Privacy Concerns in the Management of Today's Information

Andrew B. Clauss, Esq.

Partner, Brophy Clauss, LLC

Don McLaughlin, Esq.

Founder and CEO, Falcon Discovery

Christopher W. Brophy, Esq.

Partner, Brophy Clauss LLC

Shannon Bell, Esq.

Partner, Grund, Dagner & Jung, P.C.

Education Code: TU03-3524

Learning ObjectivesUpon completion of this session, participants

will be able to:1. Identify types of information and data that can

lead to privacy and confidentiality concerns

2. Describe the risks associated with creation, use, and management of this information

3. Develop strategies to minimize and balance these risks in the face of new technology

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What This Course Does Not Cover Privacy and information security are very broad

areas; this presentation will not include specifics on the following areas, but you should be aware of them:– Detailed state, federal and international laws– Specific statutes, guidelines and regulations

• We highlight only a few• Each Industry will have specific laws and rules (e.g.,

CPNI for telecommunications)– Specific areas like security breaches, ISPs, internet sales,

wiretap act, children’s privacy, computer crimes, electronic surveillance (e.g. FISA, Patriot Act), SPAM, spyware, pretexting, insurance privacy, FERPA, etc.

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Introduction

Three areas where privacy and security issues arise:1. Businesses possess private employee information.

What steps need to be taken to protect that information?

2. Businesses have their own private and confidential information. What steps need to be taken to keep that information private?

3. Businesses have private information about their customers. What needs to be done to keep that information protected?

The Playing Field – Sources of Privacy Law

International guidelines – OECD, APEC– What are they?

7 cornerstones of privacy– Notice– Choice– Onward transfer– Access– Security– Data integrity– Enforcement

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Sources of Privacy Law

Involvement of the FTC– How are the FTC and the FTC Act involved in

privacy?– Targeted advertising

Health-related statutes– ADA– HIPAA & HITECH– State laws

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Sources of Privacy Law

ECPA/SCA– What are they?– How do they apply?

Accessing co-employer’s email Use of another’s log-in information What about consent?

Online privacy statutes– E.g. California

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Sources of Privacy Law

Financial privacy– GLB

When does it apply? How could it apply to your business?

– FCRA How could it apply to your business?

– FACT What is it and what does it cover?

– State laws Unique provisions Credit card restrictions

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Sources of Employee Information

Employees use company email for personal communications

Employees provide the company with private financial information, including bank accounts, retirement accounts, HSA accounts, etc.

Employees provide human resource information like SSN’s, marital/partner status, etc.

Employees use company resources (computers, phones, etc.) for storing personal information, such as photos, documents, and personal communications (e.g. personal attorney-client and physician-patient communications)

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Employee Privacy Issues

Employee privacy issues– Private areas provided by employers– Privacy expectations– Impact of policies– Investigations– Employee emails– Right to purchase device on termination– Monitoring employee emails– Cell phone privacy– BYOD – phones and computers– Video surveillance in workplace

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What Policies and Procedures Should be Considered?

Companies need to be aware of and guard against litigation exposure from employee activity on company resources

Companies need to establish and enforce policies relating to employee use of company resources for personal business

Companies need to guard against unlawful use/disclosure of employee information

Case Studies

Personal information in workplace systems/files– Types of data:

Health information Personal legal – attorney-client privilege Financial Illegal material – pornography Personal apps/music/photos

– Where is it located?– What are the risks– What can be done to minimize risks

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Case Studies

Bring Your Own Device (BYOD)– Pros vs. cons

What are the risks? What are the benefits?

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Case Studies

Bring Your Own Device (BYOD)– Considerations

Eligibility Access Cost Devices/apps Security (data and network) Privacy Support Education and enforcement Feedback and modification

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Case Studies

Bring Your Own Device (BYOD) – What are the risks?

FLSA Discovery issues Ownership issues Security

– What can be done to minimize risks? Policies and procedures

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Case Studies Social media/email

– Key issues Investigation/review

• Two-party consent• Expectation of privacy issues

– Directed use of blogging and social media– Marketing laws– Misuse – liability to company?

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Case Studies Social media/email

– What are the risks? Disclosure of confidential information Admissions against interest Cyber defamation

– What can be done to minimize risks? Restricted access from company IT systems Email/social media management strategies

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Corporate Privacy Issues

Trade secrets, company financial status, company planning, etc., together with employee and customer information

Research and development Legal advice Litigation concerns, especially discovery

issues relating to the foregoing

Corporate Privacy Policy Considerations

Data destruction– SOX– State laws

Document destruction rule Data breach notification laws

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Corporate Privacy Policy Considerations

Non-statutory & other concerns– NDAs and agreements– Private suits

Intrusion upon seclusion, appropriation of name or likeness, publicity given to private life, and false light publicity

– Class-action suits Protection of trade secrets

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Case Studies

Cloud computing– Public vs. private vs. hybrid vs. data center– Security breaches and issues– Downtime; financial health of provider– Private contracts with providers– Disclosure/consent from customers– M2M networks– Portal access– Ownership of data

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Case Studies

Cloud Computing– Interesting case law– What are the risks?– What can be done to minimize risks?

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Case Studies

Trade secret protection– What is a trade secret?– What are the prongs of trade secret law?

Reasonable steps to preserve the secrecy of the trade secret

– What must you do to protect your trade secrets in order to maintain a cause of action for trade secret theft? Internet/social media Work from home/BYOD Cloud computing

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Case Studies

Trade Secret Protection– Interesting case law– What are the risks?– What can be done to minimize risks?

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Customer Information Privacy Issues

Companies are collecting more and more personal information about their customers, including social security numbers, email addresses, buying habits/history, etc.

Companies have legal obligations to protect this information

Companies have restrictions on how such data can be used

Social security numbers, credit card information, bank account numbers, birthdates, addresses, etc.– Federal laws– State laws

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Policy Decision Points for PII

Companies need to decide what customer information they want/need to retain in light of laws regulating what may or may not be asked of customers– How, where, and for how long is such

information going to be retained?– How will the information be used?– Who has access to that information?– How will information be protected?

Proper Disclosure of PII

Case Studies

Personally Identifiable Information– What is PII?

SSI # Address Credit card numbers Email addresses? IP addresses?

– What is required?– Use, disclosure, and destruction– Examples of actual cases

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Case Studies

Personally Identifiable Information– Interesting case law– What are the risks?– What can be done to minimize risks?

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General Strategies and Concerns

Choices– Benefit to business vs. data & privacy risks– Limit/expand scope of policy– Cost of technology– Insurance and risk shifting– Limit exposure (LOL, consent, etc.)– Trade secret/confidentiality risks– Security breach and risks– Interaction/coordination with other business units (Legal,

IT, HR, Risk Management, Marketing, Finance, etc.)– Litigation – discovery, preservation, and spoliation issues

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General Strategies and Concerns

Process– Review laws– Develop policies– Incident response plans– Security safeguards– Notification processes– Sensitive information access restrictions– Do third-party vendors meet privacy and security

standards?– Auditing and compliance– Identify and address common vulnerabilities

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General Strategies and Concerns

Policies– Considerations

Consent Limitations Processes Scope

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General Strategies and Concerns

Policies– Examples of commonly-used policies

Security breach/emergency response BYOD Email AUP Social media Work from home Trade secret/confidentiality

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General Strategies and Concerns

Technologies– Encryption– MDM (mobile device management) software– Digital rights management– SharePoint– Customized solutions

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General Strategies and Concerns

Outside resources– Attorneys

Most law firms have privacy groups to assist with legal requirements and risks

In-house legal can assist – involve them

– Consultants Most consulting firms have privacy groups to create

and implement policies

– Technology– Crisis

What do you do when something goes wrong? Crisis management can be critical

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Continue the Conversation

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Twitter@ARMA_INT or #ARMA13

… and find us on Facebook and LinkedIN by searching for ARMA International

Facilitator Meet and GreetPub Crawl (Expo Hall, Tues.) – 3:30-5:30 pm

Lunch (General Session, Wed.) – 11:30 am-1:00 pm

Please Complete Your Session Evaluation

Privacy Concerns in the Management of Today's Information

Education Code: TU03-352436

Andrew B. Clauss, Esq.

Don McLaughlin, Esq.

Christopher W. Brophy, Esq.

Kevin Lanoha, Esq.