Miscellaneous

NJ Supreme Court Addresses Privilege in Employee Web-Based Personal Email Accounts

Posted on April 13, 2010
by Mehmet MunurNew Jersey Supreme Court ruled on March 30, 2010 that an employee did not waive attorney-client privilege to the emails she sent using her personal, web-based, password-protected email account from a computer owned by the employer. The employer had an Electronic Communication Policy that limited the employee?s expectation of privacy but did not explicitly discuss the use of personal email accounts on employer owned computers...

Insurance Provider Settles Case Due to Deficiencies in Electronic Signatures, Electronic Evidence, and Contract Drafting

Posted on March 08, 2010
By Mehmet MunurA District Court in New York recently decided a case where the perfect storm of messy contract drafting, which left a key term undefined and ambiguous, lack of proper evidence to prove the date of formation of the contract, and deficiencies in electronic signatures forced a life insurance provider to settle the case...

Court Upholds Forum Selection Clause in B2B Clickwrap

Posted on January 14, 2010
By Mehmet MunurA District Court in Indiana recently held that NexTag?s clickwrap Terms of Service was enforceable against Appliance Zone despite arguments by Appliance Zone that no contract was formed and that if an agreement were formed it was procedurally unconscionable...

Article 29 Working Party Releases 12th Annual Report

Posted on January 12, 2010
By Mehmet MunurThe Article 29 Working Party, a group created under the EU Data Protection Directive and made up of the data protection regulators of each Member State to provide guidance on data protection and privacy issues, has released its 12th Annual Report...

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Article 29 Working Party Adopts Documents, Deems Israel and Andorra Adequate

Posted on January 06, 2010
The Article 29 Working Party started the new year with a volley of announcements. The Working Party document WP 165 states that Israel guarantees an adequate level of protection and WP 166 states that Andorra has adequate privacy protections. Additionally, the Working Party issued WP168 on ?The Future of Privacy: Joint contribution to the Consultation of the European Commission on the legal framework for the fundamental right to protection of personal data...

Florida Ethics Opinion Underscores Risks Associated with Social Media for Attorneys

Posted on December 21, 2009
by Mehmet MunurFlorida Judicial Ethics Advisory Committee recently issued an opinion that answered the question ?Whether a judge may add lawyers who may appear before the judge as ?friends? on a social networking site, and permit such lawyers to add the judge as their friend? in the negative...

Court Rejects Plaintiff?s Argument that Overbroad Privacy Policy Lead to Waiver of 1st Amendment Rights

Posted on December 15, 2009
By Mehmet MunurA federal district court in Missouri ruled on December 9 that the broad website privacy policy of a newspaper did not lead to an anonymous commenter?s contractual waiver of his First Amendment rights. While the case does not break new ground in First Amendment jurisprudence, it emphasizes some of the shortcomings of the self-regulatory system of privacy regulation of the web in the US...

Supreme Court to Review Electronic Communications Case

Posted on December 14, 2009
by Mehmet MunurThe Supreme Court will review a 9th Circuit Court case finding that the unauthorized search of employee text messages on an employer provided text messaging pager may have violated the employee?s privacy rights despite a written policy stating that the employees should have no expectation of privacy...

Regulators Issue Final Model Privacy Notice

Posted on November 23, 2009
By Mehmet Munur On November 17, eight federal regulators issued final rules and model privacy notice forms as required under the Gramm-Leach-Bliley Act. While the use of the notice forms are not required, the two-page forms create a safe-harbor for disclosures required under the GLBA...

FTC Delays Enforcement of Red Flags Rule, Court Holds Red Flags Do Not Apply to Lawyers

Posted on October 30, 2009
by Mehmet Munur The FTC news release notes that the Federal Trade Commission delayed the enforcement of the Red Flags rules until June 1, 2010. The FTC news release also notes the decision by the U.S. District Court for the District of Columbia that the FTC Red Flags Rules did not apply to attorneys...

FTC Modifies ChoicePoint Consent Order and Imposes Stricter Compliance

Posted on October 19, 2009
By Mehmet MunurThe Federal Trade Commission announced today that it had entered into a modified consent agreement with ChoicePoint due to ChoicePoint?s inability to live up to the original consent agreement entered into in 2006.The FTC entered into a consent agreement with ChoicePoint was due to compromise of 163,000 financial records and at least 800 cases of identity theft...

FTC Settles with Six Companies with Lapsed Safe Harbor Certifications

Posted on October 07, 2009
By Mehmet MunurOn October 6, 2009, Federal Trade Commission filed six complaints against companies falsely claiming that they were self-certified to the Department of Commerce EU Safe Harbor when their certification had lapsed. This FTC action should serve as a reminder to Safe Harborites either to keep up their annual recertification or to avoid misrepresenting that they are self-certified to the Safe Harbor...

FTC Obtains TRO Against E-Commerce Merchant Falsely Claiming Safe Harbor Certification

Posted on August 24, 2009
By Mehmet MunurOn July 31, the Federal Trade Commission obtained a temporary restraining order against a California website for deceptively claiming to be a member of the EU Safe Harbor administered by the Department of Commerce. This is the first FTC enforcement involving the FTC?s authority to prosecute violations involving EU Safe Harbor and FTC?s authority to prosecute an American company for deception of foreign consumers...

FTC Issues Final Breach Notification Rules as Required by the Stimulus Bill

Posted on August 19, 2009
By Mehmet MunurOn August 18, Federal Trade Commission issued the final rules on breach notification as required by the American Recovery and Reinvestment Act of 2009, commonly known as the stimulus bill. The rules will take effect in 30 days from publication in the Federal Register...

Federal Authorities Prosecuting Suspects of Heartland and Hannaford Breaches

Posted on August 17, 2009
By Mehmet MunurUS Department of Justice reports that federal authorities are prosecuting three suspects for stealing 130 million credit card numbers from Heartland Payment systems, 7-eleven stores, and Hannaford stores. We previously reported on the Heartland Payment Systems Breach and the Hannaford Stores Breach...

Amending Website Terms of Use Requires Care

Posted on August 05, 2009
By Mehmet MunurRecent case law examining website terms of use highlights the importance of drafting qualified change of terms provisions for online agreements, proposing reasonable unilateral amendments, providing adequate notice, and keeping track of differing versions of online agreements and assents to such agreements...

Sears Settles with FTC on Information Tracking

Posted on July 26, 2009
By Mehmet MunurFTC entered into a settlement agreement with Sears in June related to its failure to provide adequate notice to its customers during the sign up process for an information collection software. This settlement highlights the need to create accurate highlight notices for privacy policies...

District Court Holds Blockbuster Arbitration Provision Unenforceable

Posted on May 16, 2009
By Mehmet MunurA District Court in Texas recently held Blockbuster?s website terms and conditions arbitration provision illusory and therefore unenforceable due to Blockbuster?s right to unilaterally modify it. The District Court cited to established Texas precedent to argue that nothing in the website terms prevented the arbitration provision's retroactive application...

FTC and HHS Issue Proposed Rules on Breach Notification

Posted on April 23, 2009
By Mehmet MunurBoth the Federal Trade Commission and the Department of Health and Human Services issued proposed regulations last week to satisfy their obligations under the Health Information Technology for Economic and Clinical Health (HITECH) Act, which was a part of the American Recovery and Reinvestment Act of 2009...

Court Strikes Down Electronic Signature Due to Weak Security Procedures

Posted on March 23, 2009
By Mehmet MunurThe US District Court in Kansas held on February 19, 2009 that the data security procedures Dillard?s Stores had created to authenticate the electronic signature its employees used to execute an arbitration policy were not sufficient. While the case may have turned on its particular facts, Dillard?s could have avoided such problems by abiding by ISO 17799 procedures in operating its electronic signature systems...

Stimulus Bill Requires Data Breach Notification Under HIPAA and Signals Broader Enforcement

Posted on February 27, 2009

Heartland Payment Systems Loses Credit Card Data to Malware

Posted on February 02, 2009
by Mehmet Munur Heartland Payment Systems, the 6th largest card acquirer in the United States with a processing volume of $51.9 billion, reported that its ?investigation uncovered malicious software that compromised data that crossed Heartland?s network...

Article 29 Working Party Releases 11th Annual Report

Posted on January 23, 2009
By Mehmet MunurOn January 21, 2009, the Article 29 Working Party released its 11th Annual Report on Data Protection and the report shows a rise in enforcement activities by the European Union Data Protection Authorities (DPAs) resulting in fines totaling millions of Euros, some criminal prosecutions, and concerns over liberal use of electronic discovery in US litigation involving EU subsidiaries...

US-Swiss Safe Harbor Framework Signed

Posted on January 22, 2009
by Mehmet MunurOn December 9, 2008, the Swiss Federal Data Protection and Information Commissioner and the Department of Commerce signed ?an exchange of letters? to create the ?US-Swiss Safe Harbor Framework.? As a result, multinational corporations certified under the Department of Commerce Safe Harbor program are now able to transfer data from Switzerland to the US more conveniently...

US Supreme Court to Review Whether States Can Enforce Antidiscrimination Laws against Federally Chartered Banks

Posted on January 19, 2009
By Dino TsibourisThe US Supreme Court will consider whether the New York Attorney General can enforce antidiscrimination laws against federally chartered banks. In The Clearing House Assoc., LLC v. Cuomo, 510 F.3d 105 (2d Cir. 2007), the New York-based Second Circuit Court of Appeals upheld the OCC's position that a state may not request or subpoena information relating to potential lending discrimination from such banks...

ABA: Boutique Law Firms Make Inroads During the Downturn

Posted on January 16, 2009
By Dino TsibourisThe ABA Journal and New York Law Journal have interesting stories about how the downturn in work at large law firms has opened doors for small firms that offer specialized expertise at competitive rates. The article focuses on the New York market, but the factors apply in any legal market:Despite the struggling economy and Wall Street layoffs, some small law firms in New York are seeing their business boom...

Federal Rule of Evidence 502: Protecting Against the Inadvertent Waiver of the Attorney-Client Privilege

Posted on November 11, 2008
By Kelly Prior, Esq.President Bush recently signed a bill creating new Federal Rule of Evidence 502, which addresses the disclosure of communications and information protected by either the attorney-client privilege or the work-product doctrine. The purpose of FRE 502 is two-fold: 1) to resolve the conflicts which have arisen between courts in the area of inadvertent disclosure and subject matter waiver; and 2) to bring some measure of control over spiraling discovery costs that are due in part to the concern that any disclosure, however small or unintentional, will result in the subject matter waiver of all protected communications and information...

Google Updates IP Address Log Retention Policy

Posted on November 10, 2008
By Dino Tsibouris & Mehmet MunurOn September 8, 2008, Google announced that it will reduce the amount of time it retains distinct IP addresses from 18 months to 9 months due to pressure from European regulators. This is not the first time, and likely not the last time, Google will have to amend its IP log retention period in order to comply with the European regulators? strict policies...

Best Lawyers in America - 2009

Posted on October 06, 2008
Dino Tsibouris of Tsibouris & Associates, LLC was recently selected to be included in the 2009 edition of The Best Lawyers in America in the specialty of Information Technology Law. The Best Lawyers in America is a publication of the most respected attorneys in their fields, which has been known to be a very valuable referral list of attorneys in practice...

Recent 9th Circuit Ruling Highlights the Importance of Employee Policies Regarding Electronic Communications

Posted on August 09, 2008
By Dino Tsibouris & Mehmet MunurThe 9th Circuit Court recently ruled that the unauthorized search of employee text messages on an employer provided text messaging pager may have violated the employee?s privacy rights despite a written policy stating that the employees should have no expectation of privacy...

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