On October 6, 2021, the Senate Commerce Committee conducted its second in a series of hearings dedicated to consumer privacy and data, this time addressing Data Security.  Similar to last week’s privacy hearing, the witnesses and Senators appeared to agree that federal data security standards – whether as part of privacy legislation or on their own – are urgently needed. If there were to be consensus around legislative principles, the hearing provides clues about what a compromise might look like.

Prepared Statements. In their opening statements, the witnesses emphasized the need for minimum standards governing data security.

  • James E. Lee, Chief Operating Officer of the Identity Theft Resource Center, explained that without minimum requirements, companies lack sufficient incentives to strengthen their data security practices to protect consumer data. Lee also advocated for more aggressive federal enforcement rather than the patchwork of state actions, which, he said, produce disparate impacts for the same conduct.
  • Jessica Rich, former Director of the FTC’s Bureau of Consumer Protection and counsel at Kelley Drye, emphasized that current laws do not establish clear standards for data security and accountability. She advocated for a process-based approach to prevent the law from being outpaced by evolving technologies and to ensure that it accommodates the wide range of business models and data practices across the economy. Among her recommendations, Rich suggested that Congress provide the FTC with jurisdiction over nonprofits and common carriers and authority to seek penalties for first-time violations.
  • Edward W. Felten, former Deputy U.S. Chief Technology Officer, former Chief Technologist of the FTC’s Bureau of Consumer Protection, and current Professor of Computer Science and Public Affairs at Princeton University, focused on the need to strengthen the FTC’s technological capabilities, including increasing the budget to hire more technologists. Notably, Felten advocated for more prescriptive requirements in data security legislation such as requiring companies to store and transmit sensitive consumer data in encrypted form and prohibiting companies from knowingly shipping devices with serious security vulnerabilities.
  • Kate Tummarello, Executive Director at Engine, a non-profit organization representing startups, addressed the importance of data security for most startups. Tummarello advocated for FTC standards or guidance with flexible options. Cautioning against overburdening startups, Tummarello explained that newer companies take data security seriously because they do not have the name recognition or relationships with consumers that larger companies may have, and a single breach could be extremely disruptive. Additionally, Tummarello highlighted that the patchwork of state laws provides inconsistent and unclear data security guidance and imposes high compliance costs.


Continue Reading Hope Emerges at Senate Data Security Hearing – But Will Congress Grab the Brass Ring?

Coronavirus testing and screening procedures are central to many companies’ return-to-work plans.  Because testing and screening data is often sensitive and may help to determine whether individuals are allowed to work, companies need to be aware of the privacy and security risks of collecting this data and protect it appropriately.  Failing to do so may

Effective January 1, 2020, New Hampshire’s new Insurance Data Security Law will impose certain information security requirements on entities that (1) are licensed under the state’s insurance laws and (2) handle “nonpublic information.” “Nonpublic information” is defined as information that is not publicly available and falls into one of the two following categories:

  1. Information that

Last week, the FTC sent a closing letter to Morgan Stanley Smith Barney LLC (“Morgan  Stanley”) relating to the agency’s investigation over whether Morgan Stanley engaged in unfair or deceptive acts or practices by failing to secure certain account information related to its Wealth Management clients.

The investigation examined allegations that a Morgan Stanley employee

On Tuesday, the California Attorney General released the second annual data breach report, summarizing the 167 data breaches reported to the Attorney General’s office in 2013, and providing privacy and security recommendations for businesses. According to the report, the retail, finance, and healthcare industries reported over 60 percent of the 167 breaches, over half

Updating a prior post, the Ninth Circuit, in Ruiz v. Gap, Inc., recently upheld a dismissal on summary judgment on the grounds that the mere risk of identity theft is too speculative of an injury to substantiate a cause of action based on negligence. See Ruiz v. Gap, Inc., No. 09-15971, 2010 WL 2170993 (9th Cir. May 28, 2010)

As background, Plaintiff, Mr. Joel Ruiz, submitted an online job application to work in a Gap store. As part of the application, Ruiz provided his social security number. Gap later disclosed that laptops were stolen from Vangent, the vendor with whom Gap had contracted for recruiting purposes. The laptops contained Ruiz’s unencrypted personal information, along with the information of nearly 800,000 other Gap job applicants.

Ruiz filed a putative class action alleging, among other things, negligence and violation of California Civil Code § 1798.85. Ruiz later amended his complaint to bring a breach of contract claim against Vangent. As discussed in a prior post, the court previously denied a motion to dismiss on the negligence claim. However, defendants were granted summary judgment on the negligence claim after discovery had done little to cure its speculative nature. See Ruiz v. Gap, Inc., 622 F. Supp. 2d 908 (N.D. Cal. 2009). The court held that an increased risk of identity theft did not constitute “the level of appreciable harm necessary to assert a negligence claim under California law.” Id. at 913.

In the opinion, the Ninth Circuit held that while the increased risk of identity theft created sufficient concern to grant plaintiff Article III standing, the alleged injury was still too speculative to sustain a negligence claim under California law. See Ruiz v. Gap, Inc., No. 09-15971, 2010 WL 2170993, at *1 (9th Cir. May 28, 2010). “It is fundamental that a negligent act is not accountable unless it results in injury to another.” Id. Notably, the court refrained from answering whether money spent on credit monitoring, as the result of personal information theft, supported a negligence claim. Id. However, the court included a footnote citing authority in favor of awarding medical monitoring costs, thus suggesting that it might be inclined to draw a parallel between these issues in the future. Id. at n1.


Continue Reading Identify Theft Litigation Update: Ninth Circuit Upholds Dismissal Of Speculative Claims