The California Privacy Protection Agency (“CPPA”) issued and discussed draft regulations on Cybersecurity Audits and Risk Assessments late in the summer. The CPPA Board plans to discuss the draft regulations at its upcoming December 8th public meeting, along with a presentation on the regulations. Continue Reading CPPA Considers Next Set of CPRA Regulations Covering Cybersecurity Audits and Risk Assessments
On October 5, 2023, Seyfarth offered a Masterclass, hosted by Lexology, which was designed to familiarize in-house counsel and privacy professionals, in and out of Washington state, with the My Health My Data Act legislation. Portions of the Act are already in effect and go into further effect on March 31, 2024.
We explored its…
Thursday, October 5, 2023
1:00 p.m. – 2:00 p.m. ET
12:00 p.m. – 1:00 p.m. CT
11:00 a.m. – 12:00 p.m. MT
10:00 a.m. – 11:00 a.m. PT
About the Program
Seyfarth is pleased to offer this Masterclass, hosted by Lexology, which is designed to familiarize in-house counsel and privacy professionals, in and…
This blog post is co-authored by Seyfarth Shaw and The Chertoff Group and has been cross-posted with permission.
On July 26, the U.S. Securities & Exchange Commission (SEC) adopted its Cybersecurity Risk Management, Strategy, Governance, and Incident Disclosure final rule on a 3-2 vote. The final rule is a modified version of the SEC’s earlier Notice of Proposed Rulemaking (NPRM) released in March 2022. The final rule formalizes and expands on existing interpretive guidance requiring disclosure of “material” cybersecurity incidents.Continue Reading SEC Publishes Public Company Cybersecurity Disclosure Final Rule
By this point, most people in the employee benefits space have heard about the MOVEit and Retirement Clearing House (RCH) cyber incidents, which could directly impact employers’ benefit plans. The MOVEit file transfer application is used by a number of vendors, including those that locate missing plan participants or find information regarding deceased plan participants (e.g., PBI Research Services). RCH is often used by retirement plans to facilitate benefit transfers, including for IRA rollovers. Other plan vendors/subcontractors may also use the MOVEit software application or subcontract with RCH for their plan services. Actual and potential victims have included state and federal government agencies as well as companies across a variety of industries (and their benefit plans) who were using MOVEit or RCH, or who engaged with service providers who used these tools.Continue Reading Multiple Cyber Incidents Impact Employee Benefit Plans and Participants
On Tuesday, June 13 at 1:00 p.m. Eastern, Seyfarth attorneys Kristine Argentine, John Tomaszewski, and Paul Yovanic will present at the Association of National Advertisers webinar, “Emerging Issues Surrounding Privacy Class Actions and Compliance in 2023.”
The webinar will address the recent surge in consumer class actions, compliance considerations, and recent developments…
You may have recently seen press reports about lawyers who filed and submitted papers to the federal district court for the Southern District of New York that included citations to cases and decisions that, as it turned out, were wholly made up; they did not exist. The lawyers in that case used the generative artificial intelligence (AI) program ChatGPT to perform their legal research for the court submission, but did not realize that ChatGPT had fabricated the citations and decisions. This case should serve as a cautionary tale for individuals seeking to use AI in connection with legal research, legal questions, or other legal issues, even outside of the litigation context.
In Mata v. Avianca, Inc., the plaintiff brought tort claims against an airline for injuries allegedly sustained when one of its employees hit him with a metal serving cart. The airline filed a motion to dismiss the case. The plaintiff’s lawyer filed an opposition to that motion that included citations to several purported court decisions in its argument. On reply, the airline asserted that a number of the court decisions cited by the plaintiff’s attorney could not be found, and appeared not to exist, while two others were cited incorrectly and, more importantly, did not say what plaintiff’s counsel claimed. The Court directed plaintiff’s counsel to submit an affidavit attaching the problematic decisions identified by the airline.Continue Reading Use of ChatGPT in Federal Litigation Holds Lessons for Lawyers and Non-Lawyers Everywhere
The My Health My Data Act (“Act”) was approved by the Washington State House on April 17, 2023. The Act is now with Governor Jay Inslee for signature and is expected to be signed into law in its current form, which is broad enough to warrant anyone with any activity in Washington to consider its scope and implications for operations. Because the Act will be enforceable through a private right of action, it has the potential to create substantial legal exposure for violations.
The Act creates new and unique consumer rights and obligations for business relating to the collection, sharing, and use of “Consumer Health Data” (“CHD”). It expressly aims to “close the gap between consumer knowledge and industry practice” by expanding obligations related to processing of CHD to entities not covered by HIPAA. However, it is significantly broader in potential scope, including, in part, due to the gaping definition of CHD (which expressly includes data that identifies past, present, or future physical or mental health status, for example, “bodily functions” and “precise location information that could reasonably indicate an attempt to receive health services or supplies”). The Act will impact a range of business, including advertisers, mobile app providers like health and wellness trackers, wearable device manufacturers and, of course, healthcare and wellness industry companies and their data processors handling non-HIPAA-regulated CHD. Notably, the Act expressly addresses abortion/reproductive health services and gender-affirming care services (including by making it unlawful for any person to use a “geofence” (or virtual boundary) around a facility that provides health care services) for the purposes of identifying or tracking consumers seeking such services; collecting CHD from consumers; or sending them notifications, messages, or advertisements related to their CHD or health care services. This restriction applies regardless of consent or opt-in.Continue Reading Washington’s “My Health My Data” Act
On March 15, 2023 the Securities and Exchange Commission (“SEC”) proposed three new sets of rules (the “Proposed Rules”) which, if adopted, would require a variety of companies to beef up their cybersecurity policies and data breach notification procedures. As characterized by SEC Chair Gary Gensler, the Proposed Rules aim to promote “cyber resiliency” in furtherance of the SEC’s “responsibility to help protect for financial stability.”
In particular, the SEC has proposed:
- Amendments to Regulation S-P which would, among other things, require broker-dealers, investment companies, and registered investment advisers to adopt written policies and procedures for response to data breaches, and to provide notice to individuals “reasonably likely” to be impacted within thirty days after becoming aware that an incident was “reasonably likely” to have occurred (“Proposed Reg S-P Amendments”).
- New requirements for a number of “Market Entities” (including broker-dealers, clearing agencies, and national securities exchanges) to, among other things: (i) implement cybersecurity risk policies and procedures; (ii) annually assess the design and effectiveness of these policies and procedures; and (iii) notify the SEC and the public of any “significant cybersecurity incident” (“Proposed Cybersecurity Risk Management Rule”).
- Amendments to Regulation Systems Compliance and Integrity (“Reg SCI”) in order to expand the entities covered by Reg SCI (“SCI Entities”) and add additional data security and notification requirements to SCI Entities (“Proposed Reg SCI Amendments”).
Under China’s data protection regulatory framework, data processors are required to pass a security assessment conducted by the cybersecurity regulator before transferring certain categories or volumes of data out of China. This January, six months after the Cyberspace Administration of China (“CAC”) released the Measures on Security Assessment of Outbound Data Transfers (“Measures”), the Beijing counterpart of CAC reported the first two cases where the data processors passed the security assessments led by CAC, which sheds some light on the uncertainty and complexity of the security assessment.
Uncertainty of Reviewing Process and End of Grace Period
As disclosed by Beijing CAC, as of February 22, 2023, Beijing CAC has assisted more than 310 entities with their potential applications for the security assessment of outbound data transfers, and has received 48 formal applications from organizations in industries such as technology, e-commerce, healthcare, finance, automotive, and civil aviation, including multinational companies. Among many applications, CAC granted two organizations with the approval for transferring data out of China, namely the Beijing Friendship Hospital of the Capital Medical University and Air China.Continue Reading China Unveils Two Approved Outbound Data Transfer Cases