DATA PRIVACY DAY 

Do You Understand Your Data Privacy Rights?

Data Privacy Day was started in 2007 in response to widespread lack of understanding about how personal data was being protected. Today, 91% of adults “agree” or “strongly agree” that consumers have lost control over how personal information is collected and used by companies, according to a recent Pew Research Center Survey.

Data is one of the natural resources of the 21st century. It should be treated like all other precious resources. Understanding, responsibility, and accountability are key. Ubiquitous Internet connections, unprecedented processing power and speed combined with staggeringly large databases have the ability to help both the private and public sectors. However, there is a growing split between the benefits of data-driven activities and perceptions of decreased privacy rights needs to be addressed. There is a balance that needs to be found between the responsibility of governments and that of businesses in ensuring an adequate level of protection to citizens and consumers, while supporting technological innovation.

The purpose of Data Privacy Day is raise awareness among digital citizens and empower them with understanding how their data is being collected, stored and consumed. Often, that starts with being educated about the privacy policies of online companies and web properties.

The National Cyber Security Alliance (NCSA) officially kicked off today’s Data Privacy Day events with a broadcast from George Washington University Law School featuring Federal Trade Commissioner Maureen Ohlhausen and privacy and security experts from industry and government.

Whether you are a consumer, an application developer, a technology platform provider, consultant, or enterprise that relies on the collection, analysis and commercialization of data (who doesn’t these days) Adler Law Group can help you navigate this emerging area by 1) assessing and prioritizing privacy risks, 2) creating a baseline understanding of data assets, data flows and contractual commitments, 3) developing internal Privacy Polciies and processes, and 4) creating and delivering training programs for executives and employees that increases awareness and mitigate risk.

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Failure to Mind Corporate Details Leads to Loss of Copyright, Infringement Lawsuit

The case of Clarity Software, LLC v. Financial Independence Group, LLC is a great example the serious, negative consequences to intellectual property ownership when business owners and legal counsel fail to ensure that tasks are completed.

The short version is that the creator of computer software, Vincent Heck, sold the copyright in his software to settle a debt to a creditor, Eric Wallace, who intended to form Clarity Software, LLC to own and distribute the software. The lawsuit was for infringement of the copyright in the software.

As they say, “the devil is in the details.” In this case, the detail that became a devil, and ultimately prevented Wallace from enforcing a copyright in the software, was the fact that Clarity Software, LLC was never properly formed and therefore lacked standing to sue for infringement.

Forgive me for employing yet another trite phrase, but “truth is often stranger than fiction.” The Defendant proved that a veritable comedy of errors had occurred resulting in no record of the formation, including 1) the Department of State of Pennsylvania losing the certificate of organization, along with all records of the submission and filing of the certificate of organization, 2) the Plaintiff’s bank (PNC Bank) losing its copy certificate of organization provided when Wallace opened a bank account (even though PNC Bank still had the signature card completed when the account was opened), and 3) Wallace, himself a former President of the Pennsylvania Institute of Certified Public Accountants, losing his copy of the certificate of organization and all records of his communications with his attorney.

Defendant successfully moved for summary judgment based on its argument that Plaintiff did not own the copyright at issue in the litigation since it was not properly organized as a Pennsylvania limited liability company and never acquired valid ownership of the copyright.

Hat tip to Pamela Chestek and her blog, Property Intangible, where she first wrote about this case October 13, 2014. The opinion and order can be found here: Clarity Software, LLC v. Financial Independence Group, LLC, No. 2:12-cv-1609-MRH (W.D. Pa. Sept. 30, 2014).

To find out more about how the Adler Law Group can help your business identify risk and issues related to intellectual property ownership, corporation or LLC formation, or just assess risk associated with your business, contact us for a free, no-obligation consultation by emailing David @ adler-law.com, visiting out web site www.adler-law.com, or calling toll free to (866) 734-2568..

Copycat Conundrum: Tips For Protecting Original Furniture & Textile Designs

On October 2, 2013, I will be attending the Decoration & Design Building Fall Market where I am giving a presentatIon on protecting original furniture & textile designs. Those in attendance share a belief that style and design matter.

As designers and purveyors of good taste, you may spend months developing a concept, selecting materials, agonizing over the exact curve of the arm of a chair. Manufacturers may refine the design, invest in tooling to build it, promote it, and get it to market. Merchandise buyers may spend months reading, researching, attending events such as this to obtain and fill your showrooms and catalogue with ineffable elements of style. This is original, authentic design. Authentic designs—pieces produced by designers or their authorized manufacturers—are investments.

Therein lies the problem for today’s furniture designers and retailers. It takes intellectual and financial capital to conceive, create and produce good design. Yet, today’s consumer driven, price-focused economy is making it more and more difficult for a designer to protect and profit from the investment of this intellectual capital.

This presentation will focus on why certain designs are protectable, how to protect them, and how to defend against knock-offs.

Proposed Amedments To Computer Fraud & Abuse Act

Enacted by Congress in 1986, the Computer Fraud and Abuse Act (CFAA) builds upon existing computer fraud law (18 U.S.C. § 1030). Initially, the CFAA was intended to limit federal jurisdiction to cases “with a compelling federal interest-i.e., where computers of the federal government or certain financial institutions are involved or where the crime itself is interstate in nature.” Notably, the CFAA criminalized certain computer-related acts such as distribution of malicious software code, propagating denial of service attacks as well as trafficking in passwords and similar items. Recently, the CFAA has gained prominence as a bludgeon used to prosecute a wide-range of activities, some broadly labelled “hacking” and other stretching the boundaries of “unauthorized” computer access.

Two recently introduced bills, one by Representative Zoe Lofgren (D-CA) in the House and one by Senator Ron Wyden (D-OR) in the Senate aim to amend the CFAA in hopes of ameliorating application of the CFAA to claims of breach of terms of service, employment agreements. Additionally, with the nickname “Aaron’s Law,” they also seek to limit what some see as the CFAA’s tendency to allow for overzealous prosecution that they claim characterized Aaron Swartz’s case.

In short the bills would amend the meaning of “exceeds authorized access,” changing it to “access without authorization,” which is defined to mean:

“to obtain information on a protected computer”;
“that the accesser lacks authorization to obtain”; and
“by knowingly circumventing one or more technological or physical measures that are designed to exclude or prevent unauthorized individuals from obtaining that information.”

For a well-documented discussion of the application and boundaries of the CFAA, check out the Electronic Frontier Foundations Legal Treatise on civil and criminal cases involving the Computer Fraud and Abuse Act here.

As businesses become ever more dependent on digital assets and systems, a working knowledge of the legal and regulatory framework that defines and protects those assets is paramount.

If you or your executive teams has questions about securing and protecting digital assets, please feel free to contact David M. Adler for a free consultation. LSGA advises a wide range of businesses on creating, protecting and leveraging digital assets as well as computer, data and information security and privacy.

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David M. Adler | Adler Law Group
300 Saunders Road, Suite 100
Riverwoods, Illinois 60015
Toll free Phone: (866) 734-2568
http://www.ecommerceattorney.com

*2015 Illinois Super Lawyer http://bit.ly/gFfpAt

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In U.S. Regulators, Legislators Fill Privacy Void

Over the last few years privacy, and the lack of comprehensive protection, have made numerous headlines. From overly inquisitive mobile applications that fail to disclose how cell photo data is accessed and shared (Path) to handset manufacturers failures to properly inculcate privacy in the design and manufacturing process (HTC) to security lapses at government databases resulting in exposure of sensitive personal information (South Carolina), consumers, regulators and legislators are waking up to privacy issues.

Recent developments highlight the trend in Privacy

In the U.S. we lack a single comprehensive privacy law, although many state and federal laws address various aspects of collecting, storing and sharing personal information. In the absence of a single, over-arching, mandate, legislators and regulators are stepping into fill at perceived need.

GPS, Location & Privacy

The Geolocation Privacy and Surveillance (GPS) Act addresses use of location data by law enforcement. The bill (not yet law) requires police to obtain a warrant based on probable cause whenever it seeks “location information.” Unfortunately, the term “location information” is very broadly defined, does not distinguish requests for access based on the level of precision, time period, or whether the information is for past or future conduct.

Proposed Federal Privacy Standards

Two bills introduced this year aim to create a baseline level of privacy protection at the federal level. John Kerry (D-MA) and Sen. John McCain (R-AZ) introduced S. 799, the Commercial Privacy Bill of Rights Act of 2011, to create a regulatory framework for the comprehensive protection of personal data for individuals, enforceable by the Federal Trade Commission (FTC). Similarly, Rep. Cliff Stearns (R-FL) is promoting a Consumer Privacy Protection Act (H.R.1528), directed at consumers and focused on restricting the sale or disclosure of personal information.

FTC Protects Privacy Under Mantle of Consumer Protection

As a result of alleged data security failures that led to three data breaches at Wyndham hotels in less than two years, the Federal Trade Commission filed suit against hospitality company Wyndham Worldwide Corporation. The case against Wyndham is part of the FTC’s ongoing efforts to make sure that companies live up to the promises they make about privacy and data security.

Wyndham’s web site privacy policy claimed that, “We recognize the importance of protecting the privacy of individual-specific (personally identifiable) information collected about guests, callers to our central reservation centers, visitors to our Web sites, and members participating in our Loyalty Program …”

The FTC complaint alleges that Wyndham failed to maintain adequate and industry standard security measures by storing credit-card information in unencrypted format, allowing servers to remain unpatched, and failing to use firewalls.

The FTC alleges that these failures led to fraudulent charges on consumers’ accounts, millions of dollars in fraud loss, and the export of hundreds of thousands of consumers’ payment card account information to an Internet domain address registered in Russia.

Most notably, the lawsuit will test whether the Federal Trade Commission has the jurisdiction to compel companies to provide a certain level of cybersecurity in order to safeguard consumer personal information.

Privacy Remains Top Concern

Many companies across many industries, financial services, higher education and healthcare, just to name a few, are facing a wide range of security and privacy concerns, scrambling to implement A defensible security framework and demonstrate compliance. It’s alarming, considering the significant consequences associated with not complying.

Organizations can lose contracts, customers and their reputation. That could put some out of business.

Compliance Preparation & Best Practices

Large organizations can spend many months and millions of dollars on compliance. Your business need not go to such extremes. To prevent getting caught by surprise and to prepare for the compliance journey, I’ve listed below some suggested best practices.

Periodic risk assessments. Evaluate potential damage and disruption caused by unauthorized access, use, disclosure, modification, or destruction of data or systems.

Policies and procedures. Incorporate procedures for detecting, reporting, and responding to security incidents, as well as business continuity plans.

Standardize. Set standards of acceptable information security for networks, facilities, and information systems.

Train Employees. Awareness training for employees, contractors, and other users of information systems is critical. Articulate the security risks associated with activities and define users’ responsibility for complying with policies and procedures.

Test & Evaluate. Periodic assessment of the effectiveness of information security policies, procedures, practices, and controls helps determine weak spots. At a minimum they should be conducted annually, according to Ford.

Respond & Repair. Have a pre-defined process for planning, implementing, evaluating, and documenting remedial actions designed to address legal, PR, HR and related risks in the event of a breach.

THIS IS NOT LEGAL ADVICE. The procedures outlined above are merely suggestions and there is no guarantee that implementation will reduce risk or mitigate liability.

Please contact Leavens, Strand, Glover & Adler at 866-734-2568 for a free consultation to learn how LSGA can help meet your specific needs.

#Mobile #Privacy Continues to Challenge Marketers, Developers & Lawmakers

The rapid growth and expansion in the mobile market presents a number of privacy and security issues for mobile software and hardware developers, platform operators, advertisers and marketers who collect, store, use and share consumer information. As awareness of privacy risks grow among consumers, legislators and regulators are increasing scrutiny of mobile privacy and privacy policies in mobile apps.

Businesses operating in the mobile industry are facing a widening array of Regulatory compliance issues. Staying abreast of legal risks and issues can be daunting. How can mobile operators and application developers spot trends and adjust strategies to start competitive? First, keep an eye on FTC activity. Second, monitor new bills coming up in Congress. Third, follow this blog, adlerlaw.wordpress.com.

FTC Privacy Enforcement Actions

Earlier this year, the FTC expanded mobile privacy obligations beyond software to include hardware makers when it announced a settlement with HTC America over charges that HTC failed to use adequate “security by design” in millions of consumer mobile devices. As a result, the company is required to patch vulnerabilities on the devices which include #Smartphones and #Tablets. The settlement, the first action involving a mobile device manufacturer and the new “Privacy By Design” guidelines, sheds some light on the legal risks for mobile device manufacturers and, to some extent, mobile application developers.

Congressional Privacy Laws, Bills & Initiatives

Not surprisingly, federal legislators are taking up the mantle of Consumer Privacy in the area of Mobile Applications. In January 2013, U.S. Rep. Hank Johnson, introduced his mobile privacy bill, The Application Privacy, Protection and Security Act of 2013, or the “APPS Act,”. The bill focuses on transparency, user control and security, mandating that an application 1) provide the user with notice of the terms and conditions governing the collection, use, storage, and sharing of the personal data, and 2) obtain the consent of the user to the terms and conditions. Significantly, the privacy notice is required to include a description of the categories of personal data that
will be collected, the categories of purposes for which the personal data will be used, and the categories of third parties with which the personal data will be shared.

The Bill also requires that application developers have a data retention policy that governs the length for which the personal data will be stored and the terms and conditions applicable to storage, including a description of the rights of the user and the process by which the user may exercise such rights in addition to data security and access procedures and safeguards.

App developers unaware of the data protection requirements may face significant risks and potential harm to their reputation among users of smart devices. If you have concerns about what key data protection and privacy legal requirements apply to mobile applications and the types of processing an app may undertake contact us for a mobile app legal audit. Vague or incomplete descriptions of the ways which a mobile app handles data or a lack of meaningful consent from end users before that processing takes place can lead to significant legal risk. Poor security measures, an apparent trend towards data maximisation and the elasticity of purposes for which personal data are being collected further contribute to the data protection risks found within the current app environment.

Learn more David M. Adler here.

#Bank Information #Security: The Evolving Threat From Insiders

VIDEO: The Evolving Insider Threat– Dawn Cappelli, Randy Trzeciak of CMU’s Insider Threat Center

This video from RSA Conference 2013 discusses:

  • Who typically commits insider crimes – and how;
  • How employees are being victimized from outside;
  • Why our critical infrastructure is at heightened risk.

Even if you are an employer using standard commercial verification measures, you should be cautious about misuse of any information by employees, managers and contractors. Accordingly, you should be careful with training and education and not on only newly-hired employees. Further, plan on how login credential and access to sensitive information will be handled and/or turned over when training or when terminating, suspending, withholding pay, lowering pay, or taking any other adverse action against an employee.