The federal Computer Fraud and Abuse Act of 1986 (“CFAA”) has generated controversy and disagreement among courts and commentators regarding the scope of its application. The statute, 18 U.S.C. § 1030, which provides for both criminal and civil penalties, prohibits accessing a computer or protected computer “without authorization” or in a manner “exceeding authorized access.” Courts are divided as to the meaning of these phrases, yet the U.S. Supreme Court recently declined the opportunity to resolve the circuit split that has developed, leaving the exact scope of this important statute in question.
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DataSecurityLaw.com is the firm’s resource for the latest news, analysis, and thought leadership in the critical area of privacy and cybersecurity law. Patterson Belknap’s Privacy and Data Security practice provides public and private enterprises, their leadership teams and boards with comprehensive services in this critical area. Our team of experienced litigators, corporate advisors and former federal and state prosecutors advises on a broad range of privacy and data protection matters including cyber preparedness and compliance, data breach response, special board and committee representation, internal investigations, and litigation.
Back in December of last year, we reported that for the first time, a U.S. law firm – Johnson & Bell, a mid-sized Chicago firm – was publicly named in a class action data security lawsuit. Last month, the firm obtained a significant victory in the case.
The United States Court of Appeals for the Third Circuit recently ruled that a data breach class action may proceed on the basis of a Fair Credit Reporting Act (FCRA) violation alone, even where the putative class members do not allege that they were actually harmed by the breach. The ruling, which both relies on and distinguishes the Supreme Court’s recent analysis of FCRA standing in Spokeo v. Robins, suggests that at least in the Third Circuit, “injury” from a data breach may be presumed from the fact of the breach itself. This, in turn, could have the effect of expanding potential liability for any consumer-facing entity that suffers a breach.
The transition of power from President Barack Obama to President-Elect Donald Trump is underway. Although President-Elect Trump did not lay out specific policy prescriptions about data privacy or consumer protection during his candidacy, his recent choice of Dr. Joshua D. Wright to lead transition efforts at the Federal Trade Commission provides some hints as to the direction the agency may take under a Trump administration.
The Financial Crimes Enforcement Network, or FinCEN, an arm of the United States Department of the Treasury, issued an advisory last week to remind financial institutions of their obligations to report cyber-events on Suspicious Activity Reports (SARs). While FinCEN emphasizes that its advisory does not change existing reporting requirements, it goes to lengths to discuss its “expectations” about what and how information will be reported when it comes to cybersecurity events.
Boards of directors remain increasingly exposed to the threat of liability arising from data breaches and other cyber-incidents.
Banner Health recently announced that hackers may have gained “unauthorized access to patient information” and “payment card data” from approximately 3.7 million patients, health plan members, food and beverage customers, and physicians. The breach has been reported as the largest for a hospital in 2016.
Patterson Belknap litigation partners Michael F. Buchanan and Craig A. Newman will be speaking at the State Capital Group’s Annual Meeting on September 15, 2016 in Boston.
Ransomware attacks at hospitals and other healthcare facilities have dramatically increased over the last several years, putting healthcare providers in the uncomfortable position of having to consider paying thousands of dollars to regain access to vital medical records. Indeed, one recent study concluded that hospitals are hit with 88% of all ransomware attacks nationwide.
On June 29, 2016, the Bank for International Settlements’ (BIS) Committee on Payments and Market Infrastructures (CPMI) and the Board of the International Organization of Securities Commissions (IOSCO) issued “Guidance on cyber resilience for financial market infrastructures” (Cyber Guidance), the first set of concrete recommendations following the 2012 CPMI-IOSCO Principles for Financial Market Infrastructure (PFMI).
Has North Korea struck again? Do its recent attacks signal a shift from those motivated by political retribution to those motivated by financial gain? What does this mean for financial institutions?
We have previously written about the ongoing debate regarding the proposed EU-U.S. Privacy Shield. The European Parliament has now added its voice to those who say that the current proposal is inadequate.
More than a year and a half ago, Home Depot announced that it had been a victim of one of the largest data breaches in U.S. history. Media outlets reported that the breach had affected Home Depot’s customers who had made purchases using the company’s self-checkout terminals.
Department of Health and Human Services Cracks Down on Vendor Oversight in Recent Hospital Settlements
From the rise in ransomware attacks to inadvertent disclosure of information by subcontractors, the health services industry is reminded that a potential consequence of a data breach is the threat of a regulatory enforcement action. In what may be a sign of things to come, the Department of Health and Human Services (DHHS) is scrutinizing both “covered entities” and “business associates” under the authority of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Health Information Technology for Economic and Clinical Health Act (HITECH).
By now, you’ve probably heard about the massive cyber attack that hit Bangladesh’s central bank last month, resulting in the loss of $81 million through fraudulent transfers to accounts in the Philippines. Although the size and scale of this cyber heist was unprecedented, cybercrime targeting ACH (Automated Clearing House) financial transactions is nothing new. Financially motivated hackers regularly target ACH systems.
Yet another regulator has weighed in on cybersecurity issues, adding to an already complicated and daunting mosaic of regulatory enforcement actions and guidance. Last week, the U.S. Food and Drug Administration (“FDA”) posted new draft guidance concerning the postmarket management of cyber risks associated with medical devices that are connected to networks. The new draft guidance comes almost a year after President Obama issued Executive Order 13636, which directs public and private actors to work together to share information about cybersecurity.
This week, the United States Supreme Court upheld a conviction under the Computer Fraud and Abuse Act despite the Court’s acknowledgement that the jury had been wrongfully instructed on the elements of the crime charged. This is the second noteworthy decision relating to the Act to be issued recently.
The Privilege of PR: Application of the Attorney-Client Privilege to Crisis Communications and Public Relations in Breach Response Planning
Cyber-attacks have become a matter of everyday reality for all businesses: regardless of industry or size, it is no longer if a data breach will happen, but when. And waiting for a breach to occur before designing and implementing a cyber incidence response plan is generally a recipe for disaster.
In a significant development, the FTC announced today that LifeLock, the identity theft protection company, has agreed to settle the FTC contempt charges against it for $100 million. This is the largest monetary award the FTC has ever obtained in an order enforcement action.
Last month’s terror attacks in Paris have re-ignited the long-standing debate between national security and privacy advocates over whether technology companies should be required to provide the government special access to encrypted communications that travel on the internet, such as instant messages.
Self-defense is a natural, almost reflexive human instinct. But it has a complicated history in American law, full of contradiction and compromise. Many jurisdictions have long recognized that an otherwise illegal act—such as taking a swing at a purse-snatcher—may be justifiable (and therefore legally permissible) in the context of fending off a physical threat or attack. But victims of cyber-attacks—who may be tempted to “hack back”—have yet to enjoy such a privilege. In fact, following through on this natural instinct in cyberspace could lead to criminal and civil liability.
The Internet of Things (IoT) encompasses any object or device that connects to the Internet to automatically send and/or receive data. This includes common office equipment, such as networked printers and photocopiers, devices that remotely or automatically adjust lighting or HVAC, security systems, such as security alarms and Wi-Fi cameras. Personal wearable devices that employees often bring to work, including fitness devices like Jawbone and Fitbit, smart watches like the Apple Watch and Android Wear, and Google Glass, are also part of the IoT. The IoT has grown very rapidly in recent years as technology companies create more devices with wireless internet capabilities and sensors, and internet access has become more widely available. The analyst firm Gartner estimates that 4.9 billion connected “things” are in use today and projects that number will rise to 25 billion by 2020.