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DATA COUNSEL COMMENTARY ADDRESSING RISKS AND OPPORTUNITIES THROUGH THE LIFECYCLE OF DATA, TECHNOLOGY, ADVERTISING AND INNOVATION * * * * * * MENU * Home * About * Services * Contributors * Contact * Subscribe * PRIVACY ‘DEEP IN THE HEART OF TEXAS’: AN OVERVIEW OF THE TEXAS DATA PRIVACY AND SECURITY ACT By Jerel Pacis Agatep, Erika Vela, Kimberly Gordy, Craig Carpenter and Jeewon Serrato on June 20, 2023 Posted in Data Privacy Texas, long lauded as one of the most “business-friendly” states, has passed a comprehensive privacy law that will bring new regulations to consumer personal data. The new Texas Data Privacy and Security Act (“TDPSA”), H.B. 4, was passed by the State Senate on May 10, 2023, was signed by Governor Greg Abbott on June 18, 2023, and will take effect on July 1, 2024. The TDPSA is a comprehensive privacy law that was largely modeled on Virginia’s Consumer Data Protection Act (“VCDPA”), which went into effect on January 1, 2023. Similar to VCDPA and other state privacy laws, the TDPSA aims to establish a comprehensive framework for the interaction between consumers and businesses regarding the privacy and security of personal data, with the goal of maximizing consumer rights’ effectiveness.[1] Although one of the goals of the TDPSA is to maximize interoperability with other state privacy laws, there are key differences in definitions, provisions, and exemptions that place the Lone Star State’s new law in a category of its own. Continue Reading Tags: Privacy Law, TDPSA, Texas, VCDPA Tweet this post Like this post Email this post Share this post on LinkedIn PODCAST: NFTS AND THE FUTURE OF DIGITAL BRANDS By Gerald J. Ferguson on June 12, 2023 Posted in Podcast Guests Jerry Ferguson and Scott Kominers discuss NFTs and how they can create opportunities for brands in the marketplace with the help of some Really Awesome Raccoons. Questions and comments: gferguson@bakerlaw.com. Listen to the full episode. Subscribe to BakerHosts Apple Podcast | Google Podcast | iHeartRadio | Spotify | Stitcher | TuneIn Download Episode Transcript Tags: NFTs Tweet this post Like this post Email this post Share this post on LinkedIn AS JULY 5TH RAPIDLY APPROACHES, THE NEW YORK CITY DCWP PROVIDES MUCH-NEEDED GUIDANCE ON ARTIFICIAL INTELLIGENCE EMPLOYMENT PRACTICES AND AEDTS By James A. Sherer and Brittany Yantis on June 9, 2023 Posted in AI On May 22, 2023, the New York City Department of Consumer and Worker Protection (“DCWP”) held an employer roundtable about Local Law 144, New York City’s law regulating the use of Artificial Intelligence in the employment context—specifically, automated employment decision tools (“AEDT”). With the July 5, 2023 enforcement date rapidly approaching, the DCWP addressed several open questions that remained after its issuance of the final rules, including the applicability of the AEDT law, bias audit data and notice requirements, and talent-sourcing AEDTs. The DCWP additionally stated its intention to release FAQ guidance to assist employers with compliance. While no indication has been given as to when those FAQs will be released, the DCWP emphasized its intention to still begin enforcement on July 5. Continue Reading Tags: AI, Artificial Intelligence, data breach, data privacy, data security, DCWP, New York City, privacy Tweet this post Like this post Email this post Share this post on LinkedIn I WON’T GET FOOLED AGAIN: MEASURES UNIVERSITIES SHOULD TAKE TO COMBAT NORTH KOREA’S USE OF SPEARPHISHING CAMPAIGNS TO ACCESS THEIR ENVIRONMENTS AND STEAL DATA By Benjamin Wanger on June 7, 2023 Posted in Data Privacy On June 1, the FBI, the U.S. Department of State and the National Security Agency, together with the Republic of Korea’s (ROK) National Intelligence Service, National Police Agency and Ministry of Foreign Affairs, issued a joint advisory (the Joint Advisory) regarding the recent increased use of social engineering by the Democratic People’s Republic of Korea’s (DPRK or North Korea) state-sponsored cyber actors to gain access to the computer systems of individuals employed by research centers and think tanks, academic institutions, and news media organizations. These North Korean cyber actors are known to conduct spearphishing campaigns posing as real journalists, academics or other individuals with credible links to North Korean policy circles. The DPRK employs social engineering to collect intelligence on geopolitical events, foreign policy strategies and diplomatic efforts affecting its interests by gaining illicit access to the private documents, research and communications of their targets. Background The Joint Advisory explains that the U.S. government and others are tracking several groups of North Korean cyber actors working to obtain intelligence to provide to the North Korean government. The most prominent of these groups is called “Kimsuky,” which is known to be a state-backed cyber hacking group that targets think tanks, educational institutions and nuclear power plants. The Joint Advisory explains that North Korea relies heavily on intelligence gained by groups such as Kimsuky. Even if the information obtained does not have significant geopolitical value, the North Koreans utilize the information to craft more credible and effective spearphishing emails that can be leveraged against more sensitive, higher-value targets. When North Korean cyber actors such as the Kimsuky group engage in spearphishing campaigns, they generally perform significant research on their targets and then impersonate an actual person, such as a journalist, who would be expected to legitimately contact the target. The initial email, sent from a spoofed domain, often contains a malicious link or attachment that will allow the North Korean actors to gain access to the target’s computer systems and/or email mailbox if the target clicks on the link or downloads the attachment. In addition to showing several sample emails that the North Korean actors sent in connection with their spearphishing campaigns, the Joint Advisory lists several red flags that universities should be looking for when trying to spot these emails. Notably: * The emails may include real text of messages recovered from previous victim engagement with other legitimate contacts. * Emails in English may sometimes have awkward sentence structure and/or incorrect grammar. * Victims/targets with both direct and indirect knowledge of policy information – i.e., U.S. and ROK government employees/officials working on North Korea, Asia, China or Southeast Asia matters; U.S. and ROK government employees with high clearance levels; and members of the military – are approached with questions about common themes, such as North Korean nuclear issues and denuclearization on the Korean Peninsula. * Email domains look like a legitimate news media site but do not match the domain of the company’s official website. * Spoofed email accounts have subtle incorrect misspellings of the names and email addresses of the legitimate ones listed in a university directory or on an official website. * Malicious documents require the user to click “Enable Macros” to view the document. * The actors are persistent if the target does not respond to the initial spearphishing email. They will likely send a follow-up email within two or three days of the initial contact. * Emails purporting to be from official sources are sent using unofficial email services. Potential Mitigation Measures The Joint Advisory lists several measures that educational institutions can take to reduce the likelihood that any of its users will be victimized by spearphishing efforts. Those measures include: * Implementing a user training program and phishing exercises to raise awareness among users about the risks of visiting websites, clicking on links and opening attachments. * Requiring phishing-resistant multifactor authentication for as many services as possible – particularly for webmail, virtual private networks (VPNs), accounts that access critical systems and privileged accounts that manage backups. * Regularly using port-checking capabilities to determine if the network is being accessed remotely via desktop-sharing software or a VPN or a virtual private server, particularly if use of remote desktop sharing software or VPN services to access accounts is not standard practice. * Limiting access to resources over internal networks, especially by restricting remote desktop protocols and using virtual desktop infrastructure. * Ensuring devices are properly configured and security features are enabled. * Disabling ports and protocols not in use for a business purpose. * Reviewing the security posture of third-party vendors and those interconnected with the university, and ensuring that all connections between third-party vendors and outside software or hardware are monitored and reviewed for suspicious activity. * Implementing application control policies that allow systems to execute only known and permitted programs. * Opening document readers in protected viewing modes to help prevent active content from running. * Installing updates for operating systems, software and firmware as soon as they are released. * Installing and regularly updating antivirus and anti-malware software on all hosts. * Requiring administrator credentials to install software. * Adding an email banner to messages coming from outside the university indicating that they are higher-risk messages. * Adding rules to block emails that match the sample emails provided in the Joint Advisory. * Enabling email authentication methods such as DMARC and DKIM on email domains, which generally makes certain forms of email spoofing more difficult. Conclusion Universities are no strangers to phishing email campaigns, often seeing several per day. This Joint Advisory should serve as a reminder, however, of what could be at stake if an entity connected with North Korea such as the Kimsuky group gains access to information that the North Korean government can use for geopolitical purposes. Therefore, it is important that universities consider implementing some or all of the measures described above to reduce the likelihood that their users will be victimized. Educational institutions or other entities that believe they may have been targeted by a North Korean spearphishing campaign should go to www.ic3.gov to file a report with the FBI; reference #KimsukyCSA in the incident description. Tags: data breach, data privacy, data security, North Korea, Spearphishing Tweet this post Like this post Email this post Share this post on LinkedIn UPDATE ON GLBA SAFEGUARDS RULE IN HIGHER EDUCATION By Benjamin Wanger and Pierce T. Cox on June 1, 2023 Posted in GLBA On February 9, 2023, the Department of Education Office of Federal Student Aid (“FSA”) issued an electronic notice regarding the Federal Trade Commission’s Final Rule amending the Standards for Safeguarding Customer Information (“Safeguards Rule”) under the Gramm-Leach-Bliley Act (“GLBA”). The amendments to the Safeguards Rule, which go into effect on June 9, 2023, include updated data security requirements for financial institutions, including all Title IV institutions of higher education and servicers. Continue Reading Tags: Department of Education, Educational Institutions, FSA, FTC, higher education Tweet this post Like this post Email this post Share this post on LinkedIn THE POST-COOKIE DIGITAL ADVERTISING LANDSCAPE: PLANNING FOR PRIVACY COMPLIANCE IN UNSETTLED TERRAIN By Gerald J. Ferguson, Fernando A. Bohorquez, Jr. and Priyanka Surapaneni on May 31, 2023 Posted in Advertising Digital advertising exists in a complex ecosystem that the average person engages with daily. It encompasses a broad set of technologies for managing advertisements across channels including search, display, video, mobile, and social, with functions for targeting, design, bid management, analytics, optimization, and automation. Digital advertising also incorporates many digital tools and systems that target specific individuals and audiences. In this Thomson Reuters Practical Law article, authors Jerry Ferguson, Fernando Bohorquez and Priyanka Surapaneni discuss the digital advertising regulatory landscape including the EU ePrivacy Directive, GDPR, CCPA, and other U.S. state consumer privacy laws, emerging alternatives to third-party cookies, and best practices for businesses to develop a privacy-focused, post-cookie digital advertising strategy. Read more. Tags: Cookies, privacy compliance Tweet this post Like this post Email this post Share this post on LinkedIn 2023 DSIR REPORT DEEPER DIVE: U.S. EMPLOYEE PRIVACY DEVELOPMENTS By Jennifer Mitchell, Justin T. Yedor and Frederick C. Bingham on May 30, 2023 Posted in Data Security Incident Response Among the many developments in data privacy regulation that took place over the past year, new requirements relating to employee personal information in California and New York have deservedly received a lot of attention. Meanwhile, ongoing risks arising under older laws—such as the massive verdict in the first jury trial of a claim under the Illinois Biometric Information Privacy Act—demonstrate that employers also cannot lose sight of compliance with more familiar privacy laws. Continue Reading Tags: BIPA, CCPA, CPRA, Employee Privacy, privacy Tweet this post Like this post Email this post Share this post on LinkedIn NEW YORK STATE ADDS HEALTH CARE GEOFENCING PROHIBITION, TAKING A MORE MEASURED APPROACH THAN WASHINGTON’S SIMILAR BAN By Nichole Sterling and Andreas Kaltsounis on May 25, 2023 Posted in Healthcare As part of the health budget bill signed by Governor Hochul in early May, New York has amended its General Business Law, introducing a prohibition on geofencing of health care facilities that goes into effect on July 2, 2023 – just three weeks before a similar ban in Washington state. This addition to the General Business Law makes it illegal for anyone other than the health care facility itself to establish or use a geofence or similar virtual boundary around any health care facility to (1) deliver digital advertisements to, (2) create profiles of, or (3) make any inferences about the health status, medical condition, or medical treatment of any person at or within the health care facility. For purposes of the amendment, a health care facility is any public or private entity that provides medical care or related services. This definition explicitly includes hospitals, nursing homes, mental health care facilities, and services provided to individuals with developmental disabilities, but many other types of medical care services may be included in the scope of the definition. The definition also encompasses the building in which any health care facility is located. Continue Reading Tags: geofencing, My Health My Data Act, New York Tweet this post Like this post Email this post Share this post on LinkedIn DEEPER DIVE INTO THE DATA By Elise Elam on May 23, 2023 Posted in Data Security Incident Response Every year, BakerHostetler collects and analyzes various metrics about the incident response matters we handle. In 2022, we handled over 1,160 incidents. The most striking trends we saw across those incidents were an overall increase in the average ransom demands and payments, as well as an increase in recovery times in certain sectors. We also saw a decrease in all the metrics we track related to fraudulent fund transfers. Continue Reading Tags: Fraudulent Fund Transfers, Ransomware Tweet this post Like this post Email this post Share this post on LinkedIn FTC ISSUES WARNING ON USE OF BIOMETRIC INFORMATION By Joel Griswold and Bonnie Keane DelGobbo on May 19, 2023 Posted in FTC On May 18, 2023, the Federal Trade Commission (FTC) issued a Policy Statement on Biometric Information and Section 5 of the FTC Act (Policy Statement). Section 5 of the FTC Act, 15 U.S.C. § 45, prohibits “unfair or deceptive practices in or affecting commerce” and empowers the FTC to bring civil actions for penalties of not more than $10,000 per violation and issue cease and desist orders. While the Policy Statement does not confer any rights on any person and does not operate to bind the FTC or the public, companies should be mindful that the FTC is now focusing on the use of “biometric information” and the technology used in relation to such biometric information. 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