In honor of National Data Privacy Day, we provide the following “Top 15 for 2015.”  While the list is by no means exhaustive, it does provide some hot topics for businesses to consider in 2015.

  1. Inside Threats for Healthcare Providers and Business Associates.  While news reports of security risks often focus on hackings and breaches caused by individuals, terror groups or even countries around the world, many organizations, including healthcare providers and business associates, face a significant and perhaps more immediate risk with an organization’s workforce members.  However, these organizations are not without recourse and can take several steps to reduce their risk for a data breach, reputational      harm, investigation by federal and state agencies, and litigation.
  2. The Telephone Consumer Protection Act (TCPA).  According to data cited by the U.S. Chamber of Commerce, TCPA suits have increased 30% in the past year, with many of those suits being filed as class actions.  Notably, many of these suits are not just aimed at large companies.  Instead, these suits are often focused on small businesses who may unknowingly violate the TCPA.  With statutory damages ranging from $500 to $1500 per violation (e.g. per fax/text sent or call made) these suits often result in potential damages in the hundreds of thousands, if not millions, of dollars.  Understanding the FAQs for the TCPA is a great first step as we enter 2015.
  3. Location Based Tracking.  As the utilization of GPS enable devices becomes more and more prevalent, employers are often faced with the  difficult decision of just how much information they may obtain about an employee’s whereabouts.  This is particularly true when an employee is absent from work, is traveling for business, or makes a representation as to their location which the employer questions for one reason or another.  The case law in this area is evolving rapidly, and both the public and private sector can expect to continue to face this issue in the future.
  4. Company Budgets with Respect to Technology.  With each passing year, we see an increase in the amount of technology available to businesses and their employees.  While many tech initiatives are focused on increasing employee productivity or company profits, business also must be prepared to appropriately increase their IT      and data security budgets accordingly.  As more company information is shifted to the cloud or available to employees remotely, budgetary constraints will not provide a justification for poor tech support or data security.      
  5. “HIPAA Litigation.”  While HIPAA does not provide for a private cause of action, cases were brought in 2014 which utilized the HIPAA rules as an element in common law tort claims.  By way of example, the Connecticut Supreme Court held that HIPAA did not preempt a negligence claim in connection with the healthcare provider’s disclosure of patient information in response to a subpoena.  While it remains unclear whether liability will ultimately be determined, these cases will likely give potential plaintiffs legal precedent to file these types of actions and the outcome of these actions should be monitored closely throughout 2015.
  6. BYOD.  More and more businesses are realizing the risks of allowing employees to utilize their own electronic devices in the workplace and are turning to Bring Your Own Device (“BYOD”) programs to diminish some of these risks.  Additionally, 2014 saw some companies shy away from BYOD and return to a strict company owned device policy.  Businesses considering BYOD should review our comprehensive BYOD issues outline.
  7. User Generated Health Data.  The transformation of health information into electronic format has been well documented and will continue into the  future.  However, one of the biggest concerns for 2015 is health data which an individual voluntarily provides to track or chart their own health or fitness.  Devices such as Nike Fuelband, Fitbits, or      similar devices or applications continue to allow individuals to enter and store more and more health information about themselves electronically.  However, the privacy or security of this information is largely up for debate.
  8. Risk Assessment. As we have previously mentioned, many businesses remain unaware of how much personal and confidential information they maintain, who has access to it, how it is used and disclosed, how it is safeguarded, and so on. Getting a handle on a business’ critical information assets must be the first step, and is perhaps the most      important step to tackling information risk. It is logically impossible to adequately safeguard something you are not aware exists. In fact, failing to conduct a risk assessment may subject the business to penalties under federal and/or state law.
  9. Develop a Written Information Security Program. Even if adopting a written information security program (WISP)      to protect personal information is not an express statutory or regulatory mandate in your state (as it is in MA, MD, TX, CT, etc.), having one is critical to addressing information risk. Not only will a WISP, and      associated training, better position a company when defending claims      related to a data breach, but it will help the company manage and safeguard critical information, potentially avoid a breach from occurring in the first place, and may even help the company avoid whistleblower claims from employees.
  10. Dealing with Vendors.  One area of high risk for company data is its use or access by a company’s vendors during the course of the vendor services.  Companies need to be aware of the legal requirements concerning the company owned data in this scenario as well as how to negotiate confidentiality and security provisions in the applicable services agreement.
  11. Develop a Plan for Breach Notification. All state and federal data breach notification requirements currently in effect require notice be provided as soon as possible. Failing to respond appropriately could result in significant liability.  This is true even when the number of individuals affected is relatively small.  As we have seen this past year, a data breach can not only harm a company’s bottom line, but also can negatively impact the company’s reputation in the marketplace.  Developing a breach response plan is not      only prudent but also may be required under federal or state law.  A proactive approach is often the simplest, and cheapest way, to avoid liability.
  12. Federal Trade Commission (FTC) & Federal Communications Commission’s (FCC) Enforcement Re: Data Security.  2014 saw the FTC continue to regulate      company data security practices by bringing enforcement actions against many types of businesses.  In one of the most significant cases of FTC enforcement, LabMD challenged the FTC’s authority to engage in enforcement activity related to its data security practices absent specific statutory authority to do so.  In a recent ruling, the Eleventh Circuit sided with the FTC and held that companies that find themselves subject to regulatory investigation cannot seek judicial aid in avoiding FTC jurisdiction until the FTC’s actions are      final. Practically speaking, the Eleventh Circuit’s decision means that companies will find no relief from a court until the FTC issues a final agency action.  Similarly, 2014 saw      the FCC issue its first fines against a telecommunications carrier for the carrier’s alleged failure to reasonably secure their customer’s personal information in violation of the companies’ statutory duty under the Communications Act.  We anticipate 2015 will see additional action by the FTC & FCC, as well as legal challenges to any enforcement by either agency.
  13. Investigating Social Media.  Social media continues to grow on a global scale, and the content available on a user’s profile or account is often being sought in connection with litigation.  In fact, failure to preserve relevant information in social media may have dire consequences.  Further, while public content may generally be utilized without issue, if private content is accessed improperly, serious repercussions can follow.
  14. Watch for New Legislation.   Today, managing data and ensuring its privacy, security and integrity is critical for businesses and individuals, and is increasingly becoming the subject of broad, complex regulation. This is especially true given the number of significant data breaches that occurred throughout 2014.  While no national law requiring them protection of personal information has yet to be passed in the U.S., President Obama has stated that data security is one of the top issues for legislation in 2015.  In the      interim, companies are left to navigate the constantly evolving web of growing state legislation. Companies therefore need to stay tuned in order to continue to remain compliant and competitive in this regard.
  15. Jackson Lewis Webinar Series.  Given the numerous developments in the world of data privacy and security, Jackson Lewis will be hosting a comprehensive webinar series to address these issues and how they may impact your business.  We hope you can join us.