In honor of Data Privacy Day, we provide the following “Top 10 for 2017.”  While the list is by no means exhaustive, it does provide some hot topics for organizations to consider in 2017.

1.  Phishing Attacks and Ransomware – Phishing, as the name implies, is the attempt, usually via email, to obtain sensitive or personal information by disguising oneself as a trustworthy source. The IRS reported a 400 percent surge in phishing and malware incidents in 2016 and dedicates a page on its website to phishing and online scams. A relatively simply, yet extremely effective safeguard against such an attack is for organizations to advise employees (especially those in HR and Payroll) to be on the lookout for email requests, often appearing to come from a supervisor, for the personal information of all, or large groups of, the company’s employees. Before responding electronically, employees should verbally confirm such requests. This is especially true as organizations begin the W2 process and are compiling large amounts of personal information.

In some cases delivered by a phishing attack, ransomware is a type of malware that hackers use to stop you from accessing your data so they can require you to pay a ransom, often paid in cryptocurrency such as Bitcoin, to get it back. According to the FBI and the Department of Health and Human Services’ Office of Civil Rights, ransomware attacks have quadrupled, occurring at a rate of 4,000/day. These agencies and the Federal Trade Commission have offered guidance to help curb these attacks. Among other things, the guidance urges organizations to be prepared. A great start to combat ransomware’s effectiveness is for your organization to consider whether you maintain regular backups of your electronic systems.

2.  Safeguards Required to Protect Personal Information State laws continue to emerge and expand requiring businesses to protect personal information. Joining states such as Florida, Massachusetts, Maryland, and Oregon, Illinois businesses must implement and maintain reasonable safeguards to protect personal information beginning January 1, 2017, and California clarified what it means to have reasonable safeguards. Similar rules go into effect in Connecticut beginning October 1, 2017, for health insurers, health care centers, pharmacy benefits managers, third-party administrators, utilization review companies, or other licensed health insurance business. And, during 2017 in New York, entities regulated by the state’s Department of Financial Services, such as banks, check cashers, credit unions, insurers, mortgage brokers and loan servicers, and some of their subcontractors, likely will become subject to a complex set of cybersecurity regulations many view as the first of their kind in the country.

3.  Big Data, Analytics, AI, Wearables, IoT New technologies and devices continuously emerge, promising a myriad of societal, lifestyle and workforce advancements and benefits including increased productivity, talent recruiting and management enhancements, enhanced monitoring and tracking of human and other assets, and improved wellness tools. This will continue in 2017, and will require an unprecedented and unimaginable collection of data, which very often will be personal data. Federal agencies, such as the FTC and EEOC, and others are taking note. While these advancements are undoubtedly valuable, the potential legal issues and risks should be considered and addressed prior to implementation or use.

4.  HIPAA Privacy and Security Enforcement – The Office for Civil Rights continues in enforcement mode in 2017, announcing two settlements so far in January 2017, totaling nearly $3 million.  In one action, the agency addressed for the first time the 60-day rule for providing notification of breaches of unsecured protected health information. In this case, the covered entity discovered the breach involving 863 patients on October 22, 2013, but did not notify OCR until January 31, 2014, about 41 days late. The settlement amount was $475,000, or approximately $11,500 per day. OCR Director Jocelyn Samuels reminded covered entities that they “need to have a clear policy and procedures in place to respond to the Breach Notification Rule’s timeliness requirements.”

5.  Breach Notification Laws – There are currently 47 states with breach notification laws, and they continue to be updated. For example, beginning in 2017, California businesses and agencies can no longer assume that notification is not required when personal information involved in the breach is encrypted. Illinois also changed its breach notification law, effective January 1, 2017, to, among other things, expand the definition of “personal information” to include medical information, health insurance information, and unique biometric data. These laws continue to evolve and be amended to address the extensive amount of sensitive data that is stored electronically.

6.  The Telephone Consumer Protection Act (TCPA) – 4,860 TCPA lawsuits were filed in 2016 according to statistics compiled by WebRecon LLC. This represents an almost 32% increase over 2015 and marks the 9th consecutive year where the number of TCPA suits increased from the preceding year. With the SCOTUS decision in Campbell-Ewald making defense of class actions under the TCPA more difficult, we expect the number of TCPA suits to continue to grow in 2017. Many of these suits are not just aimed at large companies.  Instead, these suits are often focused on small businesses that may unknowingly violate the TCPA and can result in potential damages in the hundreds of thousands, if not millions, of dollars.  Understanding the FAQs for the TCPA and taking steps to comply with the TCPA is a great first step.

7.  The EU General Data Protection Regulation (GDPR) and the EU-U.S. Privacy Shield – GDPR has been adopted, and while it will not apply until May 25, 2018, there is a lot to do to get compliant. For example, GDPR adds a data breach notification requirement for data controllers; if notification is required, it must be provided to the data protection authority within 72 hours. Also, the EU-U.S. Privacy Shield data transfer agreement (“the Privacy Shield”) was reached to replaced the EU-U.S. Safe Harbour agreement which was invalidated on October 6, 2015, by the Court of Justice of the European Union’s (CJEU) ruling in Schrems v. Data Protection Commissioner. As of August 1, 2016, organizations based in the U.S. were able to self-certify their compliance with the Privacy Shield. Please review our detailed Q&A on some of the most common questions.

8.  President Trump – As we near the end of the President’s first full week in office, it remains to be seen just how the new administration will address privacy and cybersecurity issues. We considered some of these issues shortly after the election based on the President’s campaign which may provide some insight while we await more clarity from the White House.

9.  Social Media Investigations – Social media use continues to grow on a global scale and become more and more prevalent for organizations. This is especially true as generations who have lived their entire lives in a Social Media World represent an ever expanding percentage of the workforce.   User profiles or accounts are regularly sought and reviewed in litigation and/or employment decisions.   While public content may generally be viewed without issue, employers need to be aware of how they are accessing social media content and ensure they are doing so consistent with state laws protecting social media privacy and avoiding access to information they would rather not have.

10.  Be Vigilant and Watch for Changes – As more and more personal information and data is available and stored electronically, it is important for organizations to realize this data is extremely valuable, especially in the wrong hands. To this end, and as outlined above, organizations should be constantly assessing how best to secure their electronic systems. This is particularly true as the law and industry guidance are constantly changing and evolving in an effort to keep up with technological advancements.

 

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with…

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, 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, Mr. Lazzarotti 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 – Mr. Lazzarotti 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 – Mr. Lazzarotti’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.

Mr. Lazzarotti 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.

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

Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix…

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix of laws governing privacy, security, and management of data. Mr. Gavejian is Co-Editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Mr. Gavejian’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Mr. Gavejian helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Mr. Gavejian assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Mr. Gavejian represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. Mr. Gavejian negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Mr. Gavejian represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. Mr. Gavejian regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Mr. Gavejian’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Mr. Gavejian’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Mr. Gavejian regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Mr. Gavejian is the Co-Chair of Jackson Lewis’ Hispanic Attorney Resource Group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. Mr. Gavejian also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Mr. Gavejian served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.