The Minnesota Supreme Court issued a decision on November 16, 2011 holding that the state’s Genetic Privacy Act, Minn. Stat. Section 13.386 (2010) restricts the collection and use of blood samples taken from newborns pursuant to the state’s Newborn Screening Statutes, Minn. Stat. Section 144.125-128. The litigation, captioned Bearder et al v. State of
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Update: Ninth Circuit to Rehear CFAA Case
As previously discussed, the federal appeals court in San Francisco had reinstated an indictment charging a former employee of Korn/Ferry International, Inc., with violations of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (the “CFAA”) for trying to start a business that would compete with his former employer. Now, however, at…
Another Day, Another Stolen Laptop
The Minneapolis Star Tribune reports that a laptop computer containing private information on about 14,000 patients of Fairview Health Services and 2,800 patients of North Memorial Medical Center was stolen from a locked car in the parking lot of a Minneapolis restaurant in July of 2011. The incident is just one more in a series…
HHS Report to Congress Shows Marked Increase in Data Breaches
The Office of Civil Rights of the U.S. Department of Health and Human Services (“HHS”) has published its first round of annual reports to Congress under the HITECH (Health Information Technology for Economic and Clinical Health) Act of 2009 to Congress. The first report concerns HHS’s HIPAA (Health Insurance Portability and Accountability Act of 1996)…
Hospitals Fire 32 Employees for Medical Privacy Breach
The Minneapolis Star Tribune has reported that two hospitals in Anoka County, Minnesota, terminated a combined total of 32 employees for unauthorized access of electronic medical records on May 6, 2011. The two hospitals, Unity Hospital in Fridley, Minnesota and Mercy Hospital in Coon Rapids, Minnesota, are both part of the Allina Health System. In April, the Minnesota Court…
Unauthorized Access to Medical Records Under Company Policy and HIPAA Supports Denial of Unemployment Benefits
A data entry specialist in Minnesota who was fired for accessing medical records on behalf of a colleague was denied unemployment benefits by the Minnesota Court of Appeals in a recent decision that highlights the importance of zero tolerance policies for employers. The unpublished decision, Bingham v. Allina Health System, No. A10-872 (Jan. 11, 2011), involved an…
More Sanctions for Improper Electronic Filing of Court Documents
With some harsh words of warning, a judge in the U.S. District Court for the District of Minnesota has sanctioned another law firm for electronic filing of documents disclosing birth dates, names of minors, financial account numbers and at least one social security number in violation of Fed. R. Civ. P. 5.2(a).
In a decision issued on…
Business Owner Enjoined from Accessing Co-Owner’s Email
A Minnesota Court of Appeals panel has affirmed the issuance of a temporary injunction against a co-owner of an LLC blocking him from accessing emails of his partner from the company’s server in the midst of their business dispute. The unpublished decision, Gates v. Wheeler A09-2355 (Minn. App. November 23, 2010), raises some interesting issues…
Court Finds Use of Microsoft Outlook’s Auto Forward Feature is an “Interception” and Upholds Criminal Conviction of Employee Under the Federal Wiretap Law
The Seventh Circuit Court of Appeals in U.S. v. Szymuszkiewicz recently affirmed the criminal conviction of an employee under the federal Wiretap Act, 18 U.S.C. § 2511, after he auto-forwarded emails from his supervisor’s email account to his own. The Court concluded the use of the auto-forward feature constituted an “interception” in violation of the Act.
Szymuszkiewicz shows the application of traditional criminal statutes like the Wiretap Act to Internet-based modes of communications such as email, but also to voice-over IP phone communications. The case also is an example of the courts’ continuing struggle with applying the Act to modern communications technologies such as email. Szymuszkiewicz is an instructive reminder for employers, however, about the remedies applicable under the Act to employees who misuse an employer’s email system actions, in addition to traditional remedies such as discipline or termination. In light of the length of time in which Szymuszkiewicz forwarded his supervisor’s emails without her knowledge, 3 years, the case also highlights a need for review and audit of employer technology systems and education to employees to monitor their accounts for privacy purposes.
Referencing Social Media in Non-disparagement Clauses
Confidentiality and non-disparagement clauses are customary in settlement agreements and severance contracts in the employment law context. These days, however, the temptation can be irresistible for disgruntled former employees to trash their former employer on social media sites like Facebook, Twitter, or LinkedIn, on blogs, by text or e-mail or other electronic means.…