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Mary T. Costigan

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Mary T. Costigan is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and a core member of the firm’s Privacy, Data and Cybersecurity practice group. She holds a Certified Information Privacy Professional/US designation from the International Association of Privacy Professionals (iapp).

Mary advises regional, national and multinational clients across various industries on data privacy and cybersecurity laws and best practices including employee monitoring, internet privacy, biometric data collection, artificial intelligence, the California Consumer Privacy Act (CCPA), HIPAA, and the EU General Data Protection Regulation.

Mary has extensive experience helping clients respond to cybersecurity incidents including ransomware attacks.

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Over the past few months, businesses across the country have been focused on the California Consumer Privacy Act (CCPA) which dramatically expands privacy rights for California residents and provides a strong incentive for businesses to implement reasonable safeguards to protect personal information. That focus is turning back east as the Stop Hacks and Improve Electronic Data Security Act (SHIELD Act), becomes effective in less than two weeks. With the goal of strengthening protection for New York residents against data breaches affecting their private information, the SHIELD Act imposes more expansive data security and updates its existing data breach notification requirements.

This post highlights some features of the SHIELD Act. Given the complexities involved, organizations would be well-served to address their particular situations with experienced counsel.

When does the SHIELD Act become effective?

The SHIELD Act has two effective dates:

  • October 23, 2019 – Changes to the existing breach notification rules
  • March 21, 2020 – Data security requirements

Which businesses are covered by the SHIELD Act?

The SHIELD Act’s obligations apply to “[a]ny person or business which owns or licenses computerized data which includes private information” of a resident of New York. Previously, the obligation to provide notification of a data breach under New York’s breach notification law applied only to persons or businesses that conducted business in New York.

Are there any exceptions for small businesses?

As before the SHIELD Act, there are no exceptions for small businesses in the breach notification rule. A small business that experiences a data breach affecting the private information of New York residents must notify the affected persons. The same is true for persons or businesses that maintain (but do not own) computerized data that includes private information of New York residents. Persons or businesses that experience a breach affecting that information must notify the information’s owner or licensee.

However, the SHIELD Act’s data security obligations include some relief for small businesses, defined as any person or business with:
Continue Reading New York SHIELD Act FAQs

Several weeks ago, we published a CCPA FAQS on Cookies, which provides a high-level look at how the impending CCPA may apply to website cookies. The CCPA’s definition of personal information is expansive, and in preparation for the CCPA it is easy to overlook certain elements of personal information, in particular website cookies.

A…

The California Consumer Privacy Act takes effect January 1, 2020. Businesses within the scope of the CCPA are taking steps to prepare, including drafting notices to inform California consumers of their right to opt out of the sale of their personal information. However, California will not be the first state to provide a consumer with…

The California Consumer Privacy Act is almost here! The groundbreaking law takes effect January 1, 2020. Covered businesses and their service providers have already started preparing, as the CCPA continues to evolve since it was introduced. California’s legislative session ended on September 13th, with some final modifications to bills that would amend certain…

As businesses prepare for the effective date of the California Consumer Privacy Act, many are conducting data mapping to identify the personal information they collect, who it belongs to, how they use it, with whom they share it and whether they sell or disclose it. The information a business collects from this exercise will set…

The California Consumer Privacy Act (CCPA), considered the most expansive U.S. privacy laws to date, is set to take effect January 1, 2020. In short, the CCPA places limitations on the collection and sale of a consumer’s personal information and provides consumers certain rights with respect to their personal information. Wondering whether they will have…

On Thursday, New York Governor Andrew Cuomo signed into law the Stop Hacks and Improve Electronic Data Security Act (SHIELD Act), sponsored by Senator Kevin Thomas and Assemblymember Michael DenDekker. The SHIELD Act, which amends the State’s current data breach notification law, imposes more expansive data security and data breach notification requirements on companies, in…

The GDPR is wrapping up its first year and moving full steam ahead. This principles-based regulation has had a global impact on organizations as well as individuals. While there continue to be many questions about its application and scope, anticipated European Data Protection Board guidance and Data Protection Authority enforcement activity should provide further clarity in the upcoming year. In the meantime, here are a few frequently asked questions – some reminders of key principles under the GDPR and others addressing challenges for implementation and what lies ahead.

Can US organizations be subject to the jurisdiction of the GDPR?

Whether a US organization is subject to the GDPR is a fact-based determination. Jurisdiction may apply where the US organization has human or technical resources located in the EU and processes EU personal data in the context of activities performed by those resources. In cases where the US organization does not have human or technical resources located in the EU, it may be subject to the GDPR’s jurisdiction in two instances: if the organization targets individuals in the EU (not businesses) by offering goods or services to them, regardless of whether payment is required, or if it monitors the behavior of individuals in the EU and uses that personal data for purposes such as profiling (e.g. website cookies, wearable devices). The GDPR may also apply indirectly to a US organization through a data processing agreement.

If we execute a data processing agreement, does that make our US organization subject to the GDPR?

When an organization subject to the GDPR engages a third party to process its EU data, the GDPR requires that the organization impose contractual obligations on the third party to implement certain GDPR-based safeguards. If you are not otherwise subject to the GDPR, executing a data processing agreement will not directly subject you to the GDPR. Instead, it will contractually obligate you to follow a limited, specific set of GDPR-based provisions. Your GDPR-based obligations will be indirect in that they are contractual in nature.

Does the GDPR apply only to the data of EU citizens?

No, the GDPR applies to the processing of the personal data of data subjects who are in the EU regardless of their nationality or residence.

Is our organization subject to the GDPR if EU individuals access our website and make purchases?

If your organization does not have human or technical resources in the EU, the mere accessibility of your website to EU visitors, alone, will not subject you to the GDPR. However, if your website is designed to target EU individuals (e.g. through features such as translation to local language, currency converters, local contact information, references to EU purchasers, or other accommodations for EU individuals) your activities may be viewed as targeting individuals in the EU and subject you to the GDPR.

Are we required to delete an individual’s personal data if they request it?

If your organization is subject to the GDPR, an individual may request that you delete their personal data. However, this is not an absolute right. Your organization is not required to delete the individual’s personal data if it is necessary

  • for compliance with a legal obligation or the establishment, exercise or defense of a legal claim
  • for reasons of public interest (e.g. public health, scientific, statistical or historical research purposes)
  • to exercise the right of freedom of expression or information
  • where there is a legal obligation to keep the data
  • or where you have anonymized the data.

Additional consideration should be given to any response when the individual’s data is also contained in your back-ups.

GDPR principles have started to influence law in the U.S. In fact, many have been watching developments regarding the California Consumer Privacy Act (CCPA), which shares a right to delete as it pertains to the personal information of a California resident. Similar to the GDPR, it is not an absolute right and in certain cases an exception may apply. For instances, both law contain an exception from the right to have personal information deleted when the information is needed to comply with certain laws.

Does the GDPR apply to an EU citizen who works in the US?

If your organization is not subject to the GDPR and you hire an EU citizen to work in the US, the GDPR may not apply to the processing of their personal data in the US. However, depending on the circumstances, the answer may be different if the EU citizen is in the US on temporary assignment from an EU parent. In that scenario, their data may be subject to the GDPR if the US entity’s relationship with the parent creates an establishment in the EU, and it processes this data in the context of the activities of that establishment. To the extent the EU parent transfers the EU employee’s personal data from the EU to the US entity, that transfer may require EU-US Privacy Shield certification, the execution of binding corporate rules, or standard contractual clauses. These measures are designed to ensure data is protected when it is transferred to a country, such as the US, that is not deemed to have reasonable safeguards.

Do we need to obtain an EU individual’s consent every time we collect their personal data?

If your organization is subject to the GDPR and processes an EU individual’s information, you must have a “legal basis” to do so. Consent is just one legal basis. In addition to consent, two of the most commonly used legal basis are the “legitimate interests” of your organization and the performance of a contract with the individual. A legitimate interest is a business or operational need that is not outweighed by the individual’s rights (e.g. processing personal data for website security, conducting background checks, or coordinating travel arrangements). Processing necessary to the performance of a contract is activity that enables you to perform a contract entered into with the individual (e.g. processing employee data for payroll pursuant to the employment contract or processing consumer data for shipping goods under a purchase order.)

Should we obtain an employee’s consent to process their personal data?Continue Reading The GDPR – One Year and Counting

As wearable and analytics technology continues to explode, professional sports leagues, such as the NFL, have aggressively pushed into this field. (See Bloomberg). NFL teams insert tiny chips into players shoulder pads to track different metrics of their game. During the 2018-2019 NFL season, data was released that Ezekiel Elliot ran 21.27 miles per hour for a 44-yard run, his fastest of the season. The Dallas Cowboys are not alone as all 32 teams throughout the league can access this chip data which is collected via RFID tracking devices. Sports statistics geeks don’t stand a chance as this technology will track completion rates, double-team percentages, catches over expectation, and a myriad of other data points.

There are obvious questions and concerns about the use of this technology, and not just at the professional level. Wearables can be found at all levels of sports and athletic activities, including at colleges and high schools. At the professional level, the NFL is unique in that it allows teams to use the chip data during contract negotiations. However, players do not have full access to this information, unless specifically granted by individual teams. This is important since there is much debate over who truly owns this data. And, for a variety of reasons, players and athletes want to know where their information is stored, how it is stored, whether and how it might be used and disclosed, who has access to it, and what safeguards are in place to protect it. Major League Baseball and the Players Association added Attachment 56 to the 2017-2021 Collective Bargaining Agreement to address some of these concerns. But, again, these and other questions are not unique to professional ball players.

See the source imageWith devices ranging from wearable monitors to clothing and equipment with embedded sensors, professional teams, colleges and universities, local school districts, and other sports and athletic institutions, as well as the companies that provide the wearables, can now collect massive amounts of data such as an athlete’s heart rate, glucose level, breathing, gait, strain, or fatigue. On the surface, this data may relate to an athlete’s performance and overall wellness, which may be somewhat apparent to onlookers without the aid of the device. However, alone or aggregated, the data may reveal more sensitive personal information relating to the athlete’s identity, location, or health status, information that cannot be obtained just by closely observing the individual. When organizations collect, use, share, or store this data, it creates certain privacy and security risks and numerous international, federal, and state data protection laws may apply. Any sports or athletic organization that develops a wearable device program, or has reason to believe that these devices are being used by coaches and others to collect similar data, should be mindful of these risks and regulatory issues.

Below is a non-exhaustive list of some of these laws:
Continue Reading As Wearable Technology Booms, Sports and Athletic Organizations at all Levels Face Privacy Concerns

Since the start of 2019, New Jersey has shown it is on the forefront of consumer privacy and security law. Last week we reported on Assembly Bill 3245 (AB 3245) that would enhance the state’s data breach notification requirements. In short, if signed, AB 3245, would require businesses to notify consumers of online…