Thankful for Technology

At times, it can seem like technology is bringing us down …

We frequently hear about: cyberbullying of teens; online intellectual property infringement; various forms of identity theft, hacking, privacy and security violations, and cyber crime; cyber warfare; illegal sales of munitions and slaves and the organization of terrorist activities on the Dark Web; political email scandals; potential foreign Internet influence over US political elections; and the list goes on and on.

But during this Thanksgiving and holiday season, not only can we be thankful for our family and friends, we also can be grateful for the many benefits of technology.

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The Emails That Came Back to Bite Clinton

It is with regret that your blogger here must report that he was correct as far back as early-April 2015 in predicting that the private email scenario surrounding Hillary Clinton would be a real threat to her efforts to gain the White House. Indeed, in a podcast of April 9, 2015 this blogger described the problem as a “hornet’s nest” that would be the “Achilles’ Heel” of the Clinton presidential campaign.

As revelations of Ms. Clinton’s use of a private email server for government affairs while acting as Secretary of State first emerged, she attempted to deflect and then minimize the problem. Later, when Emailgate would not disappear, Ms. Clinton admitted that she had made a “mistake” and that if she had it to do over again, she would not have handled government emails in a private fashion.

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International Law in the Era of Cyberwar

Intelligence agencies of the United States and the Department of Homeland Security in particular have accused Russia publicly of internet espionage intended to interfere with the US presidential election. In the wake of this accusation, the Obama administration has assured a retaliatory response designed to protect US interests. But if and when would this take place, and what are the governing international rules of this game?

Such a retaliatory response might await the outcome of the presidential election and the swearing in of the new president. Continue reading International Law in the Era of Cyberwar

Duane Morris’ Alice Kane and Philip Goldstein on New Cybersecurity Regulations for New York Insurers and Banks

Duane Morris partner Alice Kane and associate Philip Goldstein recently wrote an article on “New Cybersecurity Regulations for New York Insurers and Banks,” which was published by Law360.

Over the last few years, the financial services industry has been recognized by the New York Department of Financial Services (NYDFS) as a significant target of cyberthreats. While the frequency and cost of data breaches in the insurance industry is less than that of banks, healthcare data can, in fact, be more valuable over time than credit card information.

To read the full article, please visit the Duane Morris website.

Platforms Like Airbnb and VRBO to Thrive or Facing Legal Reckoning?

The short-term lodging landscape has changed radically in recent years. Rather than always book hotels when away from home, people now frequently book to stay in the homes or apartments of other people through sites like Airbnb and VRBO. The growth in this area is reflected by the $30 billion estimated worth of Airbnb. But does this mean that these short-term rental sites are completely free of legal concerns? No.

According to a recent Fortune.com article, regulations passed in various jurisdictions threaten the online, short-term rental model. For example, New York has passed regulations that Airbnb says could damage its business in New York City — its largest market in the United States. Hours after Governor Andrew Cuomo signed the bill, Airbnb filed a federal lawsuit claiming the law will cause “irreparable harm.” Continue reading Platforms Like Airbnb and VRBO to Thrive or Facing Legal Reckoning?

starfield and Earth maps from: shadedrelief.com

What the Recent Cyberattack Means and Ways Businesses Can Protect Themselves

The unprecedented cyberattack on October 21, 2016, which crippled many of the Internet’s most widely trafficked sites, should be a wakeup call for businesses about the potential for hackers to weaponize common Internet-enabled devices and cripple businesses.

What Happened?

The cyberattack was caused in part by malware directed to more than 10 million Internet-connected devices, including DVRs, thermostats and closed-circuit video cameras. It caused a distributed denial-of-service attack (i.e., service interruption) that hit in three waves. Dyn, an Internet services company that directs Internet traffic, reported that the attack hit all of its 18 data centers globally. Early reports show that the disruption may be responsible for up to $110 million in lost revenue and sales. Perhaps most troubling is that the group claiming responsibility said the attack is merely a dry run for much larger attacks.

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Politics and Elections in the Era of Cyberwarfare

Unless you are a hermit hiding out in an undiscovered cave, you are well aware that we have been in the thick of an acrimonious and difficult election cycle for the highest office in the land — the Presidency of the United States. Presidential campaigns and campaigns for other elected offices have been a struggle in prior years — given all the competing interests, priorities and strategies that constantly have to be juggled. If that were not enough, now candidates have to deal with the new reality of cyber warfare.

We have been learning from recent press reports that Russia apparently has been active in its efforts to disrupt the current presidential election in the United States. Indeed, according to a recent report by NBC News, Russia’s “cyber-espionage campaign against the American political system began more than a year ago and has been far more extensive than publicly disclosed, targeting hundreds of key people.” Continue reading Politics and Elections in the Era of Cyberwarfare

Are Election Systems Vulnerable to Upcoming Hacks?

One presidential candidate with the initials DT has claimed generally that “the system is rigged” and he has speculated in advance as to whether the election also might be rigged against him. At the first presidential debate, he did say that he would abide by the election result if the candidate with the initials HRC won the election.

But what does it mean to “win”? If the election result is a close one, and if she apparently tallies sufficient popular and electoral college votes to put her over the top, would he concede her victory if there are suggestions of hacking of voting systems? This question is posed because a recent Associated Press article asserts that hackers recently have targeted registration systems in greater than 20 states and cites a Homeland Security Department official for support for this assertion.

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The Internet – Latest Addiction

We routinely hear about all sorts of addictions relating to drugs, alcohol, food, and even sex. But what about internet addiction? Is it real, and is it a problem? The answer to both, unfortunately, is yes.

According to a study led by Michael Van Ameringen at the McMaster University in Canada, heavy internet use can exacerbate various mental health conditions, including depression and anxiety, especially among college-aged students. The results of the study recently were presented at the European College of Neuropharmacology conference in Vienna.  Continue reading The Internet – Latest Addiction

The Eighth Circuit Gives Defendants New Ammunition Against Data Breach/Misuse Cases

Since the Supreme Court’s decision in Spokeo v. Robins, courts have begun to ratchet back prior decisions on the minimum standard to plead an injury sufficient to establish Article III standing. The recent Eighth Circuit opinion in Braitberg v. Charter Communications adds to the growing number of cases defendants will rely upon to get data breach cases dismissed at the pleadings stage. Braitberg addressed standing in the context of the retention, use, and protection of personally identifiable information. Although the case did not involve a data breach, its holding is however instructive when defending against such cases.

In Braitberg, plaintiff alleged that he was required to provide personally identifiable information to purchase cable services and that the cable provider improperly retained his information long after he cancelled the services in violation of the Cable Communications Policy Act (“CCPA”).

Prior to Spokeo, such claims would have been sufficient to establish Article III standing because the Eighth Circuit permitted the actual injury requirement to be satisfied solely by pleading that there was an invasion of a legal right that Congress created. The Supreme Court in Spokeo held that Article III standing requires a “concrete injury” even in the context of a statutory violation.

With the benefit of Spokeo’s guidance, the Eighth Circuit acknowledged that Spokeo superseded its prior precedent. Accordingly, the panel affirmed the district court’s dismissal of the complaint for lack of Article III standing and failure to state a claim. In doing so, the panel rejected arguments that CCPA created standing to sue where the defendant merely retained the data in violation of the statute with no other injury. It further rejected an economic argument that retention of the data deprived plaintiff of the full value of the services received from the company.

This decision is important for two reasons. First, the Eighth Circuit further narrowed the scope of allegations that will give rise to Article III standing in a post-Spokeo world. Second, in denying the economic argument, the court cut off an alternative avenue by which plaintiffs have successfully alleged harm.