Privacy & Information Security Law Blog

On September 11, 2015, the Federal Communications Commission (“FCC”) announced that Lyft Inc. (“Lyft”) and First National Bank Corporation (“FNB”) violated the Telephone Consumer Protection Act (“TCPA”) by forcing their users to consent to receive automated text messages as a condition of using their services. The FCC warned that these violations could result in fines if they continue.

When novelist William Gibson said, “[t]he future is already here, it’s just not very evenly distributed,” he may have had innovation like blockchain technology in mind. In the near future, blockchain may become the new architecture of a reinvented global financial services infrastructure. The technology – a distributed, consensus-driven ledger that enables and records encrypted digital asset transfers without the need of a confirming third party – is revolutionary to global financial services, whose core functions include the trusted intermediary role (e.g., payment processor, broker, dealer, custodian).

On September 29, 2015, the Court of Justice of the European Union (“CJEU”) announced that it will deliver its judgment in the Schrems vs. Facebook case on October 6, 2015. The CJEU’s judgment will be the final ruling in the case, and comes after the Advocate General’s Opinion regarding Safe Harbor earlier this week.

On September 17, 2015, the Seventh Circuit rejected Neiman Marcus’ petition for a rehearing en banc of Remijas v. Neiman Marcus Group, LLC, No. 14-3122. In Remijas, a Seventh Circuit panel found that members of a putative class alleged sufficient facts to establish standing to sue Neiman Marcus following a 2013 data breach that resulted in hackers gaining access to customers’ credit and debit card information. No judge in regular active service requested a vote on the rehearing petition. Additionally, all members of the original panel voted to deny rehearing. As we previously reported, and according to The Practitioner's Handbook for Appeals to the United States Court of Appeals for the Seventh Circuit, “it is more likely to have a petition for writ of certiorari granted by the Supreme Court than to have a request for en banc consideration granted” in the Seventh Circuit.

On September 22, 2015, the Article 29 Working Party (the “Working Party”) adopted an Opinion on the Cloud Select Industry Group (“C-SIG”) Code of Conduct on data protection for Cloud Service Providers (the “Code”). In the Opinion, the Working Party analyzes the Code that was drafted by the Cloud Select Industry Group (the “C-SIG”).

On September 22, 2015, the Securities and Exchange Commission (“SEC”) announced a settlement order (the “Order”) with an investment adviser for failing to establish cybersecurity policies and procedures, and published an investor alert (the “Alert”) entitled Identity Theft, Data Breaches, and Your Investment Accounts.

On September 8, 2015, representatives from the U.S. Government and the European Commission initialed a draft agreement known as the Protection of Personal Information Relating to the Prevention, Investigation, Detection and Prosecution of Criminal Offenses (the “Umbrella Agreement”). The European Commission’s stated aim for the Umbrella Agreement is to put in place “a comprehensive high-level data protection framework for EU-U.S. law enforcement cooperation.” The Umbrella Agreement has been agreed upon amid the ongoing uncertainty over the future of the U.S.-EU Safe Harbor, and was drafted shortly before the release of the September 23 Advocate General’s Opinion in the Schrems v. Facebook litigation. The content of the Umbrella Agreement is in its final form, but its implementation is dependent upon revisions to U.S. law that are currently before Congress.

On September 23, 2015, Advocate General of the European Court of Justice Yves Bot issued his Opinion in the case of Max Schrems, which is currently pending before the Court of Justice of the European Union (the “CJEU”). In the opinion, the Advocate General provided his views concerning two key issues related to the U.S.-EU Safe Harbor Framework: (1) the powers of national data protection authorities to investigate and suspend international data transfers made under the Safe Harbor Framework and (2) the ongoing validity of the European Commission’s Safe Harbor adequacy decision (Decision 2000/520).

On September 15, 2015, Judge Magnuson of the U.S. District Court for the District of Minnesota certified a Federal Rule of Civil Procedure 23(b)(3) class of financial services institutions claiming damages from Target Corporation’s 2013 data breach. The class consists of “all entities in the United States and its Territories that issued payment cards compromised in the payment card data breach that was publicly disclosed by Target on December 19, 2013.”

On September 15, 2015, the Office of Compliance, Inspections and Examinations (“OCIE”) at the U.S. Securities and Exchange Commission (“SEC”) issued a Risk Alert outlining its latest cybersecurity examination priorities for SEC-registered broker-dealers and investment advisers.