Discerning Data

A.G. Schneiderman Announces SHIELD Act to Protect New Yorkers

The Stop Hacks and Improve Electronic Data Security Act (SHIELD Act) was introduced in the New York legislature in early November and would amend New York’s state breach notification law. The bill was announced after the release of a New York Office of the Attorney General report found a nearly 60% hike in data breaches affecting state residents in 2016 and following the Equifax breach in September, which A.G. Schneiderman is investigating.

Among other things, the SHIELD Act would:

Require reasonable security for private information, using standards tailored to the size of the business, while avoiding duplicate regulations and providing incentive to businesses that certify security compliance and provides clear examples of safeguards (e.g., technical, administrative, and physical measures).
Carve out “compliant regulated entities,” which are defined as those already regulated by, and compliant with, existing or future regulations of any federal or NYS government entity (including NYS DFS cybersecurity regulations; regulations under Gramm-Leach-Bliley; HIPAA regulations) by deeming them compliant with this law’s reasonable security requirement.
Provide safe harbor from AG enforcement actions under this law for “certified compliant entities,” (those with independent certification of compliance with aforementioned government data security regulations, or with ISO/NIST standards).
Provide a more flexible standard for small business (less than 50 employees and under $3 million in gross revenue; or less than $5 million in assets): requiring reasonable safeguards “appropriate to the [small business’s] size and complexity.

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The Sedona Principles, Third Edition Gives a Shout Out to Information Governance

The Sedona Conference®, a nonprofit research and educational think tank dedicated to the advanced study of law, has released a final, pre-publication version of its much-anticipated The Sedona Principles, Third Edition: Best Practices, Recommendations and Principles for Addressing Electronic Document Production. The Sedona Principles are the preeminent reference publication for e-discovery lawyers and practitioners alike. In addition to addressing the 2015 changes to the Federal Rules of Civil Procedure, this latest version of The Sedona Principles includes a fresh focus on information governance and the mitigating effect it can have on the challenges organizations face today from the ever-changing electronic data landscape.

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Latest OCR Reminder Regarding Mobile Device Security and PHI

With the ever-increasing use of mobile devices in the workplace that create, receive, maintain, and transmit electronic protected health information (ePHI), the Department of Health and Human Services (HHS), Office for Civil Rights (OCR)’s latest Cybersecurity Newsletter issued an important reminder of the importance of mitigating the risks surrounding the use of mobile devices.

Mobile devices pose unique security risks because of their portability, small physical size, and capacity to store vast amounts of data. Both the Federal Trade Commission (FTC) and OCR frequently remind all organizations, but especially those entities that process ePHI, of the importance of protecting data on mobile devices.

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“Hey toy – can you …”

The Federal Trade Commission provided additional guidance on how the Children’s Online Privacy Protection (COPPA) Rule, 16 C.F.R. Part 312, applies to the practice of collecting audio files that contain a child’s voice, immediately converting the audio to text, and deleting the files containing the voice recording triggers COPPA’s requirements.

The FTC guidance provides that it will not take enforcement action against operators who collect audio files without first obtaining verifiable parental consent in situations where the child’s voice is being used solely as a replacement for written words, such as to convert voice to text in order to perform a search and other function on internet-connected devices.

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OCR’s Guidance on HIPAA-Permissible Information Sharing During Patient Opioid Crisis

In response to President Trump’s call to action on opioids, acting Department of Health and Human Services (HHS) Secretary Eric D. Hargan declared the opioid crisis a national public health emergency on October 26, 2017. The next day, HHS-Office for Civil Rights (OCR) released new guidance on when and how health care providers can share a patient’s health information with the patient’s family and close friends during certain crisis situations, such as opioid overdoses, without violating the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations.

HIPAA prohibits health care providers from sharing protected health information about patients who have capacity to make their own health care decisions and object to information sharing, unless there is a serious and imminent threat of harm or safety. However, health care professionals may disclose some health information without a patient’s permission under certain circumstances, including:

Sharing health information with family, close friends, or any other person identified by the patient, and involved in caring for the patient if the provider determines that doing so is in the incapacitated or unconscious patient’s best interests and the information is directly related to the family or friend’s involvement in the patient’s health care or payment for care. The provider may use professional judgment and experience with common practice to make reasonable inferences of the patient’s best interest.
Informing persons in a position to prevent or lessen a serious or imminent threat to the patient’s health or safety.

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First Annual Review of the Privacy Shield Framework

The European Commission published its first annual report on the functioning of the EU-U.S. Privacy Shield, which protects the personal data transferred from the EU to companies in the U.S. for commercial purposes. The report was released on October 18, 2017.

The EU-U.S. Privacy Shield Framework provides a method for companies to transfer personal data to the U.S. from the EU in a way that is consistent with EU law. The framework is based on a certification system by which U.S. companies commit to adhere to a set of Privacy Shield Principles. To join the Privacy Shield Framework, a company must self-certify to the Department of Commerce that it complies with the Principles. A company’s failure to comply with the Principles is enforceable under Section 5 of the FTC Act, which prohibits unfair or deceptive acts. The key requirements for participating companies include:

Informing individuals about data processing
Providing free and accessible dispute resolution
Cooperating with the Department of Commerce
Maintaining data integrity and purpose limitations
Ensuring accountability for data transferred to third parties
Transparency related to enforcement actions
Ensuring commitments are kept as long as data is held

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