Category Archives: Privacy

NJ Supreme Court Sides with Employee on Email Privacy Case

On March 30, 2010, the New Jersey Supreme Court issued its opinion in Stengart v. LovingCare Agency, Inc., 2010 WL 1189458 (N.J. March 30, 2010).  This hotly anticipated ruling was a clear win for employee privacy rights.  It was also clearly the right decision given the facts.  

In its decision, the Court affirmed the Appellate Court’s ruling that an employer was precluded from accessing  attorney-client privileged email.  The email was deemed protected by way of the attorney-client privilege even though the employee accessed the email during work hours using an employer’s laptop.  The key factor in creating a reasonable expectation of  privacy was the plaintiff’s use of her personal Yahoo! webmail service to send and receive the email.   In other words, although the laptop computer used was employer property, the information remained “employee property” given it was password protected via the Yahoo! website.   Moreover, she never stored the password on the company laptop.   The Appellate Divison and Supreme Court were likely also swayed by the fact the attorney-client privileged email in question were used by the employer’s counsel in a pending litigation involving plaintiff.

The Court went into detail regarding how the employer’s Electronic Communications Policy (which was part of its employee handbook) did not provide notice regarding any lack of privacy in a webmail service.  Specifically, the Court ruled:

It is not clear from that language whether the use of personal, password-protected, web-based e-mail accounts via company equipment is covered. The Policy uses general language to refer to its “media systems and services” but does not define those terms. Elsewhere, the Policy prohibits certain uses of “the e-mail system,” which appears to be a reference to company e-mail accounts. The Policy does not address personal accounts at all. In other words, employees do not have express notice that messages sent or received on a personal, web-based e-mail account are subject to monitoring if company equipment is used to access the account.

 The Policy also does not warn employees that the contents of such e-mails are stored on a hard drive and can be forensically retrieved and read by Loving Care.

 The Policy goes on to declare that e-mails “are not to be considered private or personal to any individual employee.” In the very next point, the Policy acknowledges that “[o]ccasional personal use [of e-mail] is permitted.” As written, the Policy creates ambiguity about whether personal e-mail use is company or private property.

Id. at 13 – 14.

A more carefully crafted employee manual would have not likely led to a different result.  It appears as if the Court  provides a roadmap for employers but one in which attorney client communications would always remain sacrosanct.   For example, although many employee manuals already outright preclude employees from accessing webmail via company computers, such a blanket prohibition would likely not be enough going forward given this ruling.  See Id. at 28 – 29 (“[E]mployers have no need or basis to read the specific contents of personal, privileged, attorney-client communications in order to enforce corporate policy.  Because of the important public policy concerns underlying the attorney – client privilege, even a more clearly written company manual  – that is, a policy that banned all personal computer use and provided unambiguous notice that an employer could retrieve and read an employee’s attorney client communications, if accessed on a personal, password protected e-mail account using the company’s computer system – would not be enforceable.”).

It appears as if the correct approach for employers looking to access certain employee email exchanged via a webmail service is to  provide even more specific guidance regarding what may or may not be done by the employee.   For example, it may help to provide an explicit warning that all email exchanged via a webmail service is subject to the general email policy of the firm.  Banning pornography and “hate speech” email would clearly not be a problem under this ruling.  When it comes to attorney-client material, a warning regarding the insecure nature of such  communication may be warranted as well as a reminder that non-business communications are deemed inappropriate and can possibly lead to termination.  Nothing in the ruling would preclude using non-business activity against an employee.  As well, transmitting proprietary company material with insecure, un-archived, and non-sanctioned forms of communication such as webmail services would likely still be considered against corporate policy under this ruling.  Finally, when drafting a policy, it should be made clear that the company cannot and will not guarantee the confidentiality of any communications made using a webmail service. 

Given many employees blur personal and company time, it is often the case that employees are checking their personal email on company time.  Indeed, the advent of webmail services from Yahoo!, Google, Microsoft and others makes it an almost a trivial task to check personal email on company PCs, laptops, and smart phones.  Given the Stengart decision, New Jersey employers should evaluate their current procedures regarding use of webmail services with an understanding that attorney-client email may be strictly off limits to corporate eyes.

New Ponemon Survey Shows 77% of UK Firms Sustained a Data Breach

As reported in Information Week, “[s]eventy-seven percent of C-level executives in a 115-person survey conducted in the U.K. say their organization has experienced a data breach at some point and all of them report attacks targeting corporate data in the past 12 months.”   This Ponemon Institute survey was sponsored by IBM. 

Interestingly, 75% of the survey’s respondents viewed the CIO as being responsible for data protection while 82% of respondents would not fire the CIO if he or she failed to stop a data breach.  This is a not so subtle recognition that companies are unable to completely avoid a cyber attack so firing for an inevitable outcome would be unfair.  This mature perspective provides yet another reason to evaluate network security and privacy insurance.

Law Firm Management of Network Security – Proactive or Reactive?

Several recent articles – one in the March 2010 issue of the ABA Journal and another in the March 9, 2010 issue of The National Law Journal – offer a study in contrast regarding how law firms are dealing with data security exposures.  The ABA Journal takes the position that law firms are proactive in managing this exposure by, for example, barring use of the iPhone.  The National Law Journal article takes the position that although attacks against law firms have been increasing the past several years, “[w]hen it comes to network security, however, law firms in general do not invest as heavily as do other industries.”

A review of the law firm procedures and attitudes related to data security indicates a wide gulf that is really hard to find consensus on.  Some law firms absolutely do not focus on this as an issue and really go about their business as if their network security is an autonomous part of the office that can take care of itself.   On a relative scale, revenue generation for these firms is number one or two while data security is between ten and twenty.  That is not to say there aren’t some small firms who actually do understand how rainmaking can be enhanced with a strong data management system in place.  They are just in the minority.

Given the economic downward spiral that has not let up for the past several years, law firms must obviously be judicious with their resources.  It is clear to some, however, that spending time and money improving the network security and privacy posture of a firm can ultimately help improve its financial position.   As with most things in business (go ask Steve Jobs), it is about the proper marketing of your services.  Running a tight data security ship is no different from being well-versed in environmental law prior to advising clients who may have an environmental exposure.  It should be considered part of the advance work necessary to be a successful attorney.  On the flip side, if you are one of the hundreds of law firms to have sustained a data breach during the past several years, there is no need for further prodding.   The old adage “once bitten, twice shy” will certainly apply and money to improve data security will flow quite easily.

Hotels Remain a Hot Hacker Target

The Westin Bonaventure in Los Angeles is the latest publicly disclosed hotel hacker target.  Unfortunately, there are likely ten or more hotels hit this month that don’t even know about it.   For years now, the hospitality industry has been hit hard with malicious attackers looking to gain access by whatever means necessary – whether via point-of-sale (as they did with the Bonaventure) or directly into a network server far removed from the restaurant or hotel’s location.   In fact, according to one leading security vendor, in 2009 hackers broke into hotel networks more so than in any other industry.  More importantly, the organizations hit by attacks didn’t discover breaches for an average of 156 days.   This Trustwave report was compiled from data breach investigations across the world.

Given their data loss exposures, it is not surprising that some hotel brands have been purchasing network security and privacy insurance for years now.   One leading luxury brand has bought such coverage for over six years.  The covered claims for some of these insurance purchases have more than paid for the premium.  The question remains whether an independent owner or franchisee needs to purchase its own coverage. 

First of all, if you are a franchisee, the reservation networks are usually maintained by the franchisor.  Why should a franchisee pay for coverage on a system maintained by another party – albeit a party with a strong relationship to the franchisee?  To answer that question, the franchisee needs to review its Franchise Disclosure Document (FDD) to ensure that data loss indemnifications are in place.  For example, under the FDD, who is liable for a breach if it’s point-of-sale and your employee was somehow negligent?

Secondly, what if your property collects information based on client preferences, health needs, or other sensitive data?  Where and how is that information stored?  Is it encrypted?  Will this information ultimately be safeguarded by your franchisor partner.  Although most recent hacks have focused on credit card information given that this financial information is so easy to monetize, what about the “cyber-extortion” threat potential should other sensitive client data be in the hands of those same hackers.  Cyber-extortion has become a somewhat common insurance coverage grant.

As is a sound business strategy for any company, a “back up” plan should be in place that takes into consideration the potential your franchisor’s network may likely be compromised at some point.  Not only should a back up network security and privacy plan be in place, but all related risks should be quantified.   After this risk analysis is completed, an evaluation should be made determining whether separate NSAP insurance makes sense to protect your own interests.

New MA Data Protection Law Impacts Companies Around the Country

As of March 1, 2010, any company, organization, association or entity that has any sensitive personal information of a Massachusetts resident must now comply with a new law – Standards for the Protection of Personal Information of Residents of the Commonwealth (201 CMR 17.00).  This new law impacts an entity even if it is not located in or even does business in Massachusetts – all that is necessary to trigger a compliance obligation is that the firm maintains personal information on Massachusetts residents, including information on any customers and employees.  

Taking a page from the FTC’s Red Flags regulations, the new law requires that companies implement a written security plan to protect protected personal information.  An employee needs to oversee this security program, it must be regularly monitored, and the efficiency of the program needs to be reviewed at least annually or at any time when there’s a major change in a company’s business practices. 

Going further than the FTC and not wanting to disappoint given its name, Massachusetts has actually set forth specific data security standards in its new law.  For example, all records containing personal data that are transmitted wirelessly or sent via public networks need to be encrypted.  As well, sensitive personal data stored on laptops and other portable devices also must be encrypted. Companies will need to restrict access to records and files that contain personal information to only those employees who need such information to do their jobs.

Third party vendors who contract with businesses after March 1, 2010 are subject to the new law and also need to comply.  Those companies who contracted prior to March 1, 2010 are given two additional years to comply.  It remains to be seen whether other states will follow suit with Massachusetts but given the reach of the statute, it may not even matter.   Between the FTC and MA, good common sense may dictate that your firm implement a written ID theft prevention program sooner rather than later.

Xinhua: China Cyber Attacks Against Google Pure Fabrication

In its sharpest defense to date, the Chinese Government – by way of its state-controlled media outlet, Zinhua News Agency – argues that it does not make sense to blame the recent corporate hacking incidents on the Chinese Government.   According to the February 24, 2010 People’s Daily article,  “China’s attitude toward cyber attacks has been unequivocal and has adopted laws against such crimes, as China is one of the countries that bear the brunt of cyber attacks. It is way far-fetched to say that cyber attacks — even if they were to originate from China or were to be carried out by Chinese citizens — would have the support of the Chinese government.”  The authors point out the IP addresses are not necessarily accurate for determining the initial location of a hacking incident given those traced computers can be hijacked from elsewhere.  The article closes by saying:  “Cyber crimes could cause immense losses for individuals, enterprises and nation-states. Effective supervision and closer international cooperation are ways to boost cyber security.  Finger pointing is not.”    Although it remains to be seen whether the Chinese Government was behind this latest round of corporate exploits, keeping an open perpective is never a bad idea.

FTC Points Out P2P Risk

In a February 22, 2010 press release, the Federal Trade Commission states that it notified “almost 100 organizations that personal information, including sensitive data about customers and/or employees, has been shared from the organizations’ computer networks and is available on peer-to-peer (P2P) file-sharing networks to any users of those networks, who could use it to commit identity theft or fraud.” 

The agency also released new educational materials that recommend ways to manage P2P risk.  Interestingly, the FTC does not suggest that all P2P file sharing software be banned from a business.  The recommendation is to evaluate what sensitive data is being used compared with the benefits of using such software.  This recommendation fails to appreciate the fact that all P2P software used for a business purpose can likely be replaced with secure search software that does not require opening up your folders to strangers.  Moreover, there is no general business purpose for using LimeWire or similar software given such tools are focused primarily on locating free music and video files.   In fact, that is why some universities have banned the use of P2P file sharing software for years now.  The reasonable assumption is that if music and video does not fit within a scholastic environment, it does not in a business environment.

Several years ago, Information Week did an excellent expose of the P2P risk faced by many businesses.  This was a wake up call that was obviously not heeded given the FTC release.  In a similar vein, security specialists were warning years ago that there were hundreds of thousands of websites infected with SQL injection exploits.  To this day, SQL injection exploits remain one of the most popular tools for hackers to gain database access.   Unfortunately, given the “fix” for such an exploit requires some basic coding, it is beyond the expertise or concern of most businesses and individuals.

OCR Website Posts List of Breaches As Required Under HITECH Act

On February 22, 2010, as required by section 13402(e)(4) of the HITECH Act, the Office of Civil Rights (OCR) website posted a list of the covered entities that have reported breaches of unsecured protected health information affecting more than 500 individuals.  By posting this information on the OCR website, OCR has met its HITECH Act obligation, which required Health and Human Services (HHS) make this information public by posting it on an HHS website.    The 36 impacted organizations are located around the country and run the gamut from the very small to one of the largest health plans in the country.

Although the majority of the breaches posted involved lost media and laptops, there were instances involving paper records, including several instances of mailings that included protected information.    As well, there were a number of instances of hacking with a few involving compromises of business associates. 

It remains to be seen whether this public display will shame companies into not losing laptops or being the victim of a theft.  What is clear, however, is that having your name listed on a public site will open you up to more potential litigation expense.

NYT: Two China Schools Said to Be Tied to Online Attacks

According to an article in the New York Times, the recent wave of APT attacks on US businesses “have been traced to computers at two educational institutions in China, including one with close ties to the Chinese military.”   This conclusion is apparently based on information gained from the forensics investigators.  Given that pretty much every entity in China has some ties to the Chinese military, this revelation is hardly noteworthy.  What is noteworthy is the fact that the investigation has found no direct linkage to the Chinese government.  

In fact, the article goes so far as to state:  “the findings raise as many questions as they answer, including the possibility that some of the attacks came from China but not necessarily from the Chinese government, or even from Chinese sources.”   A professor at one of the schools had two guesses as to how the attacks may have originated from the Chinese schools:  “One is it’s a completely individual act of wrongdoing, done by one or two geek students in the school who are just keen on experimenting with their hacking skills learned from the school, since the sources in the school and network are so limited.  Or it could be that one of the university’s I.P. addresses was hijacked by others, which frequently happens.”

As we learn more about these attacks, we will likely find out two things.  First, that these attacks have been going on for longer than originally anticipated against a wider net of companies.  Moreover, the attacks will not abate any time soon.  Second, that the Chinese government was deliberately set up by the actual attackers – one or more sophisticated company or governmental entity.  Given that for many years now, the Chinese government has had the luxury of US companies sharing their IP confidences in return for access to Chinese markets, this “blame the Chinese” storyline made little sense from the beginning.  More to the point, the Chinese have enough boots on the ground to get whatever information they need in a much more direct way.

WSJ: Hackers Hit 2,400 Companies and Government Agencies

According to today’s Wall Street Journal, “data compiled by NetWitness . . .  showed that hackers gained access to a wide array of data at 2,411 companies, from credit-card transactions to intellectual property.” 

Starting in late 2008, the hackers are said to have gotten into corporate networks using social engineering methods.  Employees were enticed to click on Web sites with malware or email ads purporting to clean up viruses.   NetWitness claims that in more than 100 cases, the hackers gained access to  servers holding large quantities of data such as databases and email.

As more firms deploy forensics experts such as NetWitness to audit their networks, we will see more and more Wall Street Journal articles demonstrating just how systemic these breaches are in corporate America.  Unfortunately, it is very difficult to “unlearn” clicking on images thrown your way on a computer screen.  It takes time and training.