This year’s IAPP Global Privacy Summit was very informative on a number of fronts, including the helpful insight provided by officials at the Federal Trade Commission (FTC) on a range of topics. A good summary of some of their comments can be found here, which includes concerns they expressed about the Consumer Privacy Bill of Rights released by the White House during the last week in February. One example of good practical guidance was offered by Jessica Rich, Director, Bureau of Consumer Protection, relating to how companies go about creating written information security programs (WISPs). She said, “No checklists.”

We did not understand Ms. Rich to be suggesting businesses not use checklists as a tool in building a WISP. Of course, well-crafted checklists can be enormously helpful for companies, particularly small and mid-sized companies, to learn about best practices and to ensure they have met the applicable compliance requirements. This is true regardless of the topic of compliance or the industry. For example, when a health care provider or one of its business associates is trying to grasp the different administrative, physical and technical standards under the HIPAA Security Rule, a checklist could be very useful in helping to understand the scope of the project and for organizing an efficient compliance effort. Similarly, when creating a data breach response plan, there are a number of legal and practical steps that need to be taken, and a checklist can help to organize those steps.

We believe Ms. Rich was emphasizing that each business must understand its particular circumstances when developing a WISP, and not rely solely on a checklist. More specifically, we understood her to be calling for businesses to dig deeper and assess their particular risks, vulnerabilities, resources, needs and other circumstances in order to move toward compliance and appropriately mitigate the risks and vulnerabilities identified. That process can be aided by one or more checklists, but the process has to be informed by the circumstances actually facing the company and the process has to be ongoing. That is, completing the checklist neither completes the WISP nor the things a business needs to be doing to ensure its WISP is appropriate for its business at any given time.

Comprehensive federal privacy legislation seems to be moving more vigorously than it has in recent years. What form it will take, if any, and what role the FTC will play is unclear at this point. What is clear is that companies in all industries have to use their best efforts to maintain the privacy and security of personal and other important data. This requires a comprehensive and deep understanding of the business, it practices, its customers, its products and services, its employees, its resources, its legal and regulatory environment, and how those factors shape its overall information risk. Checklists can help gather and analyze this information, and implement solutions, but they are no substitute for understanding the business’ risks and being able to address those risks now and in the future.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.