Why our critical infrastructure is at heightened risk.
Even if you are an employer using standard commercial verification measures, you should be cautious about misuse of any information by employees, managers and contractors. Accordingly, you should be careful with training and education and not on only newly-hired employees. Further, plan on how login credential and access to sensitive information will be handled and/or turned over when training or when terminating, suspending, withholding pay, lowering pay, or taking any other adverse action against an employee.
On February 22, 2013, the FTC announced a settlement with HTC America over charges that HTC failed to use adequate “security by design” in millions of consumer mobile devices. As a result, the company is required to patch vulnerabilities on the devices which include #Smartphones and #Tablets. The settlement, the first action involving a mobile device manufacturer and the new “Privacy By Design” guidelines, sheds some light on the legal risks for mobile device manufacturers and, to some extent, mobile application developers.
The FTC alleged that HTC failed to take reasonable steps to secure the software it developed for its smartphones and tablet computers, introducing security flaws that placed sensitive information about millions of consumers at risk. The resulting vulnerabilities posed risks to sensitive functionality, including the possibility that malware could send text messages, record audio, and install additional malware onto a consumer’s device.
Here are four key take-aways for mobile device manufacturers and application developers from the FTC’s complaint:
provide your engineering (programming) staff with security training
follow well-known and commonly accepted secure coding practices
establish a process for receiving and addressing vulnerability reports from third parties
Smartphones and tablets are powerful, popular, and continue to find their ways into our personal and business lives. New mobile apps hit the market each day. In this fast-moving era of entrepreneurship and creativity, mobile device and app developers need to keep up with evolving privacy and security. Apps and mobile devices that tap into consumer data — including contact information, photos, and location to name a few — pose a heightened risk to digital snoops, data breaches, and real-world thieves.
Please contact us if you are interested in learning how to evaluate your mobile security and privacy risk or to help develop a “Privacy By Design” approach mobile app security.
I just returned from RSAConference 2013 where I had the privilege and honor of giving a presentation of the legal risks caused by social media in the workplace. As a speaker-attendee, I had the priceless benefit of access to all the other speakers and programs held during the conference.
One such program I attended was “We Were Hacked: Here’s What You Should Know”. The speakers, Matthew Prince (@eastdakota) CEO of CloudFlare, and Mat Honan (@mat) writer for Wired Magazine, shared their common experience as targets of high profile hacks. Hearing the details from them first hand, including information from interviews with the hackers themselves, I learned how easy it is to be the victim of hacking and how it’s the little things that create exploitable seams in our information security barriers.
Rather than rewrite their stories, I thought I would share three simple lessons I learned that I’ve already implemented and you should too. Besides, Matt does a better job telling his own story which can be found here.
Here are the three things I learned about how you can protect yourself and others in your organization.
First, security attacks go after the “low hanging fruit” and that often means figuring out a way to exploit your personal email address. With so many web-based services and so much login information to remember, many of us use our personal email as our username for everything from the web sites on which we comment, to our online photo gallery, to our online banking service. Unfortunately, this is probably the address we use for password recovery if we forget. Given that our digital lives are easily mapped, hackers already have one piece of the two-piece login puzzle: they know your user name.
TIP NO. 1: Use a private, obscure email address for your more sensitive information.
Second, once a hacker has accessed your accounts, your computer and your files, the fun has just begun for them. As Matt Honan described, these often adolescent script kiddies simply don’t understand the value of your stored memories and other information. In his case, all the photos of his children were permanently deleted. Regardless of a hacker attack, stuff happens and you don’t want to lose everything because you we’re too lazy to back up.
TIP NO. 2: Back Up your digital life, early and often.
Third, today’s’ Internet is an interdependent ecosystem. Just because you or your organization takes security seriously, doesn’t mean that other do as well. Your internal systems are not enough. Like it or not, the seams of your security perimeter are intertwined and permeated by the services and systems of customers and vendors. For most consumers, the there is a Hobbesian choice of Security v. Convenience. Multiple login usernames and super long passwords are difficult to remember and tedious to use. As a result, most people choose the least secure means of authentication on the assumption that using astringent password is enough. Unfortunately, some people don’t even bothers with that. A recent ZoneAlarm study found that “password” was the fourth most commonly used password by consumers.
Google, Facebook and others have started using two-factor authentication. Two-factor authentication requires that one enter a code after entering the username/password combo. The code is sent via, text message, voice call or email. This greatly reduces the chances of unauthorized access because hackers would need to have your phone, in addition to your username/password combo.
TIP NO. 3: Whenever possible enable two-factor authentication.
Please understand that there is no “magic bullet” when it comes to Cybersecurity. Taking these precautions does not guarantee that you won’t be attached or that your account information won’t be accessed. However, these are important and easy steps that you can take to improve your personal data security.
As a result of the rapid shift in marketing from unilateral one-to-many communications, to the multilateral, many-to-many or many-to-one conversations enabled by Social Media, employees and employers are struggling to manage accounts that are used for both work and personal purposes.
This new phenomenon has benefits, but it also creates a number of legal challenges. For employees, it may result in greater efficiency, more opportunities for authentic customers engagement and the ability to stay on top of the most current grands and business issues. For employers, it presents opportunity to reap substantial benefits from lower communications and customer support costs. For in-house counsel, it raises a host of legal and practical issues with few easy solutions and significant liability and regulatory risks.
First, there are hardware issues. Smartphones, tablets and other personal electronics often have social networking capabilities built in. in addition, they contain contain both personal and business data. Because these devices are always on and always connected, they are more than just personal property. They have become essential business tools. For both sides of the workplace equation, employers and employees must understand where the privacy lines fall between personal versus work-related information.
Second, there are data issues. Employers must balance their needs to monitor employee usage, employees’ privacy concerns, and the risk of liability for theft or exposure of data if a device is lost or stolen, or from lack of proper safeguards on account usage. For in-house counsel tasked with drafting policies to address these risks, , Prior to implementation of any policy, the legal team needs to educate front line employees and management on reasonable expectations of privacy and security and the harms that the organization seeks to prevent.
Lastly, recent cases such as the Cristou v. Beatport litigation, highlight the struggle to define and control the beginning and end of employee social media accounts, ownership and protection of intellectual property and the post termination risks that arise from the absence of appropriate policies.
As we prepare to start a new year, the time is ripe to establish security and privacy policies governing creation, maintenance and use of employees’ social media accounts for work functions. In-house counsel must lead the charge to educate, inform and train employees about privacy, security and evidence-recovery implications associated with use of social media.
HHS has provided guidance about methods and approaches to achieve de- identification in accordance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule. The guidance explains and answers questions regarding the two methods that can be used to satisfy the Privacy Rule‘s de-identification standard: Expert Determination and Safe Harbor1. This guidance is intended to assist covered entities to understand what is de-identification, the general process by which de- identified information is created, and the options available for performing de- identification.
FTC Settlement Puts an End to “History Sniffing” by Online Advertising Network Charged With Deceptively Gathering Data on Consumers
You know the old adage, the Internet is forever. Well, so is your browsing history, apparently. On December 5, 2012, the FTC announced that an online advertising company agreed to settle Federal Trade Commission charges that it used “history sniffing” to secretly and illegally gather data from millions of consumers about their interest in sensitive medical and financial issues ranging from fertility and incontinence to debt relief and personal bankruptcy.
“Consumers searching the Internet shouldn’t have to worry about whether someone is going to go sniffing through the sensitive, personal details of their browsing history without their knowledge,” said FTC Chairman Jon Leibowitz. “This type of unscrupulous behavior undermines consumers’ confidence, and we won’t tolerate it.”
The defendant, Epic Marketplace shared information with a large advertising network that has a presence on 45,000 websites. Consumers who visited any of the network’s sites received a cookie, which stored information about their online practices including sites they visited and the ads they viewed. The cookies allowed Epic to serve consumers ads targeted to their interests, a practice known as online behavioral advertising.
Kids’ Data Still Collected, Shared without Parents’ Knowledge, Consent
The Federal Trade Commission issued a new staff report, “Mobile Apps for Kids: Disclosures Still Not Making the Grade,” [PDF here ] examining the privacy disclosures and practices of apps offered for children in the Google Play and Apple App stores. The report details the results of the FTC’s second survey of kids’ mobile apps.
The FTC first surveyed kids’ mobile apps in 2011. Since then there has been little progress toward giving parents the information they need to determine what data is being collected from their children, how it is being shared, or who will have access to it. Many any of the apps examined included interactive features, such as connecting to social media, and sent information from the mobile device to ad networks, analytics companies, or other third parties, without disclosing these practices to parents.
Disturbingly, the shared information included login information across multiple sites, GPs location information and device ID information.
By now most small business owners are aware that Cybersecurity is an issue. But, how much time and capital should be spent on cybersecurity protection? This article discusses three key factors that should play into that decision.
Factor #1 Awareness.
According to some experts, the biggest problem that small business owners face is simply awareness of the risk. This includes awareness by employees as well.
Most data leaks and other security incidents are caused by employees who are either unaware of security protocols or indifferent to them. Regardless of the level of security in your data center or the strength of encrypted communications, the weakest link will almost always be the human beings interacting with the network.
To address this risk, small business owners need to focus on training and awareness for employees. However, company management is usually focused on sales and customer service. Further, owners often lack the time and expertise needed to properly assess security risks. Companies in any industry should look to partner with a third-party security firm to asses risks and develop appropriate training.
Factor #2 Employee Training.
Training is the first line of defense against cyber threats. This training needs to include the entire company, and should cover three key areas: (a) proper password management on all company services and devices, including clear procedures for new and departing employees, as well as day-to-day usage; (b) clear guidelines for the sharing of information with remote employees, partners and third parties; and (c) a plan for monitoring usage and privileges to the company’s digital assets.
Employee training needs to account for how the public will access your company’s products or services. For example, what if a hacker got into a system by pretending to be another user? By rolling out new features slowly, its easier to identify and fix security loopholes.
All stakeholders need awareness of: (a) the type of information you’re transmitting (e.g. payment information), (b) the visibility of information you’re transmitting (e.g. highly-publicized public launch vs. a quiet rollout of some new software), and (c) the level of security inherent in the transmission (e.g. encrypted emails and documents shared via a secure server or data shared publicly through public networks and via social media sites.
Factor #3 Vigilance (Monitoring).
For some companies everything is available and accessed online. Since online relationships are built upon trust, it is critical that the company actively monitor the security and transparency of this relationship. Many tools are available to measure and respond to risk factors and gauge likelihood of an impact to help determine the level of investment required. Resources can be assigned to anything with high likelihood and high impact.
For example, monitoring potentially fraudulent user accounts has an immediate commercial benefit as well as reducing risk.
Unfortunately, a common misconception is that putting up basic defenses like firewalls will protect security vulnerabilities. However, after reinforcing your Cybersecurity defense, the focus should shift to monitoring and alerting. In many cases, this may require up-front investments to enable tracking and alerting to irregularities in network and data activity. Fortunately, in the event of a breach or a loss of data, this monitoring information will be the key factor in addressing the problem and pinpointing the issue. Managers, employees and business partners need to understand that Cybersecurity is an ongoing process. Awareness, training and monitoring will go a long way toward enhancing a small business’ Cybersecurity preparedness.
About the Author:
David M. Adler, Esq. is a partner in the Chicago office of Leavens, Strand, Glover & Adler, LLC, a boutique intellectual property and entertainment law firm in Chicago, Illinois whose mission is providing businesses with a competitive advantage by enabling them to leverage their intangible assets and creative content in order to drive innovation and increase overall business value. The practice is organized around five major substantive areas of law: Intellectual Property Law, Commercial & Finance Law, Entertainment & Media Law, Corporate Law and Contract Law.
Contact us for a free consultation today. Dadler @ lsglegal (dot) com or (866) 734 2568
By TIM SMITH — The Greenville News. A month after state officials learned of a massive data breach at the Department of Revenue, officials are still discussing what security measures to take to protect all of the state’s computer systems.
Now that the President’s electoral and popular vote victories are in the books, their various ramifications are still being felt. One key element of the addition of four more years to the President’s legacy is the issue of cybersecurity.
The Cyber Security panel taking place in Tel-Aviv this week at the HLS 2012 event is attracting considerable interest on the backdrop of the recent revelations of massive Iranian cyber attacks crippling the networks of Aramco Oil Company in Saudi Arabia.
Cyber security facility launched
Alpena News
YPSILANTI, Mich. (AP) — Michigan Gov. Rick Snyder has announced the opening of a facility designed to help electronic security professionals detect and prevent cyber threats and attacks.
Evolving Cyber Crooks Waiting For That Click
The Borneo Post
On the final day of the three-day Cyber Security Awareness campaign, Mohd Izuddin bin Hj Md Hussin, Learning Solution Specialist from Tech One Global, who delivered a public talk on ‘Protect your Computer, Your Family and Yourself’ at Times Square.
On September 25, 2012, the Federal Trade Commission announced a settlement with seven rent-to-own companies that secretly installed software on rented computers, clandestinely collected information, took pictures of consumers in their homes (WTF?!) and tracked these consumers’ locations.
If you haven’t vomited on your computer from the sickening outrage, you can read the FTC press release here.
Software design firm DesignerWare, LLC licensed software to rent-to-own stores ostensibly to help them track and recover rented computers. The software collected the data that enabled rent-to-own stores, including franchisees of Aaron’s, ColorTyme, and Premier Rental Purchase, to track the location of rented computers without consumers’ knowledge
According to the FTC, the software enabled remote computer disabling if it was stolen, or if the renter failed to make payments. It included an add-on purportedly to help stores locate rented computers and collect late payments. Alarmingly, the software also collected data that allowed the rent-to-own operators to secretly track the location of rented computers, and thus the computers’ users.
When activated, the nefarious feature logged key strokes, captured screen shots and took photographs using a computer’s webcam, according to the FTC. It also presented a fake software program registration screen that tricked consumers into providing their personal contact information.
“An agreement to rent a computer doesn’t give a company license to access consumers’ private emails, bank account information, and medical records, or, even worse, webcam photos of people in the privacy of their own homes,” said Jon Leibowitz, Chairman of the FTC. “The FTC orders today will put an end to their cyber spying.”
“There is no justification for spying on customers. These tactics are offensive invasions of personal privacy,” said Illinois Attorney General Lisa Madigan.
I’m surprised at how often I receive commercial bulk email messages that are not compliant with the Federal CAN SPAM act.The two biggest mistakes I see are 1) no physical address and 2) no opt-out/unsubscribe mechanism.
Image via CrunchBase
Another common mistake is a “blind” bulk email address list like “Undisclosed-Recipients@email.com.” Not only do I NOT know which address this received the offensive message, there usually isn’t even a proper return address for me to send an “Unsubscribe” message.
With the popularity of social media, you’ve probably received a Twitter promotion for iPhones, special deals, free downloads, etc. While it’s easy to dismiss poorly-written tweets from obvious spammers, when someone replies to you on Twitter, says “must read, check it out” and the topic is clearly the kind of thing you read and share it’s more difficult to tell. Often, these are from legitimate accounts where a human has taken the time to compose and send the message.
In light of the growing use of electronic mail (“email”) messages for advertising, marketing, corporate communications and customer service, is essential to have some familiarity with the Federal “Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003” also known as the CAN SPAM Act (the “Act”) The Act provides the parameters of its application, explicit prohibitions, requirements for transmission of legally compliant email messages including the “Opt-Out” mechanism and vicarious liability. Generally speaking, the Act was written to prohibit the fraudulent, deceptive, predatoryand abusive practices that threaten to undermine the success and effectiveness of commercial email and email marketing.
Congress drafted the Act to impose limitations and penalties on the transmission of unsolicited commercial email messages. Unlike some state initiatives, the Act is an “opt-out” law. Put another way, for most purposes permission of the e-mail recipient is not required. However, once an email recipient has indicated a desire to opt-out or no longer receive such messages, failure to comply with the recipient’s request may subject both the sender and the person or entity on whose behalf the message was sent to severe penalties.
Frequently asked question about the Act include:
1) To Whom Does The Act Apply? The Act applies to any person or entity that sends email.
2) What Activities Are Prohibited By The Act? The Act is primarily concerned with explicitly prohibiting certain predatory and abusive commercial email practices.
3) What Are The Requirements For Sending Email Messages? Section 5(a) of the Act sets requires the inclusion non-misleading information regarding: (a) transmission, (b) subject, (c) email address, (d) Opt-out and physical address, and (e) clear and conspicuous language identifying sexually-oriented messages.
4) Who Can Be Liable for Violations? The Act applies to both the party actually sending the commercial email messages and those who procure their services.
Discussion
The primary substantive provisions of the Act can be divided into three parts found in Section 4, Section 5 and Section 6. Section 4 of the Act addresses “predatory and abusive” practices prohibited by the Act. Section 5 details the requirements for transmission of messages that comply with the Act. Section 6 details the requirements for transmission and identification of sexually-oriented messages. Section 6 is not discussed in this article.
Section 4 of the Act lists specific “predatory and abusive” practices prohibited by the Act. In short, the Act specifically prohibits: (i) accessing a computer without authorization for the purpose of initiating transmission of multiple commercial email messages, (ii) transmission of multiple commercial email messages with the intent to deceive or mislead recipients, (iii) transmission of multiple commercial email messages with materially false header information, (iv) registration of email accounts or domain names using information that materially falsifies the identity of the actual registrant, and (v) false representations regarding the registration of Internet Protocol addresses used to initiate multiple commercial email messages.
The second relevant part, set forth in Section 5 of the Act, details the requirements for transmission of messages that comply with the Act. Subject to certain limitations discussed below, the Act requires that email messages contain: (i) transmission information that is not materially false or misleading, (ii) subject information that is not materially false or misleading, (iii) a return address or comparable mechanism for opt-out purposes, (iv) identifier, Opt-out and physical address, and (v) clear and conspicuous language identifying sexually-oriented messages as such. (Note, this last requirement is not discussed. See above.) Lastly, the Act implicates both commercial email transmission service providers as well as those who procure their services.
To Whom Does The Act Apply?
The Act applies to any person or entity that sends email. The Act specifically regulates “commercial electronic mail messages,” defined as any email message “the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).” However, the Act specifically excludes from this definition “transactional or relationship messages.” A “transactional or relationship message” falls within one of five categories of messages:
communications that facilitate, complete or confirm a commercial transaction previously agreed to by the recipient;
communications that provide warranty or other product information with respect to a product or service previously used or purchased by the recipient;
notifications with respect to a subscription, membership, account, loan, or comparable ongoing commercial relationship;
information directly related to an employment relationship or related benefit plan in which the recipient is currently involved; and
communications to deliver goods or services, including product updates or upgrades, under the terms of a transaction previously agreed to by the recipient.(Emphasis added.)
The purpose for the distinction between “commercial electronic mail messages” and “transactional or relationship messages” is to exempt certain types of communications from compliance with all the message transmission requirements of the Act. As should be clear from the list above, the Act distinguishes the types of communications based on the relationship between the sender and recipient rather than on the character of the message. Put another way, so long as the communication is related to some type of existing business relationship, it is not a “commercial electronic mail message.”
What Activities Are Prohibited By The Act?
Section 4 of the Act is primarily concerned with prohibiting certain predatory and abusive commercial email practices. Section 4(a) amends Chapter 47 of Title 18 of the United States Code by adding Section 1037 which specifies the offenses that constitute “fraud and related activity in connection with email.” An offense is committed by anyone who directly or indirectly, knowingly:
accesses a protected computer without authorization, and intentionally initiates the transmission of multiple commercial electronic mail messages from or through such computer,
uses a protected computer to relay or retransmit multiple commercial electronic mail messages, with the intent to deceive or mislead recipients, or any Internet access service, as to the origin of such messages,
materially falsifies header information in multiple commercial electronic mail messages and intentionally initiates the transmission of such messages,
registers, using information that materially falsifies the identity of the actual registrant, for five or more electronic mail accounts or online user accounts or two or more domain names, and intentionally initiates the transmission of multiple commercial electronic mail messages from any combination of such accounts or domain names, or
falsely represents oneself to be the registrant or the legitimate successor in interest to the registrant of 5 or more Internet Protocol addresses, and intentionally initiates the transmission of multiple commercial electronic mail messages from such addresses.
Clearly, Section 4 is primarily concerned with preventing practices whereby the sender intentionally, either through outright fraud or other deception, conceals its true identity or the true commercial character of the message.
What Are The Requirements For Sending Email Messages?
Section 5(a) of the Act sets forth certain other protections for the users of commercial email.
Accurate Transmission Information. Among the affirmative requirements of Section 5(a), Section 5(a)(1) prohibits sending either a commercial electronic mail message, or a transactional or relationship message, that contains, or is accompanied by, header information that is materially false or materially misleading. Unlike the general prohibition against sending messages with materially false header information under Section 4, in addition to having technically accurate transmission information, the sender is prohibited from having used false pretense or other deceptive means to acquire such information (e.g. email accounts, domain names and IP addresses). Furthermore, the “from” line must “accurately identify the person transmitting the message.” Lastly, the sender must accurately identify the computers used to originate, relay or retransmit the message.
Note, the following only apply to commercial electronic mail messages:
Accurate Subject Information. Messages must have accurate subject information. Subject information would not be accurate if a “person has actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that a subject heading of the message would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.”[8]
Inclusion of Opt-out Mechanism. Messages MUST contain a functioning return email address or other Internet-based mechanism (e.g. hyperlink), that is clearly and conspicuously displayed that enables a recipient to submit a request to opt-out of future email messages from the sender whose email address was contained in the message. The opt-out mechanism (whether email address or hyperlink, etc.) must remain functional for at least thirty (30) days after the transmission of the original message.
Removal After Objection. If a recipient makes a request using the opt-out mechanism, the sender shall not transmit any further messages to the recipient, more than ten (10) business days after the receipt of such request, if such message would fall within the scope of the request. A third-party acting on behalf of the sender shall not transmit or assist others to transmit, any further messages to the recipient, more than ten (10) business days after the receipt of such request, if such third party knows or should know of the recipient’s objection. Lastly, the sender and any third party who knows that the recipient has made such a request, shall not sell, lease, exchange, or otherwise transfer or release the electronic mail address of the recipient for any purpose other than compliance with the Act or other provision of law.
Inclusion of Identifier, Opt-out & Physical Address. Every message must clearly and conspicuously: (i) identify the message as an advertisement or solicitation; (ii) provide notice of the opportunity to opt-out of future communications; and (iii) provide a valid physical postal address of the sender. However, the notice that a message is an advertisement or solicitation does not apply where the recipient has given prior affirmative consent to receive the message.
Related Activities Proscribed.
Other prohibitions in the Act concern unethical or unscrupulous practices that tend to coincide with deceptive or abusive email. Several common methods for generating email distribution lists have also been proscribed. The Act prohibits certain unethical practices such as:
hijacking another email server to send or relay messages;
“harvesting” email addresses that appear on others’ Web sites;
randomly generating email addresses;
knowingly linking an email ad to a fraudulently registered domain; and
participating in other offenses such as fraud, identity theft, etc.
Who Can Be Liable for Violations?
The Act applies to both the party actually sending the commercial email messages and those who procure their services.[9] One cannot “outsource” its “spam” and thereby avoid liability under the Act. One may be held accountable if the email service employed isn’t actually using a legally-compiled or permission-based list. Under some parts of the Act one may be held liable for employing a third party to distribute the messages “with actual knowledge, or by consciously avoiding knowing, whether such [third party] is engaging or will engage, in a pattern or practice that violates this Act.”
CONCLUSION
The Act was written to prohibit the fraudulent, deceptive, predatory and abusive practices that threaten to undermine the success and effectiveness of commercial email and email marketing. Since Bacon’s uses email to communicate with employees, vendors, existing and prospective customers, Bacon’s is clearly subject to the Act. The Act focuses on enumerating proscribed activities rather than affirmative obligations to make it easier for legitimate, honest businesses to comply with the Act. The Act distinguishes communications based on a previously existing relationship between the sender and the recipient from those communications that are prospective in nature. Generally, email messages not based on a pre-existing relationship are subject to greater affirmative requirements.
Compliance Guidelines.
Be Aware of the Requirements for Transmitting Messages.
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