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Ilinois Federal Court Grants Neiman Marcus’ Motion

Standing-Icon-269431Once again, a court finds that data breach plaintiffs do not have the requisite Article III constitutional standing to pursue civil action against a retailer – itself the victim of a cyber attack. Last month, the United States District Court for the Northern District of Illinois, Eastern Division granted high-end retailer Neiman Marcus’ 12(b)(6) motion to dismiss a law suit arising out of a data breach the company suffered in 2013.

In Remijas v. Neiman Marcus Group, LLC, 2014 U.S. Dist. LEXIS 129574 (N.D. Ill. Sept. 16, 2014), Plaintiffs brought an action against Neiman Marcus for negligence, breach of implied contract, unjust enrichment, unfair and deceptive business practices, invasion of privacy, and violations of several state data breach acts.

In 2013, hackers breached Neiman Marcus’ computer network, resulting in the potential disclosure of 350,000 customers’ payment card data and personally identifiable information. Of the payment cards that may have been affected, it appeared that about 9,200 were subsequently used fraudulently elsewhere. Plaintiffs were among the 350,000 customers and alleged that Neiman Marcus failed to adequately protect customer data from breach, and failed to provide timely notice of the breach after it occurred.

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California Amends Data Breach Law

On September 30, 2014, California joined the trend and enacted amendments to its data security laws.

First, the new law expands its scope to third-party service providers and businesses that do not just “own or license personal information,” but merely “maintain” that data. Previously, the California statute mandating businesses to “implement and maintain reasonable security procedures and practices” only applied to businesses that “own or license personal information.”

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Congress Proposes Bill Protecting Student Data

While the protection of private data contained within student records is not a new concern, advances in technology and the accompanying headlines of data breach have caused Congress to reconsider the issue.

The Family Educational Rights and Privacy Act (FERPA) currently protects against the unauthorized disclosure of personally identifiable information (PII) contained within student records. PII includes direct identifying information, such as a student’s name, as well as indirect identifying information, such as date or place of birth.

The role computers and networks play in the operation of schools is profound. Like many industries, the issue of data storage for schools is a significant aspect of the information technology infrastructure. Increasingly, schools (mostly public enterprises) migrate and store data in the Cloud, thus placing PII in the hands of third party (mostly private) business associates. Schools also rely on on-line text books, on-line web applications, and software as a service. Much of this did not exist when President Ford signed FERPA into law in 1974. One survey showed only 25 percent of districts notify parents that its students’ data interfaces with the Cloud.

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Tangible Property Coverage: The Next Frontier in the Tech Insurance Market

In the beginning

The emergence of the Internet as a business platform at the end of the nineties also announced the arrival of new risks to organizations. In those early days, there was a widely held belief that the primary concern was In the beginning.

The emergence of the Internet as a business platform at the end of the nineties also announced the arrival of new risks to organizations. In those early days, there was a widely held belief that the primary concern was operational, amidst concerns about the impact of a computer virus or the actions of a “Hacker”, a new term to many of us then.

Despite the lack of actuarial data, a few underwriters in the US and London started to devise solutions to indemnify business interruption losses and the costs to restore compromised data. Commonly known as “Hacker Insurance”, we found few buyers beyond large US banks. Clients found the underwriting process both intrusive and expensive as insurers demanded onsite security audits.

On July 1st 2003 everything changed.

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Cyber at Lloyds: Catching the cyber horse in motion

The following article was written by my good friend Tony Ellwood. Tony is senior executive, underwriting, at Lloyd’s Market Association and a thought leader. We are grateful to Tony for allowing us to republish his article, which first appeared in the July 16th edition of Insurance Day.

Rick

LondonThe question of whether a running horse has all four hooves in the air simultaneously was one that perplexed generations. No matter just how closely a horse was observed, the motion of its legs was simply too rapid for the human eye to register accurately. It was not until the advent of photography and an experiment by Eadweard Muybridge in 1878 that the question was answered. He developed a camera that was triggered by wires attached to a horse’s legs allowing him to shoot 24 photographs as the horse ran past, which proved beyond a shadow of doubt that a horse does indeed lose contact completely with the ground in mid-gait.

There are many parallels between Muybridge’s study of the running horse and a new survey the Lloyd’s Market Association (LMA) has launched to understand the full extent of cyber risk being underwritten in the Lloyd’s market. The similarity is the sheer pace with which cyber liability has grown from its beginnings in the mid-1990s to current global premiums in the order of £1.5bn, and still rising sharply. The speed of that growth, combined with the rate at which cyber has evolved as a product, make it a particularly tricky line to pin down. What’s more, the question that has been formulating in the LMA’s collective mind is how much cyber liability is being written at Lloyd’s within other classes of business such as marine or aviation. This survey is the first attempt to comprehensively map that business.

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CA Court of Appeal: CMIA Is Not All-Inclusive

customLogo.gifIn its recent decision in Eisenhower Medical Center v. Superior Court, 226 Cal. App. 4th 430 (Cal. App. 4th Dist. 2014), the Court of Appeal of California, Fourth District, had occasion to consider whether a medical facility’s disclosure of information concerning a patient that does not contain the medical treatment or history of the patient violates California’s Confidentiality of Medical Information Act (“CMIA”) (Cal. Civ. Code § 1798.82), which requires notification to consumers when security systems are breached.

On March 11, 2011, a computer was stolen from Eisenhower Medical Center (“EMC”) that contained an index of over 500,000 persons to whom EMC had assigned a clerical record number.  The records dated back to the 1980’s.  The information on the index was limited to each person’s name, medical record number, age, date of birth, and the last four digits of the person’s Social Security number.  EMC subsequently advised the patients of the theft, and a number of those individuals filed suit.  The suit was styled as a putative class action and sought nominal damages of $1,000 for EMC’s alleged violations of the CMIA.  The plaintiffs also included a cause of action for violation of the Consumer Records Act (“CRA”).

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Court Certifies Interlocutory Appeal for the FTC v. Wyndham Matter

TRAUB LIEBERMAN STRAUS & SHREWSBERRY LLP’s Cyber Law Blog previously discussed various aspects of the Federal Trade Commission (“FTC”) action filed against Wyndham Worldwide Corp. (“Wyndham”) under Section 5 of the FTC Act, which prohibits “unfair and deceptive acts or practices.” Recent developments in the FTC action carry implications for cyber liability and how companies handle cyber security and data breaches.

On April 7, 2014, US District Judge Esther Salas denied Wyndham’s motion to dismiss directly challenging the FTC’s authority to regulate cyber security practices. Wyndham’s motion asserted that Congress had not delegated such authority to the FTC under its Section 5 powers, and even if it did, the FTC failed to publish rules or regulations providing companies fair notice of the protections expected and “legal standards” to be enforced by the FTC.

At the time, Judge Salas unequivocally ruled in favor of the FTC’s authority. However, on June 23, 2014, the Court granted Wyndham’s application and certified the matter for an immediate interlocutory appeal to the Third Circuit Court of Appeals.

The appeal involves two questions of law: (1) whether the FTC can bring an unfairness claim involving data security under Section 5 of the FTC Act and (2) whether the FTC must formally promulgate regulations before bringing its unfairness claim under Section 5 of the FTC Act.

Interlocutory appeals are rarely granted, are in the complete discretion of the trial court, and must meet certain requirements under 28 U.S.C. § 1292(b), including whether there is a substantial ground for difference of opinion on the matter. While Judge Salas’s denial of Wyndham’s motion to dismiss was certain as to the FTC’s Section 5 authority and the issue of fair notice, the Order certifying the matter for interlocutory appeal on the other hand, acknowledged Wyndham’s “statutory authority and fair-notice challenges confront this Court with novel, complex statutory interpretation issues that give rise to a substantial ground for difference of opinion.”

The Court further acknowledged that it was dealing with an issue of first impression with “nationwide significance… which indisputably affects consumers and businesses in a climate where we collectively struggle to maintain privacy while enjoying the benefits of the digital age.”
As a result, the Third Circuit will be the first major appellate court to weigh in on the issue of whether the FTC has authority to regulate cyber security practices, and if so whether those regulations require specific legal standards and fair notice to those within the scope of FTC’s enforcement.

- See more at: http://www.traublieberman.com/cyber-law/2014/0710/4801/#sthash.hgIolyzW.dpuf

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Cyber Liability Insurance: The Value of an Educated Broker in the Age of E-Commerce

I first published this article in 2010. Surprisingly, its as relevant today – perhaps even more relevant – than it was four years ago.

Rick

Introduction: Insurance Products for Cyber Risks

Media reports of cyber intrusions, data thefts and computer system malfunctions involving large, high-profile companies such as Sony PlayStation, Citigroup and Lockheed’s Security Vendor, RSA, have led a rapidly growing number of companies to consider the necessity of insurance coverage for technology and cyber privacy risks. As these businesses become more reliant on electronic communication and data storage, they are also developing a heightened awareness that an unauthorized intrusion could endanger their tangible and intangible assets (including their intellectual property) and, in many cases, their reputations and abilities to conduct business. Consequently, prospective policyholders are becoming more cognizant of the necessity for insurance covering these exposures.

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The Insurance Industry and ICANN: The Next Frontier

icann-flagsWe all take the Internet for granted.  Short of a power outage taking down phone lines, cell towers and satellite transmissions, the Internet will always be there. Like death and taxes, you can count on it.

Not that the paradigm will change any time soon, but at some point, it might.

On March 14 and 17, 2014, the Wall Street Journal reported on the decision by the National Telecommunications and Information Administration (“NTIA”), part of the Commerce Department, to cede control of the Internet from the Internet Corporation for Assigned Names and Numbers (“ICANN”) (a U.S. non-profit) to an organization of multinational stakeholders.

As readers of Cyberinquirer, know, ICANN is responsible for managing the core of the Internet by distributing domain names and Web addresses.  It’s been doing so since 1998.

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New York Court to Sony: No Personal Injury Coverage for You!

As many of us have been saying since the advent of cyber insurance coverage, cyber policies potentially cover privacy risks and exposures, not Commercial General Liability policies, be it under a property damage or a personal/advertising injury insuring agreement.  In other words, policyholders and their brokers would be mistaken if they deluded themselves into thinking that a standard base CGL policy’s personal injury/advertising injury coverage applies to a typical cyber breach where personally identifiable information is extracted.  Sadly, my good friend Scott Godes falls into this category.

On February 21, 2014, , Judge Jeffrey K. Oing, of the New York Supreme Court, Manhattan Commercial Division ratified this maxim by denying personal injury coverage to Sony for the 2011 breach and theft of personal information from its PS3 gaming platform, among other databases.  Zurich American Insurance Company v. Sony Corporation of America, Index No. 651982/2011 (N.Y. Supreme, filed 7/20/2011). See Complaint here.

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Cyber class-action litigation: Insurers’ next significant spend?

The following article was first published by my friends at Advisen for their new Cyber Risk Network. For those who haven’t already done so, check it out.

Rick

Virtually every reader is well aware of the decision from the US Court of Appeals for the First Circuit finding that claims by class-action plaintiffs for “mitigation damages” arising from a cyber breach were viable. Anderson v. Hannaford Brothers Co., 659 F.3d 151 (1st Cir. 2011).

There, the court held under Maine law that, in the abstract, certain claimants whose financial information was stolen could recover certain costs incurred in a reasonable effort to mitigate.

Hannaford Brothers is an extreme outlier in the world of cyber class-action litigation. And—as it should have in my view—the case effectively ended when the District Court, on remand, declined to certify the putative class in light of the claimants’ failure to establish that common issues of law and fact “predominate” over individual issues, a predicate to class certification.

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Risk Based Security’s 2013 Data Breach QuickView Report

The following was provided by my friend Jake Kouns of Risk Based Security, a leading-edge security and threat intelligence company. that provides comprehensive vulnerability and data breach intelligence services.   Thanks Jake.

Rick

Risk Based SecurityWe  are pleased to release our Data Breach Quick view report that shows 2013 broke the previous all-time record for the number of exposed records caused by reported data breach incidents.  The 2,164 incidents reported during 2013 exposed over 822 million records, nearly doubling the previous highest year on record (2011).

Although overshadowed by the number of exposed records, 2013 is also ranked #2 in total reported  data breach incidents, just behind 2012. “When you analyze the data breach activity in 2013 it’s hard to  find any bright-side, said Barry Kouns, CEO of Risk Based Security. “Four of the “Top 10” data breaches all time, were reported in 2013, including the top spot. “

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The Target Breach: Show Me The Insurance

The following article was first published by the Advisen Cyber Risk Network. If you haven’t checked it out, you should. Its extremely informative. And I’ll be a regular contributor.

Cheers.

Rick

By now, almost everyone has read or heard about – or even been directly impacted by – the theft of financial data relating to over 40 million credit and debit cards used at Target stores in November and December last year.

However, the insurance coverage aspects of the breach have generally flown under the radar.

To a company like Target (or whoever is affected by the next breach), the availability of insurance coverage is an important component of crisis management and remediation, litigation and regulatory investigation strategies, and reputational/brand/lost income protection.

So assuming Target has purchased potentially applicable insurance products, what coverages might apply?  And how might they respond?

At a minimum, it can be expected that Target will investigate the availability of coverage under four separate lines of insurance: Cyber, privacy and technology (CPT); general liability; crime/fidelity and; directors and officers liability policies.

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Snowden Affair Fuels the Conflict for Control of the Internet

The following article, written by my friend Vince Vitkowsky, originally appeared in Advisen Front Page News, Cyber Edition, on November 7, 2013. Vince is an attorney in private practice who specializes in litigation, arbitration, and matters at the intersection of insurance, cybersecurity, and public policy.  He can be reached at vvitkowsky@gmail.com.

Cheers.

Rick

20130711_internet10-1There is a serious conflict over future control of the Internet, as nations seek to influence its delivery mechanisms, protocols, economics, security, content, and governance.  Until now, key functions have been managed through a multi-stakeholder approach, using technical organizations such as the Internet Corporation for Assigned Names and Numbers (ICANN), with oversight conducted by the US.  But the last several years have seen a growing challenge to this system and the US role.  Now a tipping point may have been reached.  The public disclosures of the scope of the NSA surveillance programs have led to widespread international criticism, focusing and catalyzing the call for changes in Internet governance.  The Internet is the most dynamic engine for economic growth in the world today, as well as the vital mechanism for dissemination of ideas.  So the outcome of the conflict for control will have profoundly important commercial and political consequences.

Key developments.  The pressure for change came into sharp focus in Dubai in December 2012, at the World Conference on International Telecommunications (WCIT), which was held by the UN’s International Telecommunications Union (ITU).  There, the US struggled unsuccessfully against the movement for greater international control.  It urged that the current system, based around ICANN and other nongovernmental organizations, be preserved.  It made every possible effort to deny that regulation of any aspect the Internet was within the authority of the ITU.  But that view was repudiated by a majority of nations, and the WCIT ended in acrimonious collapse.

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Cyber Security and Data Breaches: Why Directors and Officers Should Be Concerned

Following is an excerpt from the leading chapter in Willis London’s Executive Risks: A Boardroom Guide 2012/2013. If you would like to read the entire chapter, please contact me at rbortnick@cpmy.com. A complete copy will be emailed upon request. Cheers. Rick

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Cyber insurance has become a necessity. Every company that maintains, houses or moves sensitive information is at risk of a data breach, primarily due to the growth and increased sophistication of hackers, malicious software and, most recently, ‘hacktavists’. Even mere employee negligence can lead to a data breach. High-profile companies such as Sony can attest that cyber-intrusions can lead to hundreds of millions, if not billions, of dollars in legal exposure.

Equally troublesome, our expanding online society has introduced new financial risks and exposures that may not be covered under general and professional liability insurance products, including standard directors’ and officers’ (D&O) policies. As such, corporate directors and officers, and their risk-management professionals, must ensure that they buy appropriately tailored policies that provide protection against the rapidly expanding risks to which they could be vulnerable, both personally and professionally.

The risks and costs of a data breach

It has become known as the Year of the Breach: in 2011, companies of all sizes experienced malicious intrusions or employee negligence that affected their operations and/or businesses. For example, in April 2011, computer hacktavists unlawfully accessed the Sony PlayStation Network (PSN) and obtained the personal and financial information of roughly 77 million PSN users. Since then, Sony and its insurers likely have spent tens, if not hundreds, of millions of dollars to remedy and mitigate the resulting security and commercial crises — an amount that grows by the day as lawyers prosecute class action lawsuits on behalf of allegedly affected users whose personal and financial information was improperly accessed.

Equally problematic for Sony, it has been sued by its commercial general liability (CGL) insurer, which sought to avoid coverage by arguing that its general liability policies do not and never were intended to cover data breaches.

The TJX Companies also fell victim to a cyber intrusion that security experts predict will have long-term costs of between US$4 billion and US$8 billion in fines, legal fees, notification expenses and brand impairment. In the TJX case, the retail group reported that 45.6 million credit and debit card numbers were stolen from one of its systems during the period July 2005 to January 2007. Of critical import, the January 2007 intrusion occurred after TJX already had knowledge of the initial breaches.

Of course, big corporations are not the only entities that are vulnerable to hackers and hacktavisits; indeed, half of all companies that have experienced data breaches have fewer than 1,000 employees.

 

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Cyber, Privacy and Technology Best Practices and Reputational Harm: Why Legal Professionals Need a Lawyer’s Advice, Counsel and Privileges

BabyB_LPlate_improvedIntroduction

Lawyers, like other professionals, often have access to their clients’ personal and financial details. At the same time, they may possess comparable information about their clients’ clients (such as when a lawyer represents a healthcare company). As a result, lawyers are at risk for being sued if and when something happens to that information – such as when a laptop or cell phone is misplaced or stolen or a hacker breaches a law firm or client’s systems and accesses the client’s personally identifiable, health care, and/or confidential information.
The most prudent way to avoid such lawsuits and minimize their impact is to create and implement cyber, privacy and technology (“CPT”) best practices before something goes wrong. In most cases, this would include best practices training and education as well as the purchase of dedicated CPT-specific insurance. This article discusses why lawyers are at risk, how to create and implement best practices, and the advantages of CBT insurance coverage rather than (mistakenly) relying on professional errors and omissions and/or general liability coverage in the event of a CPT incident.

Executive Summary

An attorney’s reputation is his and her lifeblood. Indeed, reputation translates to the bottom line. For better or worse.
And, of course, reputation is, in large part, predicated on the quality, timeliness and cost-effectiveness of the services being provided. So too, it is incumbent that an attorney avoid negative commentary (or embarrassing revelations) through the pervasive and ubiquitous medium of social media. As a corollary, attorneys, like others, must be sensitive to the loss of customer goodwill, whether measured by turnover, client retention or other intangible assets.

Regardless of whether your clients are the Fortune 500, middle-market companies or small entrepreneurs, an attorneys’ clients – and by extension, the attorney himself and herself (to the extent the attorney holds personal, health or commercial information) – are at risk of losing personally identifiable information (“PII”), personal health information (“PHI”) and/or confidential commercial information (“CCI”). It doesn’t matter whether the harm is attributable to malicious activity or simple employee or third-party negligence. It’s the effect that is the focus, not necessarily the cause (although that too factors into the analysis).

In many cases, the effect of a cyber incident could be devastating, if not fatal, to an attorney’s reputation. And, by extension, his or her practice’s economic viability.
It is almost axiomatic to say that “best practices” are among the most important strategies employed by attorneys and other professionals. Just as we counsel clients to use best practices with respect to their operations, so too, we, as professionals, should be well-trained on the scope and extent of best practices in the subject matter presented, including, in particular, CPT risks and exposures, which, to no surprise, are palpable and potentially devastating.

In the CPT context, among others, best practices counseling should be provided by an attorney. Unlike non-lawyers, attorneys bring with them the attorney-client privilege and work product protection. Although vendors and IT specialists can promote themselves as having the appropriate knowledge and training to teach and implement best practices, they do possess the critical protections afforded by the attorney-client relationship. In a relatively new space like CPT, where the law is uncertain and developing, the privileges become even more important, as many attorneys are just at the start of the learning curve.

To continue reading, please contact me at rbortnick@cpmy.com. A complete copy will be emailed upon request. Cheers. Rick

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Canada Update: The Tort of “Intrusion upon Seclusion”

The following was written by my friend Patrick Cruikshank, Underwriting Manager, Specialty Risk – Professional Liability at Northbridge Insurance in Toronto. Thanks to Patrick for his contribution. Relevant articles are always welcome for publication.

Rick

canada-flag-stereotypesIn the 2012 case of Jones v. Tsige, the Ontario Court of Appeal established the new tort of invasion of privacy.  For some, this privacy tort has opened a Pandora’s Box.  For others, it’s considered legal progress in the modern technological world.

Sandra Jones and Winnie Tsige were employees of the Bank of Montreal (BMO).  They worked at different branches and did not know each other.  Tsige was in an intimate relationship with Jones’ ex-husband.

Over a period of 4 years, Tsige used her workplace computer to gain access to Jones’ personally identifiable information and personal financial information 174 times.  Tsige did not disseminate this information.

When Jones discovered this unauthorized access, she made a formal complaint to her employer, who upon investigation determined that Tsige had accessed Jones’ information and had no legitimate reason to do so.  Jones subsequently sued Tsige for invasion of privacy and breach of fiduciary duty.  She sought $70,000 in general damages plus $20,000 in punitive damages.

Jones’ claim was dismissed by the Ontario Superior Court because there was no law in Ontario that recognized an invasion of privacy tort.

The Court of Appeal overturned the decision and granted summary judgment in favor of Jones.

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Asia-Pacific Cyber Law Risks and Developments

We first published the following White Paper extract in October 2011. While the White Paper might be somewhat dated (and therefore will be refreshed shortly), it remains relevant for our friends interested in learning the basics of Asia Pacific cyber/privacy law. Please let me know if you’d like to see the entire paper. Rick

I. Introduction

The Internet facilitates the widespread and instantaneous flow of information across international borders. While the advent of this method of transnational communication has truly created a “global economy,” at the same time, it has engendered problems for companies and their insurers which seek to assess risk and implement information safeguards, particularly in the face of divergent data privacy laws which vary from region to region or may not even exist in certain jurisdictions. The Asia-Pacific region typifies such a lack of uniformity.

At the same time, the emerging economies in this rapidly growing part of the world have generated promising targets for computer hackers. 75% of Asia-Pacific enterprises have experienced cyber attacks in the past 12 months. Perhaps not surprisingly, a 2010 study by Symantec reported that almost half of all Asia-Pacific-based businesses (and 67% in Singapore) ranked cyber risk and information security as their top concern—more so than natural disasters, terrorism, and traditional crime combined. Cyber attacks and data breaches are on the radar of CEOs and risk managers for good reason: the average cost for a large company to remediate a data breach in Australia increased to nearly $2 million in 2010, which is slightly up from 2009. See Ponemon Institute/Symantec 2010 Annual Study: Australian Cost of a Data Breach (May 2011).

Notwithstanding the prevalence of such attacks, it is far more likely that a cyber security program is managed as a part of a company’s traditional business risks, with traditional coverages being contorted to cover various components of cyber risk (i.e. property loss, liability to third-parties, business interruption, etc.), rather than by way of a dedicated cyber-specific insurance program. Still, in light of recent developments, it is virtually certain that companies soon will begin looking to transfer such risk via more efficient and targeted technology insurance forms and policies

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Protecting Our Children from Internet Predators, Marketers and Information Aggregators: The Need for Aggressive Government Intervention

As everyone knows, the Internet has dramatically altered (read: simplified) the way we communicate, do business and satisfy our intellectual and social curiosities. Indeed, Internet-based sales topped the trillion dollar mark for the first time in 2012 and are projected to increase 18.3% to 1.298 trillion in 2013. I’d take that rate of growth any day, particularly in the current world economy.

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Canadians More Exposed Than One Would Think

canada-flag-stereotypesOkay. Let’s start with the obvious. No, this has nothing to do with Canadian citizens and immigrants behaving badly, although that may be a topic for a future post.

What we’re talking about is the prevalence of cyber-related incidents and the resulting fallout among Canadian-based companies. And the numbers may surprise you.

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The Insurance Industry: In Regulators’ Sights

If you’re an insurance company, it may be time to open your cyber-related checkbooks if you haven’t done so already. New York Governor Andrew Cuomo’s Department of Financial Services (“NYSDF”) soon may be watching you. They’re already asking questions as if certain insurers were “persons of interest,” just as it did earlier this year with certain of the larger banks.

On May 28, the NYSDF sent what are referred to as “308 letters” to 31 regulated health, life and general liability insurance companies (seemingly those with the highest premium revenue). The NYSDF’s letters request information on (1) the insurers’ existing IT-related management policies and procedures with respect to the prevention of cyber attacks, (2) actual cyber attacks occurring within the past three years, (3) the quantum of funds and resources dedicated to cybersecurity, and (4) how they safeguard customers’ and business entities’ health and personally identifiable information (the letters specifically identify financial information as a subject category).

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The Posts have Come Back… To Cyberinquirer


Since last we visited, your humble Publisher has moved on to the Law Offices of Richard J. Bortnick, where I am Managing Director (very European, if I do say so myself). A number of dedicated readers and friends (you know who you are) have asked what had become of me and why my old email address was no longer effective.

The answer my friend (apologies to Peter, Paul and Mary) is the Law Offices of Richard J. Bortnick. At the risk of having this viewed as attorney advertising, I will stop there other than to say I also will be signing as a free agent with a Consulting Firm to be named later (but not much later).

So, please feel free to contact me if you want to catch up, engage in intellectual banter (with the exception of Philadelphia sports, where the banter will all be negative) or have some worthwhile humor you’d like to pass along (although it can’t be as good as the material I get from my good friend Jeff). My new email address is rjbortnick@comcast.net (at least for the short term… stay tuned on that too).

Its good to be back. And thanks for all of your kind wishes.

Rick

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Cyber Liability Insurance: Ensuring Adequate Coverage in the Age of E-Commerce

I. Introduction: Insurance Products for Cyber Risks

Increasing reports of cyber intrusions, data theft and computer system malfunctions have led a rapidly-growing number of companies to purchase insurance coverage to protect themselves from technology and cyber privacy risks. Indeed, as our technology-driven economy continues to evolve and businesses become more reliant on electronic communication and data storage, they are developing a heightened awareness that an unauthorized intrusion could endanger their tangible and intangible assets (including their intellectual property) and, in many cases, their reputations and abilities to conduct business. As such, prospective policyholders are becoming more cognizant of the necessity for insurance covering such growing exposures.

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Who Owns Patient Data in Electronic Health Records?

Following is a guest post by Doug Pollack, CIPP/US, chief strategy officer at ID Experts, a leading provider of healthcare privacy and data breach solutions. The article explores the thorny issue of “ownership” as it applies to patient data stored in and shared by electronic health record systems.

Cheers.

Rick

I recently began exploring the question of who, or what entity, owns the data that is incorporated in our patient electronic health records (EHRs). I originally began thinking about this because I was imagining that the “owner” would be responsible under circumstances where there was an unauthorized disclosure of such protected health information (PHI), in other words a data breach. It seemed like such a simple question, I had assumed I would find the answer to be just as straightforward. As it turns out, many have pondered this question and suggest that the question of “ownership” of medical data may be a misplaced one, an unanswerable question, and that the more relevant question is what control the patient, and other members of the health ecosystem, have relative to accessing, modifying, appending and transmission of this data. In other words, how is patient privacy provided for within the new EHR universe?

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The Queen v. Cole: Privacy Protection for Employer-Issued Equipment in Canada

The recent decision The Queen v. Cole by the Supreme Court of Canada touches upon interesting issues regarding information privacy in the digital age.

The facts are simple. An information technologist working at the same high school as Mr. Cole, a teacher, remotely accessed Cole’s history of internet access and one of his drives and found a hidden file which contained nude photographs of a student. The photographs and internet file were copied onto a disc and given to the police, which determined that a search warrant was unnecessary. Cole was subsequently charged with possession of child pornography and fraudulently obtaining data from another computer hard drive. The trial judge excluded the computer material under Sections 8 and 24(2) of the Charter. In overturning the decision, the summary conviction appeal court found no breach of Section 8. This decision was set aside by the Ontario Court of Appeal, which concluded that the evidence of the disc containing the temporary internet files and the laptop computer and its mirror image was excluded. A 6-1 majority ruling by the Supreme Court concluded that the police infringed upon Cole’s rights but upheld the Court of Appeals’ finding that the evidence should not have been excluded from trial.

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Planet Mars, Curiosity, and Data Security

For those captivated by recent events in astronomy, parallels can be drawn between the recent landing of NASA’s rover Curiosity on planet Mars and the public discourse on data security in Canada. With the distinction that one is effectively equipped with the right budget and tools to achieve its actual objective, both have come a very long way, both have managed to blaze through layers of clouds, both seek to secure ingredients essential to life, and both are now aimlessly wandering about unchartered territories.

A decisive factor in Barrack Obama’s 2008 political campaign was the extensive use of individual, thin sliced consumer data to send highly tailored messages to gain political support. Within 13 years, Google has become the most valuable brand in the world through the aggregation of vast amounts of data including search data, or data held in Gmail accounts. This information is then used to create an advertising cruise missile, which is much more efficient than the old method of pattern bombing.

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State Privacy Laws Evolve While Congress Campaigns

New legislation governing data breaches and privacy issues is popping up in states across the country. Most recently, Connecticut, Vermont, and Illinois have enacted new laws in these areas.

Connecticut

At long last, the proposed legislation requiring a data breach to be reported has become law in Connecticut. Section 369-701b was unable to move its way through the 2012 General Session of the Connecticut Legislature, but it was recently passed as part of the Connecticut General Assembly’s Special Session as an attachment of the Budget Bill.

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Human Error: The Greatest Risk and Root Cause of Data Security

Whether discussing data encryption, network security, or internal data privacy management practices and policies, the most sophisticated IT security protocols, the most learned team of specialists, and the most compliant of data management practices and policies cannot escape, prevent, or remedy what many businesses and organizations have rightly labeled as the root cause of data security failures: human error. While they tend to possess greater network security than smaller organizations, the risk of human error should be of particular a concern to medium and large size organizations whose internal controls over data and employees are inevitably diluted by their size and numbers.

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Data Privacy and Unauthorized Non-Hackers: the Rise and Risk of Accountability and Breach Notifications in Canada

Recent unauthorized access to British Columbia Institute of Technology’s computer network, which contained personal medical information of approximately 12,680 individuals, is yet another reminder of risks of exposure to data breaches. That none of the data on BCIT’s computer network was compromised or misused is reflective of a low-profile non-hacker intrusion, and of the ease with which computer networks can be infiltrated. Indeed, a sophisticated hacker would know better than to leave massive amounts of data, rightly labeled by some as the “oil” of the 21st century, uncompromised. More curious than uncompromised data, however, is BCIT’s notification in the absence of an actual data breach, and mandatory breach notification provisions under B.C. privacy law.

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First Circuit Court of Appeals Holds Bank’s Online Security Measures “Commercially Unreasonable” in Landmark Decision

In a landmark decision, the First Circuit Court of Appeals held in Patco Construction Company, Inc. v. People’s United Bank, No. 11-2031 (1st Cir. July 3, 2012) that People’s United Bank (d/b/a Ocean Bank) was required to reimburse its customer, PATCO Construction Co., for approximately $580,000 which had been stolen from PATCO’S bank account. In so doing, the Court reversed the decision of the United States District Court for the District of Maine which had granted summary judgment in the bank’s favor.

The dispute arose when Ocean Bank authorized six fraudulent withdrawals over seven days from an online account held by PATCO. While the bank’s security system flagged each one of the transactions as “high risk” because they were inconsistent with the timing, value, and geographic location of PATCO’s regular payment orders, the bank’s security system did not notify PATCO of this information and allowed the payments to go through. In light of this omission, PATCO sued, alleging that Ocean Bank should bear responsibility for the loss because its security system was not “commercially reasonable” under the Uniform Commercial Code, as codified under Maine Law.

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Cyberstalkers Beware: You’re Not Anonymous

A quick google search will reveal thousands of hundreds of thousands of hits for the term cyberstalking. Indeed, as of today, there are over 900,000 posts where the word is used. Perhaps not surprisingly, many of the listings involve teen cyberbullying and child protection issues. There are also large numbers of celebrities who are cyberstalked or otherwise harassed. Beyond juveniles and celebrities, the most frequently stalked demographic are 18-32 year old females, a cohort to which some of our own bloggers (and co-publishers) belong. Curiously, reports indicate that more and more women are also the cyberstalkers, not just the victims. Anecdotal stories suggest many of these women are married but unhappy with their lives.

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Past the Point of No Return: Jones v. Tsige and the “New” Tort of Invasion of Privacy in Canada

Jeremy Bentham used to refer to the common law as the “dog law”. As he explains it, “whenever your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me.” .

Insofar as the tort of invasion of privacy in Canada is concerned, Jeremy Bentham was arguably right. Aside from the province of Quebec, which is governed by a civil law system, and a few other provinces in Canada which have benefited from a statutorily enacted tort of invasion of privacy, lower Courts have been divided over the existence of a free-standing tort of invasion of privacy at common law. The recent decision Jones v. Tsige (2012) by the Ontario Court of Appeal is the first to confirm that what used to be an embryonic tort of invasion of privacy is now alive and well in Canada

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Agreement between the US, NATO, and Australia on Cyber Security

The US and Australia have a longstanding agreement to back each other up in case of physical enemy attack, but now have moved that agreement to the arena of cyber-attack as well. With Australia’s history of cyber-attacks well known, such as an attack two years ago that brought down Australia’s Parliament’s website, the country cannot afford to ignore cyber security any longer.

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Cyber-security in a Hyperconnected World

The cyber-attacks recently launched by six individuals from the group Anonymous, an international hacktivist collective, against 13 Quebec government and police websites are but a fleeting glimpse of a much broader problem associated with the cyber world, most of which remains largely unseen. Succinctly stated, the cyber-attacks were a response to the Quebec Liberal party’s constitutionally questionable Bill 78 that was recently passed as a response to the student crisis sparked three months ago over the government’s planned 75% tuition increase. That six individual were arrested by law enforcement agencies and charged with mischief, conspiracy, and unlawful use of a computer should hardly be reassuring.

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Will SEC Guidance Awaken Private Companies To Cyber Insurance Needs?

The following article was first published in Advisen’s inaugural Cyber Liability Journal (here) as my first regular column. The second Journal was published today and is available from Advisen at http://corner.advisen.com/journals.html (here). I will republish my second column in the coming days.

Rick

Many who underwrite or broker insurance, or practice law in the cyber/technology/privacy (“CTP”) realm migrated to this emerging area from the directors and officers liability regime. At the same time, it did not take a crystal ball to recognize that it was only a matter of time before CTP and D&O found a commonality. And that time is now.

Virtually every public and private company is reliant on computer networks and electronic data. It’s a way of life in the 21st Century. And there’s no going back. Yet with reliance comes risk. It seems we read about significant CTP breaches involving large, multinational companies almost on a weekly basis. CTP breaches have become a well-recognized risk of doing business. Estimates project that over 10 percent of us already have been hacked or had their identities stolen. I am among them.

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FAA v. Cooper and the Federal Privacy Act: Narrow Interpretation, Broad Consequences

With its March 28, 2012 decision in Federal Aviation Administration, et al. v. Cooper, 132 S. Ct. 1441 (U.S. 2012), the United States Supreme Court restricted the scope of a federal privacy law, ruling that the law – which allows recovery for “actual damages” – only authorizes damages for monetary losses. Accordingly, a San Francisco pilot was not permitted to recover humiliation and emotional distress damages from government agencies that disclosed his HIV-positive status without his consent.

In 1964, Stanmore Cooper (“Cooper”) obtained his pilot’s license from the Federal Aviation Administration (“FAA”). In 1985, Cooper was diagnosed with HIV and began taking antiretroviral medication. At that time, the FAA did not issue medical certificates to persons with HIV, so Cooper gave up his pilot’s license, knowing that he would not qualify for renewal of his medical certificate. However, in 1994, Cooper re-applied for a pilot’s license and, to receive a medical certificate, purposefully withheld his HIV-positive status and medication from the FAA. He renewed his certificate four more times and as recently as 2004, each time withholding information about his condition. When Cooper’s health began to deteriorate, he applied for long-term disability benefits and, to substantiate his claim, disclosed his HIV-positive status to the Social Security Administration (“SSA”), which awarded him disability benefits.

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New York Court of Appeals Rules That Viewing Images On The Web Does Not Constitute Procurement, Possession or Control, Even When Cached On A Hard Drive

On May 8, 2012, the New York Court of Appeals issued a ruling that merely viewing child pornography on the internet is not a criminal act under the New York Penal Code. The People v. James D. Kent, Index 70, NYLJ 1202552838004, at *1 (Ct. of App., Decided May 8, 2012). The rationale behind the decision of the state’s highest court bears discussion on a much broader scale due to its potential bearing on the legal definitions of procurement, possession and control of digital property.

The key question under consideration was the evidentiary significance of temporary internet files (or cache files) that are automatically created and stored on a the hard drive of a computer while the user is browsing the internet. The Appellate Court concluded that the act of viewing a web image alone does not, absent other proof, constitute either possession or procurement.

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If the Glove Fits, You Must Defend

Trade dress insurance coverage is alive and well. At least in Wisconsin. In Acuity v. Ross Glove Company, 2012 WL 1109035 (Wis. Ct. App. April 4, 2012), the Wisconsin Court of Appeals held that an insurer’s duty to defend was triggered under advertising injury liability coverage where the underlying complaint set forth allegations of trade dress infringement.

In the Acuity case, Ross Glove purchased a commercial general liability policy from Acuity, which included advertising injury liability coverage. The policy at issue defined “advertising injury”, in part, as “infringing upon another‘s copyright, trade dress or slogan in your advertisement.”

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WARNING: HHS Now Combating HIPAA Violations With HITECH Weaponry

On March 13, 2012 – almost 30 months after becoming one of the first entities to self-report a breach under the Health Information Technology for Economic and Clinical Health (HITECH) Act – BlueCross BlueShield of Tennessee (BCBST) agreed to pay the Department of Health and Human Services (HHS) a record setting $1.5 million civil monetary penalty (CMP) for failing to safeguard protected health information (PHI).


The HITECH Act and HIPAA Enforcement

HHS adopted the interim final rule for HITECH’s breach notification requirement only a few weeks before the BCBST breach. The final rule requires covered entities to notify HHS following a breach of unsecured PHI. If a breach affects 500 or more individuals, the covered entity must report the breach electronically “without reasonable delay and in no case later than 60 days from discovery of the breach.”

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Access to Insured’s Social Media Accounts: No Friend Request Necessary

The following article, written by my colleague Nicole Moody, first appeared in the Chicago Daily Law Bulletin. Thanks to Nicole for allowing us to republish it here.

Rick Bortnick

Many of us have been there. Sipping our morning coffee, signing into our Facebook accounts, waiting to see what notifications will greet us. We are intrigued to see that we have a friend request. Who could it be? An acquaintance from the past? A new colleague who we met at work? Whoever it is, we know that by accepting the request we will be granted access into this individual’s life and will know more about them in five minutes than we would know in a lifetime of small talk.

Due to the use of usernames and passwords, there is a belief that information shared on Facebook is confidential unless publicly shared. However, courts around the country are now addressing just how private this information really is.

In cases nationwide, litigants are asking courts to grant unfettered access to other parties’ Facebook or other social media accounts. Inevitably, in the age of status updates and hashtags, poking and friending, the lines between public and private information have become blurred. This trend has become increasingly prevalent in the insurance industry as insurance companies have realized the usefulness of social media in litigation.

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New Cybersecurity Disclosure Guidance for Public Companies: Focusing Attention, Raising Questions

As regular Cyberinquirer readers know, on October 12, 2011, the SEC’s Division of Corporate Finance published “suggested” Guidance on public companies’ disclosures of their cyber risks and exposures. I published a personal perspective on the implications of the Guidance in an October 29, 2011 post (here). Since then, our friend John Doernberg of William Gallagher Associates in Boston has written an excellent, thoughtful article which adopts a more technical approach. As many of you may know, John is a Vice President at William Gallagher and focuses on privacy, information security and risk management issues. Before becoming an insurance broker in 1995, John practiced law at leading firms in New York and Boston. The following article first appeared at John’s own site, http://blog.wgains.com/?s=Doernberg, and is being republished here with his permission. Thanks John!

Rick Bortnick

Increased corporate reliance on computer networks and electronic data has brought a corresponding increase in risks associated with breaches of their security. Such breaches have become more frequent and severe. With these Guidelines, the Division has indicated that public companies and their advisors should focus greater attention on how disclosure obligations under the federal securities laws may be affected by the potential financial and operational impact of cybersecurity breaches.

The Guidelines note that cybersecurity breaches (generically referred to as cyber incidents) can be malicious (cyber-attacks) or unintentional. The Guidelines provide something of a rogue’s gallery of cyber malice: the gaining of unauthorized access to steal or corrupt sensitive data or to disrupt operations, denial of service attacks, sophisticated electronic circumvention of network security, and social engineering techniques such as phishing to extract passwords or other information that will enable the gaining of access.

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Keep Your Friends Close, But Your Facebook Posts Closer

“Facebook helps you connect and share with the people in your life.” That is the Facebook mantra, as displayed on its homepage, and the opening line of a recent – and extremely thorough! – Pennsylvania trial court decision regarding the discoverability of a plaintiff’s relevant Facebook information. The court’s conclusion: a plaintiff’s Facebook information is discoverable, provided the defendant has a good faith basis for seeking the material, because there is no confidential social networking privilege under Pennsylvania law and because the Stored Communications Act only applies to internet service providers. The take-away for Facebook users: be careful what you post – it’s not as “private” as you think!

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Cyberinquirer Named As One of LexisNexis’s Top Insurance Blogs of 2011

With the help of our readers, Cyberinquirer has again been named as one of LexisNexis’s Top Insurance blogs 0f 2011. We are obviously flattered, particularly in view of the quality of the other blogs selected to this august list. It shows that people are reading what we have to say. And that, perhaps, they are interested in what we have to say. We sure hope that to be the case. We love thinking, reading and talking about tech, privacy and cyber related issues (yeah, admittedly we’re geeks). And we hope that you, our readers, gain from our insights, even if you don’t always agree with them.

So now that we’ve been recognized by LexisNexis for the second straight period, maybe some of you, our readers, will be more comfortable authoring a piece we can post. Remember, this blog is open to all relevant, responsible submissions, be they articles, commentaries, or just comments on something we have said that strikes a chord. If you’ve got something to say that may be of interest to others in the community, email it to me at rbortnick@cozen.com and I will get back with you promptly. We strive to publish fresh, interesting content on a regular basis, but its not always easy, as we do maintain law practices. And have other commitments. So flip your authored pieces. We’d actually appreciate it.

Needless to say, we couldn’t have done this on our own. So the honor is not just for us, but for you too. Thanks.

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The Hospitality Industry Revisited: Does Your Company Have Proper Coverage?


101387303-a0006-000338.530x298In a prior post (here), we discussed the frequency of cyber thefts in the hospitality industry in 2009. We have a decent idea of how many of you read that article. For those of you who haven’t, here’s my topic sentence: “38% of the credit card hacking events in 2009 involved the hospitality industry.” Yep. 38%.

And guess what? The hospitality industry remained a high-level target in 2010. Alright, if you’re connected to the hospitality industry, you probably knew that already. But what you might not realize is that you’re not out of the clear. And, things may be getting worse as the frequency of cyber criminality grows, and as the perpetrators become more sophisticated and cyber attacks propagate (more on that below).

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Securities Law and Cyber Disclosures… Perfect Together…Especially for Cyber and Tech Underwriters and Brokers. And Me

Its not often that worlds collide or that interests converge into one amorphous epiphany. But that’s exactly what happened to me recently, when the Division of Corporate Finance (DCF) of the U.S. Securities and Exchange Commission (SEC) issued a Disclosure Guidance identifying the types of information public companies should consider disclosing about cyber risks and events that could impact their financial statements. Now, the DCF has cautioned that the Disclosure Guidance only represents its own views and “is not a rule, regulation, or statement of the Securities and Exchange Commission.” The DCF also emphasizes right up front that “the Commission has neither approved nor disapproved its content.” Yeah, right. YOU be an officer or director or officer of a company that does not “comply” with the DCF’s “recommendations.”

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And Now, the Maine Event: Mitigation Costs Constitute Damages in Data-Breach Case

Businesses that necessarily require their customers to disclose credit card and personal information, beware. Just five days ago, the United States Court of Appeals for the First Circuit held that claims by class action plaintiffs for “mitigation damages” arising from alleged negligence and breach of contract were viable. Anderson v. Hannaford Brothers Co., Nos. 10–2384, 10–2450, 2011 U.S. App. LEXIS 21239 (1st Cir. Oct. 20, 2011).

In Anderson, the electronic payment processing system of a national grocery chain, Hannaford Brothers Co., was breached by hackers in 2007. This resulted in the dissemination of as many as 4.2 million credit card and debit card numbers, expiration dates, and security codes. Hannaford Brothers was not notified of the breach until February 27, 2008 and subsequently contained the breach on March 10, 2008. A week later, Hannaford released a statement regarding the breach and announced that over 1,800 cases of fraud resulting from the theft already had been reported.

Following Hannaford’s announcement, several financial institutions immediately cancelled customers’ debit and credit cards. Some financial institutions, which refrained from immediately canceling the credit card, monitored the accounts for unusual activity, cancelling the cards, in many cases, without notifying the customer. Customers who asked that their cards be cancelled incurred fees from issuing banks for the replacement cards.

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Tenth Circuit “Dishes Out” Important Opinion Addressing The Scope Of Advertising Injury Coverage For Patent Infringement Claims

On October 17, 2011, the U.S. Court of Appeals for the Tenth Circuit issued a much-anticipated decision addressing the scope of “Advertising Injury” (“AI”) coverage for patent infringement claims. Dish Network Corp. v. Arch Specialty Ins. Co., No. 10-1445, __ F.3d __ , 2011 U.S. App. LEXIS 20955 (10th Cir. 2011), rev’g, 734 F. Supp. 2d 1173 (D. Colo. 2010). The court, applying Colorado law, reversed a decision from the District of Colorado in which that court granted summary judgment to the insurers. In the underlying action, the plaintiff alleged that Dish Network Corp. (“Dish”) had infringed one or more of twenty-three patents by “making, using, offering to sell, and/or selling . . . automated telephone systems, including . . . the Dish Network customer service telephone system, that allow[s] Dish’s customers to perform pay-per-view ordering and customer service functions over the telephone.” The Tenth Circuit concluded that the record was unclear about how Dish actually used the technologies at issue, but that some of the patent-holder’s most well-known innovations involved interactive call processing.

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Facebook: Everything You Want To Know and More… Just a Discovery Request Away!

I recently attended a CLE that had a panel of social media experts who were discussing the role of Facebook, Twitter and MySpace in litigation. During a lull in the question and answer session, the Facebook attorney quipped: “you know, Facebook has already given you everything that you’ve ask for…” Immediately, the audience lifted their heads from their Blackberries and newspapers and started paying attention after this cryptic remark.

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INTRODUCTION TO CANADA’S PIPEDA PRIVACY LEGISLATION

I. Overview

Canada’s privacy regime can be described as a web of legislation at both the federal and provincial/territorial level. Some commentators express concern that this web has become tangled, lacks uniformity and actually undermines the predictability and consistency that, in their view, would exist under a single (federal) privacy regime. Canada has two primary privacy statutes: the Privacy Act and the Personal Information Protection and Electronic Documents Act (“PIPEDA”). The Privacy Act, R.S.C. 1985, c. P-21 (Can.), took effect on July 1, 1983, and imposed certain privacy rights obligations on approximately 250 federal government departments and agencies by limiting the use and disclosure of personal information. The Privacy Act also gives individuals the right to access and, if necessary, correct personal information held by governmental organizations subject to the Act.

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Underwriters and Their Policyholders Agree: Less Is More When It Comes to Crisis Management Expenses

Doug Pollack of IDExperts recently published a blog post on cyber insurance that caught my eye. Insofar as IDExperts is a respected provider of cyber breach response services, I assumed the article would address technical issues. Upon reading the piece, however, I was disappointed to find that the article addressed insurance-related matters, including criteria for the selection of insurance products and programs, a topic typically the province of risk managers, brokers, underwriters and lawyers. Hmmm…

At the outset, the article addresses technical issues, as the author correctly suggests that “privacy, compliance and legal officers should work closely with their risk manager to ensure that the organization is getting a policy that meets its needs.” Having hooked me with that truism, I was looking forward to reading on. But that is where the technical commentary (and our common perspective) ends. From there, the author moves on to express his views (and, in my counter-view, misconceptions) on cyber insurance products and how they should operate.

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