Seyfarth has released the results of its fourth annual Real Estate Market Sentiment Survey, which polled commercial real estate executives around the country from all sectors. Of interest to our readers, this year’s survey revealed that 69% of respondents are concerned about a cyberattack hitting their business in 2019, a significant increase compared to last year (46%).

View the full survey results

Cybersecurity isn’t just for technology companies anymore. More and more, we are seeing other critical infrastructure participants becoming targets of cybersecurity attacks. Transportation, construction, and other real property-heavy industries are starting to catch the eye of sophisticated hacking teams – both criminal as well as nation-state sponsored groups.

There are two different threat models in the real estate market: the builder and the manager. Continue Reading Cyberattacks a Growing Concern for Commercial Real Estate Executives

California, home to more than 40 million people and the 5th largest economy in the world, has passed the California Consumer Privacy Act (CCPA), its omnibus consumer privacy law. The law creates sweeping new requirements concerning the collection, maintenance, and tracking of information for both employees or customers who are residents of California. Many aspects of the implementation and enforcement are still being finalized by the California Attorney General. However, companies with employees or customers in California need to take stock of the information they are processing that could qualify as “personal information” for California residents, and they need to begin establishing mechanisms for compliance before the end of 2019. Continue Reading The California Consumer Privacy Act of 2018: What Businesses Need to Know Now

Welcome to the California Consumer Privacy Act (CCPA) […as if we didn’t have enough to worry about with the GDPR!].

The bracketed, italicized text, albeit a bit cynical, is with little doubt, how many of us initially reacted to the news of a new data protection law, hailed as the standard in consumer privacy protection, in California. And while the effective date is supposed to be January of 2020, January of 2019 isn’t too early to starting getting ready for the new law.

To dispel the rumors, the CCPA is not “GDPR-lite.” Where it comes on the heels of the GDPR’s May 2018 enforcement date, it isn’t a mirror image of the GDPR, or even a “watered down” variant of it. Drafters of the CCPA did indeed look to the GDPR as a basis for some of data protection concepts, but they focused on existing California privacy laws as well.

Continue Reading The CA Consumer Privacy Act: The NEW Elephant in the Room

In September of this year, with SB 327, California stepped into the vanguard of information age law by passing a cybersecurity regulation on the Internet of Things. SB 327 has added new sections to Cal. Civil Code §1798. Specifically, §1798.91 et seq. While this seems to be a good thing, the larger question is what does it do, and how far does it reach?

Continue Reading California’s IoT Security Law – Everyone Needs Cybersecurity Now

At the end of June, the California legislature passed its Bill 375, the California Consumer Privacy Act of 2018.  The Act contains a number of concepts that would be familiar to those who are working to bring their companies and organizations into compliance with GDPR.  The new law defines a category of “Personal Information” that radically departs from a traditional definition of Personal Data commonly found in various State Data Privacy Laws, which usually ties an individual name to other identifiers like social security number, account number, or other factors.  Instead, the California Act defines “Personal Information” as information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.  It does not, mercifully, include publicly available information, but it still comes closer to a GDPR-like definition of “personal data” than any other US law.

The Act provides California residents some rights that also appear familiar.  For example:

  • Consumers can request a copy of all the Personal Information a business has collected;
  • Consumers have the right to request that the business delete their Personal Information (subject to some exceptions), and a right to direct a company to not share their Personal Information with third parties; and
  • Consumers can request that a business disclose the categories of information it has collected, the sources of information, the purpose for the collection and/or its sale of the information, and the third parties with whom the information is shared.

These certainly sound like concepts that could be referenced as The Right to Access; The Right to Be Forgotten; and Data Portability.

Business requirements include:

  • Meaningful notifications to consumers at the point of contact where Personal Information is collected;
  • Updated online privacy notices to include the types of Personal Information collected, the purpose of collection, and rights information;
  • Implementation of Data Security measures to protect Personal Information;
  • Providing training to employees handling Personal Information or involved in consumer inquiries;
  • The inclusion of provisions in contracts with third parties with whom Personal Information is shared to include data privacy protections and restrictions on disclosure; and
  • The inclusion of a “do not sell my personal information” option on public facing interfaces and websites that collect personal information. Companies must take measures to not discriminate against users who opt out, but at the same time they can offer price incentives to those who chose to opt in.

The Act takes effect on January 1, 2020.  It has the same approximate 2 year “runway” period that GDPR provided in 2016 (leading up to May 25, 2018) for companies to gear up their compliance.  This law has potentially widespread impact, but some of the mechanisms of its application remain unclear, due in some degree to some of its broadly worded language.  In this way, it is also similar to the GDPR.

The challenge with implementation for large companies is the same as every other State level data privacy law – it is often virtually impossible to reliably identify who the “California” consumers are.  Thereby making it by practical necessity a global requirement for all publicly facing systems and applications for all users.

We recommend that most companies prioritize and stage their compliance today, focusing on GDPR in the short term, but  a California (or potentially necessary practical nationwide) compliance strategy should be included in late 2018 and 2019 IT and Privacy compliance plans.

Since its enactment a decade ago, the Illinois Biometric Information Privacy Act (BIPA) has seen a recent spike in attention from employees and consumers alike. This is due, in large part, to the technological advancements that businesses use to service consumers and keep track of employee time.

What Is The BIPA?

Intending to protect consumers, Illinois was the first state to enact a statute to regulate use of biometric information. The BIPA regulates the collection, use, safeguarding, handling, storage, retention, and destruction of biometric identifiers and information. The statute defines biometric identifiers to include a retina or iris scan, fingerprint, or scan of hand or face geometry. Furthermore, the statute defines biometric information as any information, regardless of how it is captured, converted, stored, or shared, based on an individual’s biometric identifier used to identify an individual. Any person aggrieved by a violation of the act may sue to recover actual or statutory damages or other appropriate relief. A prevailing party may also recover attorneys’ fees and costs.

Since September of 2017, there have been more than thirty-five class action BIPA lawsuits with no particular industry being targeted. More commonly sued industries include healthcare facilities, manufacturing and hospitality.

The drastic increase in litigation is largely contributable to employers’ attempt to prevent “buddy punching,” a term that references situations where employees punch in for a co-worker where biometric data is not required to clock in or out. For example, in Howe v. Speedway LLC, the class alleges that defendants violated the BIPA by implementing a finger-operated clock system without informing employees about the company’s policy of use, storage and ultimate destruction of the fingerprint data. Businesses engaging in technological innovation have also come under attack from consumers. In Morris v. Wow Bao LLC, the class alleges that Wow Bao unlawfully used customers’ facial biometrics to verify purchases at self-order kiosks.

Recent Precedent

In Rivera v. Google Inc.,the District Court for the Northern District of Illinois explained that a “biometric identifier” is a “set of biometric measurements” while “biometric information” is the “conversion of those measurements into a different, useable form.” The court reasoned that “[t]he affirmative definition of “biometric information” does important work for the Privacy Act; without it, private entities could evade (or at least arguably could evade) the Act’s restrictions by converting a person’s biometric identifier into some other piece of information, like mathematical representation or, even simpler, a unique number assigned to a person’s biometric identifier.” Thus, a company could be liable for the storage of biometric information, in any form, including an unreadable algorithm.

More recently, in Rosenbach v. Six Flagsthe Illinois Appellate Court, Second District, confirmed that the BIPA is not a strict liability statute that permits recovery for mere violation. Instead, consumers must prove actual harm to sue for a BIPA violation. The court reasoned that the BIPA provides a right of action to persons “aggrieved” by a statutory violation, and an aggrieved person is one who has suffered an actual injury, adverse action, or harm. Vague allegations of harm to privacy are insufficient. The court opined that, if the Illinois legislature intended to allow for a private cause of action for every technical violation of the BIPA, the legislature could have omitted the word “aggrieved” and stated that every violation was actionable. The court’s holding that actual harm is required is consistent with the holdings of federal district courts on this issue.

Damages and Uncertainty

Plaintiffs and their counsel are attracted to the BIPA because it provides for significant statutory damages as well as attorneys’ fees and costs. The BIPA allows plaintiffs to seek $1,000 for each negligent violation, and $5,000 for each intentional or reckless violation, plus attorneys’ fees and costs.

To date, all claims have been filed as negligence claims, and, thus, it is unclear what a plaintiff must show to establish an intentional violation. Similarly, the law is unsettled on whether the statutory damages are awarded per claim or per violation. A per violation rule would exponentially increase a defendant’s potential liability. For example, some plaintiffs are currently seeking $1,000 or $5,000 for each swipe of a fingerprint to clock in or out.

How To Protect Your Business

To avoid a costly mistake when retaining biometric data, businesses should:

  1. provide employees or consumers with a detailed written policy that includes why and how the data will be collected, stored, retained, used, and destroyed;
  2. require a signed consent before collecting the data;
  3. implement a security protocol to protect the data; and
  4. place an appropriate provision in vendor contracts (e.g., for data storage) to require vendors to adhere to the law and report any data breaches.

Consent can be obtained in different ways. For example, employers may condition employment upon an individual’s consent to a data retention policy, and companies can require consumers to accept a click-through consent before accessing a company’s website or application.

For questions or additional information, please contact Esther Slater McDonald at emcdonald@seyfarth.com or Paul Yovanic Jr. at pyovanic@seyfarth.com.

Seyfarth Shaw Offers Data Privacy & Protection in the EU-U.S. Desktop Guide and On-Demand Webinar Series

On May 25, 2018, the EU General Data Protection Regulation (“GDPR”) will impose significant new obligations on all U.S. companies that handle personal data of any EU individual. U.S. companies can be fined up to €20 million or 4% of their global annual revenue for the most egregious violations. What does the future passage of GDPR mean for your business?

Seyfarth’s eDiscovery and Information Governance (eDIG) and Global Privacy and Security (GPS) practitioners are pleased to announce the release of Data Privacy & Protection in the EU-U.S.: What Companies Need to Know Now, which describes GDPR’s unique legal structure and remedies, and includes tips and strategies in light of the future passage of the GDPR.

How to Get Your Desktop Guide:

To request the Data Privacy & Protection in the EU-U.S. Desktop Guide as a pdf or hard copy, please click the button below:

GDPR Webinar Series

Throughout August and October of 2017, Seyfarth Shaw’s attorneys provided high-level discussions on risk assessment tools and remediation strategies to help companies prepare and reduce the cost of EU GDPR compliance. Each segment is one hour long and can be accessed on-demand at Seyfarth’s Carpe Datum Law Blog and The Global Privacy Watch Blog.

For updates and insight on GDPR, we invite you to click here to subscribe to Seyfarth’s Carpe Datum Law Blog and here to subscribe to Seyfarth’s The Global Privacy Watch Blog.

Cross-posted from Employment Law Lookout.

Seyfarth Synopsis:  A string of recent class action lawsuits regarding businesses’ use of employees’ biometric data should put employers on heightened alert regarding compliance with various state biometric privacy laws.

As biometric technology has become more advanced and affordable, more employers have begun implementing procedures and systems that rely on employees’ biometric data. “Biometrics” are measurements of individual biological patterns or characteristics such as fingerprints, voiceprints, and eye scans that can be used to quickly and easily identify employees.  However, unlike social security numbers or other personal identifiers, biometrics are biologically unique and, generally speaking, immutable.  Thus, unlike a bank account or a social security number, which can be changed if it is stolen, biometric data, when compromised, cannot be changed or replaced, leaving an affected individual without recourse and at a heightened risk for identity theft.  Given the serious repercussions of compromised biometric data, a number of states have proposed or passed laws regulating the collection and storage of biometric data.  And plaintiffs’ attorneys are taking notice, as the number of class action lawsuits in this area has surged in recent months.

Currently, there are three states that have statutes regulating the collection and storage of biometric data: Illinois, Texas, and Washington.  In 2008, Illinois passed the Biometric Information Privacy Act (“BIPA”).  Texas followed suit in 2009, and Washington passed its biometric privacy law in 2017. Continue Reading Hazards Ahead: Uptick in Biometric Privacy Laws Can Put Employers in Hot Seat

When you bring to mind someone “hacking” a computer one of the images that likely comes up is a screen of complex code designed to crack through your security technology.  Whereas there is a technological element to every security incident, the issue usually starts with a simple mistake made by one person.   Hackers understand that it is far easier to trick a person into providing a password, executing malicious software, or entering information into a fake website, than cracking an encrypted network — and hackers prey on the fact that you think “nobody is targeting me.”

Below are some guidelines to help keep you and your technology safe on the network.

General Best Practices

Let’s start with some general guidelines on things you should never do with regards to your computer or your online accounts.

First, never share your personal information with any individual or website unless you are certain you know with whom you are dealing.  Hackers often will call their target (you) pretending to be a service desk technician or someone you would trust.  The hacker than asks you to provide personal information such as passwords, login ids, computer names, etc.; which all can be used to compromise your accounts.  The best thing to do in this case, unless you are expecting someone from your IT department to call you, is to politely end the conversation and call the service desk back on a number provided to you by your company.  Note, this type of attack also applies to websites. Technology exists for hackers to quickly set up “spoofed” websites, or websites designed to look and act the same as legitimate sites with which you are familiar.  In effect this is the same approach as pretending to be a legitimate IT employee; however, here the hacker entices you to enter information (username and password) into a bogus site in an attempt to steal the information.  Be wary of links to sites that are sent to you through untrusted sources or email.  If you encounter a site that doesn’t quite look right or isn’t responding the way you expect it to, don’t use the site.  Try to access the site through a familiar link. Continue Reading Cybersecurity Best Practices

Cross-posted from Carpe Datum Law

On May 25, 2018, the EU General Data Protection Regulation (“GDPR”) will impose significant new obligations on all U.S. companies that handle personal data of any EU individual. U.S. companies can be fined up to €20 million or 4% of their global annual revenue for the most egregious violations. What does the future passage of GDPR mean for your business?

Our experienced eDiscovery and Information Governance (eDIG) and Global Privacy and Security (GPS) practitioners will present a series of four 1-hour webinars in August through October of 2017. The presenters will provide a high-level discussion on risk assessment tools and remediation strategies to help prepare and reduce the cost of EU GDPR compliance. Continue Reading Is your organization ready for the new EU General Data Protection Regulation?