We are proud to announce that the Hogan Lovells Chronicle of Data Protection blog has been nominated in The Expert Institute’s 2016 Best Legal Blog Contest for the award of Best AmLaw Blog of 2016. Our editors at The Chronicle strive to provide you with the most relevant and timely legal news, practical legal analysis, and business insights relating to privacy and cybersecurity. We appreciate the recognition for this work and your continued readership.
The Federal Trade Commission recently presented an analysis of how its approach to data security over the past two decades compares with the Framework for Improving Critical Infrastructure Cybersecurity issued in 2014 by the National Institute of Standards and Technology and strongly endorsed by the White House. The FTC first explains how this question has a faulty premise, as the Framework is not designed to be a compliance checklist. Instead, in this new blog post, the FTC outlines how the FTC’s enforcement actions comport with the Framework’s five Core functions—Identify, Protect, Detect, Respond, and Recover—and emphasizes how both the Framework and the FTC’s approach highlight risk assessment and management, along with implementation of reasonable security measures, as the touchstones of any data security compliance program.
Please join us for our September 2016 Privacy and Cybersecurity Events.
The Department of Health and Human Services released guidance on July 11, 2016, intended to help the healthcare industry prepare for and respond to ransomware attacks. Specifically, this guidance clarifies: (1) that a ransomware attack is considered a “security incident” under HIPAA, and (2) that a ransomware attack will typically be considered a “breach” by HHS unless entities are able to demonstrate that there is a “low probability of compromise.” The guidance also clarifies that covered entities must implement the same risk assessment processes as they would with other types of cyber threats, including malware. At a time when ransomware attacks are on the rise, this guidance heightens the potential regulatory enforcement consequences of these events.
With attention to connected car cybersecuity issues increasing globally, the European Union Agency for Network and Information Security is leading the EU’s first bloc-wide initiative to identify cybersecurity rules of the road for connected cars. On July 13, ENISA announced a study aimed at creating a comprehensive list of cybersecurity policies, tools, standards, and measures to enhance security in next-generation automobiles.
The free flow of data is essential to an ever-growing segment of the global economy. Yet some policymakers and advocates, citing privacy concerns, have called for shutting off the faucet and restricting data flow, to the detriment of European consumers and European businesses, both small and large. After much debate, a major European court opinion, and at least one act of Congress to address the issue, a solution is at hand that will enhance real, enforceable privacy protections on both sides of the Atlantic.
Part 12 of Future-Proofing Privacy: Security is a Critical Piece. Security is a critical piece of the data protection jigsaw. Lack of consumer confidence has been identified as a key risk for the development of the digital single market, and a series of high profile breaches has exacerbated the situation. So it was inevitable that data protection reform would need to demonstrate that regulators were serious about data security and the Regulation does this by introducing three critical changes: obligations to have appropriate security in place will apply directly to data processors for the first time; there will be mandatory reporting of data breaches to data protection authorities; and there will also be mandatory reporting of data breaches to data subjects in certain situations.
Please join us for our June 2016 Privacy and Cybersecurity Events.
While many of the recent most highly publicized data breaches have involved high-profile consumer brands, the life sciences sector is an increasingly attractive target for a cyber attack. Criminal attackers are targeting the health sector as part of industrial espionage programs and to obtain patient information that can fetch premium prices on the black market. In developing a cybersecurity strategy to combat potential threats, life sciences companies should employ a comprehensive strategy involving an assessment and analysis of likely risks, and active and continuing planning, training, and updating of cybersecurity strategies. Regulators have already signaled that cybersecurity risk assessments are foundational to meeting legal requirements and can define the baseline for what constitutes reasonable security measures within an organization.
Fifteen months after forming an Internet of Things working group, on March 2, 2016, the Online Trust Alliance released a final version of its IoT Framework along with a companion Resource Guide that provides explanations and additional resources. The voluntary Framework sets forth thirty suggested guidelines that provide criteria for designing privacy, security, and sustainability into connected devices. The creation of the OTA IoT principles represents a potential starting point for achieving privacy- and security-protective innovation for IoT devices.
The US government has been increasingly active in cybersecurity legislation and enforcement. Congress recently passed the Cybersecurity Act of 2015, which has spurred renewed attention to cybersecurity requirements and cyber threat information sharing. The US government continues to draw attention to how organizations can align their cybersecurity programs with the NIST Cybersecurity Framework. Moreover, a number of federal agencies including the Consumer Financial Protection Bureau, Federal Trade Commission, and Federal Communications Commission have all issued settlements relating to cybersecurity enforcement actions in recent months. In the health sector, the US Department of Health and Human Services has been increasingly focused on cybersecurity, primarily through its HIPAA enforcement activities. Against that backdrop, three recent developments demonstrate the ways in which HHS and the health sector are expanding their cybersecurity focus beyond HIPAA Security Rule compliance.
A growing number of state and federal laws require organizations to implement reasonable security safeguards to protect personal information. But what constitutes reasonable data security? This question has vexed organizations and spurred a considerable amount of litigation. On February 16, 2016, the California Attorney General’s Office released its 2016 Data Breach Report, which for the first time provides a listing of safeguards that the Attorney General views as constituting reasonable information security practices. Despite being focused on California, the Report’s recommendations are likely to have an impact far beyond the borders of the Golden State.
The FTC wants companies to listen. More precisely, the FTC wants companies to pay attention to and promptly to respond to reports of security vulnerabilities. That’s a key takeaway from the Commission’s recent settlement with ASUSTek. In its complaint against the Taiwanese router manufacturer, the FTC alleged that ASUS misrepresented its security practices and failed to reasonably secure its router software, citing the company’s alleged failure to address vulnerability reports as one of the Commission’s primary concerns. The settlement reiterates the warnings contained in the FTC’s recent Start with Security Guide and prior settlements with HTC America and Fandango: the FTC expects companies to implement adequate processes for receiving and addressing security vulnerability reports within a reasonable time.
The Cybersecurity Information Sharing Act of 2015 provides limited liability protection and information disclosure protections for private-to-private and private-to-government cybersecurity information sharing. On February 16, 2016, two key U.S. agencies released a set of documents describing how CISA’s provisions are expected to work in practice.
The passage of the Cybersecurity Information Sharing Act of 2015 is proving to be just the beginning of a national focus and call for a “bold reassessment of the way we approach security in the digital age” in order to not only combat evolving cyber threats but also to cultivate an environment for a continually evolving digital age with boundless opportunities for the American economy. On February 9, 2016, the President directed his Administration to implement a Cybersecurity National Action Plan designed to do just that.
Anyone reading this blog already knows that cybersecurity is a team sport. No longer does the IT security department bear sole responsibility for protecting a company’s data and systems. Today companies are setting up enterprise-wide councils to oversee cybersecurity that include lawyers, risk managers, technical professionals, and other leaders. And if a breach occurs, that […]
Last month, tucked into a 2,000-page spending bill, the Cybersecurity Information Sharing Act of 2015 (CISA) was enacted into law. Years in the making, CISA is intended to incentivize organizations to share cyber threat indicators with the federal government and to promote the dissemination of this information to organizations facing similar threats. The spending bill included a number of other cybersecurity provisions covering topics ranging from federal preparedness to foreign policy strategy. Most notably, the bill directs the Department of Health and Human Services to develop cybersecurity best practices for organizations in the healthcare industry. The bill also directs federal agencies to create new plans to fortify federal information systems and identify cyber-related gaps in the federal workforce.
One of the most common devices in the emerging Internet of Things (IoT) was reportedly discovered to have a bug. According to the research firm Fortinet, a popular fitness tracker was vulnerable to wireless attacks through its unsecured Bluetooth port. A savvy attacker could install malware wirelessly within ten seconds—simply by coming within a few feet of the tracker. When the device’s owner returned home to sync daily activity with a computer, the malware could, in principle, infect the computer as well.
Recent developments in the United States suggest that cybersecurity of the maritime sector will come under increasing focus in 2016. On December 16, 2015, H.R. 3878, “Strengthening Cybersecurity Information Sharing and Coordination in Our Ports Act of 2015,” passed the House of Representatives. The Bill’s language echoes and expands upon recommendations made by the General Accountability Audit in its June 5, 2014 study Maritime Port Cybersecurity. It also reflects congressional focus on enabling cybersecurity information sharing as seen in the recent passage of the Cybersecurity Information Sharing Act.
The threat of ransomware is one of three example scenarios highlighted in a recent white paper released by the National Institute of Standards and Technology, titled Data Integrity: Reducing the Impact of an Attack. The paper launches a joint project led by the National Cybersecurity Center of Excellence, with participation by the Financial Services Information Sharing and Analysis Center and several private sector organizations.
At a trialogue meeting on December 7, the Luxembourg Presidency of the Council of the European Union reached agreement with the European Parliament on common rules to strengthen network and information security (NIS) across the EU. The new directive will set out the first ever EU-wide cybersecurity obligations for operators of essential services and digital […]
After a prolonged debate and months-long consideration of amendments, the Senate has passed S. 754, which includes the Cybersecurity Information Sharing Act (“CISA”) of 2015, by a vote of 74-21. CISA has the support of the White House and many industry stakeholders, but some of the most well-recognized privacy advocacy organizations oppose it. The House of Representatives must now decide whether to pass CISA or work with the Senate on compromise legislation that incorporates the House cybersecurity information sharing bills, H.R. 1560 and H.R. 1731. It remains to be seen what form the final cybersecurity information sharing bill will take, but the Senate’s overwhelming vote for CISA suggests that the chances for overall passage are stronger than ever.
The National Institute of Standards and Technology released the draft Framework for Cyber-Physical Systems on September 18. The Framework is intended to serve as a common blueprint for the development of safe, secure, and interoperable systems as varied as smart energy grids, wearable devices, and connected cars. The NIST Cyber-Physical Systems Public Working Group developed the draft document over the past year with input from several hundred experts from industry, academia, and government. NIST will be accepting public comment on the draft for the next 45 days.
This article is not about morality but about an urgently-needed change in behaviour. For real and for good. The much talked-about saga involving the theft and subsequent publication of customer data from extramarital affairs website Ashley Madison, has sparked many debates. Opinions have ranged from those who see this as a just punishment for the organised cheating industry to those who have ranked this hack as the most serious privacy violation since the invention of the Internet. The degree of sympathy for the victims has also been variable, but what appears to be a constant theme is the perception that this incident will have more dramatic consequences than any other cyber-attacks we have seen.