Despite its unassuming name, the EARN IT Act has substantial cybersecurity implications, its relative obscurity in today’s coronavirus-obsessed headlines notwithstanding. The Eliminating Abusive and Rampant Neglect of Interactive Technologies (“EARN IT”) Act has already caught the ire of the collective internet and technology spheres due to its dramatic alteration of the safe harbor provisions of Section 230 of the Communications Decency Act (Title V of the Telecommunications Act Of 1996). Although still in the early stages of the legislative process, curbing Section 230’s protections has already garnered substantial support from leaders in both parties, including Joe Biden and Ted Cruz. Therefore, EARN IT’s progress merits close monitoring.
Continue Reading Putting in the Work: What Does the EARN IT Act Have in Store for Average Businesses

Recently, we cautioned companies to ensure that their workers’ mobile phones remain secure. On April 23, news about a possible security vulnerability in Apple’s iPhone mail system lends this recommendation additional urgency.

ZecOps, a San Francisco-based mobile security firm, claims to have discovered a hack targeting iPhones’ native email program. This hack is called a “zero click” attack, because unlike a typical “phishing” exploit, which requires the victim to click on a link in an email or text message, a “zero click” exploit can execute without the victim’s action or knowledge. According to ZecOps, the vulnerability enables an attacker to remotely infect a device by sending emails that consume a significant amount of memory. The attackers can trigger the vulnerability before the entire email is downloaded, so the email content will not necessarily remain on the device. In other words, the perpetrators can send an email containing malicious code, and that code can then set off a chain reaction, or an “exploit chain” that overcomes the phone’s defenses and erases its tracks along the way. Such an attack can be nearly impossible to detect.
Continue Reading iPhone Hack Highlights Home Office Data Security Risks

The California Consumer Protection Act (“CCPA”) was in effect for just over three months when the American economy stopped cold in the face of the COVID-19 global pandemic. Much effort was expended in the months before the January 1, 2020 effective date to ensure compliance with the CCPA which, like its European cousin, the General Data Protection Regulation (“GDPR”) aspires to protect data and personal information. But also like the GDPR, many anticipated enforcement by the California attorney general (scheduled to begin on July 1, 2020) to provide guidance on how the CCPA would be interpreted and applied. Then the world came to a halt. Literally. Notwithstanding, as discussed in our earlier post, the California Attorney General has signaled that businesses subject to the CCPA should not expect any delays in enforcement. To be clear, privacy concerns did not cease to exist because of the pandemic. These concerns simply took a back seat as the world focused on defeating the virus. But privacy rights may be moving to the forefront again with the advent of COVID-19 tracking applications under consideration by governments seeking to use this technology to contain the spread of the virus. Most recently, on April 10, 2020, Google and Apple announced a joint endeavor to use Bluetooth technology in conjunction with apps from public health authorities to allow contact tracing of those individuals affected with COVID-19. The system is supposed to ensure users’ privacy and operate only with valid consent. See also our recent blog post on Locating COVID-19 Without the Location Data. Although tracking technology is not new–other iterations were used to track other diseases such as the seasonal flu–its use here would be one of the first to be used in the CCPA era. And arguably, the need to comply with the CCPA–passed by referendum in one state–has affected the usefulness of contact tracing solutions in every state. The Apple-Google solution, for example, covers the vast majority of mobile devices and is likely to be the only solution agreed upon by these two companies. It skirts the need to handle geolocation data, reducing the regulatory footprint under the CCPA, but the very lack of geolocation data degrades the usefulness of this system to local governments for finding and locking down hotspots–and to users in avoiding them. Few, if any, privacy professionals envisioned that preparation for CCPA compliance needed to include protocols for responding to governmental requests for data in combatting a public health crisis. But here we are.
Continue Reading Will COVID-19 Finally Prompt a Federal Privacy Law?

Recently, Apple and Google – two of the world’s biggest tech firms–jointly devised a system of contact tracing for COVID-19. This contact tracing does not involve analyzing centralized data stores of personal data. Rather, it leverages a proximity technology most often seen in retail stores and shopping centers plus a peer-to-peer (P2P) communications concept that parallels methods explored for connected vehicles. The Apple-Google design is a fascinating departure from the conventional model of central collection and processing of personal data.

Coincidence… or Bluetooth?

You may have encountered mobile applications that have asked for Bluetooth access. Or you may have received what seems like a strangely coincidental promotional email as you have walked through the door of a store. This is not a coincidence; retailers frequently use Bluetooth, among other methods, to determine where a customer is standing in a store and to trigger promotions. This is not regulated in most of the United States. We normally think of Bluetooth as a way that a “master” device (a computer, car, or audio source, typically) can communicate with an “accessory” such as keyboards, mice, headphones, hands-free sets, etc. As most users encounter the technology, it is a matter of “pairing” one device with another. But Bluetooth can run under numerous profiles that transmit a variety of data types. GPS-free location tracking was largely enabled by Bluetooth LE, which allows the radio technology to run on a mobile device without creating an excessive battery drain. This eliminated a major inconvenience of prior versions of Bluetooth, and the practical effect is that it can remain “on” all the time. Many implementations of Bluetooth 4.0/LE allow range-finding between a transmitter and receiver. A store, for example, can determine where a customer is standing by measuring the distances from the visitor’s phone to sensors in the store.
Continue Reading Locating COVID-19 Without the Location Data

Most companies that can do so have sent their employees home to work, which means that many employees have brought their home to work. Businesses have transitioned from maintaining a centralized workplace with a standardized data security protocol managed by knowledgeable IT personnel to a decentralized system of home offices with uneven or unenforced data security policies, largely managed by end users with minimal or no technological expertise.

Consequently, companies have been forced to introduce into their system the very vulnerabilities that they normally spend substantial time and money trying to eliminate. These vulnerabilities present a compliance issue for companies legally required to keep certain information confidential–such as health providers, law firms, or defense contractors–and for those otherwise subject to regulatory oversight. A confidentiality breach therefore presents a legal risk as well as a business risk, so companies must address squarely the data security implications of a home-based workforce.
Continue Reading Working From Home Data Security Tips, Part 2

The Federal Trade Commission (FTC) has released its annual Privacy and Data Security Update, which highlights the FTC’s activities during the past year. The FTC, the U.S. agency tasked with a unique dual mission to protect consumers and promote competition, detailed its record year for enforcement actions aimed at protecting consumer privacy and data security.

The FTC’s primary enforcement authority comes from Section 5 of the Federal Trade Commission Act, which prohibits unfair or deceptive practices in the marketplace. The FTC also has authority to enforce a variety of industry-specific laws, including the Gramm-Leach-Bliley Act, the Truth in Lending Act, the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act, the Children’s Online Privacy Protection Act (COPPA), the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, and the Telemarketing and Consumer Fraud and Abuse Prevention Act. The FTC has used its authority to address a wide range of practices affecting consumers, including those that come with the development of new technologies and business models.
Continue Reading FTC Releases Annual Privacy and Data Security Update

The videoconference platform Zoom has seen a surge in users since the coronavirus pandemic. Teleworkers are relying increasingly on Zoom for virtual meetings, and as a HIPAA-compliant videoconferencing program, Zoom for Healthcare has gained popularity among healthcare providers in particular. New York’s Attorney General has asked Zoom to explain its privacy policies, and additional scrutiny is likely to follow.

Hackers have noticed. Since the beginning of the year, reports show 1,700 registrations including the word “Zoom,” with 4 percent containing suspicious characteristics. A click on a fake Zoom invitation could install InstallCorePUA, which opens the door to malicious software installations.
Continue Reading Working From Home Data Security Risks

Telehealth

On March 17, 2020, OCR issued guidance indicating that it would exercise enforcement discretion and waive penalties for entities that provide services to individuals using “everyday communication technologies.”

On March 20, 2020, OCR provided additional more detailed guidance on telehealth services applicable to all health care providers  covered by HIPAA who provide telehealth services during the COVID -19 public health emergency.

OCR defines “telehealth” as “the use of electronic information and telecommunications technologies to support and promote long-distance clinical health care, patient and professional health-related education, and public health and health administration” (relying on the definition used by the Health Resources and Service Administration of DHHS). Telehealth may be provided through audio, text messaging, or video conferencing. This guidance does not apply to other covered entities, such as insurance companies, that may pay for telehealth services.
Continue Reading OCR Guidance During the COVID-19 Public Health Emergency

Last week, a coalition of over sixty trade associations and businesses representing almost every business sector authored a joint letter to the California Attorney General requesting that the Attorney General defer enforcement of the CCPA in light of the COVID-19 pandemic.  Although the CCPA has been in effect since January 1, 2020, the Attorney General is not set to commence enforcement actions under CCPA until July 1, 2020.  The basis for the request to defer enforcement of the CCPA centered on two grounds: (1) the significant challenges associated with implementing compliance with a new law when the majority of businesses are either closed or operating remotely and (2) the lack of final regulations providing critical guidance about interpreting the CCPA from the Attorney General.
Continue Reading CCPA: July 1, 2020 Attorney General Enforcement Start Date Looms Despite COVID-19

Coverage litigation relating to liability claims arising out of the Illinois Biometric Information Privacy Act (“BIPA”) has been relatively non-existent. One reason for this may be insurers’ reasonable conclusion that an exclusion introduced in 2006 in response to litigation arising under the Telephone Consumer Protection Act (“TCPA”) applies to this new genre of privacy litigation. That exclusion, generically referred as the Violation of Statutes Exclusion, was the insurance industry response to decisions from around the country finding that TCPA violations qualified as “personal injury” under liability policies. The exclusion evolved over time and now includes a catch-all provision that applies to violations of federal or state statutes or ordinances or regulations other than the enumerated statutes referenced in the exclusion—the TCPA, the CAN-SPAM Act of 2003 and the Fair Credit Reporting Act (“FCRA”). The Illinois court’s opinion in Westbend Mutual Insurance Ins. Co. v. Krishna Schaumburg Tan, Inc., 2020 Ill.App.(1st) 191384, is an example of how important the wording of that catch-all provision is for insurers seeking to rely on it to exclude coverage for BIPA violations.
Continue Reading Not All Violation of Statutes Exclusions Are Created Equal