Throughout the COVID-19 crisis, we have focused on the significant uptick in ransomware attacks. Government agencies such as OFAC, CISA, and New York’s DFS have updated their guidance on how to prepare for and respond to such attacks and provided tools to help stop ransomware attacks. Cybersecurity also continues to be a major focus of private enterprise. Despite businesses and government agencies’ increased attention to ransomware, however, 2021 is shaping up to be the most profitable year for data-nappers yet. In fact, according to a recent report by OFAC, ransomware payments in 2021 are on track to exceed the total amount paid over the previous ten years combined.
DFS Issues New Guidance Regarding Cybersecurity Regulation and the Adoption of an Affiliate’s Cybersecurity Program
On October 22, 2021, the New York State Department of Financial Services (“DFS”) issued new Guidance regarding a Covered Entity’s compliance with New York’s Cybersecurity Regulation where the Covered Entity relies on the cybersecurity programs of an Affiliate. The Guidance provides much-needed clarity on a topic that impacts many entities subject to the DFS Regulation.
As we have previously reported, there has been a major uptick over the past few years—and particularly during the COVID-19 pandemic—in ransomware attacks. These attacks consist of an intrusion by a cybercriminal into the victim’s computers or network, followed by deployment of malware that encrypts the victim’s files, preventing access until a payment is made. More recently, these ransomware attacks also include exfiltration of data as a way to generate even more leverage over the victim. The incentives for victims of ransomware attacks to pay the ransom are substantial: the need to stop the attack, regain access to their data, restore business functions, and ensure that any stolen data is destroyed and not sold or exploited by bad actors make these attacks existential events. On the other hand, making these ransomware payments brings its own risks. This includes substantial regulatory risk as those payments may run afoul of the U.S. Treasury Department’s Office of Foreign Asset Control (“OFAC”) guidance—since the payments may be made to parties who are on OFAC’s black list. Although there have not yet been any OFAC enforcement actions against those who have made ransomware payments, companies should be aware of the risk of going forward with a ransom payment.
Last month, we wrote about three actions taken by the SEC signaling a renewed interest in cybersecurity disclosure enforcement. In keeping with this theme, the SEC announced a number of significant new cybersecurity actions just last week. On August 30, the SEC disclosed enforcement actions against eight brokerage firms for failing to implement adequate cybersecurity policies and procedures, as required by the SEC’s “Safeguards Rule.” All eight firms agreed to settle with the SEC and will collectively pay hundreds of thousands of dollars in fines. These most recent actions underscore that companies should be mindful of whether their cybersecurity policies and procedures comply with SEC requirements and expectations.
A little over two weeks ago, T-Mobile became the latest victim of a cyberattack when more than 50 million of their customers’ data was stolen. In the ensuing weeks, three class action suits have been filed against the telephone carrier alleging a range of violations. Included in two of them are alleged violations of the California Consumer Privacy Act, one of them includes alleged violations of the Washington State Consumer Protection Act, and the third fails to allege any violations of state data security laws. Three House Representatives pointed to the breach as a reminder as to why there needs to be a national privacy and data security law. One such bill is the Setting an American Framework to Ensure Data Access, Transparency, and Accountability (SAFE DATA) Act.
In a recent ruling with important consequences for data breach litigation, a federal court in Pennsylvania ruled that Rutter’s—a Pennsylvania convenience store chain that suffered a data breach—must disclose the investigative report it commissioned from a third-party after the breach. This is a recurring issue in data breach litigation and one that has far-reaching implications for how companies respond to data breaches or other security incidents. This is also the latest entry in an evolving, and not entirely consistent, line of cases that are broadly chipping away at the attorney-client privilege and the work-product doctrine protections companies argue should apply to their investigative reports.
Supreme Court Clarifies Standing Requirements – Implications for Class Action Defendants in Data Security, Privacy, and False Advertising Cases
On June 25, the Supreme Court held in a 5-4 decision that Article III prohibits certification of a class and a damages award where the majority of class members lack actual injury. In TransUnion v. Ramirez, the Ninth Circuit Court of Appeals had previously concluded that a class of over 8,000 individuals who could prove violations of the Fair Credit Reporting Act—and had actually proved them at trial—had standing to pursue damages at trial, even if they had not demonstrated that they had suffered concrete harm. The Ninth Circuit reasoned that violations placed the class members at sufficient risk of harm to confer standing. The Supreme Court reversed, and in so doing, reinforced its earlier holdings that Article III compels each plaintiff to show concrete harm.
The SEC is ramping up its cybersecurity disclosure enforcement. While the agency had made significant efforts relating to cybersecurity disclosure previously, there has been surprisingly little SEC activity in this area since 2018—even though the last three years has seen an explosion of high-profile data security incidents. That changed in June of this year, however, with the SEC taking three major actions that demonstrate a renewed interest in such enforcement. First, the SEC announced its intention to issue a new rule regulating cybersecurity risk governance disclosure. Second, it announced its first charges and settlement for cybersecurity disclosure violations since 2018. And third, it revealed a significant cybersecurity disclosure investigation relating to the recent SolarWinds supply-chain attack. In light of these developments, now would be a good time for issuers and registered entities to review the SEC’s expectations for cybersecurity disclosure, and implement any necessary changes to their respective policies and procedures, and disclosure practices.
Are You Ready for Ransomware? CISA Launches New “Stop Ransomware” Website Aimed at Testing Your Cybersecurity Preparedness
The federal government has been grappling with a holistic response to the massive uptick in destructive ransomware attacks that have bombarded the country in recent years. As part of that response, the Cybersecurity and Infrastructure Security Agency (CISA) recently launched a “Stop Ransomware” website, which is aimed at helping private and public entities test and improve their cybersecurity. Among other key features of this effort is a self-assessment tool allowing organizations to test their cybersecurity based on government and industry recommendations and standards. This is a potentially useful addition to any organization’s cyber preparedness toolkit. They may also become another benchmark against which the “reasonableness” of any company’s data security protections are measured when facing private claims or regulatory scrutiny after a ransomware attack.
The price tags of several high-profile ransomware attacks have made headlines over the past couple of months. Colonial Pipeline, which supplies roughly 45% of the fuel for the East Coast, paid a $4.4 million ransom to hackers (though the FBI reportedly recovered some $2.3 million of it back). JBS USA, a major meat processing company, paid $11 million. With hackers making millions of dollars through single attacks, a debate has arisen about what to do, if anything, about ransomware payments. Some have proposed banning them outright, taking issue with the incentive structure such payments appear to create, while others warn about the negative and unintended consequences an outright ban could have, especially for the victims of an attack.
Earlier this year, New York City passed a law restricting the collection and/or use of biometric technology by certain businesses. The new law goes into effect July 9, meaning applicable businesses have a couple more weeks to prepare themselves for its requirements. Businesses need only look to similar laws in other states, particularly Illinois, for a glimpse at the litigation that may come should they fail to abide by the new law’s provisions.
On June 3, 2021, the United States Supreme Court issued a 6-3 opinion in Van Buren v. United States, No. 19-783, resolving the circuit split regarding what it means to “exceed authorization” for purposes of the Computer Fraud and Abuse Act (the “CFAA”). The Court held that only those who obtain information from particular areas of the computer which they are not authorized to access can be said to “exceed authorization,” and the statute does not—as the government had argued—cover behavior, like Van Buren’s, where a person accesses information which he is authorized to access but does so for improper purposes.
The Biden Administration is zeroing in on cybersecurity. In the wake of a high-profile wave of cyberattacks, including the SolarWinds supply chain attack and the more recent Colonial Pipeline ransomware attack, President Biden has issued an Executive Order (“EO”) designed to strengthen the federal government’s cybersecurity defenses. And for good reason. The SolarWinds supply chain attack in particular raises significant national security concerns, as hackers were able to access several federal agencies, including the United States Departments of Homeland Security, Defense, State, Treasury, and Commerce’s National Telecommunications and Information Administration. Issued on May 12, 2021, the EO seeks to prevent similar cyber-attacks by directing federal agencies to make a series of changes in how they approach cybersecurity. While the EO is necessarily limited in what it can do—it cannot, for example, make more sweeping reforms such as amending the woefully outdated Computer Fraud and Abuse Act used to prosecute hackers—it is a significant step. Here are the main highlights.
Is there standing to bring a lawsuit when an employee’s personal information is mistakenly circulated to all employees at the company? A recent decision addressed exactly this question. In McMorris v. Carlos Lopez & Assocs., LLC, No. 19-4310, 2021 WL 1603808 (2d Cir. Apr. 26, 2021), the Second Circuit affirmed the district court in finding that the harm plaintiffs alleged (an increased risk of identity theft) was too speculative and remote to satisfy the injury-in-fact requirement of Article III standing. However, the court did not completely shut the door on this theory of harm, holding that an “increased risk” of identity theft could, under certain circumstances, qualify as an injury-in-fact for purposes of Article III standing. In doing so, the Second Circuit aligned with a number of its sister circuits which had previously recognized the potential validity of this approach.
On April 14, 2021, the New York Department of Financial Services (“DFS”) announced a cybersecurity settlement with insurance company National Securities Corporation, which suffered four separate breaches, two of which went unreported in violation of 23 NYCRR § 500.17(a). The settlement not only includes a monetary penalty but also mandates increased training and implementation of security tools, and underscores the urgency of addressing cybersecurity threats and DFS’s increasing enforcement activity for non-compliance with its cyber regulations.
Companies that do business in New York or with New Yorkers could soon face an onslaught of biometric privacy-related litigation, courtesy of New York Assembly Bill 27, the Biometric Privacy Act (“BPA”). Currently pending before the legislature, the bill is modeled on Illinois’ Biometric Information Privacy Act (“BIPA”) and, like that law, would impose a set of rules businesses must follow when collecting biometric information. Critically, the BPA would create a private right of action for those “aggrieved” by violations of the law.
Recent Developments in the State Data-Privacy Landscape: Is Federal Involvement the Best Way Forward?
With a dizzying array of state privacy laws on the horizon, the prospect of a federal solution has come into sharp focus. Rather than a patchwork of regional legislation, a comprehensive national framework would potentially govern the precautions that companies must take when electronically collecting, using and storing customers’ personal information, regardless of where in the country the company—or the consumer—is located. That is the current situation in the European Union under the General Data Protection Regulation (GDPR), and has been for many years. It might one day be the case in the United States as well, if advocates of omnibus federal data privacy legislation have their way.
Beeple, Top Shots, and the Blockchain of Collectibles: Securing the Value of an Original Digital Asset
A cryptocurrency entrepreneur recently paid $69.3 million for Beeple’s Everydays: The First 5,000 Days at a Christie’s auction. That record-breaking price purchased a work of art that can be seen only on a computer and the image of which, in large part, is available for use and enjoyment by anyone with an internet connection because the work is a non-fungible token, or NFT. NFTs have quickly caught the attention of the art world and beyond, touching the mainstream with the NBA Top Shot craze and its $250 million plus marketplace for visual highlights of NBA games. The company behind NBA Top Shot, Dapper Labs, recently raised $250 million at a $2 billion valuation. And the larger market for NFTs has grown from $42 million in 2017 to $338 million by the end of 2020. But for intangible assets whose value is largely driven by the creation of an original work only in cyberspace, owners and investors need to think carefully about what they own and how to protect their digital acquisitions.
The recent SolarWinds attack alerted the world to the risk of a cyber supply chain attack—an attack through or on your company’s vendors or suppliers. It is increasingly clear that even if you take all the right steps to secure your own computer systems, your company—and your company’s data—is only as secure as the weakest link among your suppliers. This risk includes attacks that might infect your computer systems, as well as the risk that your suppliers’ businesses will be disrupted.
On Tuesday, the United States Supreme Court heard oral argument in TransUnion LLC v. Sergio L. Ramirez, No. 20-297, focusing on whether a class of individuals who experience a risk of harm that never materializes have standing to sue. Although the case itself does not involve a data breach, the Court’s answer to the standing question could have significant implications for the viability of data breach class action lawsuits moving forward.
In the wake of a data breach, counsel will often require the assistance of a forensic firm in order to provide legal advice to their client. The forensic analysis—which is often memorialized in a report to counsel—is crucial for counsel in understanding what occurred and formulating legal strategy relating to potential litigation and breach notification issues. For the same reasons, details of those forensic analyses and any related investigative reports are very likely to be the subject of a discovery request from plaintiffs if and when litigation ensues. Indeed, the requests for such reports are frequently a flashpoint in litigation that can determine the strength or weakness of the plaintiff’s case. Defendants typically object to producing these reports on the grounds that they fall under the attorney-client privilege and work-product protection.
Last November, California voters approved Proposition 24, enacting the California Privacy Rights Act (“CPRA”). The CPRA amends the California Consumer Protection Act (“CCPA”), which was already the most sweeping consumer data protection law in the U.S. Wondering what you should know about California’s new Privacy Rights Act? We dug into the new law and identified the five biggest changes.
In a win for data privacy defendants, Walmart secured a ruling that favors a narrow interpretation of the California Consumer Privacy Act (CCPA). In Gardiner v. Walmart Inc. et al, 4:20-cv-04618-JSW, a Walmart customer, Lavarious Gardiner, sued the retail company under the CCPA for failing to implement and maintain reasonable and appropriate security procedures and practices to protect information he gave to Walmart to create an account on the company’s website. As a result of an alleged, undisclosed data breach, Gardiner claimed that his personal information had been subject to unauthorized exfiltration on Walmart’s website, and sold on the dark web, exposing him to purportedly ongoing risk of financial fraud and identity theft. Gardiner’s complaint also included a summary of the results of a security scan of the Walmart website, which purported to show vulnerabilities in that website. Moreover, in a somewhat unusual twist, Gardiner claimed that he had in his possession “communications with the hackers which state that the accounts they are selling are real accounts that belong to Walmart customers.” Despite the allegations in the complaint, Walmart had never disclosed any breach and the complaint did not allege when any such breach occurred. Gardiner also brought claims for negligence, breach of contract, and violations of the UCL, all of which were dismissed for failure to plead cognizable injury
New York’s Department of Financial Services (“DFS”) announced on Wednesday, March 3, 2021, that an independent mortgage lender, Residential Mortgage Services Inc. (“RMS”), has agreed to pay a $1.5 million fine to the agency in a settlement resulting from violations of its Cybersecurity Regulation. This is just the second enforcement action brought by DFS under the Cybersecurity Regulation, which was the first of its kind nationally.
The question of standing has proven to be a tricky one in data breach litigation. (See our prior coverage here and here). Last week a federal district court in Maryland rejected a proposed class action brought by Marriott guests related to a data breach suffered by the hotel chain in early 2020, finding that the plaintiffs did not have Article III standing because they could not trace any alleged injury to particular actions or inactions by Marriott. This decision is an important reminder that the fact of a breach is not itself sufficient to confer standing, even where personal data is improperly accessed. In other words, even though a company that had your data suffered a data breach, you may not have been injured by its actions.
On Tuesday, March 2, 2021, Virginia became the second U.S. state to enact a broad data privacy regime after Governor Ralph Northam signed the Virginia Consumer Data Protection Act (CDPA) into law. Virginia follows California, which became the first state to pass a comprehensive data privacy law, the California Consumer Privacy Act (CCPA), in June 2018. The CCPA became operative January 1, 2020 after several amendments necessary for its implementation, which we previously covered here and here. (California is set to enact another privacy law entitled the California Privacy Rights Act (CPRA) - to update the CCPA in November 2020.) There is also a raft of other state privacy laws in the pipeline, and Virginia’s new law aligns with a trend toward states ratcheting up broadly applicable privacy-related legal obligations.
As the national landscape of data privacy laws evolves, New York may be poised to follow California in passing legislation that creates new data rights for New York consumers. New York is no stranger to this field. The New York Department of Financial Services’ cybersecurity regulation was the first of its kind in the nation, aimed specifically at the banking and insurance industries. The Stop Hacks and Improve Electronic Data Security (“SHIELD”) Act continued the trend beyond the financial services industry, heightening breach disclosure requirements and imposing enhanced rules for businesses holding the personal data of New York residents. And New York’s Governor, Andrew Cuomo, recently proposed a 2021 budget bill that contemplates a comprehensive data privacy law, the New York Data Accountability and Transparency Act (“NYDAT”), which would vastly expand the scope of New York’s privacy protections, creating an East Coast analogue to California’s CCPA.
A federal court recently added additional wrinkles to one of the most important aspects of responding to a data breach: a forensic investigative report. The court ordered a law firm to turn over a report produced by a forensics firm engaged by the law firm’s counsel in the wake of a cyber incident. Experienced cyber counsel know that protecting the confidentiality of work product—including investigative reports—is critical in the aftermath of a breach and in ensuing litigation; this decision makes clear that companies and their counsel need to be as deliberate as ever to maintain the integrity of all appropriate legal privileges during a fast-moving breach response.
As remote learning continues to play a critical role in the world’s pandemic response, cybercriminals see another opportunity for exploitation. The Federal Bureau of Investigation, the Cybersecurity and Infrastructure Security Agency, and the Multi-State Information Sharing and Analysis Center (MS-ISAC) recently issued an Advisory warning of cyber-attacks to K-12 educational institutions. The Advisory reports that in August and September, ransomware incidents targeting K-12 education reported to the MS-SAC made up 57% of all reported ransomware incidents, up from 28% reported from January through July.
The growing threat from ransomware is forcing organizations to re-think their cyber risk mitigation strategy. As private organizations and governments look ahead to 2021 and the risks they face in an increasingly uncertain world, ransomware will no doubt rank high on any list. Ransomware attacks involve the use of malware that encrypts the victim’s computing system, rendering files and data inaccessible until a demand for payment is met, and a decryption key is provided.
On December 13, the software and service provider SolarWinds announced that its Orion software platform had been the target of a sophisticated cyber attack that may have resulted in malicious code being pushed to as many as 18,000 customers. The SolarWinds software is used by many corporate and not-for-profit entities of all sizes to monitor the health of their IT networks. Although the details of this breach are still unfolding, based on the information currently available, Orion users who updated their software between March and June of this year are potentially affected.
The United States Supreme Court heard oral argument on Monday in Van Buren v. United States, No. 19-783, a landmark case involving a key provision of the Computer Fraud and Abuse Act (“CFAA”). At issue was whether a person who is authorized to access information on a computer for certain purposes violates CFAA if that person accesses the same information for unauthorized reasons. The Court’s decision has the potential to resolve an important circuit split on the interpretation of CFAA and to define the contours of a hotly debated anti-hacking statute that applies to both criminal prosecutions and civil actions.
As we previously reported, companies across the globe increasingly have been targeted by cyber criminals during the COVID-19 pandemic. Just last month, a major U.S. healthcare provider, United Health Services (“UHS”), suffered a ransomware attack, crippling its digital networks and forcing many UHS-owned facilities to rely on offline backups and paper charts to provide health care. The attack on UHS is one of the latest incidents in a trend of increasing ransomware attacks, a type of cyberattack in which cyber criminals use malware to block access to the victim’s computer system to extract a monetary payment. Ransomware victims are already faced with difficult decisions regarding payment and business continuity. But the underlying risk associated with such payments runs deeper, in no small part because cyber criminals are almost universally anonymous. A recent advisory (the “Advisory”) from the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) provides guidance on ransomware payments that may implicate U.S. sanctions. The Advisory makes clear that parties that pay or facilitate ransomware payments may face substantial legal consequences if a payment is made to a party subject to U.S. sanctions, whether the payor knows of those sanctions or not.
The Cybersecurity and Infrastructure Security Agency (CISA) teamed up with the Federal Bureau of Investigation (FBI) to issue a joint warning of cyber-attacks emanating from Iran and targeting U.S. federal agencies and businesses. These hackers target vulnerabilities in virtual private networks (VPNs), which organizations use to allow remote network access. Once the hackers gain access through a VPN, they export data, sell access to the network, and have the ability to install ransomware. This is just the latest example of criminals exploiting vulnerabilities associated with the current remote working environment.
As we previously described and as reflected in the rapidly increasing number of cyber-attacks since its start, the COVID-19 pandemic has triggered a shift in working practices that hackers and other bad actors are using to their advantage. Recent studies show a 273% percent rise in large-scale data breaches in the first quarter of 2020, compared to prior-year statistics, and a 109% year-over-year increase in ransomware attacks in the United States through the first half of 2020. This post will focus specifically on ransomware attacks targeting researchers working on a COVID-19 vaccine and how these attacks have evolved since the start of the pandemic.
As we previously reported, Capital One Financial Corporation announced in July 2019 a major data security breach when an individual gained unauthorized access to personal information about Capital One credit card customers. According to the Office of the Comptroller of the Currency (“OCC”), which regulates large U.S. banks, Capital One has now agreed to pay an $80 million fine to resolve claims related to the incident.
The New York Department of Financial Services (“DFS”) recently initiated its first enforcement action against a company for violating DFS’s first-in-the-nation cybersecurity regulation. As our readers know, we have written quite a few posts and articles about the regulation. And as we’ve warned, with the regulation now in full effect, covered companies should expect DFS’s Cybersecurity Division to start cracking down on companies that haven’t complied.
Well before the California Attorney General’s power to enforce the California Consumer Privacy Act (CCPA) commenced on July 1, 2020, as we have recently reported, private plaintiffs had already jumped into the fray, suing companies like Zoom and Houseparty for alleged violations of the CCPA. We noted that if one of these private lawsuits were to survive a motion to dismiss, it could lead to a substantial increase in class action litigation under the CCPA. Another putative class action under the CCPA that was filed on June 11, 2020 against Minted, Inc.—the popular online stationery, art, and home décor company—joins the growing list of private CCPA lawsuits and adds another wrinkle to this new area of law.
After over 18 months of private mediation, MGM Resorts International has finally dismissed a series of declaratory judgment actions the company brought against victims of the Route 91 Harvest Festival shooting. Those cases stem from the October 2017 Las Vegas shooting in which Stephen Paddock killed 58 people and wounded hundreds more from his hotel room in the Mandalay Bay hotel, owned by MGM. That event resulted in thousands of threatened legal actions against MGM by victims of the shooting, accusing the Mandalay Bay hotel of providing insufficient security, which allowed Paddock to open fire on concertgoers from his hotel room.
Last week, a magistrate judge in the Eastern District of Virginia held that a breach report prepared by Mandiant (a digital forensics investigator, among other things) in response to the Capital One data breach was not protected by the attorney work product doctrine.
The Zoom videoconferencing platform has been a constant fixture in recent news as the coronavirus pandemic has caused businesses around the world to flock to it, exposing significant cybersecurity and privacy concerns. These concerns drew the attention of the New York State Attorney General’s Office (“NYAG”), which initiated an investigation into the company’s cybersecurity practices in March, following a massive surge in use. The NYAG’s investigation came to a conclusion on May 7, 2020, when it reached a settlement with Zoom that will require Zoom, among other things, to enhance its practices around cybersecurity and data privacy.
As we previously detailed, the coronavirus pandemic has expanded opportunities for nefarious actors to exploit the digital vulnerabilities of individuals, local governments, industries, organizations, and essential services as they rapidly adapt to the public health crisis. Recent reports have confirmed that attacks and cyber scams associated with the pandemic are in fact on the rise.
Over the past month, many have discovered video chat and conferencing apps such as Zoom and Houseparty, using them for both business and to keep connected to friends and family during this period of global social distancing. Increased usage of these apps has also resulted in close scrutiny of their privacy practices by the public and government authorities. Indeed, Zoom has been hit with eight class actions that were recently consolidated, while separate plaintiffs sued the owners of Houseparty. A core allegation among those suits is that, without notice or consent, these apps provided user data to third parties (e.g., Facebook). Both the Houseparty complaint and a majority of the Zoom complaints allege violations of the California Consumer Privacy Act (CCPA), making these cases among the first with the potential to test the contours of the nascent but expansive privacy law. If the CCPA claims in these suits survive, it could signal the beginning of a substantial increase in class actions claiming CCPA violations.
On March 21, 2020—just as the COVID-19 crisis began upending our way of life—New York State’s Stop Hacks and Improve Electronic Data Security (SHIELD) Act went into effect fully. The SHIELD Act, which amends New York’s 2005 breach notification law to “keep pace with current technology,” was signed into law on July 25, 2019 by Governor Andrew Cuomo. The first phase of the Act went into effect in October 2019, and its second phase took effect last month.
We have previously written about the thorny questions surrounding the Computer Fraud and Abuse Act (“CFAA”), including how its ambiguous language concerning what computer use is “authorized” has divided the Circuits and how its provisions are, and are not, applied by prosecutors in practice. The Supreme Court declined to address the circuit split in 2017, but yesterday the Court granted cert in Van Buren v. United States to squarely resolve the issue.
Governmental Organizations Across the Globe Warn of Enhanced Cyber Threat Environment Related to COVID-19
In recent weeks, we have seen growing threats to cybersecurity and privacy from malicious actors seeking to exploit the COVID-19 pandemic. As companies transition their employees to remote working and focus their efforts on core business continuity, hackers are actively targeting companies’ cloud-based remote connectivity, lack of multi-factor authentication, and potentially insecure digital infrastructure to exploit vulnerabilities. The need for robust cybersecurity measures is more pressing than ever, and governmental organizations are issuing calls to action.
As businesses increasingly shift to remote working environments, the COVID-19 public health pandemic presents new cybersecurity challenges each day. As we discussed in our earlier post, hackers are actively targeting companies’ cloud-based remote connectivity, lack of multi-factor authentication, and potentially insecure digital infrastructure to exploit lax cyber-hygiene. As companies struggle to maintain business continuity, the need for robust cyber security measures is more pressing than ever.
In response to the COVID-19 pandemic, on March 17, 2020, the Office for Civil Rights (“OCR”) at the Department of Health and Human Services (“HHS”) issued a notification of enforcement discretion, announcing that it would not impose civil penalties for HIPAA violations “against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency” (the “Notification”). The Notification is important because, ordinarily, providing telehealth services does not modify a covered entity’s obligations under HIPAA. If a covered entity’s provision of telehealth services involves protected health information (“PHI”), that entity must meet the same HIPAA Privacy, Security, and Breach Notification requirements that apply to in-person health services. OCR’s Notification is clear that “this exercise of discretion applies to telehealth provided for any reason, regardless of whether the telehealth service is related to the diagnosis and treatment of health conditions related to COVID-19.” The Notification supplements an earlier OCR bulletin detailing the application of the HIPAA Privacy Rule during an outbreak of infectious disease.
Businesses, consumers, and regulators continue to grapple with balancing privacy, cybersecurity, and the response to the COVID-19 pandemic. Last week, this blog explored the increased cyber risks that the pandemic poses to businesses, providing guidance on how businesses can navigate that risk. Yesterday, we reported on a joint letter filed by more than 30 industry groups to the California Attorney General (“AG”) requesting a delay in enforcement of the California Consumer Privacy Act (“CCPA”) due to the burdens that COVID-19 is placing on businesses. Enforcement of the CCPA is currently scheduled to commence as early as July 1, 2020. Earlier this week, Consumer Reports, a consumer advocacy group, urged the AG to reject industry efforts to delay enforcement of the CCPA.
On March 17, 2020, a group of thirty-two trade associations and two corporations formally requested that the California Attorney General (AG) delay enforcement of the California Consumer Privacy Act (CCPA) until January 2, 2021, due to the ongoing COVID-19 pandemic. The trade associations represent leading companies in a wide range of industries, including healthcare and pharmaceuticals, transportation, logistics, advertising, insurance, entertainment, real estate, banking and finance, and technology.
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