Recent Publications - Privacy, Data & Cyber Law

Copyright Law in the Age of Twitter
April 17, 2018 | Shari Claire Lewis | Privacy, Data & Cyber Law
The exponential growth of social media, and the inevitable conflicts that result, is leading to more and more litigation. In many instances, courts are being asked to apply laws crafted before the Internet era to these modern disputes. For example, the U.S. District Court for the Southern District of New York recently decided an issue …
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US Companies: Prepare Now for May 25 GDPR Deadline
April 6, 2018 | Shari Claire Lewis | Privacy, Data & Cyber Law
In a little more than six weeks, the most comprehensive revision of EU privacy rules in the past 20 years goes into effect, and the rules have broad implications for U.S.-based companies. On May 25, 2018, the European Union General Data Protection Regulation or GDPR , goes into effect. The following is an explanation of …
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In N.J., Data Holders Liable for Breaches Caused by Third-Party Users
April 5, 2018 | Nancy A. Del Pizzo | Privacy, Data & Cyber Law
New Jersey holders of individuals’ personal and confidential information are on alert that it is not enough to secure the data stored and/or used on their own platforms if that data is also accessed by a third party. On March 1, 2018, the Superior Court of New Jersey entered a Final Consent Judgment (the “Consent …
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N.J. Employers Seeking IP Rights From Employees Face New Obstacles
February 23, 2018 | Nancy A. Del Pizzo | Intellectual Property
Effective April 1, 2018, employers in New Jersey will no longer be able to use an employment contract to obtain rights to an employee’s inventions. Exceptions included in the legislation are whether the inventions (a) relate “to the employer’s business or actual or demonstrably anticipated research or development,” or (b) result “from any work performed …
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New York Extends Time to File Malpractice Claim
February 21, 2018 | Ada Kozicz | David E. Richman | Medical Malpractice Defense | Health Services
Governor Andrew Cuomo has signed a new law, known as “Lavern’s Law,” that extends the amount of time a patient has to file a medical malpractice claim for a missed cancer or malignant tumor diagnosis. Patients now have 2 1/2 years to file a claim from the date the misdiagnosis is discovered by the patient, …
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Judge Weinstein Does Deep Dive Into Website Accessibility Lawsuits
February 16, 2018 | Shari Claire Lewis | Privacy, Data & Cyber Law
More and more businesses are being sued by visually impaired individuals who claim that they cannot access or use their websites, in violation of Title III of the Americans With Disabilities Act (the ADA), 42 U.S.C. §12181 et seq., which prohibits discrimination on the basis of disability in the activities of “places of public accommodations,” …
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Feb. 15 Deadline Looms for NY’s Banking, Insurance and Financial Services Industries
January 31, 2018 | Shari Claire Lewis | Banking | Insurance Coverage | Privacy, Data & Cyber Law
New York based bank, insurance and financial service businesses face a February 15, 2018 deadline to submit their compliance certification to the State’s Department of Financial Services (DFS). New York’s Cybersecurity Regulation (23 NYCRR Part 500) was issued by DFS last March – the first such state regulation in the nation. The Regulation includes various …
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CMS Updates Its Position on Texting Patient Information
January 11, 2018 | Health Services
Recognizing that texting has become a valuable and essential means of communication among providers, the Centers for Medicare and Medicaid Services (CMS) recently issued new guidance regarding its position on texting of patient information. The guidance clarifies that texting patient information may be permissible if certain security standards are met, but it also distinguishes between …
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The Status of Telemedicine Reimbursement
December 20, 2017 | Benjamin P. Malerba | David E. Richman | Ada Kozicz | Health Services
Benjamin Malerba, David Richman and Ada Kozicz wrote an article published in Health eSource, a publication of the American Bar Association’s Health Law Section entitled, “The Status of Telemedicine Reimbursement: States’ Efforts to Incentivize Providers to Utilize Telehealth Technologies.” The article centers on the importance of creating legislation that will provide insurance reimbursement for telemedicine, as a means to …
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Online Business’ Optimism Under Privacy Shield Is Tempered by EU Privacy Challenges Ahead
December 19, 2017 | Shari Claire Lewis | Privacy, Data & Cyber Law
There is good news for U.S. companies operating online, which nowadays, of course, includes virtually every business. The European Commission has published its first annual report on the agreement reached last year by the Commission and the U.S. government to protect personal data transferred from the European Union (EU) to U.S. companies for commercial purposes, …
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Equifax: Why This Data Breach Is Different from All the Others
December 7, 2017 | Shari Claire Lewis | Amanda Gurman | Privacy, Data & Cyber Law
Shari Claire Lewis and Amanda Gurman authored an article, “Equifax: Why This Data Breach Is Different from All the Others,” which appeared in the November 2017 edition of Westlaw Journal White Collar Crime. To read the article, click here. …
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Lawsuits Highlight Looming Requirements for Handicapped-Accessible Websites
October 26, 2017 | Shari Claire Lewis | Nancy A. Del Pizzo | Privacy, Data & Cyber Law
Today, most businesses are e-businesses, and all e-businesses should take note. There has been an explosion in the number of lawsuits filed in the Federal Courts seeking damages and injunctive relief under Title III of the Americans With Disabilities Act, 42 U.S.C. § 12182(a) (the “ADA”) based on alleged failures to provide accommodations that enable …
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Does Our Digital Age Require New Fourth Amendment Rules?
October 17, 2017 | Shari Claire Lewis | Privacy, Data & Cyber Law
It’s 10 p.m. Your cellphone knows where you are. It also knows where you are at 10:00 in the morning, at 7:00 in the evening, and at noon and midnight and at every other moment of the day. We live in a world where cellphones are omnipresent. We have them at home, at work, and …
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New York Legislature Broadens Telehealth Services Coverage for Adult Care Facilities
October 16, 2017 | Health Services | Privacy, Data & Cyber Law
New York continues to drive legislative reform to promote telehealth services – clinical healthcare provided remotely through information technology. Most recently the state legislature passed a bill that expands the definition of “originating sites” where telehealth services may be provided to Medicaid patients in an effort to lower costs and health risks. For background, in …
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The NAIC Cyber Security Model Law Is Ready for Its Debut
September 20, 2017 | Jay D. Kenigsberg | Privacy, Data & Cyber Law
The National Association of Insurance Commissioners (NAIC) has advanced its Insurance Data Security Model Law (“Model Law”) for likely adoption at its annual Fall National Meeting this December. The purpose of the new Model Law will be to improve the insurance sector’s ability to respond to cyber incidents. The “insurance sector” includes insurers, agents and …
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Equifax Breach Update
September 13, 2017 | Shari Claire Lewis | Privacy, Data & Cyber Law
Equifax’s response to its recent data breach is evolving, and so should yours. Piling on to the initial public fury regarding Equifax’s announcement of its data breach weeks after it occurred is the outrage that many feel about the credit reporting agency’s response. Cyber pundits and the public at large were particularly peeved by Equifax’s …
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How to Respond to the Equifax Security Breach
September 8, 2017 | Shari Claire Lewis | Privacy, Data & Cyber Law
Yesterday, Equifax, a company whose credit services are central to the financial activities of virtually every American, announced a massive security incident described by its CEO as an event that struck at the heart of what Equifax does. Approximately 143 million U.S. consumers had personal information, such as their names, social security numbers, birth dates …
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Kenigsberg Published in Pratt’s Privacy & Cybersecurity Law Report
August 18, 2017 | Jay D. Kenigsberg | Privacy, Data & Cyber Law
Jay Kenigsberg’s article entitled, “United States v. Ulbricht: Dread Pirate Roberts Pushes the Envelope of the Fourth Amendment,” was published in the September 2017 issue of Pratt’s Privacy & Cybersecurity Law Report. Click here to read the Report. …
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Social Media Grabs the U.S. Supreme Court’s Attention
August 15, 2017 | Shari Claire Lewis | Privacy, Data & Cyber Law
It is a truism that law often lags technology. Near the end of the U.S. Supreme Court’s past term, the court issued a decision in which the majority opinion, by Justice Anthony Kennedy, recognized the importance of social media in most people’s lives. The ramifications of the court’s statements about social media, in Packingham v. …
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Blockchain: Unlinking Hype from Reality
June 21, 2017 | Jay D. Kenigsberg | Privacy, Data & Cyber Law
On June 15, 2017, AIG and Standard Chartered Bank announced the first multinational smart contract-based insurance policy to function on the blockchain. AIG partnered with IBM to manage and place multiple insurance policies across multiple countries by using an advanced blockchain framework.  In essence, the bank’s clients in the U.K., U.S., Singapore and Kenya will …
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Asserting Damages for Data Piracy Under the CFAA
June 20, 2017 | Shari Claire Lewis | Complex Torts & Product Liability | Professional Liability | Privacy, Data & Cyber Law
Data often is the lifeblood of a business. When a database is breached in one way or another, the results can be devastating—especially if the data falls into the hands of a competitor. Many companies suffering this kind of loss turn to litigation. Perhaps in an effort to obtain federal court jurisdiction, they may assert …
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ABA Issues New Guidance on Confidentiality and the Use of Technology
May 17, 2017 | Privacy, Data & Cyber Law | Professional Liability
The American Bar Association’s Standing Committee on Ethics and Professional Responsibility recently issued a Formal Opinion, providing updated recommendations regarding lawyers’ obligations when using technology resources to communicate with clients and to protect confidential client information. Since 1999, the Committee has advised that the ABA Model Rules of Professional Conduct permit an attorney to transmit …
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UK Health System Infected by Ransomware
May 12, 2017 | Privacy, Data & Cyber Law | Health Services
In a cautionary tale for all companies, but especially healthcare organizations, on May 12, 2017, multiple news sources reported that a broad cyberattack using ransomware caused substantial interference with critical systems across Europe, Russia and Asia. (See e.g., New York Times, BBC News and Silicon Angle.) According to the New York Times, the  attacks were …
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Trump Administration Reverses Broadband Provider Privacy Protections
April 24, 2017 | Privacy, Data & Cyber Law
On April 3, 2017, President Donald J. Trump signed into law S.J. Resolution 34, a partisan-enacted joint congressional resolution disapproving of (and thus negating) a rule submitted in 2016 by the Federal Communications Commission (“FCC”), which provided additional protections to consumers when using broadband services.  The result is a reversal in privacy provisions that were …
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Second Circuit Rejects Secret-Cookie Suit
April 21, 2017 | Complex Torts & Product Liability | Professional Liability | Privacy, Data & Cyber Law
By now, anyone who uses a cell phone or other method to access the Internet—virtually everyone—has heard of “cookies” intended to track their online activities. Many individuals who object to tracking take steps to block cookies through privacy settings on their web browsers and other technologies. However, in a decision with important implications for those …
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Democratic State Senators among the Latest to Fall Prey to Ransomware Attack
March 21, 2017 | Privacy, Data & Cyber Law
The Democrats in the Pennsylvania State Senate recently fell victim to a ransomware attack that locked lawmakers and their staffs out of their computer, data, email and website. Hackers were able to infect the party’s network with malware and demanded a ransom payment in bitcoin in order to remove the virus and unlock the files. …
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FTC Continues to Focus on Data Protection
March 21, 2017 | Privacy, Data & Cyber Law
During 2016 the United States Federal Trade Commission (FTC) announced six formal enforcement actions. All involved corporate failures to protect sensitive personal information (health, financial or other) belonging to customers, other consumers or employees. These included proceedings against the owners of (failure to protect the information of 36 million dating site users) and ASUS TeK …
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FDA Addresses Cyber-Security Risks in Connected Medical Devices
March 21, 2017 | Privacy, Data & Cyber Law
The “Internet of Things”  has pervaded every facet of our society thereby introducing unanticipated cyber risks into everyday life. Often overlooked and particularly disconcerting are the cyber risks inherent in connected medical devices. Nevertheless, caregivers and patients alike should be aware that any medical device that depends on interactive computer technology may be vulnerable to …
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Online and Social Media Defamation in Today’s Age
February 21, 2017 | Complex Torts & Product Liability | Professional Liability | Privacy, Data & Cyber Law
Twitter, Facebook, Instagram, and other forms of social media are becoming the dominant communication tools in today’s political and social discourse, often entirely supplanting traditional media’s role in public commentary. Social media’s emerging role, combined with the extreme divisions so evident in our country, have caused the courts to consider application of pre-Internet legal standards …
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Courts Consider Whether Employers Have a Duty to Safeguard Employee Personal Information
January 19, 2017 | Privacy, Data & Cyber Law
Employers regularly collect and maintain confidential personal information about their employees, including birth dates, social security numbers, addresses, tax information, and bank information.  A data breach may put this employee information at risk.  In two recent decisions, courts have had to consider the scope of employers’ duties to their employees to protect confidential personal information …
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N.Y. Announces Revisions and Delayed Implementation of Cyber Regulations
January 12, 2017 | Privacy, Data & Cyber Law
In September 2016, New York Governor Andrew Cuomo announced a new regulation that would require banks and insurers to implement cyber security programs. Specifically, the proposed regulation required covered entities, defined as any entity operating under a license or other authorization required by New York’s banking, insurance or financial services law, to establish and maintain …
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Self-Proclaimed Publisher of Fake News Sites Loses Circuit Appeal
December 21, 2016 | Complex Torts & Product Liability | Professional Liability | Privacy, Data & Cyber Law
Fake news has been in the news a great deal recently, with some wondering how to address it. The recent decision by the U.S. Court of Appeals for the Second Circuit in Federal Trade Commission v. LeadClick Media , 838 F.3d 158 (2d Cir. 2016), may provide a way, at least in some instances. In …
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Enforcing Copyright Without Having a Registration Certificate
December 6, 2016 | Commercial Litigation | Professional Liability | Privacy, Data & Cyber Law
Nancy A. Del Pizzo’s article entitled, “Enforcing Copyright Without Having a Registration Certificate” was published in the December 5, 2016 issue of the New Jersey Law Journal. Click here to read the article in its entirety. Reprinted with permission from the December 5, 2016 issue of the New Jersey Law Journal. © 2016 ALM Media Properties, LLC. …
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Rutkin Publishes Article Entitled, “Insight – A Lesson in Cyber”
November 17, 2016 | Compliance Investigations & White Collar | Privacy, Data & Cyber Law
Alan Rutkin article entitled, “Insight – A Lesson in Cyber,” has been published in the November 2016 issue of Best’s Review magazine. Click here to read the article. Best’s Review:  November 2016. Copyrighted A.M. Best Company, Inc. 2016.  All Rights Reserved, Reprinted with Permission. …
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As Authorities Crack Down on Cyber Security Attacks, U.S. Copyright Office Lifts Ban on Hacking Your Own Devices
November 11, 2016 | Privacy, Data & Cyber Law
The U.S. Copyright Office (the “Office”) has recently issued an exemption to the Digital Millennium Copyright Act (the “Act”), which prohibits users from hacking their own digital devices. Pursuant to 17 U.S.C. § 702, the Office is authorized to promulgate rules and regulations regarding copyright policies and other intellectual property issues. The Act was first …
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FTC Issues Guidance for Responding to a Data Breach
November 10, 2016 | Directors & Officers Liability | Professional Liability | Privacy, Data & Cyber Law
The Federal Trade Commission recently issued a new guidance for businesses on responding to a data breach. The guidance, which is also available in video format on the FTC’s website here, sets forth the concrete steps that any business should take in the event that personal information has been hacked, stolen, or inadvertently exposed. The …
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OCR Announces Increased Investigation of Small HIPAA Breaches
October 14, 2016 | Privacy, Data & Cyber Law
The U.S. Department of Health and Human Services (“HHS”), Office for Civil Rights (“OCR”) recently announced a new initiative to investigate the causes of “small breaches” under the Health Insurance Portability and Accountability Act (“HIPAA”) that involve the protected health information (“PHI”) of fewer than 500 individuals. OCR has discretion in deciding which breaches to …
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New Guidance on HIPAA and Cloud Computing Issued by the Department of Health and Human Services
October 14, 2016 | Privacy, Data & Cyber Law
As the health care industry continues to utilize new cloud computing technologies, the U.S. Department of Health and Human Services (“HHS”) issued guidance on how such technologies can be implemented while remaining compliant with the HIPAA Privacy, Security and Breach Notification Rules (the “ HIPAA Rules”). Specifically, HHS explained that when covered entities or business …
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New York Proposes Cyber Security Regulations for Banks and Insurers
September 16, 2016 | Privacy, Data & Cyber Law
On September 13, 2016, New York Governor, Andrew Cuomo, announced a new regulation that would require banks and insurers to implement cyber security programs. The regulation is the first of its kind not only in New York but in all of the United States. While the regulation would only apply to banks and insurers licensed …
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Cybersecurity Rulings Tap Insurance and Standing Issues
August 25, 2016 | Privacy, Data & Cyber Law | Intellectual Property
Nancy Del Pizzo and Gene Kang have published an article entitled, “Cybersecurity Rulings Tap Insurance and Standing Issues,” in the American Bar Association’s Section of Litigation, Intellectual Property, Practice Points section. To read the article, Click Here. …
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Lessons From Privacy-Related Enforcement
August 16, 2016 | Health Services | Professional Liability | Privacy, Data & Cyber Law
Federal and state regulators are bringing more and more enforcement proceedings to challenge the adequacy of corporate privacy practices. Although the best course for businesses is to be proactive and develop privacy rules that meet all applicable requirements before government steps in, a review of various privacy-related settlements that agencies recently have reached suggests a …
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FDA Issues New Draft Guidance on Cybersecurity in Medical Devices
April 12, 2016 | Health Services | Privacy, Data & Cyber Law
Many medical devices used in modern medical care—from pacemakers to robotic surgical equipment and CT scanners—contain embedded software.  The amount of software content built into devices doubles about every two years, as advances in computer technologies encourage production of new generations of devices with ever more functionalities.  In addition, more and more medical devices are …
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The Emerging Threat of Ransomware
April 12, 2016 | Health Services | Compliance Investigations & White Collar | Privacy, Data & Cyber Law
Ottawa Hospital in southeast Ontario, Canada; Hollywood Presbyterian Medical Center in Los Angeles; Lukas Hospital in the German city of Neuss; the California law firm Ziprick and Cramer LLP; solo law practitioner Paul Goodson; and the town of Plainfield, New Jersey all have something in common:  they learned about the cyber threat posed by ransomware …
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Rutkin Publishes Article in Best’s Review Entitled, “The Square Peg of Cyber Coverage”
April 30, 2015 | Insurance Coverage | Privacy, Data & Cyber Law
Alan Rutkin, a partner in the Firm’s Insurance Coverage & Litigation Practice Group, has published an article entitled, “The Square Peg of Cyber Coverage,” in the May 2015 issue of Best’s Review. Click here to read the article. Best’s Review:  May 2015. Copyrighted A.M. Best Company, Inc. 2016.  All Rights Reserved, Reprinted with Permission. …
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Circuit’s Decision Clarifies Law Of Contributory Cybersquatting
October 28, 2014 | Intellectual Property | Complex Torts & Product Liability | Professional Liability | Privacy, Data & Cyber Law
Nearly 15 years ago, Congress passed the Anticybersquatting Consumer Protection Act (“ACPA”).[1] The ACPA amended the federal trademark law known as the Lanham Act by adding two new causes of action aimed at cybersquatting.[2] Under the ACPA, a person may be civilly liable “if … that person has a bad faith intent to profit from …
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