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Articles Tagged with FTC

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sunrise-963348-m.jpgThere was an interesting article in Wired.com, the magazine, recently that put a new twist on an old topic: What’s the best way to make sure the internet, and all of the information that travels on it every day, is safe? How do you really make cybersecurity, secure? After all, the safer the information, the more secure people will feel, and the use of the web, for everything from e-commerce to portable electronic healthcare records, will grow. The flip-side is just as true: the more hacks, hackers and data-breaches, the slower the pace of progress. The good will be harder to come by if the bad is hard to avoid.

Peter W. Singer, who wrote the article, entitled, “How to Save the Net: A CDC for Cybercrime,” which was posted on 08.19.14, 6:30 a.m., proposes an interesting idea.

The CDC, otherwise known as the Centers for Disease Control, is much in the news recently. Chances are, if you’ve seen news stories about the Ebola outbreak in West Africa, or the MERS outbreak earlier this year, the CDC has come up in more than just passing. It’s the clearinghouse for health related information, combating communicable diseases, the world over. There was just an article, by Betsy McKay, Nicholas Bariyo, and Drew Hinshaw, that appeared in the August 23-24, 2014 Weekend Edition of the Wall Street Journal in the Review Section, which talks about the invaluable help the CDC gave to another country that used to be at risk of virulent Ebola outbreaks. Uganda used to send blood samples to the CDC’s facilities in Atlanta, to be screened for Ebola. Now, thanks to technology and training the CDC provided, Ugandans do the same for themselves, in country, which lets them detect outbreaks of the deadly virus sooner, respond to them quicker, and stop them before they do large scale damage.

A central clearinghouse for ideas, both proven and proposed, to safeguard digital information seems like a good idea. Having a one size fits all approach, in which the government entity is the one upon whom everyone fighting the problem relies, may not be. That’s not really even the job the CDC is doing with Ebola.

Look at how the Federal Trade Commission is policing cybersecurity: the whole point of the its Reasonable Precautions cybersecurity standard, and its enforcement, and codification, on a case by case basis, is that “Reasonable Precautions” become reasonable, or not, based on the particular facts of a given situation. What might be the right protection for digital information exchanged between wholesale distributors and retailers, might not be sufficient to protect information between retailers and consumers, and that in turn might not be enough to safeguard patients’ healthcare histories when they are exchanged among medical providers. What might be a commercially reasonable effort to safeguard information in one industry, might not be in another.

The FTC encourages individual companies, and the industries in which they compete, to voluntarily join together to ensure data security. By making the terms Industry Standard Practices and Commercially Reasonable Efforts mean something substantive, companies can protect themselves against FTC enforcement actions for lax data security, as we’ve previously noted. Look no further than the April 7, 2014 decision of U.S.D.J. Esther Salas, in The Federal Trade Commission, Plaintiff, v. Wyndham Worldwide Corp., et al., Defendants, Civil Action No. 13-1887 (ES), United States District Court, D. New Jersey, to see why. If a company can’t figure out what the FTC wants it to do to protect its customers’ data, then it should create, and live by, Industry Standard Practices which will become Commercially Reasonable Efforts if all the major companies in the industry implement them. Many companies already say they do this anyway, right in their privacy policies. Instead of meaningless legal verbiage, make the terms mean something concrete; show they can work, and the FTC will have little to complain about, even if those efforts occasionally fail. Some of the most vulnerable industries, including retail, are banding together to do just that.

The Retail Industries Leaders Association, or RILA, as we previously noted, formed a voluntary clearinghouse, known as the Retail Cyber Intelligence Sharing Center, or R-CISC, to develop and share industry leading practices in cybersecurity, by communicating amongst themselves information they learn regarding threats and defenses. The reported backers of the initiative have put in a lot of effort: they’ve conferred with cybersecurity experts and involved interested government agencies. They also have a lot at stake: credit cards and financial information are common targets; just ask the RILA members.

One main benefit of a CDC for the wired world, according to Peter W. Singer, is the trust and confidence it will bring to all those who rely on it. By bringing the best and brightest together under one centralized government-funded roof, it would allow users to know that independent experts, with their best interests in mind, were on the job, fighting off the bad guys. That’s a good thing; but is that the only way to achieve it?

What if the businesses which hold their customers’ information on line were held accountable for not doing enough to protect that data? What if they faced the loss of business, and profits, as well as a government enforcement action, if they didn’t do enough? What lengths would they go to in order to keep their customers’ trust?

If you look at some quotes in the RILA press release, from the people involved in forming the R-CISC, you’ll see that trust is a recurring theme there, too:
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3rd.Small.2nd.IMG_20140713_170245 - Copy.jpgWe have been discussing what businesses can do to protect against the Federal Trade Commission commencing an enforcement action against them for allegedly failing to take reasonable precautions to ensure the safety of their customers’ private data, such as financial information, dates of birth, social security numbers, and even health records: Develop, and implement, industry standard, and commercially reasonable, data security practices. This time, we will see just how effective those efforts are by, in effect, asking Target.

What makes such Industry Standard Practices and Commercially Reasonable Efforts so promisingly effective is that:

  • They were approvingly cited as source of guidance as to what a business must do to properly protect its customers’ data, by the court in the case entitled, The Federal Trade Commission, Plaintiff, v. Wyndham Worldwide Corp., et al., Defendants. Civil Action No. 13-1887 (ES), United States District Court, D. New Jersey. This was the same case which approved the FTC’s right to police data security practices.
  • Many businesses use those terms in their posted privacy policy.
  • The FTC already has demonstrated a willingness to allege deceptive acts or practices against companies that claim they follow Industry Standard Practices and take Commercially Reasonable Efforts to ensure data security but nevertheless suffer data breaches. This is what the FTC did in the Wyndham case. The FTC, in effect, will see a data breach; examine how it happened; determine that the precautions the company took to safeguard the data were inadequate and therefore did not meet Industry Standards or amount to Commercially Reasonable Efforts; and claim that the company deceived their customers by putting those terms in their privacy policy without abiding by them.
  • Companies can define, on their own, what Industry Standard Practices and Commercially Reasonable Efforts, actually mean, for their business and their customers

Some companies, and industries, have gone to great lengths to define Industry Standard Practices and Commercially Reasonable Efforts for themselves. We previously pointed out the extraordinary data security efforts leading retailers were taking to protect the safety of their customers’ sensitive, private information; how they were sharing information, between themselves and governmental agencies, and collaborating with outside experts, to develop industry standard practices in data security; how they established an independent entity, the Retail Cyber Intelligence Sharing Center, or R-CISC, to do exactly that. We also examined a benefit of, if not the actual reason for, the retailers’ efforts: To protect themselves.

Retailers seem to be some of the most tempting targets of data security breaches. They handle large amounts of their customers’ financial information every day. Credit and debit card numbers are perhaps the most inviting targets because they are so lucrative and can be turned into illicit gains so quickly by cyber-criminals. Here are some facts which might put the retailers’ efforts into perspective:
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run-the-race-1415400-m.jpgWhat, exactly, should your business do to protect itself from a Federal Trade Commission enforcement action for failing to use reasonable precautions to ensure data security for your customers’ sensitive, private information? In our last post we discussed the difficulty involved in complying with a standard for which no specific regulation has been promulgated; the statute which forms the basis of the standard is amorphous, especially when applied to data security; and the binding case law to which it is recommended that you turn, is nascent, if not non-existent. In this post, we will examine what businesses can and are doing to protect themselves, by taking what little guidance is available and making it work, on their own.

Perhaps the best guidance as to what your business must do comes from the Wyndham case we have spent so much time analyzing, which officially is entitled, The Federal Trade Commission, Plaintiff, v. Wyndham Worldwide Corp., et al., Defendants. Civil Action No. 13-1887 (ES), United States District Court, D. New Jersey. The April 7, 2014 decision of U.S.D.J. Esther Salas, which denied the motion to dismiss brought by one of the defendants, Hotels and Resorts, went to great lengths to point out the available sources of guidance in the absence of specific regulations for data security requirements. In our last article, though, we pointed out the problems of relying for guidance on some of the sources recommended by the court: inchoate case law, which is in its infancy and, at best, incomplete, and on a statute designed to leave a regulatory agency significant flexibility to assert its enforcement power, and which was enacted before the need for data security, or cybersecurity, even was conceived.

The other sources of guidance referred to by the court in the Wyndham case include the FTC’s public complaints, consent agreements, business guidance brochure, and public statements. Even the court, however, admitted those are not controlling, but are only persuasive, authority.

The last sources of guidance approvingly mentioned by the court in the Wyndham case are industry standard practices and commercially reasonable efforts to ensure data security. If a business, or group of businesses, can define those terms, so that they actually mean something concrete, then they should be effective in defending against claims that a business did not go far enough to ensure the security of its customers’ data.

Banding together to share information regarding threats and cybersecurity best practices, it seems, is exactly what some very well-known companies are doing. As we have previously written:

On May 14, 2014, the Retail Industry Leaders Association, with the reported backing of companies such as American Eagle Outfitters, Gap Inc., J. C. Penney Company Inc., Lowe’s Companies, Inc., Nike, Inc., Safeway, Inc., Target Corporation, VF Corporation and Walgreen Company, announced a joint effort to share information regarding cyber-threats and security. Named the Retail Cyber Intelligence Sharing Center, or R-CISC, it is designed as a way to allow retailers to enhance cybersecurity by sharing information about, and developing means to protect against, such threats.

The retailers’ emphasis on developing industry-wide best practices for data security is clear from their 5.14.14 press release, and goes beyond just sharing information amongst themselves:
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misty-morning-2-786135-m.jpgWhat, exactly, can a business do to protect itself against a Federal Trade Commission enforcement action for allegedly failing to take reasonable precautions to protect its customers’ sensitive, private, digital information, such as credit card numbers, bank account information, dates of birth, and even medical records? Especially because it is difficult to know exactly what the term “reasonable precautions” actually means in the quickly evolving world of cybersecurity, it is important to develop a credible answer to the question. Some high-profile businesses, including at least one which has been the victim of a large-scale cyber-breach, have come up with a seemingly simple, though elegant, solution.

To appreciate the solution, though, you first have to understand the problem. This post will discuss the full extent of the problem. In the next post, we will examine the solution.

One of the main attacks against the FTC’s Reasonable Precautions cybersecurity standard is that it does not provide fair notice of what it requires, or prohibits. What, exactly, constitutes a reasonable precaution and what does not? How can a business be expected to comply with a standard if it does not have fair notice of what it requires? This was a major defense in both the FTC’s administrative trial against LabMD, and the action entitled the Federal Trade Commission, Plaintiff, v. Wyndham Worldwide Corp., et al., Defendants. Civil Action No. 13-1887 (ES), United States District Court, D. New Jersey (the “Wyndham case”) both of which we have written about at length. At least so far, though, “reasonableness,” as applied on a case-by-case, fact specific basis, is all a business basically has to work with.

In the Wyndham case, as we have previously written, one of the defendants, Hotels and Resorts, based its motion to dismiss the complaint, in large part, on the allegation that the reasonable precautions cybersecurity standard was too vague, and that the FTC should issue detailed regulations giving fair notice of what the standard required, before the FTC could seek to enforce it. In denying the motion, the court held:
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door-in-the-shadow-1443400-m.jpgShadow IT, or Rogue IT, is the practice of employees reportedly improvising their way to a more productive job, without their company’s knowledge or approval, by importing cloud based tools to allow greater ease of access to company documents, bypassing firewalls, and facilitating collaboration, to enhance company performance. What could possibly be the harm? It just might be a good way to violate the FTC’s Reasonable Precautions cybersecurity standard.

In order to sustain allegations of unfair practices under the FTC Act, which is the power the FTC uses to enforce its Reasonable Precautions cybersecurity standard, the FTC must prove substantial injury. Quoting from the April 7, 2014 decision of the U.S.D.J. Esther Salas in FTC v Wyndham, et al:

See Am. Fin. Servs. Ass’n, 767 F.2d at 972 (“An injury may be sufficiently substantial . . . if it does a small harm to a large number of people, or if it raises a significant risk of concrete harm.”) (internal quotation marks and citations omitted).[13]

Merely allowing sensitive, private information to be leaked on line, evidently can meet the test for substantial injury.

We previously wrote about the FTC’s case against LabMD. Allegedly, a LabMD employee put a music file sharing application on her work computer, and accidentally shared a company file containing medical information for approximately 9,300 people. Once done, it really couldn’t be undone because there was no way to control what any other person did with the file. According to the FTC, it was enough that the information was shared. The FTC’s lawyer, Alain Sheer, according to a May 20, 2014 report in the National Law Journal, argued that the legal standard, i.e., what the FTC has to prove, is not actual harm, but whether there is a likelihood of harm. That might explain why, according to the same article, he said that the FTC did not plan on offering evidence from any victims of actual ID theft.

In both the Wyndham case and the LabMD case, one of the FTC’s main allegations reportedly was that the particular company did not keep adequate firewalls. Those firewalls basically help the company control access to company files. Putting company documents in the cloud, however, puts them off-site, and may in fact bypass those same firewalls. Putting documents in the cloud, without the company’s direct knowledge, however, is what Shadow IT apparently is all about.
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miror.image.untitled-1430946-m.jpgIf a business’ privacy policy says it will protect its customers’ sensitive private digital information in certain ways, then it probably is a good idea for the business to keep that promise. The Federal Trade Commission has sued businesses for allegedly making promises in their privacy policies that they did not keep.

How difficult is it for a company to comply with its own data security, or privacy, policy? Evidently, it is difficult, labor intensive and time-consuming; mostly because of the problems translating the words of the policy into detailed computer instructions or code, and the vast amount of code that needs to be checked to ensure it complies with the policy.

Is there a way for a business to protect itself by ensuring that its privacy policy is properly, and consistently, carried out? There might be, and it involves something called Legalease, which actually clears things up rather than makes them more confusing.

The highest profile recent case in which the FTC has alleged that a company deceived the public by failing to live up to the promises made within its own privacy policy, is the FTC v Wyndham Worldwide Corp., et al. We previously wrote about the April 7, 2014 decision of Esther Salas, U.S.D.J., which denied the motion of one of the defendants, Wyndham Hotels and Resorts, LLC (“Hotels and Resorts”), to dismiss the complaint against it. In that decision the court describes the FTC’s deception claim this way, beginning on p.33:

Hotels and Resorts also challenges the FTC’s deception claim (HR’s Mov. Br. At 23). In this claim, the FTC cites the Defendants’ privacy policy disseminated on Hotels and Resorts’ website and alleges that, “in connection with the advertising, marketing, promotion, offering for sale, or sale of hotel services, Defendants have represented, directly or indirectly, expressly or by implication, that they had implemented reasonable and appropriate measures to protect personal information against unauthorized access” but that “Defendants did not implement reasonable and appropriate measures to protect personal information against unauthorized access.” (Compl.paragraph 21, 44-45). Accordingly, the FTC alleges that Defendants’ representations “are false or misleading and constitute deceptive acts or practices” under Section 5(a) of the FTC Act. (Id. Paragraph 46).

Hotels and Resorts’ privacy policy seems innocuous, though it does sound suspiciously like the FTC’s “Reasonable Precautions” cybersecurity standard that Wyndham complained so loudly about in the same case. The privacy policy says the company will comply with certain amorphous standards without defining what those standards specifically require. According to the court, beginning on p. 37 of its decision:
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gavel-952313-m.jpgIn this post we are going to examine the rules used to determine whether the Federal Trade Commission’s “Reasonable Precautions” cybersecurity standard gives businesses fair notice of what they have to do to adequately protect their customers’ information from data breaches. The short answer is that businesses have to watch how the FTC enforces the standard, and act accordingly.

In subsequent posts we will examine whether the standard supplies the required notice by exploring how, and whether, the FTC has enforced the standard, as well as what if anything businesses can, and are, doing to comply with it and protect themselves.

The two main cases that have made the news recently regarding the FTC’s cybersecurity standard are the FTC’s administrative trial against LabMD, Inc. that we spoke about last time, and the FTC’s suit against Wyndham Worldwide Corp and its three subsidiaries, which is entitled Federal Trade Commission, Plaintiff, v. Wyndham Worldwide Corp., et al., Defendants. Civil Action No. 13-1887 (ES), United States District Court, D. New Jersey. Both LabMD and Wyndham reportedly challenged the FTC’s right to enforce any such cybersecurity standard and have argued that even if it can, the standard is too vague, so that no business can know what it has to do to comply with it.

The FTC argues that it has the right to enforce the Reasonable Precautions standard under its authority pursuant to Section 5(a) of the Federal Trade Commission Act, 15 U.S.C. §45(a), to prohibit unfair or deceptive acts or practices in, or affecting, commerce. It basically argues that:

  • A business that doesn’t take reasonable precautions to protect its customers’ data is acting unfairly because that failure meets the statutory definition of unfair acts or practices found in 15 U.S.C. § 45(n): it causes or is likely to cause substantial injury to consumers which they cannot reasonably avoid and it is not outweighed by countervailing benefits to consumers or competition;
  • Reasonableness is a sufficiently clear standard; but.
  • Reasonableness can be decided, and enforced, on a case by case basis.

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