“Browsing and location data are sensitive . . .. Full stop,” says the Federal Trade Commission. As is all granular data that can reveal “insights” that “can be attributed to particular people” through a “re-identification” procedure. This is one basis of complaints the FTC filed against Avast, X-Mode Social, and InMarket. A March 4, 2024 FTC blog post titled FTC Cracks Down on Mass Data Collectors: A Closer Look at Avast, X-Mode, and InMarket describes why these three companies’ collection of consumers’ browsing and location data raised concerns for the agency, and looks at two other data governance practices by those companies that also concerned the agency. All companies operating in the United States that collect and use consumer data should understand the themes emerging from the proposed settlements and orders and heed the admonitions from the agency moving forward.Continue Reading “Browsing and location data are sensitive . . .. Full stop”

On December 26, 2023, the Department of Defense (DoD) released the highly anticipated proposed rule for the Cybersecurity Maturity Model Certification Program (CMMC), a cybersecurity regulatory program that will likely impact most of the government contractor community. Every contractor who handles sensitive data such as Controlled Unclassified Information (CUI) or Federal Contract Information (FCI) during DoD contract performance will be covered by this regulation. While the CMMC program builds upon the security requirements included in Defense Federal Acquisition Regulation Supplement (DFARS) clause 252.204-7012, CMMC will bring greater scrutiny to contractors’ cybersecurity compliance and potentially greater consequences for failure to comply in the era of the Department of Justice’s Civil Cyber Fraud Initiative and False Claims Act litigation. If finalized as proposed, the rule will significantly impact the CMMC regime, notably by requiring senior company officials to complete an affirmation for every CMMC level self-assessed or certified, thus increasing legal compliance risks.Continue Reading DoD’s New Year Resolution: A Cybersecurity Maturity Model Certification Program (CMMC) Proposed Rule

Public companies now have a pathway to request a delay in their cybersecurity incident disclosure to the U.S. Securities and Exchange Commission (“SEC”). On December 6, 2023, the Federal Bureau of Investigation (“FBI”) Cyber Division published the “Cyber Victim Requests to Delay Securities and Exchange Commission Public Disclosure Policy Notice” (the “Policy Notice”) in response to the SEC’s finalized disclosure rules (the “Final Rules”). Published on July 26, 2023, the Final Rules established guidelines around cybersecurity risk management, strategy, governance, and incidents for public companies subject to the Securities Exchange Act of 1934. Among several requirements under the Final Rules, companies are required to disclose cybersecurity incidents within four days of a materiality determination by filing an SEC Form 8-K.Continue Reading FBI Offers Pathway to Request Delay of SEC Cybersecurity Incident Disclosures

On October 30, 2023, the Securities and Exchange Commission (the “SEC”) filed a civil lawsuit charging SolarWinds Corporation (“SolarWinds” or the “Company”) and its chief information security officer, Timothy G. Brown (“Brown”), with securities fraud, internal controls failures, misleading investors about cyber risk, and disclosure controls failures, among other violations.  The SEC’s claims arise from allegedly known cybersecurity risks and vulnerabilities at SolarWinds associated with the SUNBURST cyberattack that occurred between 2018 and 2021.Continue Reading Uncharted Territory: The SEC Sues SolarWinds and its CISO for Securities Laws Violations in Connection with SUNBURST Cyberattack

The summer has been anything but slow in the People’s Republic of China. China is leaning into its regulation of emerging technologies, while attempting to strike a balance with its domestic economic priorities. In just the past few weeks, state authorities have issued a slew of draft measures and announced new initiatives – all with significant ramifications for businesses processing data within the PRC. From personal information processing to facial recognition to cross-border data transfers, what follows is a highlight reel of what you may have missed while you were away on vacation, with the comment period for many of these developments closing within the next few weeks.Continue Reading Catch Up Fast: The “Data Days” of Summer in China

On July 26, 2023, the SEC finalized long-awaited disclosure rules (the “Final Rules”) regarding cybersecurity risk management, strategy, governance, and incidents by public companies that are subject to the reporting requirements of the Securities Exchange Act of 1934.  While the end results are substantially similar to rules proposed by the SEC in March 2022, there are some key distinctions. Continue Reading Five Key Takeaways from the SEC’s Final Cybersecurity Rules for Public Companies

On June 18, 2023, the Biden-Harris administration announced the launch of a new “U.S. Cyber Trust Mark” program (hereinafter the “Program”). First proposed by Federal Communication Commission (“FCC”) Chairwoman Jessica Rosenworcel, the Program aims to increase transparency and competition across the smart devices sector and to assist consumers in making informed decisions about the security of the devices they purchase.Continue Reading Biden Admin Eyes IoT Cyber Practices

Aiming to identify, enhance, and test supply chain vulnerabilities in the energy sector and cybersecurity response capabilities between public and private sectors, the U.S. Senate Committee on Energy & Natural Resources approved legislation that directs the Department of Energy (DoE) to create several new programs towards the development of “advanced cybersecurity applications and technologies” for the sector.[1]  The Energy Cybersecurity Act of 2019 (the Act) directs DoE to establish programs that identify supply chain vulnerabilities and expand Federal cooperation and coordination for responses to cyber threats.

If passed, the Act will require the DoE to:Continue Reading Energy Cybersecurity Act of 2019

The Department of Defense (DoD) has released Version 1.0 of the Cybersecurity Maturity Model Certification (CMMC), Appendices A-F, and an Overview Briefing. While Version 1.0 largely mirrors the draft Version 0.7, the final version includes notable revisions. Please click here to see the full client alert.

On August 8, 2019, the U.S. Court of Appeals for the Ninth Circuit issued yet another decision adopting relaxed standing requirements in privacy litigation, this time in a decision permitting a plaintiff to pursue claims under Illinois’s Biometric Information Privacy Act (BIPA). In Patel v. Facebook, the Ninth Circuit rejected arguments from Facebook Inc. (Facebook) that claims under the BIPA require assertions of real-world harm, and that BIPA claims only apply to conduct within Illinois. The ruling creates a circuit split on the standard for establishing Article III standing in BIPA litigation, which could prompt the U.S. Supreme Court to take up the issue.

BackgroundContinue Reading Ninth Circuit Rejects Facebook’s Article III Argument; Biometric Lawsuit Will Proceed