Yesterday we wrote on our blog about the NLRB's Facebook firing settlement. I was interviewed on Fox Live this morning about the case, its implications for employees and businesses, and other developments in workplace privacy. You can view the clip at http://video.foxnews.com/v/4531424/facebook-firing-case-settlement/?playlist_id=87937
The National Labor Relations Board (NLRB) has announced that settlement has been reached in the closely watched Facebook firing suit brought by the agency.We have previously reported on our blog that the NLRB filed an administrative complaint against a Connecticut ambulance company alleging that the company violated an employee's federal rights by firing her for criticizing a manager on Facebook. In the complaint, the NLRB took the position that union and non-union employees have a right to criticize their employers, management or working conditions, and cannot be punished for engaging in such protected activity. The NLRB also alleged that the company maintained overly-broad rules in its employee handbook regarding blogging, Internet posting, and communications between employees. The complaint asserted that an employee's right to criticize the employer and management is an extension of the federal right to discuss unionization and form unions.
The National Institute of Standards and Technology (NIST) has released for public comment two "new" draft documents centered on cloud computing. The first is a NIST-codified Definition of Cloud Computing (Draft SP 800-145), and the second document is what NIST calls "the first set of guidelines for managing security and privacy issues in cloud computing," titled Guidelines on Security and Privacy in Public Cloud Computing (Draft SP 800-144). In conjunction with the release NIST has also unveiled a new NIST Cloud Computing Collaboration site, which includes various working group listservs and Wikis, to "enable two-way communication among the cloud community and NIST cloud research working groups."
On February 1, 2011, the Department of Energy announced the launch of the Cyber Security Initiative to develop cyber security risk management process guidelines for the electric grid. The Department's Office of Electricity Delivery and Energy Reliability will lead the effort in collaboration with the National Institute of Standards and Technology and the North American Electric Reliability Corporation.
InfoLawGroup recently discovered a new data breach case, one of the first that we are aware of in the United States, that dives deep into the issue of whether a common law duty exists to safeguard personal information. In Cooney, et. al v. Chicago Public Schools, et. al¸ an Illinois appellate court actually rendered a decision holding that no such duty exists under Illinois law. In this blogpost we take a closer look at the court's rationale for dismissing the plaintiffs' negligence claim, as well as the other interesting holdings of the court.
Dan Or-Hof, a privacy and technology partner at the Israeli law firm Pearl Cohen Zedek Latzer is reporting that the EU Commission published the much-anticipated announcement on the adequacy of data protection law in Israel. Published on January 31, 2011, the decision adopted by the Commission determines that Israel provides an adequate level of protection for personal data transferred from the EU, however only in relation to automated international data transfers and to automated processing of data in Israel.
Last week, Politico ran an interesting piece suggesting that federal privacy legislation may see the light of day in 2011. Democratic supporters of the legislation show no signs of slowing down. In the Senate, John Kerry (D-Mass.) is working on privacy legislation based on a bill he proposed last year. Senator Jay Rockefeller (D-W.Va.), Chairman of the Senate Commerce Committee, is planning to hold public hearings on Internet privacy starting in February. Of course the key to the success of federal privacy legislation lies in the House, and there Republicans have voiced support for a privacy bill as well. Rep. Cliff Stearns (R-Fla.), Chairman of the Subcommittee on Oversight and Investigations at the House Energy and Commerce Committee, has said that the privacy bill introduced last year by former representative Rick Boucher (D-Va.) could be revised and reintroduced with Republican support (Rep. Stearns co-sponsored the Boucher bill). This sentiment was echoed by Rep. Mary Bono Mack (R-Calif.), Chairwoman of the Subcommittee on Commerce, Manufacturing and Trade. According to Politico, Rep. Bono Mack informed her colleagues on the subcommittee that she remains committed to addressing privacy issues.
2010. What a year for data security and privacy, and the law. Choose whatever story you want: Facebook privacy practices, Google Buzz, Wikileaks data breach , TSA full body scanning at the airports, FTC Do Not Track, etc. I am having trouble thinking of a week (perhaps even a day) in 2010 where there wasn't a big privacy or data security story reported at a major media outlet. It is difficult to come up with an issue in 2010 (except perhaps "the economy" or the healthcare debate) that became more firmly lodged in the public consciousness than privacy and data security.While we were all thinking about Halloween and Thanksgiving, and trying to avoid the crush of Hanukah, Christmas and New Years, several privacy lawsuits were filed against online behavioral tracking companies and some of their clients. In my view these lawsuits and the activity that arises out of them (regulatory and otherwise) will be one of the big data security and privacy stories of 2011. What follows is a very brief listing of some the key lawsuits from 2010 that InfoLawGroup is aware of and tracking. There may be more that are not on the list (such is pace of change in this space) and if you know of others, please send them to me so I can list them here to serve as a resource for the larger privacy community. Over the course of 2011 (and beyond) InfoLawGroup will be taking a deeper look at these cases and providing updates as they progress through motion practice, trial and settlement.
On December 23, 2010, Russia's President Dmitry Medvedev signed legislation delaying until July 1, 2011 the enforcement of the country's omnibus data protection law (the Federal Law Regarding Personal Data). Pursuant to the new legislation, the revised effective date for the country's data protection law is January 1, 2011, but operators have until July 1, 2011 to bring their personal data information systems into compliance with the law.
2010 arguably was a breakout year for consumer privacy in the U.S., but the year also brought about significant changes to the legal landscape of employee privacy. Federal and state court decisions, state legislation and agency actions suggest that the U.S. may be moving towards a greater level of privacy protection for employees. Employers are well-advised to consider these developments in reviewing and revising policies that affect the privacy of their employees.
I hope you will tune in Monday, January 31, 2011, 8-9 am Pacific (11-12 Eastern), to Privacy Piracy, audio streaming on www.kuci.org (or locally in Southern California on KUCI 88.9 FM in Irvine, CA). Mari Frank will interview me on hot topics in information law and compliance.
The Ninth Circuit's recent analysis in MDY v Blizzard Entertainment examined contributory/vicarious ("secondary infringement") copyright issues, the "essential step" defense, the important and often highly disputed contractual covenant versus copyright license issue, and last, but certainly not least, the DMCA's role. I recommend you read the full opinion to gain the complete picture, but for this post we'll be focusing on the copyright covenant vs. copyright license issues and touching on the DMCA's role.
ICANN decided Friday to postpone approval of procedures for organizations to propose new generic top-level domains (gTLDs). Companies anticipating the need to protect trademarks in a potentially large number of new gTLDs will have at least a few more months to understand and weigh in on the proposals, and to brace themselves for successive rounds of sunrise filings and domain name disputes as new gTLDs are introduced.
The Blog of Legal Times is reporting that late on December 7, 2010 the House of Representatives passed a bill on a voice vote that amends the definition of "creditor" in the Fair and Accurate Credit Reporting Act (FCRA) and, as a result, dramatically limits the scope of the Red Flags Rule. The House bill is identical to the legislation enacted by the Senate last week. We previously covered in detail on our blog both the House bill and the Senate bill.The legislation has the effect of largely limiting the applicability of the Red Flags Rule to financial institutions and entities commonly understood to be "creditors". It will generally exclude from the Rule's scope organizations whose "credit" activities are limited to providing a product or service and allowing customers to pay for the product or service at a later time. The legislation leaves open the possibility that the FTC would bring various types of creditors within the scope of the Rule through rulemaking. However, it sets a procedural threshold for expanding the scope of the Rule and appears to require the determination to be specific to the type of creditor. "When I think of the word 'creditor,' dentists, accounting firms and law firms do not come to mind," said Rep. John Adler (D-N.J.), speaking on the House floor.
Last week, the U.S. Senate adopted by unanimous consent a bill (S. 3987) that would limit the scope of the Federal Trade Commission's Red Flags Rule by amending the Fair Credit Reporting Act's (FCRA's) definition of "creditor." The Senate bill is identical to the bipartisan House proposal we covered in detail in our blog on November 22, 2010.Both bills have been referred to the House Committee on Financial Services. Given that the House and Senate are now on the same page with respect to the Red Flags Rule, there is a good chance that this proposal will become law before the FTC begins enforcing the Rule on December 31, 2010. The bills seek to largely limit the applicability of the Red Flags Rule to entities commonly understood to be "creditors". They would generally exclude from the Rule's scope organizations whose "credit" activities are limited to providing a product or service and allowing customers to pay for the product or service at a later time.
Last week the Federal Trade Commission (FTC) released its anticipated preliminary 122-page staff report on Protecting Consumer Privacy in an Era of Rapid Change: A Proposed Framework for Businesses and Policymakers (the "Report"), which we covered in brief immediately following its release. In this part 1 of our review, and in following parts, we dig into specifics of the Report's proposed framework, with a eye toward examining rationales for the various proposals as well as analysis on the potential effects going forward on practices and data policies.