On April 20, 2020, the Supreme Court granted cert in Van Buren v. United States, to resolve an important circuit split over the meaning of “authorized access” under the Computer Fraud and Abuse Act (CFAA). This is the Court’s first foray into analyzing the precise contours of CFAA liability. Van Buren may have far-reaching
E-Discovery no longer dominantly involves emails and shared drive documents. With the increasing prevalence of mobile devices in the workplace and new apps being developed daily, mobile data and other non-email communications are moving to the forefront of discovery. Times have changed, and attorneys have professional and ethical obligations to keep up. To effectively and competently represent clients, attorneys must stay apprised of how to work with these ever-changing forms of data – or get help from someone knowledgeable. To do so, we have set out some suggestions below organized around common stages of the discovery lifecycle of digital evidence.
Identification. In conducting custodian interviews, ask questions to target the data types the custodian works with. Start broadly by determining if the company has a BYOD policy and asking if they allow the use of personal devices for work purposes. Confirm which messaging tools they use for business purposes, with the understanding that people tend to play down such use. For each messaging application, ask how they are used and with whom they communicate. Discuss these same topics with your client’s IT team to better understand the company’s policies and capabilities for controlling the use of personal devices, as well as employees’ actual practices.
Increasing mobile device usage for routine business – such as through text messages and mobile applications like WhatsApp – is contributing to a new developing trend in E-Discovery: broad discovery requests for businesses to collect and produce data from their employees’ mobile phones.
The proliferation of electronic communication not only makes it imperative for organizations to have mechanisms in place to capture and preserve mobile text messages, but also raises new challenges about how to protect employee privacy. As more and more employees use their personal devices for business purposes (and vice-versa – employees using company-provided devices also for personal purposes), there is an increasing desire among employees to ensure their personal data is protected, even as the company produces other data required in discovery.
Courts have recognized this is an issue, and the law is evolving to strike a balance between the discoverability of relevant information and privacy protections from overly intrusive requests for text messages.…
Continue Reading Court Rules Personal Privacy Interests May Impact Scope of Discovery for Text Messages
On January 1, 2020, California’s landmark privacy law, the California Consumer Privacy Act (CCPA), took effect. The CCPA imposes various obligations on covered businesses and provides extensive rights to consumers with respect to controlling the collection and use of their personal information. While some companies have largely completed their CCPA compliance efforts, many others are still digesting the CCPA and draft proposed regulations, and taking steps to meet the CCPA’s myriad compliance obligations.
Confusion persists about how businesses can comply with certain provisions of the CCPA. In October 2019, the California Attorney General issued proposed regulations that provide guidance on a number of key areas, but the regulations are not yet final. If adopted, violations of the proposed regulations will be treated the same as violations of the CCPA itself, with the same penalties. We have summarized the proposed regulations in previous alerts:
- Proposed CCPA Regulations from California Attorney General Just Issued: Part I – An Analysis of Required Consumer Notice
- Proposed CCPA Regulations from California Attorney General: Part II – An Analysis of Handling Consumer Requests under the CCPA
- Proposed CCPA Regulations from California Attorney General: Part III – An Analysis of the Requirement to Verify Consumer Requests and Parental Consents
- Proposed CCPA Regulations from California Attorney General: Part IV – Service Providers & Financial Incentives
Comments on the proposed regulations can be viewed here.
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…
The European Union’s (“EU”) General Data Protection Regulation (“GDPR”) turned one year old on May 25th. European data protection regulators celebrated by continuing to work through a rising number of complaints and infractions, and by stepping up their monitoring for violations. US companies are directly in the crosshairs. Whether based in the EU or not, a company is potentially subject to the GDPR (and its stiff fines up to 4% of annual global revenue) if it offers goods or services to data subjects located in the EU, or monitors individuals’ online behavior or personal information in the EU. This means that a US company engaged in the common business practice of collecting data from its EU customers must assess and implement business practices to ensure GDPR compliance.
The US and EU engaged in approximately $1.3 trillion dollars in trade last year. With that level of economic activity, and accompanying data flows, many US companies should already have in place the basic structures for GDPR compliance. However, recent surveys suggest that a significant number of companies impacted by the GDPR are still grappling with compliance. In a recent Forrester Research study, “Security Through Simplicity,” over half of the responding IT decision-makers revealed that their companies had not yet carried out even basic GDPR compliance steps such as vetting third-party vendors, hiring data protection officers, training employees, setting up mechanisms for the “72-hour data breach notification” requirement, and collecting evidence and documenting efforts to address GDPR compliance risks. Further, only about 4,650 US companies are currently registered and self-certified with the EU-US Privacy Shield framework (compared to the over 100,000 mid- to large-sized companies in the US, according to business census data). Such certification goes a long way toward permitting a US company to receive certain EU data in a GDPR compliant manner.
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
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:
The Navy has recently issued a policy memorandum entitled “Implementation of Enhanced Security Controls on Select Defense Industrial Base Partner Networks” that calls for heightened cybersecurity requirements and oversight for “critical” government contractors handling their sensitive government data, broadly referred to as controlled unclassified information (“CUI”) or “covered defense information” (CDI) within the defense sector. …
When the European Commission re-approved the Privacy Shield agreement during its first annual review in the fall of 2017, permitting the transatlantic transfer of personal information to compliant U.S. companies to continue, it did so with a number of reservations. As the Privacy Shield agreement fast approaches its second annual review at the end of this week, it remains to be seen if the steps taken by the U.S. government at the close of the summer will be enough to satisfy skeptical European lawmakers.
Continue Reading Outcome of Privacy Shield Review Uncertain, Despite U.S. Steps Toward Compliance