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English High Court Finds Supermarket Liable for Data Breach by Employee in First Successful Privacy Class Action

By Joseph Jones and Ruth Scoles Mitchell On December 1, 2017, the High Court of England and Wales found the fourth-largest supermarket chain in the UK, Wm Morrisons (“Morrisons”), vicariously liable for a data breach caused by the intentional criminal actions of one of its employees, namely the leaking of payroll information online. The breach … Continue Reading

District Court Rejects Consent Revocation Claim Under TCPA

A recent District of New Jersey case emphasizes that while, under the FCC’s 2015 interpretation of the law, a customer has a broad right to revoke consent to receive automated calls and texts under the Telephone Consumer Protection Act (“TCPA”), the manner in which the consumer seeks to revoke his or her consent must be … Continue Reading

The Supreme Court Arguments in Carpenter Show that It May Be Time to Redefine the “Third-Party Doctrine”

On Wednesday, the Supreme Court heard oral arguments in Carpenter v.  U. S., a case that involved the collection of 127 days of Petitioner Thomas Carpenter’s cell site location information as part of an investigation into several armed robberies.  We attended the argument to gain any insights into how the Supreme Court may resolve this … Continue Reading

Key Information Security Pointers from the FTC’s Stick with Security Guidance

Earlier this year, the FTC’s staff released a series of blog posts entitled Stick with Security that updated and expanded upon the prior Start with Security best-practices guide for information security practices.  The Stick with Security series draws from FTC complaints, consent orders, closed investigations, and input from companies around the country to provide deeper … Continue Reading

FCC Poised to Release Draft Order on Net Neutrality Overhaul

FCC Chairman Ajit Pai announced today that at its December 14 open meeting, the FCC will vote on an overhaul of the net neutrality framework adopted by the prior Administration in 2015.  The full text of the draft order will be released tomorrow, but Chairman Pai has made certain key details known today.  The order … Continue Reading

White House Releases Vulnerability Equities Policy and Processes

The White House released on November 15, 2017 the Vulnerabilities Equities Policy and Process for the United States Government (“VEP”) — the process by which the Government determines whether to disseminate or restrict information about new, nonpublic vulnerabilities that it discovers.  This release was motivated by criticism following the allegations that significant cyber-attacks have exploited … Continue Reading

FTC Seeks Comment on Petition to Modify 2009 Sears Order Concerning Online Browsing Tracking

The Federal Trade Commission (“FTC”) is soliciting public comments on a petition filed by Sears Holdings Management (“Sears”) to reopen and modify a 2009 FTC order regarding the tracking of personal information on their software apps.  The petition is notable for a number of reasons.  First, the Sears consent order was a seminal order in … Continue Reading

Advisory Committee to the Congressional Internet Caucus Discusses Vulnerability Disclosures

Last week, the Advisory Committee to the Congressional Internet Caucus hosted “Hacking: What Color Is Your Hat? Vulnerability Disclosures and the Law,” a discussion on the importance of vulnerability disclosures to protect information systems and  the nation’s cyber security defenses, and how private and public actors can safely encourage vulnerability reporting.  Technology and security companies … Continue Reading

EU Commission Concludes Privacy Shield “Adequate” in first Annual Review

The European Commission has today published its Report on the first annual review of the EU-U.S. Privacy Shield (the Report is accompanied with a Staff Working Document, Infographic, and Q&A).  The Commission concludes that Privacy Shield continues to ensure an adequate level of protection for personal data transferred from the EU to Privacy Shield-certified companies … Continue Reading

Deputy Attorney General Rod Rosenstein Warns Against Warrant-Proof Encryption

In a speech delivered at the United States Naval Academy on October 10, Deputy Attorney General Rod Rosenstein waded into the public debate between data privacy and law enforcement interests.  As part of a discussion moderated by former Covington cybersecurity attorney Jeff Kosseff, Rosenstein’s remarks discussed cyber issues facing law enforcement with a particular focus … Continue Reading

FTC and Department of Education Announce Joint Workshop on FERPA and COPPA Compliance for Ed Tech

Earlier this week, the Federal Trade Commission and Department of Education announced plans to hold a joint workshop on the application of the Children’s Online Privacy Protection Act (“COPPA”) and the Family Educational Rights and Privacy Act (“FERPA”) to educational technology products and services in the K-12 school environment.  In advance of the workshop, the … Continue Reading

Kicking Off Cybersecurity Awareness Month

As Covington kicks off Cybersecurity Awareness Month with a series of weekly articles, preventative tips, and Q&As developed by our cybersecurity practice professionals, it’s worth recollecting how much our cybersecurity landscape has changed over the last twenty-plus years, and how the law has responded to these evolving challenges. Although the late 1990s saw the first … Continue Reading

District Court Dismisses Multiple Counts in FTC’s Complaint Against D-Link

On September 19, 2017, the U.S. District Court for the Northern District of California dismissed three of the six counts in the Federal Trade Commission’s (“FTC’s”) January 2017 complaint against D-Link Systems, Inc., allowing the FTC until October 20, 2017 to amend its complaint. The FTC’s complaint alleged that D-Link engaged in unfair and deceptive … Continue Reading

FTC Twitter Chat: Influencers 101

Earlier this month, the FTC settled with two social media influencers for failing to provide adequate disclosures in their promotions of their company, and issued 21 warning letters to other influencers it felt continued to violate the FTC Endorsement Guidelines in spite of the educational letters the FTC had sent earlier this year. In addition … Continue Reading

FTC Reaches Settlement with Influencers; Issues Updated Guidance

The FTC recently announced that it reached a settlement with two social media influencers, Trevor Martin and Thomas Cassell, for deceptively endorsing their owned and operated online gambling service “CSGO Lotto” without disclosing that they were the owners of the site, as well as paying other well-known social media influencers to promote the site without … Continue Reading

Recent Cases on E-Mail “Spoofing” Coverage Highlight the Impact of Specific Crime Policy Wordings

By Benjamin Duke, Matt Schlesinger, and Scott Levitt [This article was also published as a Client Alert.] Two recent federal district court decisions involving computer “spoofing” scams highlight the uncertainty about whether such incidents may be covered under standard “computer fraud” provisions in widely used crime insurance forms. The conflicting results in these cases provide … Continue Reading

Ninth Circuit Holds That Spokeo Plaintiff Has Standing to Proceed on Claim Over Inaccurate Information

The closely watched lawsuit alleging Spokeo, Inc., violated the Fair Credit Reporting Act (“FCRA”) may proceed, after a federal appeals court ruled — on remand from the Supreme Court — that publication of the inaccuracies alleged by the plaintiff would constitute a sufficiently “concrete” harm to give the plaintiff standing to sue in federal court.  … Continue Reading

Is The Hutchins Indictment Over Malware Unconstitutional?

By Alex Berengaut [This article also was published in Law360.] In May 2017, the “WannaCry” malware was used to launch a worldwide ransomware cyberattack. WannaCry encrypted files on victim computers and demanded a ransom payable in bitcoin to provide the encryption key. The attack was stopped when a British security researcher, Marcus Hutchins, accidentally discovered … Continue Reading

New ECPA Reform Legislation Introduced in the Senate

By Lauren Moxley In late July, three bipartisan bills to reform the Electronic Communications Privacy Act of 1986 (“ECPA”) were introduced in the Senate. Each of the bills propose different updates to ECPA, which governs law enforcement access to consumer information stored with service providers. As we have discussed here, here, here, and here, the … Continue Reading

A Summary of the Recently Introduced “Internet of Things (IoT) Cybersecurity Improvement Act of 2017”

On August 1, 2017, a bipartisan group of Senators introduced legislation (fact sheet) that would establish minimum cybersecurity standards for Internet of Things (“IoT”) devices sold to the U.S. Government.  As Internet-connected devices become increasingly ubiquitous and susceptible to evolving and complex cyber threats, the proposed bill attempts to safeguard the security of executive agencies’ … Continue Reading

D.C. Circuit: Data Breach Plaintiffs Plausibly Allege ‘Substantial Risk’ of
ID Theft Sufficient to Support Standing

Customers’ allegations that they face a substantial risk of identity theft as a result of a 2014 data breach are sufficiently plausible to allow their suit against health insurer CareFirst to proceed, the U.S. Court of Appeals for the D.C. Circuit held in an August 1 decision. CareFirst discovered in April 2015 — and announced … Continue Reading

Department of Justice Releases Guidance for Vulnerability Disclosure Programs

Last week, the U.S. Department of Justice (“DOJ”) released a voluntary framework for organizations to use in the development of a formal program to receive reports of network, software, and system vulnerabilities, and to disclose vulnerabilities identified in other organizations’ environments.  This framework provides private entities a series of steps to establish a formal program … Continue Reading

California Bill Poised to Change Regime Governing the Internet of Things

A bill pending in the California legislature, if passed, would create new obligations for manufacturers of “connected devices.” S.B. 327 (also known as the “Teddy Bear and Toaster Act”) would operate somewhat differently than existing laws, such as the California Online Privacy Protection Act (“CalOPPA”). Security obligations. Manufacturers of connected devices that sell those devices … Continue Reading

FCC Fines Calling Platform $2.88 Million for TCPA Violations

Last week, the FCC issued a forfeiture order against Dialing Services, LLC (“Dialing Services”) $2,880,000, finding that Dialing Services made automated calls to wireless phones without prior express consent, in violation of the Telephone Consumer Protection Act (“TCPA”).  Dialing Services is a platform that offers automated calling services to its customers, and this Order is … Continue Reading
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