Cybersecurity / Data Security

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On October 1, 2019, the Court of Justice of the European Union (CJEU) issued a final ruling in the Planet49 case (case C-673/17 – available here).

Following a request for preliminary ruling from the German Federal Court of Justice, the Bundesgerichtshof, the CJEU interpreted the consent requirement of Directive 2002/58/EC, as amended by Directive 2009/136/EC (hereafter the “e-Privacy Directive”) in light of former Directive 95/46/EU (hereafter the “Data Protection Directive”) as well as in light of its successor – the General Data Protection Regulation (GDPR).

The Court made it clear that the placing and reading of tracking cookies on a user’s terminal equipment requires an active and unambiguous consent of the user. A pre-ticked checkbox does not meet these requirements and therefore does not constitute a valid consent. Also, the Court underlined that consent must be specific. In the case at hand, the act of selecting a button to participate in a promotional online lottery cannot be construed as consent of the user to the storage of cookies.

Moreover, the Court clarified that these requirements regarding the consent of the user for usage of cookies are applicable regardless of whether the information stored or consulted on the user’s device constitutes “personal data.”

Finally, the Court held that cookie consent must be “informed” as per the GDPR, which means that service providers must also provide information on the duration of the operation of cookies, as well as in relation to any third party access to those cookies.

The factsContinue Reading Court of Justice of the European Union Finds that Pre-Ticked Checkboxes Are Not Valid Consents under GDPR

Executive summary

On September 17, 2019, the Belgian Data Protection Authority (DPA) issued a fine of EUR 10,000 for a breach of the General Data Protection Regulation’s (GDPR). The case related to a merchant who required the use of an electronic identity card as the sole means for the issuance of loyalty cards.

The DPA found that this practice did not comply with GDPR’s standards on (a) data minimization, as the electronic identity card contains much more information about the holder than is necessary for the purposes of creating a loyalty card; and (b) consent, because customers were not offered a real choice on whether they should provide access to the data on their electronic identity card in exchange for a loyalty card. As a result, the customers’ consent was not considered as freely given and therefore invalid.

The DPA also found that the merchant had not done enough to inform customer about its data processing activities, and thereby violated its information duties under the GDPR.

The facts Continue Reading Belgian Data Protection Authority Finds Merchant Violated GDPR by Requiring Customers to Provide Electronic ID to Receive Loyalty Card

On 29 July 2019, the Court of Justice of the European Union (CJEU) issued a decision in the Fashion ID case, a case referred to it by a German court. In this blog post we will focus on what this case means with regard to joint controllership when you have social media plug-ins on your…

As the country’s new Congress settles into its term, several technology issues are coming to the forefront. A number of Senators recently questioned the Department of Justice over how it is collecting cellphone-location data in the wake of the Supreme Court’s landmark Carpenter decision. Carpenter v. United States, 138 S. Ct. 2206 (2018). The House of Representatives is considering a renewed version of legislation that would strengthen the security of “Internet of Things” technologies used by the federal government. And politicians and pundits throughout Capitol Hill are asking whether this will be the year that comprehensive federal privacy legislation becomes law. As it turns out though, some of the nation’s top courts are already tackling these tough issues. In fact, the Seventh Circuit’s opinion last year in Naperville Smart Meter Awareness v. City of Naperville, 900 F.3d 521 (7th Cir. 2018), has received relatively little reporting, but its impact will be broad when it comes to how courts interpret the Fourth Amendment in the era of big data.

In Naperville, the Seventh Circuit heard an appeal concerning the city’s “smart meter” program. Without residents’ permission, Naperville had been replacing traditional energy meters on its grid with “smart meters” for homes. Each smart meter collected thousands of readings a month, as opposed to just the previous single monthly readings. According to the plaintiffs, the repeated readings of the smart meters collected data at such a granular level that they revealed what appliances were present in homes and when they were used. Considering the potential privacy impact, the Seventh Circuit found that Naperville’s collection of smart meter data from residents’ homes constituted a “search” under the Fourth Amendment.
Continue Reading Seventh Circuit Wades into Big Data Case Law

E-discovery does not sit still. To provide high-level service, practitioners necessarily deal with legal technology at the bleeding edge of development. This involves the embrace of nascent artificial intelligence (AI) in combination with other analytic tools and techniques to tackle increasingly challenging discovery projects. As ever-expanding volumes and sources of information strain the capacity of…

Following a draft Interagency Report published in February, the National Institute of Standards and Technology (“NIST”) has published NISTIR 8200: Interagency Report on the Status of International Cybersecurity Standardization for the Internet of Things (IoT), which seeks to assess the “current state of international cybersecurity standards development for IoT.” In this effort, the Report defines the major areas where IoT is currently being used and evaluates various IoT cybersecurity standards commonly applied in those areas. To evaluate the surveyed IoT standards, the Report relies on a framework that breaks the standards down into twelve core areas, each of which designates a distinct, common element of cybersecurity measures.

Where IoT is Being Used the Most

To help evaluate the current understanding of cybersecurity risks involved in IoT applications and the methods used to measure them, the Report overviews major IoT technologies and how they are deployed. It then breaks down the network-connected devices, systems, and services comprising IoT into five major categories of application, explaining the common components of each:Continue Reading NIST Surveys and Assesses Broad Landscape of IoT Cybersecurity Standards in Interagency Report

Concluding its investigation into the internal accounting controls of nine public issuers who were recent cyber fraud victims, the Securities and Exchange Commission (“SEC”), Division of Enforcement explicitly reminded issuers to consider cyber-related threats in developing and deploying their Section 13(b)(2)(B) internal accounting controls.

The SEC emphasized the importance of tailoring internal accounting controls to cyber-related threats, noting that cyber frauds like those carried out in the nine cases it investigated have caused “over $5 billion in losses since 2013, with an additional $675 million in adjusted losses in 2017.”
Continue Reading SEC Encourages Internal Accounting Controls to Guard Against Cyber Fraud