Yesterday, the Supreme Court resolved a circuit split on the scope of the Computer Fraud and Abuse Act of 1986 (CFAA) in a decision that emphasizes the importance of how organizations manage access to their systems.  Employees with access to information at work sometimes access that information with improper motives, and in violation of office policies.  This inappropriate use of access has led to federal criminal prosecution for some.  In Van Buren v. United States, No. 19-783, the United States Supreme Court held that the CFAA is not properly applied to justify those prosecutions.

Nathan Van Buren was a police officer who accepted $6,000 from Andrew Albo, a participant in an FBI sting operation, to search a police database to determine whether a woman Albo professed interest in was an undercover police officer.  Van Buren ran a search for the woman’s license plate in the Georgia Crime Information Center database.  For doing so, Van Buren was charged and convicted of violating the CFAA, because he had “exceeded” his authority to access that database.


Continue Reading Federal Law Won’t Protect Your Organization from Bad User Access Control Practices

On May 12, President Biden signed an executive order mandating that the federal government significantly improve cybersecurity within its networks and modernize federal cyber defenses. This move follows a series of cyberattacks on private companies and federal government networks over the past year, including a recent incident that resulted in gasoline shortages along the U.S.

On April 14, 2021, the United States Department of Labor (the “DOL”) issued for the first time guidance to retirement plan sponsors, fiduciaries, record keepers, service providers and plan participants guidance on cybersecurity issues. The DOL’s press release includes three pieces of guidance, including: (1) Tips for Hiring Service Providers; (2) Cybersecurity Program Best Practices; and (3) Online Security Tips.

The Employee Benefits Security Administration, a sub-agency of the DOL (the “EBSA”) long ago stated that addressing cybersecurity has been on the agency’s “to do” list and even published a report in 2016 reflecting the need for such guidance, which we previously covered here.

The Employee Retirement Income Security Act of 1974, as amended (“ERISA”), includes fiduciary standards that require a retirement plan to be administered in accordance with a standard of care for a prudent person who is familiar with such matters. Common sense dictates that ERISA fiduciaries administer their plans in accordance with industry standards for cybersecurity, safeguard plan assets and ensure that appropriate controls are in place to avoid financial losses to plans that may result from a cybersecurity breach. However, the legal issues concerning who is responsible (plan participant, plan sponsor or record keeper) remain open questions in many jurisdictions.


Continue Reading DOL’s New Cybersecurity Guidance

The technology sector runs the gamut from artificial intelligence (AI), the Internet of Things (IoT) to SaaS companies or cybersecurity, and from the biggest household names to the smallest companies being operated out of garages. The rise of AI and traps for the unwary were previously covered here.  Risks of investing in SaaS Solutions can be found here and here.  Technology is everywhere in 2021, even in the smallest brick and mortar shops around.  Technology investing offers lucrative opportunities for investors large and small, but there are many traps for the unwary, such as “zero-day exploits.”

Continue Reading Tech Investing Part 1: Zero Hour

Information security is critical to the operation of the financial markets and the confidence of its participants. . . The Division is acutely focused on working with firms to identify and address information security risks, including cyber-attack related risk . . .” SEC Division of Examinations, 2021 Examination Priorities, at 24.

On March 3, 2021, the Securities and Exchange Commission’s newly renamed Division of Examinations (EXAMS) (formerly the Office of Compliance Inspections and Examinations (OCIE)) announced its 2021 examination priorities.  Information security and operational resiliency ranked number two out of the top five priorities sending a clear message that the SEC is focused on emergent security threats, particularly cyber-attacks, resulting from the sudden and unprecedented increase in remote operations.


Continue Reading SEC Announces 2021 Information Security Examination Priorities – Five (5) Steps Every Firm Should Take to Prepare!

On March 2, 2021, Governor Northam signed into law Virginia’s own Consumer Data Protection Act (“Virginia CDPA” or the “Act”), a bill that brings together concepts from the EU’s General Data Protection Regulation (GDPR) as well as the California Consumer Privacy Act (CCPA) and the California Privacy Rights Act (CPRA). It is the first of its kind legislation on the East Coast. The law will go into effect on January 1, 2023.

The drafters of the Virginia CDPA appear to have benefited from observing the pitfalls and problems that arose in the development and implementation of both GDPR and CCPA. The Virginia bill deftly avoids several of those by incorporating narrower, more tailored definitions that clearly exclude categories of data and businesses over which there was (and continues to be) some confusion with respect to both the EU/UK and California compliance regimes. It also adopts, in concept, the framework of the GDPR, and even some of its language. Like GDPR, it characterizes the party who initially collects and controls personal data as the “controller” and obligates that party to be a good steward of the data, through transparency with the consumer, accountability for sharing the data with third parties (“processors”), and a duty to implement appropriate data security to safeguard the data. It will be enforced by the Virginia Attorney General. Notably, there is no private right of action under the Act.


Continue Reading Virginia’s New Consumer Data Protection Act (CDPA)

The U.S. Department of Justice announced an indictment in the U.S. Attorney’s Office for the Central District of California against a North Korea-sponsored international cybercriminal organization that infiltrated public and private computer networks, fundamentally compromised these systems, and sought to obtain over a billion dollars from this illicit access.

Read the full article on our

This week, the FBI, the Cybersecurity and Infrastructure Security Agency, and the Department of the Treasury released a joint advisory report on HIDDEN COBRA — the cyber threat North Korea poses to cryptocurrency — and provided mitigation recommendations for addressing this ongoing threat.

Read our full article on our Subject to Inquiry blog for highlights

As we discussed in Part I, the United States does not have a single, comprehensive federal law governing biometric data.  However, we have recently seen an increasing number of states focusing on this issue.  Part I summarized legislative activity on this issue in 2020.  In this Part II, we discuss noteworthy legislation to monitor in 2021.

What to Expect in 2021

At least two states—New York and Maryland—have already introduced biometrics legislation in this first month of 2021.

New York – AB 27

On January 6, 2021, the New York Assembly introduced the Biometric Privacy Act (BPA), a New York state biometric law aimed at regulating businesses handling biometric data.  BPA will prohibit businesses from collecting biometric identifiers or information without first receiving informed consent from the individual, prohibit profiting from the data, and will require a publicly available written retention and destruction policy.  As proposed, the statute contains a private right of action; and if passed, it will permit consumers to sue businesses for improperly collecting and using their biometric data.  The statute follows Illinois’s BIPA, allowing recovery of $1,000 per negligent violation and $5,000 per intentional violation, or actual damages, whichever is greater, along with attorney’s fees and costs, and injunctive relief.


Continue Reading U.S. Biometrics Laws Part II: What to Expect in 2021

Data privacy laws have made significant breakthroughs in recent years, making it a top priority for businesses.  From the adoption of the European Union’s General Data Protection Regulation (GDPR) in 2016 to the enactment of the California Consumer Privacy Act (CCPA) in 2018 and the latest ballot approval of the California Privacy Rights Act (CPRA) in 2020, we continue to see data privacy laws develop and garner interest from consumers, businesses, and legislators alike.

Specific biometric privacy laws, in particular however, are often overshadowed by more general data privacy laws.  As we discussed in our prior article, biometrics are physical and behavioral human characteristics (i.e., face, eye, fingerprint, and voice features) that can be used to digitally identify a person.  As the collection and use of biometric data become more common in daily life and its applications in different industries continue to expand, new privacy considerations will emerge in this field.  Biometrics laws, in their own right, require separate recognition because of the nuanced application of these specific laws.

The United States does not have a single, comprehensive federal law governing biometric data.  Recently, we have seen an increasing number of individual states focus on this issue, and the recent introduction of legislation in a number of states specifically aimed at protecting the collection, retention, and use of biometric data.  In Part I, we summarize some of the legislative activity on biometric laws from 2020.  We will describe other noteworthy legislation to monitor for 2021 in Part II.


Continue Reading U.S. Biometrics Laws Part I: An Overview of 2020