Statement attempting to assert authority to police that gap. The Policy Statement explains the FTC’s view that the Health Breach Notification Rule applies to mobile health applications. This Policy Statement signals increasing FTC scrutiny designed to safeguard sensitive health data on a variety of modern technologies that consumers use to monitor and improve their health.
Continue Reading FTC Warns Health Apps and Connected Device Companies to Comply With Health Breach Notification Rule
There were 887 million reasons why one GDPR story was dominating the press on Friday. But sneaking under the radar was a decision from the English High Court that I reckon should be more interesting to businesses in the UK.
In a nutshell, the High Court rejected a £5,000 claim for distress-related damages brought by an individual whose personal data were involved in a cyber-attack suffered by DSG, a British retailer that operates the Currys PC Worlds and Dixons Travel brands. The claim relied on breach of confidence, misuse of private information, breach of the DPA 1998 and common law negligence, and the judgment is short and easy to digest, so it’s well worth a read.
Continue Reading De-stressing Distress Disputes