Complying with the California Consumer Privacy Act in 5 (more or less) Not So Easy Steps
Part 2 of a Series

What’s Next – the Breach Response Plan

This is the second in a series of articles on complying with the California Consumer Privacy Act (CCPA). The CCPA is estimated to impact more than 500,000 businesses, many of them smaller and mid-size businesses., Complying with the detailed requirements of the CCPA — including disclosure and notice procedures, opt-out rights, updating privacy policies, and revising vendor agreements – is daunting.  In our last article, we highlighted the importance of the Data Map. When you finish your data map, what should you do next?

What is the CCPA?

The California Consumer Privacy Act was signed into law on June 28, 2018, and will become effective January 1, 2020 – although the Attorney General is precluded from bringing an enforcement action under the CCPA until the earlier of six months after the final regulations are published, or July 1, 2020.  The effective date of the Act gives covered businesses little time to prepare.  Preparing now is particularly important, because many obligations under the Act will require advance work, and companies will need to begin now.

After the Data Map – the Incident Response Plan

Most businesses understand that if they suffer a data breach – if specified personal information is accessed by unauthorized users – the business has to consider notifying the individuals whose information has been accessed, and possibly their regulators. Despite the fact that laws requiring notification laws have been in effect for more than 15 years, many companies do not have plans to address a breach. Commencing on January 1, 2020, when the CCPA goes into effect, the inability to respond will become a bigger issue. The reason – the CCPA grants a private right of action to individuals.

Actions under the CCPA

Under the CCPA any natural person who is a resident of California may bring an action if their unencrypted or unredacted personal information has been exposed due to a business’s failure to maintain appropriate security safeguards. The definition of personal information under the CCPA is broader for most purposes of the Act than when determining a breach – it is limited to a person’s name (at least first initial and last name) and either their social security number, driver’s license or state identification number, bank or credit card information, or medical or health insurance information.

There is no requirement that a plaintiff demonstrate damages; instead,` plaintiffs can seek statutory damages between $100 and $750, injunctive or declaratory relief, or “any other relief the court deems proper. In addition, plaintiffs can seek actual damages in excess of the statutory recoveries. And the Act specifically allows the aggregation of claims into a class action. The specific authorization of a private right of action means that any breach is more likely to result in extended, costly, and embarrassing legal action. Continue reading

It is difficult to overstate the current backlash against social media. Social media giants are under attack from virtually all sources, including both governments and individuals. The #humblebrag du jour is a social media addict publically stating the intent to close accounts, take social media sabbaticals, cull friend and follower lists, and boasting about how much better life has become after weaning themselves from the constant attention-drain – even if many do not follow through on the threat.

If you join the movement, you might be helping your company’s information security profile.

Social media accounts often contain sensitive personal data that can be accumulated, hacked, sold and resold in their own right.  But beyond that, they provide corporate hackers with enough information to guess passwords, whereabouts and interests, and provide enough data to craft sophisticated and effective spear-phishing emails – personalized missives that reflect the character and wording of the individuals they spoof, down to grammar, spelling and tone.

That’s why it’s so important to include a cybersecurity-focused review of your company’s social media policy and practices. If you aren’t going to set strict social media standards for C-level executives and consider conducting regular audits of their social accounts, then you at least need to educate them about the risk. Some of the key risks  – but only the most obvious ones – are below. Continue reading

Looking back with the perspective of two years, the Equifax data breach still has many lessons to teach us. Unfortunately, some of the most important lessons are masked by the extremes of the errors that characterized the original breach, which include insider trading by top executives after the breach was discovered but before it was disclosed. That, combined with the length of time the company withheld news of the breach, and the irony that its entire business model is built on security, may lure some observers into believing that the incident is unique, and they could never screw things up as magnificently.

That would, however, be a mistake.

As litigation over the breach continues, there are some takeaways that might not be as obvious, but which are important to all companies. As courts and regulatory agencies struggle with how to respond to such breaches, punish companies that disregard regulations and look to compensate victims, it becomes increasingly clear that securities compliance is more important than ever. For public companies, data breaches are doubly dangerous.

First, a key lesson from Equifax is that words matter.

Earlier this year, a federal judge upheld most of the plaintiffs’ claims in a securities class action against Equifax (note, these are claims brought by shareholders, not those whose data was breached, though of course those subsets likely overlap), in part because statements on the company’s website, in SEC filings and during investor conferences stated it employed “strong data security.” Plaintiffs allege that the statements misled investors regarding “the strength of Equifax’s cybersecurity systems, its compliance with data protection laws, and the integrity of its internal controls.”

All companies, and especially those in the security business or whose business model is based on gathering, storing and processing information, can be tempted to tout one’s defenses as “the best,” “state of the art,” “industry-leading,” etc. More to the point, a marketing department is bound to use that kind of language. That language, however, is the basis for shareholder lawsuits, FTC enforcement actions and other problems. Here are three steps to take to ensure your cybersecurity statements aren’t what compound your misery after a breach: Continue reading

Complying with the California Consumer Privacy Act in 5 (more or less) Not So Easy Steps
Part 1 of a Series

First Steps First – the Data Map

It is estimated that more than 500,000 companies are subject to the California Consumer Privacy Act (CCPA), many of them smaller and mid-size business, where the detailed requirements of the Act – disclosure and notice  procedures, opt-out rights, updating privacy policies, and revising vendor agreements – is daunting.  So where should a business begin in its efforts to meet the Act’s requirements?

What is the CCPA?

The California Consumer Privacy Act was signed into law on June 28, 2018, and will become effective January 1, 2020 – although the Attorney General is precluded from bringing an enforcement action under the CCPA until the earlier of six months after the final regulations are published, or July 1, 2020.  The effective date of the Act gives covered businesses little time to prepare.  Preparing now is particularly important, because many obligations under the Act will require advance work, and companies will need to begin now.

What businesses must comply with the Act?

As has been well publicized, the Act is applicable to many businesses, whether located inside or outside California.  The Act applies to for-profit entities that both collect and process the personal information (as defined in the Act) of California residents and do business in the State of California –  a physical presence in California is not a requirement to becoming subject to the Act. Additionally, the business must meet at least one of the following criteria:

  • Generate annual gross revenue in excess of $25 million,
  • Receive or share personal information of more than 50,000 California residents annually, or
  • Derive at least 50 percent of its annual revenue by selling the personal information of California residents.

What to do first – Data mapping

The first, and possibly most important, thing a company should do to comply with the Act is to understand what data the company collects, how it uses the data and who has access to it.  Understanding how the company collects, processes, transmits and stores data – as well as how it’s used and who uses it – is the foundation of a data privacy program and the key to complying with the Act and most other privacy regulations.  A company’s data is often its most valuable asset, but the exact movements of sensitive data are often poorly understood, providing unknown exposure points and increasing the risk of data loss.  Continue reading

By Michael Gold and Bob Braun

A new ruling by the Illinois Supreme Court could trigger expensive class action lawsuits and private litigation against businesses, even where plaintiffs do not allege actual injury. The case demands attention, not only from those doing business in Illinois, but throughout the nation.

The Case and Its Holding

On January 25, 2019, the Illinois Supreme Court issued its long-awaited decision in Rosenbach v. Six Flags – and the unanimous opinion doesn’t do any favors for business.  The Court ruled that individuals alleging violations of the Illinois Biometric Information Privacy Act (BIPA) in state court – like using a thumbprint to clock in and out of work on a biometric time clock, without the statutorily required notice and acknowledgments in place – do not need to allege concrete injury in order to sue.  Rather, simply pleading a violation of BIPA’s technical requirements will be enough, without alleging any actual injury.  Because each violation carries a substantial fine, and the statute provides for a private right of action and recovery of attorneys’ fees, the Court has effectively opened the doors to the next wave of extremely risky and costly litigation for Illinois businesses.

Warning Signs

The decision is a warning sign, not only for Illinois businesses that use biometric information, but for businesses generally.

The case is one of a series that make it easier for plaintiffs to bring claims without asserting damages.  In other words, plaintiffs do not need to make one of the essential allegations of any lawsuit claiming money damages – that they have been harmed in fact.  This has, for years, been a stumbling block for lawsuits arising out of data breaches, as the existence of damages has been difficult to prove.  Just as more courts are willing to assume damages in those kinds of cases,  the Illinois court has done the same for violations of BIPA.  Importantly, this will not only ease the burden for individual plaintiffs; it is likely to expand the availability of class action claims as well.

The case is also demonstrative of the increasing willingness to reshape statutes that may not originally have been treated or viewed as privacy protection statutes.  The Federal Trade Commission, many attorneys general, local district attorneys and private plaintiffs have used laws prohibiting “unfair and deceptive trade practices” to address perceived privacy and security shortcomings. The use of BIPA in this context may well embolden governmental and private plaintiffs alike to consider whether existing statutes can be used to bring claims.

Finally, the Court’s opinion reflects a shift in attitude that underlies privacy legislation in the United States.  Just as the European Union and other jurisdictions have adopted the position that personal information belongs to the individual, this case recognizes the same trend in the United States. This decision, along with the California Consumer Privacy Act, and proposed laws in Washington, Vermont and other states – as well as measures being considered by the federal government – point to a new attitude toward the use of personal information by businesses.

Actions to Take

The Rosenbach case has implications far beyond Illinois.  Businesses operate in a world where regulators, law enforcement, and private individuals actively seek ways to hold companies responsible for ensuring personal privacy.  Part of their method is to use laws that may have been ignored, or to find ways to interpret existing laws, to support damage claims.  This creates a challenge for companies, since addressing the challenges posed by these laws requires companies to focus not on reacting to events, but on establishing information governance systems that addresses the collection and use of personal data.

These developments also cannot be effectively addressed solely at a technical level – in particular, they cannot be delegated to an information technology department.  Rather, the active involvement of senior management is crucial to evaluating the risks a company is willing to take in the context of existing and emerging privacy laws, and ensuring deployment of governance frameworks that realistically address these risks without undermining the company’s business mission.

The JMBM Cybersecurity and Privacy Group counsels companies on incorporating privacy and information security into enterprise governance.  For additional information, contact Michael Gold (MGold@jmbm.com) or Bob Braun (RBraun@jmbm.com).

 

In their column, Top 10 cybersecurity predictions for the new year, Robert Braun and Michael Gold, co-chairs of JMBM’s Cybersecurity & Privacy Group offer predictions on federal privacy legislation (they won’t pass any and if by chance they do, it won’t work), data localization (more companies will have to decide whether to maintain services in foreign jurisdictions or leave those markets), governance (companies will get finally  get real about enforcing written cybersecurity policies), and more.

Published by the Daily Journal, you can read the column here.

 

About JMBM’s JMBM’s Cybersecurity & Privacy Group
JMBM’s Cybersecurity & Privacy Group counsels clients in a wide variety of industries, including retail, aerospace, health care, utilities, sports, media, and professional services such as accounting firms, law firms, business management firms and family offices. We represent clients in matters ranging from development of cybersecurity strategies, creation of data security and privacy policies, responding to data breaches and regulatory inquiries and investigations, and crisis management. The Cybersecurity & Privacy Group uses a focused intake methodology that permits clients to get a reliable sense of their cybersecurity readiness and to determine optimal, client-specific approaches to cybersecurity.

About the Daily Journal
The Daily Journal is California’s largest legal newspaper. Published daily, it includes breaking news and exclusive coverage of California legal affairs, California law firm news, updates on business transactions, and special reports throughout the year.

Robert E. Braun and Michael A. Gold are co-chairs of the Cybersecurity & Privacy Law Group at Jeffer Mangels Butler & Mitchell LLP.

Contact Bob Braun at RBraun@jmbm.com or +1 310.785.5331.
Contact Mike Gold at MGold@jmbm.com or +1 310.201.3529.

Written prior to Marriott International’s announcement on November 30, 2018 that a data breach exposed the private data of up to 500 million guests, Robert Braun, co-chair of JMBM’s Cybersecurity & Privacy Group, wrote the article Guest Privacy – It’s Your Business, published by HotelExecutive.com on December 2, 2018.

In that article, he writes:

“Gathering and processing information [about guests] provides not only opportunities, but creates obligations, one of the most basic of which is ensuring the security of guests’ personal information.

That obligation has become increasingly complex due both to the vulnerability of hotel companies to breach, and the enactment of laws and regulations, worldwide, that impose additional burdens on hotels – the EU’s General Data Protection Regulation, California’s Consumer Privacy Act, as well as industry developments have further heightened the concerns with guest privacy and security.”

He also notes:

“This focus must be seen in the context of two key issues: first, that hotels collect large amounts of data from their guests, both directly and through third parties; and second, that the hospitality industry has a checkered track record in protecting personal information. Both these demand that the hospitality industry take a renewed focus on data security.”

To read the full article, including Braun’s suggestions as to what hotel owners and operators should do to begin the process of securing their systems, see Guest Privacy – It’s Your Business.

To read more on Braun’s take on the Marriott International data breach, see Avoiding Hotel Data  Breaches with a Risk Assessment Audit – Lessons from the Marriott International “Glitch”.

 

Robert E. Braun is the co-chair of the Cybersecurity and Privacy Law Group at Jeffer Mangels Butler & Mitchell LLP. Bob helps clients to develop and implement privacy and information security policies, negotiate agreements for technologies and data management services, and comply with legal and regulatory requirements. He helps clients to develop and implement data breach response plans, and he and his team respond quickly to clients’ needs when a data breach occurs. Contact Bob at RBraun@jmbm.com or +1 310.785.5331.

JMBM’s Cybersecurity and Privacy Group counsels clients in a wide variety of industries, including accounting firms, law firms, business management firms and family offices, in matters ranging from development of cybersecurity strategies, creation of data security and privacy policies, responding to data breaches and regulatory inquiries and investigations, and crisis management. The Cybersecurity and Privacy Group uses a focused intake methodology that permits clients to get a reliable sense of their cybersecurity readiness and to determine optimal, client-specific approaches to cybersecurity.

Today’s revelation by Marriott International that a data breach exposed the names and personal details of over 500 million guests sent a shudder throughout the hospitality industry worldwide.

Hoteliers know they are an appealing target for hackers as their databases contain identifying and financial information for very large numbers of people, and they have systems that by necessity must be accessible to many different levels within the company. Because privacy laws in the US, the EU (and other countries around the globe) are becoming increasingly stringent, hoteliers are also keenly aware that the retention and use of guests’ personal information now comes with greater potential liability than ever before.

It is time for hotel brands, and hotel owners and operators, to create effective and comprehensive privacy and cybersecurity policies, procedures and systems.

For JMBM’s Hotel Law Blog, I have outlined some key takeaways from the Marriott International breach. To read the blog,  see  Avoiding Hotel Data Breaches With a Risk Assessment Audit – Lessons From the Marriott International “Glitch”

—  Bob Braun

Robert E. Braun is the co-chair of the Cybersecurity and Privacy Law Group at Jeffer Mangels Butler & Mitchell LLP. Bob helps clients to develop and implement privacy and information security policies, negotiate agreements for technologies and data management services, and comply with legal and regulatory requirements. He helps clients to develop and implement data breach response plans, and he and his team respond quickly to clients’ needs when a data breach occurs. Contact Bob at RBraun@jmbm.com or +1 310.785.5331.

JMBM’s Cybersecurity and Privacy Group counsels clients in a wide variety of industries, including accounting firms, law firms, business management firms and family offices, in matters ranging from development of cybersecurity strategies, creation of data security and privacy policies, responding to data breaches and regulatory inquiries and investigations, and crisis management. The Cybersecurity and Privacy Group uses a focused intake methodology that permits clients to get a reliable sense of their cybersecurity readiness and to determine optimal, client-specific approaches to cybersecurity.

The SEC warns public companies that lax cybersecurity practices could violate rules governing internal accounting controls, and offer nine scams as cautionary tales.

The SEC has become increasingly active when it comes to cybersecurity. Last month, it issued an investigative report about Business Email Compromises (BCEs) involving nine public companies that lost nearly $100 million when they wired funds to thieves impersonating corporate executives or vendors. While the SEC did not take action against the companies, it noted that policies and procedures that allowed for the thefts, accomplished via simple means of email and wire transfers, could leave a company in violation of accounting rules requiring that public companies safeguard corporate assets. The report makes a strong case that all companies, not just the boards of public companies, need to be aware of and protect against scams of these sorts.

The Commission considered whether the victimized companies complied with the requirements of Sections 13(b)(2)(B)(i) and (iii) of the Securities Exchange Act of 1934. Those provisions require certain issuers to devise and maintain a system of internal accounting controls that provide reasonable assurances that management authorizes corporate transactions and access to company assets. “While the cyber-related threats posed to issuers’ assets are relatively new, the expectation that issuers will have sufficient internal accounting controls and that those controls will be reviewed and updated as circumstances warrant is not,” the report stated.

The Commission chose to issue the report as guidance and declined to bring charges against the companies. While these companies dodged a second bullet, all companies should take this opportunity to benefit from the SEC’s analysis, and how important it is that board members understand the multiple aspects of cybersecurity, cyber risk, and related compliance.

Some directors may still assume that a cybersecurity breach is one that involves hackers infiltrating a company’s computer systems and stealing the customer data. With this preconception, an enterprise will focus on hardware, software, and firewalls and other technical solutions, which can lull management into thinking that increasing the data security budget is enough to address security threats. But almost all breaches have a human element – these losses cited in the SEC report were based on social engineering,” which we’ve written about – exploiting human weakness, not technological failures. The only thing “hacked” was what should have been the proper level of suspicion of the employee targeted, and lax internal controls. So how should companies respond, and what do board members and top executives need to do to avoid problems?  Continue reading

Cybersecurity is a method to protect your data and systems. Cyber resiliency is a way of doing business in the face of the inevitable.

When Hurricane Michael struck the Florida Panhandle earlier this month, it wiped away wide swaths of Mexico Beach, a coastal town on the Gulf of Mexico. Left conspicuously standing was a house built just last year of reinforced concrete, specifically designed to withstand a Category 5 storm.

The house, elevated on pilings to survive the storm surge, lost its stairwell—by design. It was built to separate from the building without damaging the structure itself. Other than the missing stairs, the house suffered only minor water damage and a cracked shower window.

This story is an important lesson, and a metaphor for cyber resiliency, taking steps to weather a data or systems catastrophe while maintaining ongoing business operations. The adoption of cyber resiliency is an important mindset shift for those dealing with cybersecurity.

Cybersecurity is the approach that focuses on the methods and processes of protecting electronic data – the goal is to thwart an attack, and emphasizes training people and systems to recognize infiltration so it can be stopped. Cyber resilience, on the other hand, assumes an attack will occur. The underlying premise could be summed up this way: “What can go wrong, will. What are you going to do about it?”

Many companies have made meaningful improvements in protecting their data. They have implemented better firewalls, procedures and training to reduce the likelihood of an attack.  While these steps are essential, implementing a cyber resilience program focuses on how the enterprise can continue doing business in the midst of and in the wake of an attack. Cyber resiliency requires a different set of tools and, more importantly, a corporate culture more attuned with surviving natural disasters.  Continue reading