Privacy-Class-Action-Plaintiffs' Emerging Litigation Strategy Avoids Arbitration

Privacy-Class-Action-Plaintiffs' Emerging Litigation Strategy Avoids Arbitration

By Zuzana S. Ikels 

On September 5, 2017, the Ninth Circuit Court of Appeals reversed a district court’s decision granting Turn Inc.’s motion to compel arbitration of a putative, privacy class action related to targeted adverting efforts on mobile devices.

In Re Anthony Henson and William Cintron v. Turn, Inc. was filed in the Northern District of California by two Verizon cellular and data subscribers against Turn. The case reflects a notable pivot in strategy in data privacy litigation. Data privacy cases have, previously, been directed at the webpage/content-providers or telecommunication providers that shared or processed users’ online activities. The plaintiffs in Henson did not sue Verizon or the webpages; instead, they sued the technology companies that enable the targeting.

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The Potential of “Elastic Sensitivity” to Protect Privacy in Big Data Analytics

The Potential of “Elastic Sensitivity” to Protect Privacy in Big Data Analytics

By Zuzana S. Ikels

Three University of California-Berkeley researchers have written a paper discussing the first “practical approach for differential privacy.” This new method, referred to as “Elastic Sensitivity,” excludes the components of tables in large data sets and big data databases that contain individual information from the other data before running the query. 

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Congressional Task Force Issues Report on Cybersecurity in the Health Care Industry

Congressional Task Force Issues Report on Cybersecurity in the Health Care Industry

By Zuzaka S. Ikels

In June 2017, the Health Care Industry Cybersecurity Task Force issued its Report on Improving Cybersecurity in the Health Care Industry. To view the report, click here.

The task force was created by Congress as part of the Cybersecurity Act of 2015, and is comprised of subject matter experts from the public and private sector that evaluated the cybersecurity threats, the security of IT systems, and the regulations and laws that relate to the health care industry. In the Report, the task force discusses the evolution and transition from paper to electronic healthcare records (“EHR”), and tailors the recommendations to encourage opportunities for efficiencies, research and sharing of information, while responding to the increasing threat of cybersecurity breaches to the health care providers’ technical infrastructure.

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Largest Electoral Data Breach Exposes Personal Data of Nearly 200 Million U.S. Citizens

Largest Electoral Data Breach Exposes Personal Data of Nearly 200 Million U.S. Citizens

By Amanda J. Katzenstein

In what is being described as the largest breach of U.S. electoral data, personal data relating to almost 200 million U.S. citizens was accidentally exposed by a Republican National Committee vendor. According to BBC, the 1.1 terabytes of data exposed “includes birthdates, home addresses, telephone numbers and political views of nearly 62% of the entire US population.” 

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AlphaGo Beats The World’s Top Go Player

AlphaGo Beats The World’s Top Go Player

By Zuzana S. Ikels

Google/Alphabet’s new and improved artificial intelligence program, AlphaGo, just beat the best human player of the game Go as reported by Wired. Go was invented in China thousands of years ago, and it is considered the most complicated game in the world. AlphaGo is the newest version of Alphabet’s artificial intelligence program. According to Google’s DeepMind Lab, AlphaGo was completely redesigned and reconfigured so that the AI system would learn the game from playing the game against itself, as well as analyze the data of wins and losses by humans.

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The Power of a Transparent and Broad Privacy Policy

The Power of a Transparent and Broad Privacy Policy

By Zuzana Ikels and Erin Fleming Dunlap

The enforceability of privacy policies and consumer consent as to targeted advertisements related to medical or healthcare conditions is a hot button topic in the law and business. In Smith v. Facebook et al (filed in March 2016), plaintiffs sought to test the boundaries. In a surprising result, and after a year of briefing and oral argument, Judge Edward Davila of the Northern District of California issued his order a few days ago.  In a surprising twist, the Court dismissed the entire complaint without leave to amend. Polsinelli attorneys Zuzana S. Ikels and Erin Dunlap provided analysis and recommendations regarding the power of a transparent and broad privacy policy in an article published by Law360

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Texas Health System To Pay $2.4 M To Settle Potential HIPAA Violations For Disclosing Patient’s Protected Health Information to the Media and Public Officials

Texas Health System To Pay $2.4 M To Settle Potential HIPAA Violations For Disclosing Patient’s Protected Health Information to the Media and Public Officials

By Jean Marie R. Pechette and Thomas Kiser

The U.S. Department of Health and Human Services (“HHS”), Office of Civil Rights (“OCR”) issued a May 10, 2017 press release stating that Memorial Herman Health System, a Texas-based not-for-profit health system (“MHHS”), agreed to pay $2.4M and enter into a two- year corrective action plan (“CAP”) to settle potential HIPAA violations for alleged disclosure of protected health information (“PHI”) without the patient’s authorization. The CAP requires MMHS, among other things, to submit an implementation report and an annual report to HHS on MHHS’ compliance with the CAP.

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Massive Global Ransomware Attack

Massive Global Ransomware Attack

By JJ Bollozos

A cybersecurity attack of global proportions...

As of this afternoon, cybersecurity company Avast reported a ransomware attack, known as WanaCrypt0r 2.0, has been detected over 57,000 times across 99 countries. Of note, the attack has allegedly infected a large telecommunications company in Spain, hospitals across England, and a shipping company based in the U.S., as well as other companies throughout the world. According to the New York Times, the ransomware was included in a compressed file sent via email that would infect a victim’s device once it was opened. 

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Faxing Without Opt-Out Leads to $1.35M Payment to Get Out of TCPA Class Action

Faxing Without Opt-Out Leads to $1.35M Payment to Get Out of TCPA Class Action

By Amanda J. Katzenstein, Jean Marie R. Pechette, and Jarno J. Vanto

Florida-based radiology provider, SRA Ventures, and two units of Canada-based cardiology and imaging service provider, KMH Labs, have agreed to pay Medical & Chiropractic Clinic Inc. $1.35 million to settle a proposed class action lawsuit after the providers faxed nearly 5,600 advertisements that did not contain necessary opt-out language, allegedly in violation of the Telephone Consumer Protection Act (“TCPA”), as amended by the Junk Fax Prevention Act of 2005 (“JFPA”), and FCC regulations.

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1 Million Google Users Hit with Fake Google Docs Phishing Attack

1 Million Google Users Hit with Fake Google Docs Phishing Attack

By Joseph D. McClendon

A new phishing attack is making the rounds through email, this time using a fake Google Docs app to trick you into granting permissions to your real Google account. The attack starts by sending you an invitation to view a document in what appears to be Google Docs. Clicking on the link takes you to a fake Google login screen, which logs you into a third party web app that’s been named “Google Docs.” Next, you are instructed to give permissions to the web app to access your email and contacts list. Once the malicious web app has access to your account, the attack spreads by sending more phishing emails from “you” to your contact list. 

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$2.5M HIPAA Settlement against CardioNet is the First Involving a Wireless Health Services Provider

$2.5M HIPAA Settlement against CardioNet is the First Involving a Wireless Health Services Provider

By Jean Marie R. Pechette

The U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR), announced on April 24, 2017, a $2.5 Million settlement under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), with CardioNet, Inc., based on its alleged impermissible disclosure of unsecured electronic protected health information (ePHI). CardioNet provides remote mobile monitoring of and rapid response to patients at risk for cardiac arrhythmias.  

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Patients File Class Action Against MDLive Inc. Claiming it Wrongfully Collects and Shares Sensitive Health Information

Patients File Class Action Against MDLive Inc. Claiming it Wrongfully Collects and Shares Sensitive Health Information

By Jean Marie R. Pechette, Jarno J. Vanto, and Clif Ruch

A class action suit filed in the U.S. District Court of the Southern District of Florida has accused national telehealth provider and mobile application developer MDLive of designing the MDLive App that secretly captures patients’ sensitive health information and unbeknownst to the patients, transmits their health information to an off-shore third party tech company. The suit also alleges that contrary to MdLive’s representation that it respects and takes patient privacy “very seriously,” MDLive fails to restrict access to a patient’s health information only to the patient’s healthcare provider but instead grants broad access to its employees (including software developers), agents and third parties. The suit also alleges that MDLive breached its contract with the patients by failing to implement adequate security measures to ensure that access to their health information was appropriately restricted (such as through the use of encryption). 

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Privacy Policies Expose Companies to Law Suits: Bose Hit by a Class-Action Law Suit

Privacy Policies Expose Companies to Law Suits: Bose Hit by a Class-Action Law Suit

By Jarno J. Vanto, Amanda J. Katzenstein, and Jean Marie R. Pechette

Bose has been slapped with a class-action lawsuit accusing the company of essentially spying on their wireless headphone customers by secretly collecting and transmitting the users’ private music and other audio selections to third parties without disclosure and user consent. 

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Swiss-U.S. Privacy Shield Opens for Self-Certifications

Swiss-U.S. Privacy Shield Opens for Self-Certifications

By Amanda J. Katzenstein

On April 12, 2017, the Department of Commerce will begin accepting self-certifications to the Swiss-U.S. Privacy Shield. The Swiss-U.S. Privacy Shield was approved to be an adequate legal mechanism for compliance with Swiss requirements to transfer personal data from Switzerland to the United States after the Swiss-U.S. Safe Harbor was declared invalid following the Schrems decision on October 6, 2015. 

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Senate Votes to Repeal FCC Privacy Rule Governing ISP Providers

Senate Votes to Repeal FCC Privacy Rule Governing ISP Providers

By Zuzana S. Ikels

In a vote of 50 to 48, along party lines, the Senate voted to overturn the privacy rules governing ISP providers that were issued in October 2016 by the Federal Communications Commission (FCC). Click here to view the FCC Privacy Rules. The FCC Privacy Rules required ISP and broadband providers to obtain an individual’s consent and authorization – through an “opt-in” mechanism – before a provider could collect, use, share or sell the customer’s information to third party marketers and companies. It also included data security and data breach notification recommendations and requirements. The FCC also imposed a blanket prohibition on ISP providers that offered “take-it-or-leave-it” broadband services contingent on pre-authorization. 

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New Guidance This Week from FTC on Best Practices Against Phishing

New Guidance This Week from FTC on Best Practices Against Phishing

By Zuzana S. Ikels

On March 6, 2017, the Federal Trade Commission (FTC) issued new guidelines for businesses as to how to deter and reduce the risk of phishing attacks. The recommendations should be shared and discussed with your company’s Information Technology (IT) department to make sure that the email servers and systems have the requisite safeguards. Compliance with these standards will reduce risk and is one way of showing that the company is making a prudent and reasonable effort to protect personal information. 

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‘Tis The Season…For Dangerous W-2 Phishing Scams

‘Tis The Season…For Dangerous W-2 Phishing Scams

By Daniel L. Farris

For each of the last few years, February and March have seen a sharp increase in the frequency and volume of W-2-related phishing scams. According to a recent IRS Notice, 2017 is no different, except perhaps that the threat is evolving.  

Traditionally, the W-2 scam works like this: 

Cyber criminals use social engineering to identify certain key Human Resources (HR) and/or accounting personnel within a company. Targeting those HR and/or accounting employees, the cyber criminals send emails with a “spoofed” sender address. The emails appear to come from the company’s CEO or other executive, and they generally claim that the CEO has an urgent need for Form W-2s for all employees in advance of a meeting the CEO has with the IRS.  Unsuspecting mid-level HR and accounting personnel send on the W-2s, and inadvertently cause a data breach. 

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FTC Shakeup May Shift Privacy & Data Security Enforcement – Focus on Actual Harm

FTC Shakeup May Shift Privacy & Data Security Enforcement – Focus on Actual Harm

By D. Rockwell Bower

A leadership change at the Federal Trade Commission (FTC) may spell relief for U.S. businesses grappling with the agency’s enforcement measures amidst an increasingly dangerous cybersecurity landscape. On January 25, 2017, President Donald Trump named Maureen Ohlhausen (currently a commissioner of the FTC) as acting chairman of the FTC. Ohlhausen has served at the agency in various capacities for more than a decade, and is now the lone Republican remaining on what will soon be a two-member commission, after former-Chair Edith Ramirez’s announced resignation. When Ramirez leaves the agency on February 10th, only Ohlhausen and Commissioner Terrell McSweeney (Democrat) will remain at the helm with three vacant commissioner seats for President Trump to appoint. 

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