Data Privacy

Guidance on Direct Marketing Issued by the German Data Protection Supervisory Authorities

In November, the German Data Protection Conference (committee of the independent German federal and state data protection supervisory authorities) (“DSK”) published a guidance on the processing of personal data for direct marketing purposes under the GDPR. This guidance finally brings some light into the darkness of marketing under the GDPR. READ MORE

California Sets the Standard With a New IoT Law

This past September Governor Brown signed into law Senate Bill 327, which is the first state law designed to regulate the security features of Internet of Things (IoT) devices. The bill sets minimum security requirements for connected device manufacturers, and provides for enforcement by the California Attorney General. The law will come into effect on January 1, 2020, provided that the state legislature passes Assembly Bill 1906, which is identical to Senate Bill 327. READ MORE

Making Your Head Spin: “Clean Up” Bill Amends the California Consumer Privacy Act, Delaying Enforcement But Making Class Litigation Even MORE Likely

The California Consumer Privacy Act of 2018 (the “CCPA” or the “Act”), which we reported on here and here continues to make headlines as the California legislature fast-tracked a “clean up” bill to amend the CCPA before the end of the 2018 legislative session. In a flurry of legislative activity, the amendment bill (“SB 1121” or the “Amendment”) was revised at least twice in the last week prior to its passage late in the evening on August 31, just hours before the legislative session came to a close. The Amendment now awaits the governor’s signature.

Although many were hoping for substantial clarification on many of the Act’s provisions, the Amendment focuses primarily on cleaning up the text of the hastily-passed CCPA, and falls far short of addressing many of the more substantive questions raised by companies and industry advocates as to the Act’s applicability and implementation. READ MORE

Did California Open (Another) Floodgate for Breach Litigation?

Game-changing Calif. Consumer Privacy Act of 2018 puts statutory breach damages on the table

The recently-enacted California Consumer Privacy Act of 2018 is a game-changer in a number of respects.  The Act imports European GDPR-style rights around data ownership, transparency, and control.  It also contains features that are new to the American privacy landscape, including “pay-for-privacy” (i.e., financial incentives for the collection, sale, and even deletion of personal information) and “anti-discrimination” (i.e., prohibition of different pricing or service-levels to consumers who exercise privacy rights, unless such differentials are “reasonably related to the value provided to the consumer of the consumer’s data”).  Privacy teams will be hard at work assessing and implementing compliance in advance of the January 1, 2020 effective date. READ MORE

Understanding Calif.’s Game-Changing Data Protection Law: The California Consumer Privacy Act of 2018

Orrick partners Emily TabatabaiTony Kim and Jennifer Martin authored this article for Corporate Counsel on the sweeping implications for businesses of California’s newly-enacted privacy law. Members of our global Cybersecurity, Privacy and Data Innovation Practice, Emily, Tony and Jennifer outline the reasons the new law will have “a significant impact on core business operations.”

FTC Staff Issues Comments Discussing Key Security and Privacy Issues Surrounding Connected and Automated Vehicles

Given the explosive growth in the connectivity of every day “things,” several government agencies are focused on how best to support innovation and the benefits of an increasingly connected, data driven society, while weighing options for mitigating the cybersecurity and privacy risks relating to the Internet of Things.[1]  The pace of development with respect to connected cars and autonomous vehicles has drawn particular attention.   READ MORE

European Court Restricts Employer Access to Employee’s Private Communications

(Editors’ note: Thanks to Orrick trainee associate, Arne Senger, for his help with this blog post.)

With its recent ruling in Bărbulescu v. Romania (application no. 61496/08), the Grand Chamber of the European Court of Human Rights (ECHR) made a decision of enormous impact for employers in Europe. The decision makes clear that even when private use of business resources is prohibited, employers do not have unlimited access to all communications that occur on corporate systems.

Companies should carefully review their policies to ensure that they can access their corporate IT equipment, at least to the extent permitted by European data privacy law. READ MORE

Orrick Launches Automated GDPR Readiness Tool for Companies

Today, Orrick announced the launch of our automated General Data Protection Regulation (GDPR) Readiness Assessment Tool, which makes the EU’s new, complex, data privacy law, the GDPR, more accessible. The free tool is available to all organizations and allows businesses to stress test their compliance against the upcoming GDPR. It segments the GDPR into 14 workable themes and guides the user through a series of dynamic questions relating to each theme. Upon completion of the assessment, the tool provides a complimentary tailored report summarizing the likely key impacts of the GDPR for an organization. READ MORE

Five Coverage Tips from Recent E-mail Scam Insurance Decisions

The number of decisions considering claims for insurance coverage resulting from Business Email Compromise (“BEC”) scams has been increasing, providing policyholders with some hope, and some clarity, in this muddy area.  (Here and here).

Policyholders got a recent win when a federal court in New York found in Medidata Solutions, Inc. that a data-services provider’s commercial crime policy covered an almost $5 million loss suffered as a result of a BEC scam.  The Court in Medidata found coverage under the insured’s computer fraud and funds transfer rider, reasoning that “fraudulent access to a computer system” extends to email spoofing.  Parting company with the Fifth Circuit in Apache , the Court in Medidata recognized that such spoofing can be a legal cause of the insured’s loss.  And even though an authorized employee willingly initiated the transfer, the funds were not transferred with Medidata’s “knowledge or consent.”

Despite recent wins, there remains enough uncertainty in the coverage landscape (here and here) that we suspect insurers will continue their full-on fight against coverage for these losses.  To help policyholders prepare for battle, here are five things you can do NOW to maximize insurance coverage for losses from a BEC scam. READ MORE

Insurance Coverage Dispute Over Fraudulent E-mail Scam Heard by Ninth Circuit

Data Privacy Word Cloud Insurance Coverage Dispute Over Fraudulent E-mail Scam Heard by Ninth Circuit

Insurers’ recalcitrance to providing coverage for the “Business E-mail Compromise” (BEC) scam is a topic we’ve frequently discussed. On Monday, the Ninth Circuit heard oral argument in a BEC coverage action, Taylor & Lieberman v. Federal Insurance Company.

The fraudster in that case sent spoofed e-mails in 2012 to an accounting firm purporting to be from one of the firm’s clients. At the “client’s” request, the accounting firm executed two wire transfers from the client’s bank account, over which the firm had power of attorney, in amounts just under $100,000 each to banks in Malaysia and Singapore. The firm finally detected the scheme when it called the client for confirmation after receiving a third e-mail requesting another transfer of $128,000 to Malaysia. The accounting firm was able to recover most of the first wire transfer but nothing from the second, resulting in a $100,000 loss to the client’s account, which the firm restored.

READ MORE