On July 19, 2012, Senators Joseph Lieberman (I-CT), Susan Collins (R-ME), Jay Rockefeller (D-WV), Dianne Feinstein (D-CA), and Tom Carper (D-DE) introduced a revised version of the Cybersecurity Act of 2012 (“CSA2012”), which they initially introduced in February. The revision includes elements drawn from efforts by Senators Sheldon Whitehouse (D-RI) and Jon Kyl (R-AZ) to reconcile the CSA2012 with the Republican-sponsored SECURE IT Act (S. 3342).

The new CSA2012 (S. 3414) takes a different approach than the original version to cybersecurity of critical infrastructure. The original bill would have given the Department of Homeland Security (“DHS”) authority to designate “systems or assets” as covered critical infrastructure and to require owners and operators of designated critical infrastructure to meet cybersecurity performance requirements, established by DHS. The new CSA2012, on the other hand, would rely on voluntary private sector compliance with cybersecurity standards. As Senator Lieberman explained, the revised bill relies on “carrots instead of sticks.”

Continue Reading Senators Introduce Revised Cybersecurity Act of 2012

Following up on its “Face Facts” workshop that brought together a variety of stakeholders to discuss the privacy issues relating to commercial uses of facial recognition technology, the FTC has announced that it is seeking public comment on the issues raised at the workshop.  According to the Commission, these issues include: 

  • What are the current

Sen. John Rockefeller (D-WV), chair of the Senate Commerce Committee, is still working to reach consensus on the data security bill that he and Sen. Mark Pryor (D-AR) introduced in June.  A scheduled markup was canceled in September, and the committee decided not to consider the bill at yesterday’s executive session.  Nonetheless, a spokesman for

Last month, as we previously reported, the Federal Trade Commission (FTC) announced that it will host a December workshop to explore potential privacy and security implications raised by the increasing use of facial recognition technology.  Yesterday, Senator John D. Rockefeller IV (D-W.Va.), chairman of the Commerce, Science, and Transportation Committee sent a letter to the FTC

Yesterday, the SEC’s Division of Corporation Finance issued a guidance document regarding public companies’ disclosure obligations relating to cybersecurity risks and breaches.  The guidance responds to a request by Sen. Jay Rockefeller that the SEC clarify its position on this increasingly important issue.

The Division noted that as companies have turned to digital technologies to conduct their operations, cybersecurity risks–and incidents–have increased.  Although there is no disclosure requirement under the federal securities laws that specifically addresses cybersecurity, the Division explained that existing regulations may require disclosure of cyber risk assessments and the costs stemming from incidents.  It is important to note, as the Division does, that this is guidance, not a rule, regulation, or order (as some headlines have suggested).

We provide an overview of the guidance after the jump.  For additional information please see this E-Alert prepared by members of our Global Privacy & Data Security and Securities & Corporate Finance practice groups.


Continue Reading SEC’s Division of Corporation Finance Issues Guidance on Disclosing Cybersecurity Risks

For the fifth consecutive session of Congress, Sen. Dianne Feinstein (D-CA) has introduced legislation that would establish a federal data breach notification standard.  Sen. Feinstein’s legislation — the Data Breach Notification Act of 2011 (S. 1408) — is one of a number of breach notice proposals circulating on Capitol Hill that would preempt state breach notice laws and replace them with a federal standard.  In the Senate alone, Sens. Jay Rockefeller (D-WV) and Mark Pryor (D-AR) have introduced the Data Security and Breach Notification Act of 2011 (S. 1207), and Sen. Patrick Leahy has introduced the Personal Data Privacy and Security Act of 2011 (S. 1151). 

We have heard from several sources that Sen. Rockefeller, Chairman of the Senate Committee on Commerce, Science & Transportation, is planning to markup S. 1207 in the near future.  And last week, the House Subcommittee on Commerce, Manufacturing, and Trade marked up and voted to report the SAFE Data Act (H.R. 2577) (introduced by Rep. Mary Bono Mack (R-CA)) to the full House Energy & Commerce Committee. 

Unlike many of the breach bills that are circulating, Senator Feinstein’s bill is limited to breach notification obligations and does not include information security requirements.  Generally, S. 1408 is much more similar to the breach notice provisions of S. 1151 (Leahy) than S. 1207 (Rockfeller/Pryor) or H.R. 2577 (Bono Mack).

Continue Reading Feinstein Introduces Breach Notice Bill; Senate Committee May Consider Breach Notice Proposals Shortly

By David Fagan and Josephine Liu

The Obama Administration today sent Congress its long-awaited legislative proposal for improving U.S. cybersecurity.  The proposal is in the form of individual legislative amendments tackling various issues, packaged together as a comprehensive legislative framework.  As we previously discussed, cybersecurity is a subject of interest in both chambers of Congress.  Senate Majority Leader Harry Reid and six Senate committee chairs requested last July that President Obama provide input on cybersecurity legislative reforms; today’s proposal responds to that request. 

While the legislative proposals are extensive – the complete section-by-section analysis is, on its own, more than 20 pages – the following provisions are likely to be of particular interest for businesses operating in this space:

  • National data breach notification.  The proposals would seek to create, for the first time, a unified federal standard for notification to customers in the event of a security breach.  Specifically, business entities would be required to notify customers following the discovery of a security breach involving sensitive personally identifiable information, and also to notify law enforcement and national security authorities under certain circumstances.  These provisions would preempt the 47 existing state data breach notification laws, and would be enforced by the FTC and state attorneys general. 
  • Development of critical infrastructure cybersecurity plans.  DHS would work with industry, through a rulemaking process, to identify core critical infrastructure operators and specific risks.  An entity would not be designated as a critical infrastructure operator unless (1) disruption of the entity’s operations would have a debilitating effect on national security, national economic security, or national public health or safety; and (2) the entity depends on information infrastructure to operate.  Operators designated under this process would be responsible for developing cybersecurity risk mitigation plans, which would be assessed by third-party auditors.  DHS would be authorized to enter into discussions or take other action if operators’ plans are insufficient. 
  • Voluntary sharing of cybersecurity threat information.  The proposal would authorize private entities to share cybersecurity threat information with DHS, and would provide them with immunity for doing so.  DHS would be tasked with developing policies and procedures to minimize the impact on privacy and civil liberties and to prevent misuse of the shared information. 


Continue Reading White House Releases Legislative Proposal on Cybersecurity

This is another big week for privacy. On Monday, Senate Commerce Chairman Jay Rockefeller introduced the Do-Not-Track Online Act of 2011, which we posted about here. And yesterday, the newly created Senate Subcommittee on Privacy, Technology and the Law held its first hearing.  The hearing focused on mobile privacy issues, but also touched on other important privacy-related matters, including reform of the Electronic Communications Privacy Act and data security breaches. The following are highlights from the hearing:

  • Jessica Rich, Deputy Director of the Federal Trade Commission’s Bureau of Consumer Protection, testified that the FTC has “a number of active investigations into privacy issues associated with mobile devices, including children’s privacy.”
  • Ms. Rich also noted that the draft Staff Report published by the FTC in December addresses mobile privacy issues in certain respects, including recommending that companies obtain affirmative express consent before collecting or sharing sensitive information such as precise geolocation data. In response to a question from Senator Al Franken, Ms. Rich explained that location data is especially sensitive because it often involves the data of children and teens and, when gathered over time, can be used to determine what church or political meetings a person attends and when and where a child walks to and from school. She also noted stalking concerns. Ms. Rich also expressed concerns that mobile users are even less likely than other online consumers to read detailed privacy screens, given the small screens of most mobile devices, but noted that the FTC Staff Report recommends clearer disclosures and simpler consent mechanisms. With respect to the status of the Staff Report, Ms. Rich’s written remarks indicate that FTC staff is analyzing the comments it received on its draft Staff Report and will take them into consideration in preparing a final report for release later this year.


Continue Reading Mobile Hearing Covers Mobile Privacy, ECPA Reform, and Data Breach Issues

On May 9, 2011, Senator John Rockefeller (D-WV), chairman of the U.S. Senate Committee on Commerce, Science, and Transportation, introduced the Do-Not-Track Online Act of 2011.  The bill tasks the Federal Trade Commission with creating and implementing a do-not-track (“DNT”) mechanism for users who do not want to have personal information collected by providers of online services. 

As we previously noted, Rep. Jackie Speier (D-CA) dropped do-not-track legislation in February, and another DNT bill is making its way through the California State Senate.  The following summarizes Sen. Rockefeller’s bill and highlights some key differences from Rep. Speier’s H.R. 654.

Continue Reading Sen. Rockefeller Introduces Do-Not-Track Bill

Yesterday, Senator Jay Rockefeller announced that the Senate Committee on Commerce, Science & Transportation, which he chairs, will hold a hearing on cybersecurity issues on March 29.  This is not a new issue for Senator Rockefeller or the Senate Commerce Committee, which approved cybersecurity legislation during the 111th Congress.  The Senate Homeland Security Committee had