Zombie PHR Breach Rule Rises From the Dead

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If an entity that offers a personal health record identifies a breach of information in that record, it is required to provide notice to each impacted individual and to the FTC within 60 calendar days of discovery.

Yesterday, the FTC issued a policy statement announcing a new interpretation of the FTC’s 10-year-old “Personal Health Record Breach Notification Rule.” As the FTC acknowledges, this rule has never been enforced by the FTC. The FTC’s announcement indicates its intention to begin enforcing this rule, which allows the FTC to assess penalties of $43,792 per day of violation.

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Colorado Privacy Act: The Patchwork of State Privacy Regimes Grows

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With Colorado Governor Jared Polis expected to sign the Colorado Privacy Act, SB-190 into law in the coming days, Colorado will join California and Virginia as the third state with a comprehensive data privacy law.1 The Colorado Privacy Act (“CPA”)—which passed with bipartisan support in both the Colorado House and Senate—is similar, but not identical, to the California and Virginia data privacy laws. Although its provisions will not take effect until July 1, 2023, the passage of the CPA grows the patchwork of state privacy regimes and may spur further calls for a uniform federal standard, as compliance for businesses becomes increasingly complicated.

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Faegre Drinker on Law and Technology Podcast: Privacy Issues and COVID-19

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Privacy issues and COVID-19: what do they mean to you and your business? In this episode of the Faegre Drinker on Law and Technology Podcast, host Jason G. Weiss talks with Faegre Drinker’s Reed Abrahamson about the pandemic’s impact on privacy and data security. They examine how organizations are working to balance obligations to simultaneously protect data and their employees’ well-being — along with the risks employers should consider when collecting COVID-related employee information.

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Disruptionware VI: Cyber-Attack against Colonial Pipeline Illustrates Continued Vulnerability of American Energy and Infrastructure Targets

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Disruptionware attacks have become increasingly more common over the last few months. Just last month, I wrote about a dangerous disruptionware attack against a Florida Water Treatment Center that could have been a mass casualty event. For more information on these types of attacks, please refer to our posts on different types of disruptionware attacks and how disruptionware attacks work.

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Second Circuit Addresses Critical Issue in Data Breach Class Actions: Article III Standing Based on Allegations of Future Misuse of Personal Data

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On April 26, 2021, the Second Circuit Court of Appeals decided the case of McMorris v. Carlos Lopez & Assocs., No. 19-4310, 2021 WL 1603808 (2d Cir. Apr. 26, 2021) and addressed one of the most critical issues in private data breach class actions – whether victims of a data breach can establish Article III standing by alleging they are at an increased risk of identity theft or fraud, even if their personal data has not yet been misused.

Although the district court’s ruling that plaintiffs did not establish standing was upheld, the Second Circuit found that victims of a data breach can establish standing based on a risk of future identity theft or fraud. The court also put forward a three-factor test to determine if standing exists when misuse of plaintiffs’ data has not yet occurred.

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