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Jonathan S. Kolodner’s practice focuses on criminal, securities, and other enforcement and regulatory matters as well as on complex commercial litigation.

In late July 2019, U.S. federal and state regulators announced three headline‑grabbing data privacy and cybersecurity enforcement actions against Equifax and Facebook.  Although coverage of these cases has focused largely on their striking financial penalties, as important are the terms the settlements imposed on the companies’ operations as well as their officers, directors, and compliance professionals—and what they signal about potential future enforcement activity to come.
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On July 25, 2019, New York Governor Andrew Cuomo signed into law the Stop Hacks and Improve Electronic Data Security Act (the “SHIELD Act” or the “Act”), which expands data breach notification obligations under New York law and for the first time imposes affirmative cybersecurity obligations on covered entities.

The Act makes five principal changes

In 2018, data privacy and cyber breaches made headlines throughout the year.

Major companies continued to suffer data breaches, highlighting the risks and potential costs of cyber incidents across industries.  At the same time, a growing and overlapping thicket of data security and privacy regulations—within the U.S., European Union, Latin America, and elsewhere—continued to increase

On the heels of the European Union’s implementation of the General Data Protection Regulation (“GDPR”) and public outcry over the Cambridge Analytica scandal, on June 28, 2018, California enacted the most comprehensive data privacy law to date in the United States. The California Consumer Privacy Act of 2018 (the “CCPA”) was hastily passed by the

On June 27, 2018, Equifax Inc., the credit reporting agency, agreed to implement stronger data security measures under a consent order with the New York State Department of Financial Services (“NYDFS”) and seven other state banking regulators.[1] The order imposes detailed duties on Equifax’s Board of Directors in response to criticisms raised by the regulators during an examination of Equifax’s cybersecurity and internal audit functions.  The examination followed the company’s massive 2017 data breach, which exposed sensitive personal information of nearly 148 million customers.  Equifax agreed to the order without admitting or denying any charges of “unsafe or unsound information security practices.”

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On June 22, 2018, the United States Supreme Court decided Carpenter v. United States, in which it held that the government must generally obtain a search warrant supported by probable cause before acquiring more than seven days of historical cell-site location information (“CSLI”) from a service provider. Noting “the deeply revealing nature of CSLI,

In the aftermath of the Facebook-Cambridge Analytica data privacy controversy, Senators Edward J. Markey (D-Mass.) and Richard Blumenthal (D-Conn.) introduced a federal data privacy bill on April 10, 2018 titled the Customer Online Notification for Stopping Edge-provider Network Transgressions Act, or the CONSENT Act (the “Act”).  While the Act is unlikely to pass in the near term given the lack of a Republican sponsor, it reflects increasing attention to privacy concerns in the United States, including consideration by both federal and state legislatures of significantly more prescriptive privacy requirements.
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Last month, the Brazilian National Monetary Council (the “CMN”) issued Resolution No. 4,658 (the “Resolution”), which establishes new cybersecurity requirements covering institutions regulated by the Brazilian Central Bank (Banco Central do Brasil).  The Resolution requires covered financial institutions to have cybersecurity policies in place by May 6, 2019, and be fully compliant with the regulation by December 31, 2021.  Notably, the Resolution’s requirements cover third-party service providers that contract with covered institutions, including those located outside of Brazil. 
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In September 2017, the SEC announced the creation of a new Cyber Unit within the Enforcement Division. Commenting on the launch of the new unit, Enforcement Division Co-Director Stephanie Avakian described “[c]yber-related threats and misconduct” as “among the greatest risks facing investors and the securities industry.” This alert memorandum takes stock of the SEC’s cyber