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Over the last several weeks, while Americans have grown accustomed to working from home, home schooling, and life in lockdown during the COVID-19 pandemic, the Zoom videoconferencing service has surged in popularity for every imaginable form of gathering, professional and personal. Zoom has become the service of choice – from team meetings to kids’ story times; from religious services to happy hours; from corporate onboarding to every manner of more “intimate” get-togethers for individuals who are following government-mandated social distancing guidelines.

The media and then, in quick succession, regulators, plaintiffs’ lawyers, and even Congress, began to scrutinize, publicize, and take legal action with respect to what were perceived as privacy or data security flaws from the latest technology darling. The result is a still-evolving case study in the classic reactionary American response to privacy and data security concerns, a phenomenon we have seen again and again in this practice space.

What sins has Zoom actually committed? Are they really so “shocking” from a privacy and data security perspective? In violation of law? Just not best practice? Creepy? And has Zoom’s iterative response served as a wet blanket or fuel for the inferno?

In this post, I explore the who, what, why, when, and how of this, at least as much as we can say as we sit here today. And because I am a hopeless nerd, I have chosen the format required by California’s data breach notification law, California Civil Code § 1798.82(d)(1), as the very best way to tell this story. We are going to use this blog post as a jumping off point for a free live and recorded roundtable discussion webinar (using WebEx [insert winking emoji here]) on April 14, 2020, at 12:30 pm Eastern/9:30 am Pacific. You can register here. Continue Reading A Big Zooming Mess: A Cautionary Tale

By Nicole Hyland and James Mariani

Every day, clients entrust their lawyers with confidential information.  Whether in a matrimonial dispute, high-stakes corporate acquisition, commercial litigation, criminal defense matter, or any other sensitive legal issue, clients rely on their lawyers to safeguard information that could be detrimental or embarrassing to the client if disclosed.  A lawyer’s ethical obligation to protect such confidential information is embodied in Rule 1.6 of the Rules of Professional Conduct (“RPCs”), which states in relevant part that “a lawyer shall not knowingly reveal confidential information.” The duty of confidentiality is not limited, however, to intentional disclosures.  Rule 1.6(c) also requires a lawyer to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure or use of, or unauthorized access to” confidential information. Continue Reading Once More Unto the Breach: A Timely Lawsuit Raises Questions About the Duty to Notify Clients of a Data Breach

Over the past several weeks, the California Attorney General (“AG”) published revisions to its proposed regulations implementing the CCPA (the “Modified Regulations”), and then further revised the Modified Regulations (“Version 2”).  Despite earlier warnings to the business community that AG’s initial draft of Regulations would not materially change, we’ve now seen it happen twice.  The full redlines of both the Modified Regulations and Version 2 are available here. This article highlights what’s new, what remains the same, what we expect to have the biggest impact on businesses working toward compliance, and the lack of predictability of next moves given the growing global health crisis.   Continue Reading CCPA Update: Oops, the CA AG Did It Again

Welcome to 2020. The California Consumer Privacy Act (“CCPA”) is now in effect, and your business has probably spent significant time and expense preparing for the law. With so much focus on CCPA preparations, it’s important to recall that the CCPA isn’t the only California privacy law to become effective this year. California will now also require any business that meets the definition of a data broker during a given year to register as a data broker with the California Attorney General’s Office on or before January 31st of the following year. Although the law is not clear whether it retroactively applies to business practices in 2019, the California Office of the Attorney General has issued a press statement on data broker registration and posted a registration page, which strongly indicates that the AG expects qualifying businesses to register by January 31, 2020.

Continue Reading Data Broker Registration for California is Live

On Thursday, October 10, 2019, only 83 days before the California Consumer Privacy Act (“CCPA”) was set to become effective, California Attorney General Xavier Becerra held a press conference, with no prior notice, and issued his long awaited proposed regulations (the “Regulations”). The hope had been that the Regulations would provide much needed guidance to businesses of all sizes and in all industries as to how to implement a law that was hastily passed in a week’s time in 2018. Instead, while the Regulations provide some clarity around the mechanisms that organizations may use to verify and respond to the various consumer requests allowed by the law, the Regulations also add even more ambiguity to a number of requirements. Even more concerning, the Regulations add some new requirements and deadlines that do not exist in the statute itself.

The Regulations include 24 pages of legalese. Every privacy lawyer I know – and I know the best and the brightest – is struggling to interpret these Regulations and what they really mean. That does not bode well for businesses who (1) are trying to run businesses and not become privacy experts; and (2) cannot afford experienced privacy counsel. And that, in turn, does not help California consumers. As I have said many times before, California can do better. I call again on all California businesses of any size, and in every industry, to submit comments to the Attorney General to let the AG know the impact on your business and the California economy. Comments are due on or before December 6.  There will also be hearings around the state December 2-5. Let’s show up and be heard.

With that, we give you a summary of the Regulations. I would say enjoy, but I know better.

Continue Reading The California AG’s Proposed CCPA Regulations are Live, but Not Ready for Prime Time

On July 24, 2019, the FTC announced a $5 billion settlement with Facebook to address Facebook’s alleged violations of the FTC Act and its 2012 consent order with the FTC. The settlement comes as no surprise to the privacy community – Facebook has been closely scrutinized by the public and regulators since the Cambridge Analytica data incident in March 2018 and indicated to investors earlier this year that it anticipated a fine from the FTC between $3 and $5 billion.

We have read the complaint, settlement, and press releases issued by the FTC and Facebook, and provide our thoughts below on what it means for business: Continue Reading Business Takeaways from the FTC $5 Billion Settlement with Facebook

Trend Micro, a cybersecurity solutions provider, recently reported that it blocked ~5 million hacking attempts of IP-connected cameras in just the last 5 months. This means that a hell of a lot of people are trying to hack into Internet-connected cameras. But why?

Continue Reading Watching Me, Watching You—IoT Camera Hacks Surge

An Internet advertising agency that specializes in lead generation for law firms failed to properly secure databases that included the records of about 150,000 individuals. The ad agency, X Social Media, utilizes campaigns on Facebook that target potential plaintiffs for personal injury cases, medical malpractice lawsuits, and mass tort claims. Since the Facebook ads that X Social Media uses to generate these leads are designed to collect and store medical information along with contact details, the database records themselves likely trigger many state breach notification statutes that list “medical information” as “personally identifiable information” — including California’s.

Continue Reading Just Ahead of CCPA, Ad Agency Fails to Secure Leads Data