On August 3, 2018, the Governor in Ohio signed into law the Data Protection Act, which provides businesses with an affirmative defense to data breach claims if the business was in compliance with reasonable security measures at the time of the breach.  Specifically, a business would have to show that it creates, maintains and complies with “a written cybersecurity program . . .  that reasonably conforms to an industry recognized cybersecurity framework.”  Acceptable standards include the NIST framework and compliance with PCI requirements.  For businesses subject to regulatory standards, evidence of compliance with those regulatory standards, such as the Health Insurance Portability and Accountability Act (HIPAA) or Gramm-Leach Bliley (GLBA), will also provide protection.  Many believe that this legislation will encourage businesses in Ohio to allocate more resources for cybersecurity and data protection programs.

You could almost hear the cheers of plaintiffs’ class action lawyers in California last night, as California’s governor signed the most sweeping privacy law this country has seen to date.  Notably, the law gives consumers the right to statutory damages in the event of a breach if the company holding the consumer’s information failed to implement reasonable security measures.  Those statutory damages are not less than $100 and not more than $750 “per consumer per incident or actual damages, whichever is greater.” Continue Reading California Gets Its Very Own GDPR with Statutory Damages

Today, in a 5-4 decision, the US Supreme Court ruled that the government’s acquisition of information regarding an individual’s location based on a cell phone record amounts to a Fourth Amendment search and generally requires a warrant.  In Carpenter v. United States, the government obtained nearly 13,000 location points on Carpenter’s movements over a 127-day period from Carpenter’s wireless carrier under the Stored Communications Act (SCA).  The standard for obtaining information under the SCA is much lower than the probable cause showing required for a warrant.  The government used these cell phone records to show that Carpenter’s phone was near four locations that had been robbed when those robberies occurred and obtained a conviction.  In reversing the decision of the Sixth Circuit and remanding the case, the Court held that individuals have a reasonable expectation of privacy in their physical movements.

Chief Justice Roberts delivered the 119-page opinion for the majority, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan. Justices Kennedy, Alito, Thomas and Gorsuch each filed dissenting opinions.

In March of this year, we told you that the D.C. Circuit Court of Appeals issued a decision in ACA Int’l. v. FCC, wherein the court set aside two FCC interpretations of the Telephone Consumer Protection Act, or TCPA. Specifically, the court ruled that the FCC’s interpretation as to what constitutes an autodialer under the TCPA was unreasonably expansive, and that the FCC’s treatment of reassigned numbers was also overly broad.

On May 22, the United States District Court for the Northern District of Georgia, Atlanta Division, issued a decision further restricting the scope of the TCPA. By way of reminder, the Congress passed the TCPA in 1991 in an effort to curb robo calls.  The case involved calls made by a debt collector to a former Comcast customer.  She sued, claiming that the calls were impermissible under the TCPA.  An essential aspect of the TCPA claim at issue was that the call must be made through the use of an “automatic telephone dialing system”, or ATDS, as defined in the statute. Continue Reading District Court Gives Narrow, Reasonable Scope to TCPA

In August, 2017, the Federal Trade Commission (“FTC”) proposed a settlement agreement with Uber stemming from its investigation of a 2014 data breach due to Uber’s “unreasonable security practices”. The lengthy investigation found that Uber’s employees were accessing customer’s personal information, and that there were security lapses in Uber’s third-party cloud storage service. That settlement agreement required Uber to implement a “comprehensive privacy program”; however, the agreement was withdrawn by the FTC and amended recently. Why, you ask? Uber experienced a second data breach in 2016, while the investigation from the 2014 breach was well underway. The 2016 breach was a result of those same security lapses in the third-party cloud storage service and Uber waited over one year to report that second breach. Uber’s handling of the second breach continued its trail of misconduct, clearly demonstrating that the company had not learned its lesson. Continue Reading Uber Goes 0-2 in Data Breach Notifications

In a report released on April 5, 2018, the Government Accountability Office (GAO) concluded that the Centers for Medicare and Medicaid Services (CMS) has not done enough to adequately protect the electronic data of Medicare beneficiaries.  There are over 59 million Medicare beneficiaries and beneficiary information contains some of the most sensitive personal information, making it very attractive to criminals.  Therefore, CMS’s protection of that data is critically important. Continue Reading GAO Says CMS Must Do More to Protect Medicare Info

On March 16, a year and a half after hearing oral argument, the D.C. Circuit Court of Appeals issued a long-awaited decision overturning two of the Federal Communications Commission’s (FCC) far-reaching interpretations of the Telephone Consumer Protection Act of 1991 (TCPA). A number of regulated entities filed an action against the FCC challenging several of the FCC’s conclusions in a 2015 order related to cell phones.  Continue Reading D.C. Circuit Reins in FCC’s Overbroad TCPA Interpretations