Privacy & Information Security Law Blog

On February 3, 2015, the Securities and Exchange Commission (“SEC”) released a Risk Alert, entitled Cybersecurity Examination Sweep Summary, summarizing observations from the recent round of cybersecurity examinations of registered broker-dealers and investment advisers under the Cybersecurity Examination Initiative. Conducted by the SEC Office of Compliance Inspections and Examinations (“OCIE”) from 2013 through April 2014, the examinations inspected the cybersecurity practices of 57 registered broker-dealers and 49 registered investment advisers through interviews and document reviews. The examinations evaluated the institutions’ practices in key areas such as risk management, cybersecurity governance, network security, information protection, vendor management and incident detection.

On January 13, 2015, President Obama announced legislative proposals and administration efforts with respect to cybersecurity, including a specific proposal for a national data breach notification standard. Aside from the national data breach notification standard, the President’s other proposals are designed to (1) encourage the private sector to increase the sharing of information related to cyber threats with the federal government and (2) modernize law enforcement to effectively prosecute illegal conduct related to cybersecurity.

On January 6, 2015, Federal Trade Commission Chairwoman Edith Ramirez gave the opening remarks on “Privacy and the IoT: Navigating Policy Issues” at the 2015 International Consumer Electronics Show (“International CES”) in Las Vegas, Nevada. She addressed the key challenges the Internet of Things (“IoT”) poses to consumer privacy and how companies can find appropriate solutions that build consumer trust.

On January 12, 2015, President Obama announced at the Federal Trade Commission several new initiatives on data security and consumer privacy as part of a weeklong focus on privacy and cybersecurity. He noted that on January 13 at the Department of Homeland Security, he would address how to improve protections against cyber attacks, and on January 14, he would address how more Americans can have access to faster and cheaper broadband Internet. He stated that the announcements he is making this week are “sneak previews” of the proposals he will make in next week’s State of the Union address.

In a flurry of activity on cybersecurity in the waning days of the 113th Congress, Congress unexpectedly approved, largely without debate and by voice vote, four cybersecurity bills that: (1) clarify the role of the Department of Homeland Security (“DHS”) in private-sector information sharing, (2) codify the National Institute of Standards and Technology’s (“NIST”) cybersecurity framework, (3) reform oversight of federal information systems, and (4) enhance the cybersecurity workforce. The President is expected to sign all four bills. The approved legislation is somewhat limited as it largely codifies agency activity already underway. With many observers expecting little legislative activity on cybersecurity before the end of the year, however, that Congress has passed and sent major cybersecurity legislation to the White House for the first time in 12 years may signal Congress’ intent to address systems protection issues more thoroughly in the next Congress.

On December 10, 2014, the New York State Department of Financial Services (the “Department”) announced that it issued an industry guidance letter to all Department-regulated banking institutions that formally introduces the Department’s new cybersecurity preparedness assessment process. The letter announces the Department’s plans to expand its information technology examination procedures to increase focus on cybersecurity, which will become a regular, ongoing part of the Department’s bank examination process.

On December 5, 2014, the National Institute of Standards and Technology (“NIST”) released an update on the implementation of the Framework for Improving Critical Infrastructure Cybersecurity (“Framework”). NIST issued the Framework earlier this year in February 2014 at the direction of President Obama’s February 2013 Critical Infrastructure Executive Order. The update is based on feedback NIST received in October at the 6th Cybersecurity Framework Workshop as well as from responses to an August Request for Information.

Hunton & Williams Insurance Litigation & Counseling partner Lon Berk reports:

As the demand for cyber insurance has skyrocketed, so too has the cost. One broker estimates that sales in 2014 will double from the $1 billion premium collected in 2013. Much of the increase in demand and cost has been the result of the widely publicized hacks of the point-of-sale systems at large retailers, and the primary emphasis of most cyber policies is to address liability arising from such events. New payment technologies, however, will change the need for this type of cyber insurance. American Express recently announced a token service; Apple incorporated ApplePay into its new iPhones; and a group of retailers, the Merchant Customer Exchange, is working on the release of a new payment technology as well. These technologies, although different in detail, eliminate the need for merchants to collect unencrypted payment card information from customers, significantly reducing the risk created by point-of-sale malware.

On November 3, 2014, the Federal Financial Institutions Examination Council (“FFIEC”), on behalf of its members, released a report entitled FFIEC Cybersecurity Assessment General Observations (the “Report”) that contains observations from recent cybersecurity assessments conducted at over 500 community financial institutions as part of the FFIEC cybersecurity examination work program. The Report summarizes themes from the assessments and provides suggested questions for chief executive officers and boards of directors to ask when assessing their institutions’ cybersecurity preparedness. In light of the assessments, the FFIEC announced that its members will review and update current FFIEC cybersecurity guidance.

On October 17, 2014, the White House announced that the President signed a new executive order focused on cybersecurity.  The signed executive order, entitled Improving the Security of Consumer Financial Transactions (the “Order”), is focused on securing consumer transactions and sensitive personal data handled by the U.S. Federal Government.

During the October 14, 2014 closed session of the 36th International Conference of Data Protection and Privacy Commissioners (the “Conference”) held in Balaclava, Mauritius, the host, the Data Protection Office of Mauritius, and member authorities of the Conference issued the “Mauritius Declaration on the Internet of Things,” and four new resolutions – a “Resolution on Accreditation” of new members, a “Resolution on Big Data,” a “Resolution on enforcement cooperation,” and a “Resolution on Privacy in the digital age.” Brief summaries of each of these documents are below.

On October 8, 2014, the Department of Homeland Security reported that over the course of several months, the network of a large critical manufacturing company was compromised. According to the ICS-CERT Monitor, the compromised company is a conglomerate that acquired multiple organizations in recent years, resulting in multiple corporate networks being merged. The Department of Homeland Security concluded that these mergers introduced latent weaknesses into the company’s network, allowing hackers to go largely undetected for a significant period of time.

On October 1, 2014, the Food and Drug Administration (“FDA”) announced that it has issued final guidance regarding cybersecurity in medical devices, entitled Content of Premarket Submissions for Management of Cybersecurity in Medical Devices (the “Guidance”). The Guidance provides recommendations to device manufacturers for content “to include in FDA medical device premarket submissions for effective cybersecurity management.” The Guidance updates a draft guidance that was originally published in June 2013.

On September 16, 2014, Hunton & Williams’ Global Privacy and Cybersecurity practice group hosted the latest webcast in its Hunton Global Privacy Update series. The program covered a number of privacy and data protection topics, including updates in the EU and Germany, highlights on the UK Information Commissioner’s Office annual report and an APEC update.

Hunton & Williams Insurance Litigation & Counseling partner Lon Berk reports:

An Israeli security firm recently uncovered a hacking operation that had been active for more than a decade. Over that period, hackers breached government servers, banks and corporations in Germany, Switzerland and Austria by using over 800 phony front companies (which all had the same IP address) to deliver unique malware to victims’ systems. The hackers purchased digital security certificates for each phony company to make the sites appear legitimate to visitors. Data reportedly stolen included studies on biological warfare and nuclear physics, plans for key infrastructure, and bank account and credit card data.

On August 19, 2014, the German Federal Ministry of the Interior published a revised draft cybersecurity law (the “Draft Law”). An earlier version of the law was published in March 2013. The Draft Law is intended to serve as a cornerstone of Germany’s recently-announced digital agenda.

On July 15, 2014, Hunton & Williams’ Global Privacy and Cybersecurity practice group hosted the latest webcast in its Hunton Global Privacy Update series. The program covered a number of privacy and data protection topics, including the recent judgment in the Costeja case, the Centre for Information Policy Leadership’s work on a risk-based approach to privacy, the new Canadian anti-spam legislation that went into effect on July 1, and other developments in the U.S. and EU.

On July 17, 2014, the Belgian government announced that it has finalized its Royal Decree on the establishment of a Cybersecurity Center (Centrum Cyber Security België or Centre Cyber Security Belgique). The Cybersecurity Center’s tasks would be to monitor the country’s cybersecurity and manage cyber incidents. It also would oversee various cybersecurity projects, formulate legislative proposals relating to cybersecurity, and issue standards and guidelines for securing public sector IT systems. The Cybersecurity Center is expected to be operational by the end of ...

On June 20, 2014, Florida Governor Rick Scott signed a bill into law that repeals and replaces the state’s existing breach notification statute with a similar law entitled the Florida Information Protection Act (Section 501.171 of the Florida Statutes) (the “Act”).

Hunton & Williams, in collaboration with the U.S. Chamber of Commerce, recently issued Business Without Borders: The Importance of Cross-Border Data Transfers to Global Prosperity, a report which highlights the benefits of cross-border data transfers to businesses in the international marketplace. The report underscores the importance of developing data transfer mechanisms that protect privacy and facilitate the free-flow of data, and also explores opportunities for new data transfer regimes.

On July 2, 2014, the Privacy and Civil Liberties Oversight Board (“PCLOB”) held a public meeting to finalize the release of a report concluding that the National Security Agency’s (“NSA’s”) collection of electronic communications from targets reasonably believed to be non-U.S. persons located outside the United States has operated lawfully within its statutory limitations.

Hunton & Williams LLP proudly announces that the firm’s Global Privacy and Cybersecurity practice was ranked in Tier 1 in The Legal 500 United States 2014 guide for cyber crime and data protection and privacy. Global practice chair Lisa Sotto also was ranked as a leading lawyer and partner Aaron Simpson was highlighted for his work on privacy and cybersecurity matters.

Cyber incidents have become more common — and more severe — in recent years. Like other federal agencies, the Securities and Exchange Commission (“Commission”) has recently been analyzing the applicability of its existing regulations relating to cybersecurity risks. The Commission’s efforts are focused on maintaining the integrity of market systems, protecting customer data and the disclosure of material information. We provide an overview of recent developments in public company cybersecurity disclosure of particular interest to public companies.

On June 2, 2014, the U.S. Department of Justice announced a U.S.-led multinational effort to disrupt the “Gameover Zeus” botnet and the malware known as “Cryptolocker.” The DOJ also unsealed charges filed in Pittsburgh, Pennsylvania and Omaha, Nebraska against an administrator of Gameover Zeus.

It seems that every week brings news that another company has been impacted by a major data breach – and of the resulting financial, legal and public relations costs. As companies seek out ways to prevent these events and recoup losses associated with a data breach, cyber insurance is increasingly discussed as an effective method of recovery. In a recent article published in the Daily Journal, Hunton & Williams’ Insurance Coverage Counseling and Litigation attorney William T. Um offers a primer on cyber insurance, outlining key considerations for businesses as they explore this emerging area of coverage. The article discusses how:

On June 5, 2014, new OpenSSL vulnerabilities were announced, including one vulnerability that permits man-in-the-middle attacks and another that allows attackers to run arbitrary code on vulnerable devices. These vulnerabilities, along with the previously-discovered Heartbleed bug, show that technological solutions alone may not eliminate cyber risk.

On May 14, 2014, Hunton & Williams’ Global Privacy and Cybersecurity practice group hosted the latest webcast in its Hunton Global Privacy Update series. The program provided a global overview of some of the most debated topics in data protection and privacy, including cross-border data flows, global data breach issues and the EU Cybersecurity Directive. In addition, we highlighted the latest information regarding the GPEN enforcement sweep.

On May 22, 2014, the United States House of Representatives passed H.R. 3361, a bill aimed at limiting the federal government’s ability to collect bulk phone records and increasing transparency regarding decisions by the Foreign Intelligence Surveillance Court (“FISC”). The bill was approved by a vote of 323-121 by majorities of both Democrat and Republican members of the United States House of Representatives. It now moves to the Senate where it is likely to pass.

On May 16, 2014, Virginia Governor Terry McAuliffe announced the members of the Virginia Cyber Security Commission, including the appointment of Hunton & Williams LLP’s Paul M. Tiao. Tiao, one of eleven citizen members elected to the group, is a partner in the firm’s Global Privacy and Cybersecurity Practice Group.

Hunton & Williams LLP, in coordination with the U.S. Chamber of Commerce, recently issued a report entitled Business Without Borders: The Importance of Cross-Border Data Transfers to Global Prosperity, highlighting the benefits of cross-border data transfers to businesses in the international marketplace. The report underscores the importance of developing data transfer mechanisms that protect privacy and facilitate the free-flow of data, and also explores opportunities for new data transfer regimes.

On May 7, 2014, IronBox Secure File Transfer hosted a webinar featuring “Queen of Breach” attorney Lisa Sotto, who shared her top tips in the event of a data breach. Lisa Sotto, partner and head of the Global Privacy and Cybersecurity practice at Hunton & Williams LLP, discussed the current cyber risk landscape and led participants through a hypothetical data breach scenario. She taught participants how to manage a data breach if the worst happens and provided key steps companies should take to prepare proactively for a cybersecurity event.

On May 12, 2014, the U.S. Chamber of Commerce released a report highlighting the benefits of cross-border data transfers across all sectors of the economy. Hunton & Williams LLP’s Global Privacy and Cybersecurity team developed the report with the Chamber of Commerce. The report, Business Without Borders: The Importance of Cross-Border Data Transfers to Global Prosperity, presents pragmatic solutions for developing international mechanisms that both protect privacy and facilitate cross-border data flows.

On May 1, 2014, the White House released a report examining how Big Data is affecting government, society and commerce. In addition to questioning longstanding tenets of privacy legislation, such as notice and consent, the report recommends (1) passing national data breach legislation, (2) revising the Electronic Communications Privacy Act (“ECPA”), and (3) advancing the Consumer Privacy Bill of Rights.

On April 20, 2014, Hunton & Williams partner Paul M. Tiao was featured on Platts Energy Week discussing the importance of the homeland security partnership between electric utility companies and the U.S. government. In the feature, “U.S. Utilities Wary of Sharing Grid Risks,” Tiao talked about the recent leak to The Wall Street Journal of a sensitive internal memo at the Federal Energy Regulatory Commission that revealed potential vulnerabilities in the electricity grid. Tiao said that many utility companies want to work with federal agencies to protect homeland security ...

On April 10, 2014, U.S. Department of Justice Deputy Attorney General James Cole and Federal Trade Commission Chair Edith Ramirez announced a joint DOJ and FTC antitrust policy statement on the sharing of cybersecurity information (“Policy Statement”). The Policy Statement, as well as their remarks, emphasize the seriousness of the cybersecurity challenge and the need to improve cybersecurity information sharing. It is another example of the Obama Administration’s efforts to encourage the sharing of information about cybersecurity threats and vulnerabilities.

The recent leak of an internal memo to the former Chair of the Federal Energy Regulatory Commission, which was widely reported by national news media, has created a national security setback for the United States. Many are concerned that the disclosure may provide terrorists and other bad actors a roadmap for causing a prolonged nationwide blackout. Perhaps more importantly, the leak undermines the relationship of trust between industry and government agencies that the parties have been working for years to establish; a relationship that is vital to developing a stronger security ...

President Obama’s Executive Order 13636 on Improving Critical Infrastructure Cybersecurity identified “insurance liability considerations” as an incentive that might improve security. Over the course of the year since the Executive Order was issued, there has been an increase in the marketing of cyber insurance products. In an article published in Law360, Hunton & Williams Insurance Litigation & Counseling partner Lon Berk discusses how most cyber insurance policies currently available do not protect against major risks to critical infrastructure. Since the ...

Join us in New York City on May 19-20, 2014, for the Privacy, Policy & Technology Summit – A High Level Briefing for Today’s Top Privacy Executives. Lisa Sotto, partner and head of the Global Privacy and Cybersecurity practice at Hunton & Williams LLP will be a featured speaker at the session on “Cybersecurity: Insider Tips for Proactively Protecting Your Company and Its Data While Reducing Downstream Regulatory and Litigation Exposure.”

On March 18, 2014, Hunton & Williams’ Global Privacy and Cybersecurity practice group hosted the latest webcast in its Hunton Global Privacy Update series. The program focused on some of the recent developments in privacy, including observations from the International Association of Privacy Professionals’ Global Privacy Summit in Washington, D.C., earlier this month, the National Institute of Standards and Technology final Cybersecurity Framework and the Article 29 Working Party’s recent Opinion on Binding Corporate Rules and Cross-Border Privacy Rules.

On March 13, 2014, the European Parliament voted to adopt the draft directive on measures to ensure a uniform level of network and information security (“NIS Directive”). The NIS Directive was proposed by the European Commission on February 7, 2013 as part of its cybersecurity strategy for the European Union. The NIS Directive aims to ensure a uniform level of cybersecurity across the EU. The European Parliament will next negotiate with the Council of the European Union to reach an agreement on the final text of the NIS Directive.

View the European Commission’s press release.

Join us at the International Association of Privacy Professionals (“IAPP”) Global Privacy Summit in Washington, D.C., March 5-7, 2014. Hunton & Williams privacy professionals will be featured speakers in the following sessions:

Hunton & Williams Insurance Litigation & Counseling partner Lon Berk reports:

The recently publicized Secure Sockets Layer (“SSL”) bug affecting Apple Inc. products raises a question regarding insurance coverage that is likely to become increasingly relevant as “The Internet of Things” expands. Specifically, on certain devices, the code used to set SSL connections contains an extra line that causes the program to skip a critical verification step. Consequently, unless a security patch is downloaded, when these devices are used on shared wireless networks they are subject to so-called “man-in-the-middle” security attacks and other serious security risks. Assuming that sellers of such devices may be held liable for damages, there may be questions about insurance to cover the risks.

The scale of some recent cyber events has been extraordinary. Target reports that 70 million people (almost 25% of the U.S. population) were affected by its recent breach. CNN recently reported that in South Korea there was a breach that affected 40% of its citizens. The staggering impact of these events is leading companies to seek protection through both technology and financial products, such as insurance. Insurers typically attempt to avoid this sort of enormous exposure with terrorism exclusions, and it is reasonable to expect aggressive insurers to rely upon such exclusions ...

On February 12, 2014, the National Institute of Standards and Technology (“NIST”) issued the final Cybersecurity Framework, as required under Section 7 of the Obama Administration’s February 2013 executive order, Improving Critical Infrastructure Cybersecurity (the “Executive Order”). The Framework, which includes standards, procedures and processes for reducing cyber risks to critical infrastructure, reflects changes based on input received during a widely-attended public workshop held last November in North Carolina and comments submitted with respect to a preliminary version of the Framework that was issued in October 2013.

On February 5, 2014, the Member States of the EU and European Free Trade Association (“EFTA”) as well as the European Network and Information Security Agency (“ENISA”) issued Standard Operational Procedures (“SOPs”) to provide guidance on how to manage cyber incidents that could escalate to a cyber crisis.

Recent media attention focused on the security breach that affected millions of Target customers has increased interest in cyber insurance to cover the financial losses associated with these types of events. As insurers aggressively market insurance products to protect against cyber risks, it’s important to note differences in the language carriers have chosen to include in their policy forms. Contrary to reasonable expectations and marketing brochures, policy clauses concerning timing, and conditions requiring due diligence, might be used by an aggressive insurer to ...

On January 29, 2014, the National Security Agency (“NSA”) announced that Rebecca Richards has been appointed to serve as the NSA’s new Civil Liberties and Privacy Officer. Ms. Richards, who previously worked as the Senior Director for Privacy Compliance at the Department of Homeland Security, will advise the NSA Director on civil liberties and privacy issues and implement reforms in those areas.

On January 23, 2014, the Privacy and Civil Liberties Oversight Board (“PCLOB”) released a report (the “Report”) concluding that the National Security Agency (“NSA”) does not have a valid legal basis for its bulk telephone records collection program. The NSA’s bulk collection of consumer telephone records has been under increased scrutiny since Edward Snowden leaked information about the program in June 2013, and recently has faced legal challenges. According to the Report, the NSA’s program exceeded its statutory parameters.

On January 21, 2014, Hunton & Williams’ Global Privacy and Cybersecurity practice group hosted the latest webcast in its Hunton Global Privacy Update series. The program highlighted some of the key privacy developments that companies will encounter in 2014, including cybersecurity issues in the U.S., California’s Do Not Track legislation, Safe Harbor, the EU General Data Protection Regulation and the CNIL’s new cookie guidance.

It appears as though 2014 will be a banner year for class actions, including numerous cases concerning privacy and cybersecurity issues. In an article published in Law360, two Hunton & Williams litigation partners summarize recent case law and statistics related to class actions and offer predictions for the year ahead.

In a major speech delivered at the U.S. Department of Justice on January 17, 2014, President Obama addressed the call for reforms to government surveillance programs following disclosures regarding National Security Agency (“NSA”) activities leaked by Edward Snowden since June of last year. The President discussed the need to advance national security while strengthening protections for privacy and civil liberties, improving transparency in intelligence programs, engaging in continual oversight and rebuilding trust among foreign leaders and citizens. He outlined several areas of reform:

On December 18, 2013, the White House published a report recommending reforms to the federal government’s wide-ranging surveillance programs. The voluminous report, entitled “Liberty and Security in a Changing World,” was authored by The Review Group on Intelligence and Communications Technologies, an advisory panel that includes experts in national security, intelligence gathering and civil liberties.

On December 12, 2013, Fred H. Cate, Senior Policy Advisor in the Centre for Information Policy Leadership at Hunton & Williams LLP (the “Centre”), submitted comments in response to the National Institute of Standards and Technology’s (“NIST’s”) Preliminary Cybersecurity Framework (the “Preliminary Framework”). On October 22, NIST issued the Preliminary Framework, as required by the Obama Administration’s February 2013 executive order, Improving Critical Infrastructure Cybersecurity (“Executive Order”), and solicited comments on the Framework. The Preliminary Framework includes standards, methodologies, procedures and processes that align policy, business and technological approaches to address cyber risks.

On November 28, 2013, the UK government published a paper in response to its March 2013 consultation on cybersecurity standards (“Response Paper”), and announced that it will create a new cybersecurity standard. The original consultation concluded in October 2013.

On December 3, 2013, Lawrence Strickling, Department of Commerce Assistant Secretary for Communications and Information, spoke at the American European Community Association Conference in Brussels on Data Protection: The Challenges and Opportunities for Individuals and Businesses. Strickling discussed the Obama Administration’s commitment to “preserving the dynamism and openness of the Internet, enhancing the free flow of information, and strengthening our Internet economy.” He addressed the issues surrounding U.S. surveillance operations and the European Commission’s recent report on Safe Harbor. Strickling also provided a progress report on improvements to consumer privacy protection since the White House released its Consumer Privacy Bill of Rights in February 2012, including an update on the National Telecommunications and Information Administration’s (“NTIA’s”) multistakeholder process to develop industry codes of conduct.

On November 19, 2013, the Federal Trade Commission held a workshop in Washington, D.C. to discuss The Internet of Things: Privacy & Security in a Connected World. FTC Chair Edith Ramirez and FTC Senior Attorney Karen Jagielski provided the opening remarks. Chairwoman Ramirez raised three key issues for workshop participants to consider:

On November 19, 2013, Hunton & Williams’ Global Privacy and Cybersecurity practice group hosted the second webcast in its Hunton Global Privacy Update series. The program focused on the latest updates regarding the EU General Data Protection Regulation (“Proposed Regulation”), including a discussion of the European Parliament’s recent approval of its Compromise Text for the Proposed Regulation.

The Luxembourg data protection authority (Commission nationale pour la protection des donées, “CNPD”) has stated that it will not investigate complaints relating to the alleged involvement of Microsoft Luxembourg (“Microsoft”) and Skype Software S.a.r.l. and Skype Communications S.a.r.l. (collectively, “Skype”) in the PRISM surveillance program. The PRISM surveillance program involves the transfer of EU citizens’ data to the U.S. National Security Agency (the “NSA”).

On November 2, 2013, Hunton & Williams partner Paul M. Tiao was featured on the Voice of America discussing the importance of the National Security Agency restoring trust among industry and foreign government allies. In the feature, “Next NSA Chief to Face Challenges, Change,” Tiao talked about some of the difficulties that will confront the NSA Director’s successor, and why government surveillance is likely to continue.

On October 22, 2013, the National Institute of Standards and Technology (“NIST”) issued the Preliminary Cybersecurity Framework (the “Preliminary Framework”), as required under Section 7 of the Obama Administration’s February 2013 executive order, Improving Critical Infrastructure Cybersecurity (the “Executive Order”). The Preliminary Framework includes standards, procedures and processes for reducing cyber risks to critical infrastructure. It will be published in the Federal Register within a few days for public comment. Under the Executive Order, NIST is required to issue a final version of the Framework in February 2014. NIST is planning to host a public workshop on the Preliminary Framework in mid-November to give industry and other groups an opportunity to provide their views on this document.

On October 4, 2013, The Centre for Information Policy Leadership’s Senior Policy Advisor Fred Cate reported on the 35th International Conference of Data Protection and Privacy Commissioners which concluded on September 24 in Warsaw, Poland. The report indicates that four main issues dominated the Conference: (1) challenges presented by technologies such as mobile apps and online profiling, (2) multinational interoperability and enforcement, (3) pending EU data protection regulation and alternatives, and (4) repercussions of NSA surveillance activities.

Recent months have seen a significant increase in highly-publicized cyber attacks and cybersecurity incidents, including an August 2013 attack on The New York Times’ website that shut down the site twice in two weeks. Unsurprisingly, there also has been an upswing in the demand for, and underwriting of, cyber insurance. In a recent Law360 article, Takeaways from Recent Cyberattack on New York Times, Hunton & Williams Insurance Litigation & Counseling partner Lon Berk considers whether a hypothetical cyber insurance policy would have covered such a loss.

On September 19, 2013, Hunton & Williams’ Global Privacy and Cybersecurity practice group hosted the first webcast in its new Hunton Global Privacy Update series. The program focused on the latest updates regarding the EU General Data Protection Regulation, recent Safe Harbor issues from both European and American perspectives, and cybersecurity developments on both sides of the Atlantic.

Hunton Global Privacy Update sessions are 30-minutes in length and are scheduled to take place every two months.

On September 5, 2013, the 16 German state data protection authorities and the Federal Commissioner for Data Protection and Freedom of Information (the “DPAs”) passed a resolution concerning recent revelations about the PRISM, Tempora and XKeyscore surveillance programs.

On August 28, 2013, the Obama Administration issued several documents relating to the Cybersecurity Framework that the President called for in Executive Order 13636: Improving Critical Infrastructure Cybersecurity. The documents include:

• Preliminary Cybersecurity Framework (Discussion Draft);
• Preliminary Cybersecurity Framework: Illustrative Examples (Discussion Draft);
• Message to Senior Executives on the Cybersecurity Framework (Discussion Draft);  and
• Cybersecurity Framework Performance Goals (Draft).

On August 28, 2013, on the UK Information Commissioner’s Office’s (“ICO’s”) blog, Simon Rice, Technology Group Manager for the ICO, discussed the importance of encryption as a data security measure. He stated that storing any personal information is “inherently risky” but encryption can be a “simple and effective means” to safeguard personal information and reduce the risk of security breaches.

As always, the privacy team at Hunton & Williams continues to closely monitor the latest global developments in data protection, privacy and cybersecurity, including progress on the proposed EU General Data Protection Regulation. To keep you informed, we will be hosting regular, 30-minute webcasts to provide brief updates on the most pressing issues. These Hunton Global Privacy Update sessions will take place every two months. Please join us on September 19, 2013, at 11:00 a.m. EDT, for the first Hunton Global Privacy Update webcast.

On August 22, 2013, Hunton & Williams partner Paul M. Tiao was featured on CNBC’s Fast Money discussing NASDAQ’s recent crash. In the feature, “Are markets ready for cyber threats?”, Tiao talked about the steps the financial services industry has taken to protect against significant cybersecurity incidents, including “putting in best-of-breed information security policies” and “working across the industry to share information in a way that many other industries are not.”

View the video coverage now.

On August 12, 2013, Privacy Piracy host Mari Frank interviewed Paul M. Tiao on KUCI 88.9 FM radio in Irvine, California. Paul is a partner in the Washington, D.C. office of Hunton & Williams, and the former Senior Counselor for Cybersecurity and Technology to the Director of the Federal Bureau of Investigation. The interview included discussion of hot-button electronic surveillance issues such as the PRISM surveillance program and private sector management of government data requests.

On August 6, 2013, the Obama Administration posted links on The White House Blog to reports from the Departments of Commerce, Homeland Security and Treasury containing recommendations on incentivizing companies to align their cybersecurity practices with the Cybersecurity Framework. These reports respond to the Administration’s February 2013 executive order entitled Improving Critical Infrastructure Cybersecurity (the “Executive Order”).

On July 30-31, 2013, the Cyber and Intelligence Committees of the Armed Forces Communications and Electronics Association (AFCEA) will host the 2013 AFCEA Global Intelligence Forum at the National Press Club in Washington, D.C. This year’s conference theme, “Defining the Role of Intelligence for Cyber Mission,” explores how leaders in the intelligence community can work together to help “ensure free and secure cyberspace operations – from setting requirements, to collecting and analyzing data, to delivering insights and recommendations.” The conference also ...

On July 4, 2013, the European Parliament adopted new EU legislation to fight cyber crime. The Directive on attacks against information systems (the “Directive”) (see the Committee on Civil Liberties, Justice and Home Affairs’ report tabled for plenary), together with the launch of the European Cybercrime Centre and the adoption of the EU cybersecurity strategy, will strengthen the EU’s overall response to cyber crime and contribute to improving cybersecurity for all EU citizens.

On July 2, 2013, the Indian government released its ambitious National Cyber Security Policy 2013. The development of the policy was prompted by a variety of factors, including the growth of India’s information technology industry, an increasing number of cyber attacks and the country’s “ambitious plans for rapid social transformation.” The policy sets forth 14 diverse objectives that range from enhancing the protection of India’s critical infrastructure, to assisting the investigation and prosecution of cyber crime, to developing 500,000 skilled cybersecurity professionals over the next five years.

On July 1, 2013, the National Institute of Standards and Technology (“NIST”) issued a preliminary draft outline of the Cybersecurity Framework that is being developed pursuant to the Obama Administration’s February 2013 executive order, Improving Critical Infrastructure Cybersecurity (the “Executive Order”).

On June 18, 2013, the New York office of Hunton & Williams LLP office hosted Cornell University’s Privacy and Data Security Symposium, Privacy, Security & Your Data - Concerns in a Changing World. The program focused on global privacy and cybersecurity issues, including protecting the personal information of Internet users, balancing user privacy with law enforcement concerns, and implementing responsible data stewardship and governance. Moderated by Cornell University’s Tracy Mitrano, Director of IT Policy and Institute for Computer Policy and Law, the panel included:

The Centre for Information Policy Leadership at Hunton & Williams LLP is pleased to announce that Bojana Bellamy, global director of data privacy for Accenture, will be joining the firm as president of the Centre, effective September 2, 2013. Current Centre President, Marty Abrams, who is retiring on September 1, will stay on as an advisor to the Centre.

On July 1, 2013, Practising Law Institute (“PLI”) hosts its first symposium on Cybersecurity 2013: Managing the Risk in New York. Hunton & Williams partner Lisa J. Sotto is the Chair of the event. The program features timely cybersecurity topics, including the threat landscape, the legal environment (such as the Obama Administration’s Executive Order on Cybersecurity), and how companies can manage cybersecurity incidents when they occur and seek to prevent cyber attacks before they occur. Hunton & Williams partner Paul M. Tiao and Centre for Information Policy Leadership ...

On June 14, 2013, the European Data Protection Supervisor (the “EDPS”) issued an Opinion regarding a joint communication by the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy, Cyber Security Strategy of the European Union: an Open, Safe and Secure Cyberspace (the “Strategy”), as well as the European Commission’s proposed draft directive to ensure uniformly high security measures for network and information security across the EU (the “NIS Directive”). The EDPS welcomes recognizing privacy and data protection as core values of a robust cybersecurity policy, as opposed to separating out security and privacy, but draws attention to several deficiencies, stating that “the ambitions of the strategy are not reflected in how it will be implemented.”

On June 13, 2013, the Food and Drug Administration (“FDA”) published a safety communication and guidance regarding the vulnerability of medical devices to cyberattacks. The safety communication, Cybersecurity for Medical Devices and Hospital Networks, is intended for “[m]edical device manufacturers, hospitals, medical device user facilities, health care IT and procurements staff; and biomedical engineers.” The safety communication notes that because medical devices can be connected to other devices and the Internet, such devices are exposed to cyber attacks that might result from malware infections, the exploitation of weak password protections, a lack of updated security patches and security vulnerabilities in software installed on medical devices.

On June 14, 2013, the French Data Protection Authority (“CNIL”) announced that last March it had created an internal working group to study the privacy issues arising from the access of the personal data of French citizens by foreign public authorities. The CNIL further announced that the working group has decided to organize meetings with the various concerned stakeholders (attorneys, telecommunications operators, public institutions and non-governmental organizations) and that it has already had discussions with some of them. A summary of the CNIL’s findings is expected to be published in September 2013.

On June 3, 2013, Privacy Piracy host Mari Frank interviewed Lisa J. Sotto, partner and head of the Global Privacy and Data Security practice at Hunton & Williams LLP, on KUCI 88.9 FM radio in Irvine, California. Listen to the latest developments in cybersecurity, including legal issues businesses should consider when dealing with cybersecurity threats and the types of information being targeted.

Access the radio interview.

On June 3, 2013, Privacy Piracy host Mari Frank will interview Lisa J. Sotto, partner and head of the Global Privacy and Data Security practice at Hunton & Williams LLP, on KUCI 88.9 FM radio in Irvine, California. Listen to the latest developments in cybersecurity, including legal issues businesses should consider when dealing with cybersecurity threats and the types of information being targeted. The radio interview will be featured at 8:00 a.m. Pacific Time on KUCI 88.9 FM and is available via audio streaming at www.kuci.org

On May 16, 2013, UK Trade & Investment (“UKTI”), a UK government department working with businesses based in the UK to ensure their success in international markets, published the first export strategy paper (the “Paper”) on the UK’s approach to the $100 billion annual cybersecurity export market.

In November 2011, the UK’s Cyber Security Strategy was published. ‘Objective 1’ of the strategy’s implementation plan recognized that cyberspace is an important and expanding part of the UK economy. One of the supporting actions for Objective 1 was to develop a ...

On April 30, 2013, the UK government announced guidance on its consultation on cybersecurity standards (the ”Consultation”). The Consultation was launched in March 2013, and follows the UK government’s recent announcement regarding a cybersecurity partnership initiative to facilitate information-sharing on cyber threats.

In March 2013, the UK government launched its consultation on cybersecurity standards (the “Consultation”) following the government’s recent announcement regarding a cybersecurity partnership initiative to facilitate information sharing on cyber threats.

The Obama Administration is in the process of finalizing its review of a statutory electronic surveillance proposal initially developed by the FBI, and is expected to support the introduction of a modified version as legislation. The proposal addresses concerns raised by law enforcement and national security agencies regarding the widening gap between their legal authority to intercept real-time electronic communications pursuant to a court order, and the practical difficulties associated with actually intercepting those communications. According to the government, this gap increasingly prevents the agencies from collecting Internet-based phone calls, emails, chats, text messages and other communications of terrorists, spies, organized crime groups, child pornography distributors and other dangerous actors. The FBI refers to this as the “going dark” problem.

On May 10, 2013, CBS News interviewed two cybersecurity authorities to discuss the growing debate of privacy online. In the feature, entitled “Should there be a ‘right to be forgotten’ online?,” Lisa J. Sotto, partner and head of the Privacy and Data Security practice at Hunton & Williams LLP, talked about the problem of individuals’ rights to delete their online activity. She pointed out that the U.S. has no comprehensive online privacy law, and instead has a framework “comprised of a patchwork quilt of laws.” ...

On May 7, 2013, the hacker group Anonymous announced that it, in concert with Middle East- and North Africa-based criminal hackers and cyber actors, will conduct a coordinated online attack labeled “OpUSA” against banking and government websites today. Anonymous stated that OpUSA will be a distributed denial of service (“DDoS”) in which websites may be defaced and legitimate users may be unable to access websites.

The FBI Director’s Senior Cybersecurity Adviser Paul M. Tiao has joined Hunton & Williams LLP as a partner in the Privacy and Data Security practice group. Tiao served as Senior Counselor to FBI Director Robert S. Mueller III on cybersecurity, electronic surveillance, intellectual property crimes, digital forensics, and other national security and criminal issues. He formulated cybersecurity policy positions, drafted legislative language, coordinated strategy on these issues; and represented the FBI in discussions within the Executive Branch, with Congress, and with industry leaders. Tiao will be based in the firm’s Washington office.

On April 17, 2013, the Federal Trade Commission issued a press release seeking public input on “The Internet of Things” – the ability of numerous “everyday devices to communicate with each other and with people.” The FTC will accept comments through June 1, 2013, in advance of a public workshop to be held in Washington, D.C. on November 21, 2013.

On April 16, 2013, the Office of the President issued a Statement of Administration Policy that includes a threat to veto the U.S. House of Representatives’ Cyber Intelligence Sharing and Protection Act (“CISPA” or H.R. 624) if further changes are not made to the bill’s privacy protections. Specifically, the Obama Administration recommends that the bill require private entities to remove personal information when sharing cybersecurity information with the government or other private entities.

On March 28, 2013, the Department of Commerce’s Notice of Inquiry into “Incentives to Adopt Improved Cybersecurity Practices” was published in the Federal Register (78 Fed. Reg. 18954). This Notice, which includes a series of broad questions for owners of the nation’s critical infrastructure, follows up on earlier Commerce inquiries focused on incentives for noncritical infrastructure. The Notice states that Commerce will use the responses it receives to evaluate a set of incentives designed to encourage owners of critical infrastructure to participate in a voluntary cybersecurity program. The Notice also indicates that Commerce will use the responses to inform its evaluation of whether the incentives would require legislation or could be implemented pursuant to existing law and authorities. In addition, the Notice provides that Commerce may use the responses to develop a broader set of recommendations that would apply to U.S. industry as a whole.

Hunton & Williams LLP is pleased to announce that Lisa J. Sotto, partner and head of the firm’s Global Privacy and Data Security practice, has been named to The National Law Journal’s “The 100 Most Influential Lawyers in America” list. Last published in 2006, this is only the eighth time this list of legal luminaries has been compiled since it was first established in 1985 as “Profiles in Power.”

On March 27, 2013, the UK Government announced the Cyber Security Information Sharing Partnership (“CISP”), a partnership between government and industry to share intelligence on cybersecurity threats.

Introduction of the CISP follows a successful pilot program across key UK sectors and is part of the UK’s Cyber Security Strategy to facilitate information-sharing on cyber threats. It introduces a secure web portal where government and industry partners can exchange real-time information regarding threats and vulnerabilities they have identified. It also sets up a team of expert analysts, the Fusion Cell, to draw together a single intelligence picture of cyber threats across the UK. It is understood that the Fusion Cell will be staffed by analysts drawn from industry, as well as the law enforcement and intelligence communities.

On March 5, 2013, the German Federal Ministry of the Interior published proposed amendments (in German) to the German Federal Office for Information Security Law. These proposed amendments are significant because they establish a new duty to notify the German Federal Office for Information Security in the event of a cybersecurity breach.

As reported in The Washington Post, large financial institutions are increasingly disclosing cyber attacks, and potential vulnerability to cyber threats, in their annual reports filed with the Securities and Exchange Commission. Numerous banks disclosed such attacks in their 2012 reports, even in cases where the ongoing threat of the attacks did not result in any material harm to the institution. For example:

On February 26, 2013, the National Institute of Standards and Technology (“NIST”) issued a Request for Information (“RFI”) to gather comments regarding the development of a framework to reduce cybersecurity risks to critical infrastructure. As we previously reported, the Obama Administration’s executive order, Improving Critical Infrastructure Cybersecurity (the “Executive Order”), released on February 12, 2013, directs NIST to coordinate development of this framework. Under the Executive Order, NIST is charged with collaborating with industry partners and identifying existing international standards and practices that have proven effective.

On February 20, 2013, Hunton & Williams LLP hosted a webinar on cybersecurity risks and the Obama Administration’s recently-issued Executive Order on cybersecurity issues related to critical infrastructure. The webinar, entitled “The Cybersecurity Executive Order: Understanding Its Impact on Your Business,” covered issues such as the current threat landscape, U.S. and EU regulatory initiatives related to cybersecurity, and guidelines to help businesses prevent and manage cyber events.

The Executive Order, “Improving Critical Infrastructure Cybersecurity,” and the Presidential Policy Directive (“PPD”), “Critical Infrastructure Security and Resilience,” signed by President Obama on February 12, 2013, raise the stakes in the national debate over cybersecurity requirements and seem likely, if not designed, to provoke a legislative response. Industry has good reason to pay attention.

On February 12, 2013, the Obama Administration released its highly-anticipated Executive Order on cybersecurity. Evolving cyber threats and increased government attention to these issues will affect companies in every industry, and businesses must consider a proactive approach to protecting against risks to critical business systems, company personal data, intellectual property and other proprietary information.