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Rahul Mukhi’s practice focuses on criminal, securities, and other enforcement and regulatory matters as well as on complex commercial litigation.

Earlier this year, U.S. Customs and Border Protection (“CPB”) revealed that, in 2017, it searched the electronic devices of approximately 50 percent more travelers than it had in the previous year. The same day, it announced that it was issuing new search guidelines for the first time since August 2009. Continue Reading New Rules for Searching Electronic Devices at the U.S. Border

The US-China Business Council (“USCBC”) released a report on February 5, 2018.  The report identifies three key areas in which the China Cybersecurity Law (the “CCL”), which came into effect in June 2017, has posed significant challenges to companies’ ability to conduct business in China, and sets forth detailed recommendations to the Chinese regulators to address such challenges. We previously discussed the CCL and the international business community’s concerns regarding the law’s expansive scope, prescriptive requirements, and lack of clarity on a range of critical issues. The new USCBC report raising many of these same concerns can be accessed hereContinue Reading US China Business Council Lays Out Recommendations to Improve China’s Cybersecurity Regulations

On January 30, 2018, the U.S. Securities and Exchange Commission (SEC) announced[1] that it had obtained an order from a U.S. District Court in Dallas, Texas, halting an allegedly fraudulent initial coin offering scheme.  The SEC’s complaint alleges that defendants AriseBank and AriseBank founders Jared Rice Sr. and Stanley Ford violated the anti-fraud and registration provisions of the U.S. federal securities laws, including by falsely claiming that AriseBank’s customers’ accounts and transactions were FDIC insured, falsely claiming that AriseBank’s customers could spend 700 different virtual currencies using AriseBank’s Visa card, and failing to disclose the criminal history of two of AriseBank’s officers.  Among other relief, the district court has granted the SEC’s request to freeze the defendants’ assets, and for the first time in a cryptocurrency enforcement case has appointed a receiver over those assets, including the cryptocurrencies purportedly held by AriseBank. Continue Reading SEC Freezes Allegedly Fraudulent “Decentralized Bank” ICO

In the wake of recent high-profile data breaches and in the absence of federal data protection legislation, states continue to propose new laws aimed at protecting the personal data of their residents.  On January 23, 2018, the Senate Judiciary Committee of South Dakota approved and forwarded for consideration by the full senate a bill that would require companies and individuals who operate and collect personal data in South Dakota to report data breaches affecting residents of the state within 60 days of discovery and, if more than 250 residents are affected by a data breach, to the Attorney General and consumer reporting agencies as well.  Following a number of comments received from state business associations, the Senate Judiciary Committee added to the proposed bill a threshold for risk of harm such that if, pursuant to “an appropriate investigation” and following notice to the Attorney General, a company reasonably determines that a breach is not likely to result in harm to an affected South Dakota resident, then notice to such resident is not required.  Failure to comply with the breach notification law could constitute a “deceptive act or practice” under state law enforceable by the Attorney General, who is also empowered under the law to recover civil damages not to exceed $10,000 per violation per day.  The bill will next be considered by the full senate and if passed, would leave Alabama as the sole U.S. state without a consumer data breach notification law. Continue Reading South Dakota and Colorado are Latest States to Propose New Data Privacy Laws

Over the last year, the existential risk posed by cyberattacks and data security vulnerabilities has become one of the top concerns for boards of directors, management, government agencies, and the public.

This memo surveys some of the key cybersecurity and data privacy developments of 2017, including the major data breaches and cyberattacks, regulatory and legislative actions, and notable settlements and court decisions, with an eye towards what may be in store in 2018.

A recent decision by an intermediate Illinois appellate court, Rosenbach v. Six Flags Entm’t Corp.,[1] suggests that state courts—which are not bound by federal Article III standing limitations in entertaining suits—will not necessarily provide a more plaintiff-friendly forum for data privacy suits than their federal counterparts.

Earlier this month, we wrote about the Second Circuit’s summary order in Vigil v. Take-Two Interactive Software, Inc.[2]  There, the court affirmed the dismissal of a class action lawsuit brought in the Southern District of New York under the Illinois Biometric Information Privacy Act[3] (“BIPA”) for want of Article III standing because the plaintiffs had failed to allege an injury-in-fact, but remanded the case with instructions to amend the judgment and enter a dismissal without prejudice.[4]  The district court had ruled that the BIPA’s limitation of the private right of action to a “person aggrieved by a violation” meant that the plaintiffs’ failure to allege an injury-in-fact was also fatal to their claims as a matter of state law, meaning that the case should be dismissed with prejudice for failure to state a claim.[5]  The Second Circuit vacated that portion of the ruling on jurisdictional grounds, which left the door open for the plaintiffs to attempt to bring their claims in state court without any allegation of actual harm. Continue Reading Illinois Appellate Court Holds That Mere Technical Violations Of Data Privacy Statute Are Insufficient To State A Claim

In the wake of the high-profile breaches at Equifax and Uber, several constituencies have been making a sustained push for a federal data protection and breach statute.  Last week, a broad coalition of bank, insurance and retail associations urged Congress to pass national legislation establishing uniform data protection and breach notification standards.  In their letter, the organizations stressed that businesses and consumers would benefit from uniform requirements, in contrast to the current regime involving overlapping and sometimes differing State requirements.  Among other things, the letter urged Congress to adopt legislation that imposed flexible and scalable standards for data protection depending on the size and nature of the company and exclusive enforcement of the new national standards by the FTC and state Attorneys General (other than entities subject to state insurance regulation or who comply with the Gramm-Leach-Bliley Act and HIPAA). Continue Reading 2018 Brings Continued Calls for a Federal Data Protection and Breach Statute

In late November, the Second Circuit issued a summary order in Vigil v. Take-Two Interactive Software, Inc,[1] which affirmed the dismissal of a class action lawsuit brought in the Southern District of New York under the Illinois Biometric Information Privacy Act (“BIPA”) for lack of standing.[2]  In doing so, the court followed established Second Circuit precedent and highlighted the continuing difficulties plaintiffs face in establishing standing for certain technical violations of data privacy statutes, when those violations are unaccompanied by allegations of a breach or likelihood of improper access.  The case also serves as a reminder that as states pass statutes covering new types of technology and data, companies will need to remain vigilant in protecting a wider range of information than before. Continue Reading Second Circuit Issues Order Affirming Dismissal of Data Privacy Class Action Suit

A recent enforcement action by the Massachusetts’s Attorney General Office (“Mass. AG”) serves as a stark reminder of how important it is to have robust data security policies and practices in all respects, including with respect to company equipment and locally stored data. Continue Reading Massachusetts Attorney General Settles For Data Breach Over Stolen Laptop—Sign of Increased Enforcement Scrutiny?

On Monday, December 11, 2017, SEC Chairman Jay Clayton waded into the ongoing debate surrounding cryptocurrencies, initial coin offerings, and the regulation of both.  In a statement urging potential investors to exercise caution and market professionals to focus on their responsibility to help protect investors, the Chairman warned of the susceptibility of the burgeoning crypto markets to manipulation and fraud. Continue Reading SEC Chairman Offers Views on Initial Coin Offerings