Information Management

The Second Circuit today issued a much-anticipated ruling holding that U.S. firms are not required to turn over user data stored overseas, even in the face of a government warrant.  This decision arose from Microsoft’s December 2014 appeal of a civil contempt ruling against the tech giant for refusing to turn over the personal data

Yesterday, Crowell & Moring hosted an International Association of Privacy Professionals (IAPP) KnowledgeNet featuring the Federal Trade Commission’s (FTC) new Chief Technologist, Lorrie Cranor.

In her short time at the FTC, Cranor has already made waves by encouraging companies to rethink mandatory password changes.  At the event, Cranor spoke about the focus of her

For only the second time in its history (following the $4.3 million Cignet case) the U.S. Department of Health and Human Services (HHS) Office of Civil Rights (OCR) imposed civil money penalties (CMPs) on a company for violating the Health Insurance Portability and Accountability (HIPAA) Privacy Rule.

Lincare, Inc. (Lincare), a home health provider, was required to pay $239,800 in CMPs after an HHS Administrative Law Judge (ALJ) found that the undisputed evidence in the case established that Lincare violated HIPAA because it did not implement policies and procedures to safeguard records containing its patients’ protected health information (PHI).

The OCR investigation began when an individual complained to OCR that a Lincare employee left behind documents containing the PHI of 278 patients when the employee moved residences. According to the ALJ, Lincare had inadequate policies and procedures in place to safeguard PHI taken offsite even though employees regularly removed material from the business premises. Further evidence suggested that Lincare had an unwritten policy requiring certain employees to store PHI in their own vehicles for extended periods of time.


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Yesterday, the DoD published an Interim Rule that, if finalized as drafted, would expand the already onerous requirements of the DFARS Safeguarding Clause to a broader array of potentially 10,000 defense contractors.  Citing “recent high-profile breaches of federal information,” the DoD’s Interim Rule emphasizes the need for clear, effective, and consistent cybersecurity protections in its contracts.  The Interim Rule proposes to significantly expand the scope of covered information and to require subcontractors to report cyber incidents directly to the DoD (in addition to prime contractors).  Together, these changes will likely increase the scope of potential liability for government contractors and subcontractors who fail to implement adequate cybersecurity measures.

The Interim Rule seeks to enhance cybersecurity protections primarily by expanding the application of the DFARS Safeguarding Clause, which was once itself a heated point of debate.  Currently, the DFARS Safeguarding Clause imposes two sets of requirements on covered defense contractors.  First, they must implement “adequate security” on certain information systems, typically by implementing dozens of specified security controls.  Second, they must report various cyber incidents to the DoD within 72 hours of their discovery.  These requirements, however, apply only to information systems housing “unclassified controlled technical information” (UCTI), which is generally defined as controlled technical or scientific information that has a military or space application. 

The Interim Rule would expand that application to information systems that possess, store, or transmit “covered defense information” (CDI).  CDI would encompass UCTI, meaning that most contractors subject to the DFARS Safeguarding Clause would remain subject to the Interim Rule.  But CDI goes beyond the DFARS Safeguarding Clause by also including information critical to operational security, export controlled information, and “any other information,  marked or otherwise identified in the contract, that requires safeguarding or dissemination controls pursuant to and consistent with law, regulations, and Government policies.”  Significantly, the Interim Rule lists “privacy” and “proprietary business information” as examples of the latter, leaving many covered contractors to wonder exactly how far the definition of “covered defense information” goes.  To keep up with its new application, the Interim Rule would change the name of Clause 252.204-7012 from “Safeguarding Unclassified Controlled Technical Information” to “Safeguarding Covered Defense Information and Cyber Incident Reporting.”


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The recent arrests of Chinese nationals for alleged economic espionage are raising eyebrows across American industries, who are rightfully asking how they can protect themselves from becoming the next foreign target. U.S. universities have been key figures in these headlines. The risk of economic espionage is a serious one for higher education because universities are

In conjunction with the 2015 American Bar Association annual State of Criminal Justice publication, Louisa Marion and I have published a new chapter on “Digital Privacy and E-Discovery in Government Investigations and Criminal Litigation.” The article provides an in-depth look at many of the current and cutting edge issues raised by digital privacy

With Memorial Day unofficially kicking off summer, those keeping up on recent changes to state data breach laws are eyeing their calendars, as a series of state amendments are due to come into effect.  Beginning on July 1, both Nevada and Wyoming will expand their definitions of personal information.  One month later on August 1, North Dakota will follow suit, slightly limiting its definition of personal information but expanding its reporting duties.  Key takeaways from the state amendments are detailed below.

The states’ legislative actions will likely up the ante at a time when Congress is considering a national data breach notification standard.  The recent flurry of activity reflects the states’ growing interest in how data breaches affect their residents.  Even in the face of national legislation, that interest is unlikely to subside.
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In an open letter to President Obama, 143 of the nation’s most well-known businesses, trade associations, academics, and organizations urged the President to promote strong encryption technologies. The letter was prompted by recent law enforcement (including the FBI and NSA) advocacy for built-in government access to encrypted data despite a December 2013 recommendation by the President’s Review Group on Intelligence and Communications Technologies to support encryption without such vulnerabilities.

As the letter states, strong encryption helps protect individuals and organizations from street criminals pilfering information from stolen devices; computer criminals from defrauding individuals to steal their identities; corporate spies from stealing trade secrets; repressive governments from stifling dissent; and foreign intelligence agencies from stealing national security secrets. The letter argues that any attempt to provide law enforcement with an encryption key leaves individuals and companies vulnerable to such bad actors.


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One year ago, data broker Spokeo, Inc. asked the Supreme Court to reconsider the Ninth Circuit’s revival of a putative class action against it for willfully violating the Fair Credit Reporting Act (“FCRA”) by publishing personal information without notice.  This week, the Court heeded that request, granting certiorari.  In doing so, it has paved the way for yet another decision by the highest court on how the issue of standing plays out in the context of privacy violations.

Plaintiff Thomas Robins sued Spokeo under the FCRA after the data broker allegedly published false information about him without his knowledge.  Interestingly, Robins claims that the information falsely stated that he had more education than he actually did and that he was in a better financial position than he actually was.  But according to Robins’s complaint, these false facts made it more difficult for him to find employment, credit, or insurance and thus caused actual harm.  He seeks to represent a class of individuals whose personal information has been similarly misstated. 
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On April 22, 2015, Cornell Prescription Pharmacy (Cornell), a small pharmacy with a single location in the Denver, Colorado area, agreed to settle potential violations of the HIPAA Privacy Rule with the Department of Health and Human Services Office for Civil Rights (“OCR”).  The settlement requires Cornell to pay a $125,000 fine and agree to implement a Corrective Action Plan (“CAP”).  The settlement is the result of an OCR investigation commenced after OCR received a tip from a local news outlet that Cornell had improperly disposed of documents containing Protected Health Information (PHI) of its patients.  In the course of the investigation, OCR discovered that Cornell had left documents containing PHI of 1,610 patients in a publicly-accessible dumpster without shredding the information.  The investigation also revealed that Cornell had not implemented any written policies and procedures or trained its workforce as required by the HIPAA Privacy Rule.  Thus, in addition to the fine, the CAP requires Cornell to draft policies and procedures governing the security, use, and disclosure of PHI, to train its workforce on those policies, and to report to OCR periodically on the progress of those efforts.
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