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A recurring problem in modern litigation is the inadvertent disclosure of materials subject to the attorney-client privilege or the attorney work product protection. New Federal Rule of Evidence 502 changes the rules concerning waiver of privilege in all Federal and many State court cases, thereby reducing the risk that inadvertent disclosures will constitute a wavier of attorney client privilege or work product protection. But the new rule requires careful application. Important risks remain. Inadvertent disclosure of privileged or protected information too easily occurs when massive numbers of documents or files make it impractical or prohibitively expensive to review every item individually. The proverbial privileged document needle gets lost in the e-discovery haystack and is overlooked. Later, when opposing counsel recognizes that she has a potentially privileged document and brings this to the attention of disclosing counsel, there may be a fight as to whether the document will be returned, or whether the disclosure constitutes a wavier of any privilege related to the information. Under existing State and Federal law, release of privileged or protected information to an adversary, even if inadvertent, may constitute a waiver of the privilege or protection with regard to the information or document disclosed or, worse, to all documents and other information related to the same topic. Invoking the "claw" Amendments to Federal Rule of Civil Procedure 26(b), adopted in December 2006, were aimed at reducing the risks of waiver from inadvertent disclosures. Rule 26(b) provides that if privileged information is produced, the party making the claim of privilege may notify any party that received the information of the privilege claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has, must not use or disclose the information until the privilege claim is resolved; must t

Now that behavioral targeting has become more pervasive (and more effective), it is being talked about not only by publishers and advertisers, but also by privacy advocates -- organizations like the NAI and IAB and, in Washington, the FTC. At issue is if BT players are doing enough to disclosure to consumers how BT works and offering them the opportunity to opt out of being tracked by BT vendors and publishers. There has been much discussion about how to regulate behavioral marketers; but no solution that satisfies everyone. The BT industry so far has contended that website privacy policies are sufficient disclosure since many of them contain links to opts out opportunities like the NAI site. Google and Bluekai have announced 'preference pages' or registries that allow Web users to say what type of BT they are interested in receiving. But, the other, more common option is to put that information in the Privacy Policy of the site. But the problem with that is that no matter where disclosures are placed on the service provider's site, most people won't ever see them. How will a customer visiting Retail SiteX know that Company Y is going to use their browsing behavior to later display relevant ads to them as they surf the Web on Network Z? The average customer won't. The only way a customer will know what forms of BT advertisers are using is if the advertisers themselves tell them. I think that it's time for advertisers to step up in this privacy debate. Thus far the pressure for disclosure has been placed on networks, behavioral marketing providers and publishers. The key players in those industries have done a good job of becoming more transparent (though there is still work ahead of us), while advertisers haven't been asked to do anything. Advertisers are clearly benefiting from behavioral marketing, and its time they disclosed what type of behavioral marketing they participate in, and allow customers to opt-out. How they do this is open for discussion: Tag each

On January 7, backers of California's Proposition 8 filed a federal lawsuit, asking that they be exempted from complying with California election laws that require disclosure of the names of people who give as much as $100 to a campaign for or against an initiative. The case is ProtectMarriage.com v Bowen, no. 2:09-cv-00058 (Sacramento). It was assigned to U.S. District Court Judge Morrison England, who was appointed in 2002. The case depends on the 1982 U.S. Supreme Court precedent Brown v Socialist Workers '74 Campaign Committee, which said that disclosure is not compelled if there is a reasonable possibility that campaign contributors, if identified, will be subject to harassment. Besides the Socialist Workers Party, other groups that have won freedom from disclosure include the Freedom Socialist Party, Socialist Action, and the Communist Party.

The new Obama Administration and a stronger Democratic party control of Congress set in the midst of a struggling economy and foreign policy issues, has created an interesting environment for legislation and regulations affecting customer interactions both federally and at state levels. While contact center-and-direct marketing-affecting issues such as offshoring, privacy, and telemarketing may haven been pushed offstage, they are not out of the hall. Ironically, economic pressures may shove them back into the spotlight as governments, especially states, seek ways to keep jobs and revenue sources, which contact centers provide. Federal Legislation Here is an examination of federal industry issues that lawmakers and regulators are and may be addressing in 2009: * Offshoring Federal lawmakers may reintroduce a bill similar to HR 1776, The Call Center Consumer's Right to Know Act, which would require contact center agents to disclose the physical location of such employee at the beginning of inbound and outbound calls. Firms would also have to annually certify to the Federal Trade Commission (FTC (News - Alert)) their compliance with such requirement. HR 1776 is an attempt to restrict offshoring by making customers aware that their calls may be going to or originating out of country. The bill's supporters hope customers and negative publicity would pressure firms to bring such jobs back to the U.S. The downsides are that such bills may significantly add to contact center costs in both onshoring and time spent location disclosing and in compliance, which would ultimately be paid for by consumers. In doing so bills like it that hike contact center expenses may also be self-defeating as they may result in fewer domestic jobs. "The particular type of disclosure contemplated by HR 1776 is a burdensome additional disclosure without clear benefit to the consumer," American Teleservices Association (ATA) CEO Tim Searcy told the House Energy and Commerce subcom

The Securities and Exchange Commission announced Wednesday that it has reopened the public comment period on a proposal for a model privacy form that financial institutions could use to provide disclosures required by the Gramm-Leach-Bliley Act (GLBA). The commission is reopening the comment period in order to solicit public comment on the results of recent quantitative consumer testing conducted to evaluate the form. In March 2007, pursuant to the Financial Services Regulatory Relief Act of 2006, the SEC, together with seven other federal regulators, proposed a model privacy form designed to allow consumers easily to compare privacy practices of financial institutions. The jointly developed model form uses easily readable type font and is designed to be succinct and comprehensible. Under the proposal, financial institutions that chose to use the model privacy form would satisfy GLBA disclosure requirements and could take advantage of a legal "safe harbor." The SEC has reopened the comment period on the proposal to provide all persons who are interested in this matter an opportunity to comment on the results of the recent testing of the model privacy form.

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"Lora Bentley spoke with Anzen analysts Megan Brister and Jordan Prokopy via e-mail regarding behavioral advertising - what companies are doing, what regulators want to do and what we, as advertising consumers, need to know. With their coworker Miyo Yamashita, the analysts recently wrote a guest opinion for IT Business Edge. Bentley: Why are so many concerned about privacy when it comes to behavioral advertising? What is it about the Internet that convinces consumers that information they share there is not being used? Brister and Prokopy: Most concerns stem from the lack of transparency around data disclosure practices. While consumers may value a Web site's product and service offerings, they are generally unaware that businesses share their information with an extensive group of other businesses in order to deliver targeted advertising. This group includes news Web sites, advertising networks, profiling services, and Web analytics providers, to name a few. As Pamela Jones Harbour, a Commissioner at the Federal Trade Commission (FTC), discussed at the FTC Roundtable earlier this week, there is an asymmetry between consumer perceptions and business realities. Once consumers are informed of businesses' data handling practices, they will want to have more control over how businesses manage their information. As we discuss in our article, some businesses engaged in online behavioral advertising have been slow to adopt transparent consumer data management policies. This is a concern particularly for vulnerable groups, such as minors or non-English speaking consumers, because they may not understand legally written policies. Consumer advocacy groups argue that without knowledge and control over the collection, use, and disclosure of data, Web sites may misuse or expose sensitive data about consumers' health, lifestyles and finances."

More electronic records were exposed in 2008 than in the previous four years combined and most of those breaches -- nine out of 10 -- could have been easily avoided with basic preventative controls consistently applied. In its 2009 Verizon (NYSE: VZ) Business Data Breach Investigations Report, Verizon Business Security Solutions analyzed 90 confirmed breaches that occurred in 2008, affecting 285 million compromised records. The company's previous data breach report covered from 2004 through 2007, a period that saw 230 million compromised records. About a third of the breaches in Verizon Business' caseload have been publicly disclosed, and additional disclosures are expected before the end of the year. But many breaches will remain unreported because of the absence of any applicable disclosure requirement. Among the report's findings: 91% of all compromised records were linked to organized criminal groups; customized malware attacks doubled; and the most common attack vectors were default credentials and SQL injection. In a statement, Peter Tippett, VP of research and intelligence for Verizon Business Security Solutions, described the report as a wake-up call. Businesses need strong security and a proactive approach, he said, particularly because the economic crisis is likely to spur even greater criminal activity.

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Don't expect a letter from Monster or Heartland Payment Systems letting you know they've lost your data. The breaches at Monster.com and Heartland Payment Systems are raising questions about the efficacy of data-loss disclosure laws enacted in at least 45 states. Back in 2007 we wrote about how the financial services industry lobbied hard to block proposed federal rules requiring organizations to notify individuals whose data they lose, and to permit consumers to freeze their credit histories. States such as California and Massachusetts have passed laws giving consumers these rights. But the Monster and Heartland capers have brought weaknesses in the legislation to center stage. I asked Lisa Sotto, head of privacy and information management at law firm Hunton & Williams, about this: Q: Heartland and Monster told me they intend to comply with all state laws. That said, they have not announced plans to notify individual victims. Is that OK? A: In the state breach notification laws, it is permissible to delay notification if a law enforcement agency determines that notification would impede a criminal investigation. If such a delay is requested by law enforcement, notification must be made after the law enforcement agency determines that notice would not compromise the investigation. I do not know if these companies received a delay request from a law enforcement agency. Q: Monster says it chose not to email individual victims because the bad guys could then replicate that message and use it as a phishing template. That makes sense. But is that allowed by state consumer protection laws? A: There are now 45-plus state laws and they are not uniform. Typically, notice is provided via first class mail, but there are provisions in the state laws allowing for electronic notice as well. Q: The only official notices from Heartland and Monster so far has been one-page disclosures posted on a web site. Does that cover them? A: There are provisions in the state laws al

It's been four years since data broker ChoicePoint acknowledged the data security breach that put it in the middle of a media firestorm and pushed data protection to the top of the infosecurity community's priority list. Since then, the business world has made plenty of progress hardening its data defenses -- thanks in part to industry standards like PCI DSS and data breach disclosure laws (click to see state-by-state map) now in place. But the latest data breach to grab headlines illustrates how vulnerable organizations remain to devastating network intrusions. Heartland Payment Systems, the Princeton, N.J.-based provider of credit and debit processing, payment and check management services, admitted Tuesday it was the victim of a data breach some quickly began citing as the largest of its kind. The company discovered last week that malware compromised card data across its network, after Visa and MasterCard alerted Heartland to sinister activity surrounding processed card transactions. The Shadow of ChoicePoint The Heartland breach comes roughly four years after ChoicePoint announced -- as required by California's SB 1386 data breach disclosure law -- that conmen stole personal financial records of more than 163,000 consumers by setting up fake business requests. Since then, much bigger incidents have occurred, most notably the TJX data breach that exposed more than 45 million debit and credit card holders to identity fraud. Heartland President and CFO Robert H.B. Baldwin Jr. said Tuesday that 100 million card transactions occur each month on the compromised systems used to provide processing to merchants and businesses. As of Tuesday, the Privacy Rights Clearinghouse estimated that a total of 251,164,141 sensitive records had been compromised since early 2005. Up to 15 separate cases have been reported since Jan. 1, 2009.

Regulators are examining Apple Inc's disclosures about Chief Executive Officer Steve Jobs' health problems to ensure investors were not misled, Bloomberg said, citing a person familiar with the matter. The Securities and Exchange Commission's review does not mean investigators have seen evidence of wrongdoing, the person told Bloomberg. The person declined to be identified because the inquiry is not public, the news service reported. Both the SEC and Apple declined to comment on the matter. Jobs, who earlier had said he had an easily treatable "hormonal imbalance," said last week his problems were "more complex" than originally thought, and he would take a medical leave of absence for six months. In 2004, Jobs was treated for a rare type of pancreatic cancer called an islet-cell, or neuroendocrine, tumor. Such tumors can be benign or malignant, but they usually grow slowly and are far less deadly than most pancreatic tumors.

Better to settle with the FTC than get your company's reputation as consumer-friendly (deserved or not) dragged through the court of public opinion.

Sears Holdings has agreed to settle allegations it collected personal data from customers without adequate disclosures, the Federal Trade Commission said on Thursday. The FTC had accused Sears Holdings, created in 2005 with the merger of Sears and Kmart, of paying online customers $10 to allow the company to track their online browsing. But the FTC said Sears also collected information on non-Sears sites, such as online bank statements, drug prescription records and emails. "The software would also track some computer activities that were not related to the Internet," the FTC said in a statement. Sears did disclose all it would monitor in a lengthy user license agreement, but the FTC argued it was not enough. "The complaint charges that Sears' failure to adequately disclose the scope of the tracking software's data collection was deceptive and violates the FTC Act," the FTC said in a statement. Sears did not immediately reply to two telephone calls and one email seeking a comment. Under the settlement, Sears is required to destroy the data collected and make future disclosures more prominent.

The D.C. agency that handles college financial aid requests said yesterday that it had accidentally e-mailed personal information from 2,400 student applicants to more than 1,000 of those applicants. The Office of the State Superintendent of Education (OSSE) said it has notified all students of the breach, which occurred when an employee of the agency's Higher Education Financial Services Program inadvertently attached an Excel spreadsheet to an e-mail. The information included student names, e-mail and home addresses, phone and Social Security numbers and dates of birth. The disclosure involved the "DC OneApp," an online application that allows D.C. students to apply for a series of grant programs. They include DCTAG, which provides awards of up to $10,000 toward the difference between in-state and out-of-state tuition at public four-year-colleges in the 50 states. The accidental disclosure went to about 1,250 DCTAG applicants, officials said. OSSE never publicly announced the breach, which occurred Wednesday. It did express regret for the incident in an e-mail sent to students and parents the next day. A parent made the e-mail available to The Washington Post over the weekend.

Point by Marcus Ranum THERE'S AN OLD SAYING, "Sometimes things have to get a lot worse before they can get better." If that's true, then breach notification laws offer the chance of eventual improvements in security, years hence. For now? They're a huge distraction that has more to do with butt-covering and paperwork than improving systems security. Somehow, the security world has managed to ignore the effect voluntary (?) notification and notification laws have had in other fields-namely, none.We regularly get bank disclosure statements, stock plan announcements, HIPAA disclosures, etc.-and they all go immediately in the wastebasket, unread.When I got my personal information breach notification from the Department of Veterans Affairs, it went in the trash too. Counterpoint by Bruce Schneier THERE ARE THREE REASONS for breach notification laws. One, it's common politeness that when you lose something of someone else's, you tell him. The prevailing corporate attitude before the law-"They won't notice, and if they do notice they won't know it's us, so we are better off keeping quiet about the whole thing"-is just wrong. Two, it provides statistics to security researchers as to how pervasive the problem really is. And three, it forces companies to improve their security. That last point needs a bit of explanation. The problem with companies protecting your data is that it isn't in their financial best interest to do so. That is, the companies are responsible for protecting your data, but bear none of the costs if your data is compromised. You suffer the harm, but you have no control-or even knowledge- of the company's security practices. The idea behind such laws, and how they were sold to legislators, is that they would increase the cost-both in bad publicity and the actual notification-of security breaches, motivating companies to spend more to prevent them. In economic terms, the law reduces the externalities and forces companies to deal with the true costs of

The Government Accountability Office issued another scathing report saying that federal agencies still don't do enough to secure government IT assets. "Persistent weaknesses in information security policies and practices continue to threaten the confidentiality, integrity and availability of critical information and information systems used to support the operations, assets and personnel of most federal agencies," Gregory Wilshusen, GAO director of information security issues, wrote in a 66-page report issued Friday. "Recently reported incidents at federal agencies have placed sensitive data at risk, including the theft, loss, or improper disclosure of personally identifiable information of Americans, thereby exposing them to loss of privacy and identity theft." In a written response accompanying the report, federal CIO Vivek Kundra said OMB is committed to the vision of a secure federal government, and are taking steps to make that vision a reality. OMB, he said, has initiated a review of the language in the current reporting instructions to identify and clarify confusion in the annual reporting. OMB also is working with the CIO Council and the Council of Inspectors General on Integrity and Efficiency to improve guidance to agencies. The GAO report also said that nearly all of the 24 major federal agencies last year had weaknesses in information security controls. "An underlying reason for these weaknesses is that agencies have not fully implemented their information security programs," Wilshusen said. "As a result, agencies have limited assurance that controls are in place and operating as intended to protect their information resources, thereby leaving them vulnerable to attack or compromise."

1. You get what you pay for. 2. Americans do not take information or security as seriously as they do their love for profit & cost savings. If one does not value what they are trying to protect accurately, the investment one is prepared to make will always be insufficient. Then there are hindsight and rationalization (a.k.a. politicians) - Karl The Government Accountability Office issued another scathing report saying that federal agencies still don't do enough to secure government IT assets. "Persistent weaknesses in information security policies and practices continue to threaten the confidentiality, integrity and availability of critical information and information systems used to support the operations, assets and personnel of most federal agencies," Gregory Wilshusen, GAO director of information security issues, wrote in a 66-page report issued Friday. "Recently reported incidents at federal agencies have placed sensitive data at risk, including the theft, loss, or improper disclosure of personally identifiable information of Americans, thereby exposing them to loss of privacy and identity theft." In a written response accompanying the report, federal CIO Vivek Kundra said OMB is committed to the vision of a secure federal government, and are taking steps to make that vision a reality. OMB, he said, has initiated a review of the language in the current reporting instructions to identify and clarify confusion in the annual reporting. OMB also is working with the CIO Council and the Council of Inspectors General on Integrity and Efficiency to improve guidance to agencies. The GAO report also said that nearly all of the 24 major federal agencies last year had weaknesses in information security controls. "An underlying reason for these weaknesses is that agencies have not fully implemented their information security programs," Wilshusen said. "As a result, agencies have limited assurance that controls are in place and operating as intended to protect their inf

The loss of personally identifiable information, such as an individual's Social Security number, name, and date of birth can result in serious harm, including identity theft. Identity theft is a serious crime that impacts millions of individuals each year. Identity theft occurs when such information is used without authorization to commit fraud or other crimes. While progress has been made protecting personally identifiable information in the public and private sectors, challenges remain. GAO was asked to testify on how the loss of personally identifiable information contributes to identity theft. This testimony summarizes (1) the problem of identity theft; (2) steps taken at the federal, state, and local level to prevent potential identity theft; and (3) vulnerabilities that remain to protecting personally identifiable information, including in federal information systems. For this testimony, GAO relied primarily on information from prior reports and testimonies that address public and private sector use of personally identifiable information, as well as federal, state, and local efforts to protect the security of such information. GAO and agency inspectors general have made numerous recommendations to agencies to resolve prior significant information control deficiencies and information security program shortfalls. The effective implementation of these recommendations will continue to strengthen the security posture at these agencies. Identity theft is a serious problem because, among other things, it can take a long period of time before a victim becomes aware that the crime has taken place and thus can cause substantial harm to the victim's credit rating. Moreover, while some identity theft victims can resolve their problems quickly, others face substantial costs and inconvenience repairing damage to their credit records. Some individuals have lost job opportunities, been refused loans, or even been arrested for crimes they did not commit as a result of identit

The loss of personally identifiable information, such as an individual's Social Security number, name, and date of birth can result in serious harm, including identity theft. Identity theft is a serious crime that impacts millions of individuals each year. Identity theft occurs when such information is used without authorization to commit fraud or other crimes. While progress has been made protecting personally identifiable information in the public and private sectors, challenges remain. GAO was asked to testify on how the loss of personally identifiable information contributes to identity theft. This testimony summarizes (1) the problem of identity theft; (2) steps taken at the federal, state, and local level to prevent potential identity theft; and (3) vulnerabilities that remain to protecting personally identifiable information, including in federal information systems. For this testimony, GAO relied primarily on information from prior reports and testimonies that address public and private sector use of personally identifiable information, as well as federal, state, and local efforts to protect the security of such information. GAO and agency inspectors general have made numerous recommendations to agencies to resolve prior significant information control deficiencies and information security program shortfalls. The effective implementation of these recommendations will continue to strengthen the security posture at these agencies. Identity theft is a serious problem because, among other things, it can take a long period of time before a victim becomes aware that the crime has taken place and thus can cause substantial harm to the victim's credit rating. Moreover, while some identity theft victims can resolve their problems quickly, others face substantial costs and inconvenience repairing damage to their credit records. Some individuals have lost job opportunities, been refused loans, or even been arrested for crimes they did not commit as a result of identit

"If there was anything even vaguely comforting about the data breaches that were announced this year, it was that many of them stemmed from familiar and downright mundane security failures. Companies continued to be felled more by usual issues such as lost laptops, unpatched or poorly coded software, inadvertent disclosures and rogue insiders, rather than by sneaky new attack techniques or devastating new hacker tools. Here's a look back at five of the more notable breaches of the year:"

More preventable security failures predicted for 2010. Way to show value!

"If there was anything even vaguely comforting about the data breaches that were announced this year, it was that many of them stemmed from familiar and downright mundane security failures. Companies continued to be felled more by usual issues such as lost laptops, un-patched or poorly coded software, inadvertent disclosures and rogue insiders, rather than by sneaky new attack techniques or devastating new hacker tools. "

Preventable data loss damages customer trust and corporate trust.

"The Identity Theft Resource Center (ITRC) reported its annual breach data for 2009 last week, and for the first time malicious attacks were more frequently identified as the source of those breaches than human error. In its "2009 Data Breach Report," the ITRC found 498 publicly disclosed breaches last year, down from 657 the year before. The downturn could have resulted from changes in breach disclosure, rather than a real drop-off in system compromises, the organization says. Interestingly, paper breaches now account for 26 percent of data leaks, up 46 percent compared to 2008. Malicious attacks outnumbered breaches attributed to human error for the first time in the three years the report has been compiled. The business sector accounted for 41 percent of data breaches, up from 21 percent the year before. Approximately 222 million records were compromised, the organization says -- and about 130 million of those came from the single breach at Heartland Payment Systems. Out of 498 breaches, only six reported they had either encryption or other strong security features protecting the exposed data, the ITRC says . "

Expect more action from the FTC on data privacy breeach

"Iconix Brand Group, Inc. will pay a $250,000 civil penalty to settle Federal Trade Commission charges that it violated the Children's Online Privacy Protection Act (COPPA) and the FTC's COPPA Rule by knowingly collecting, using, or disclosing personal information from children online without first obtaining their parents' permission. Iconix owns, licenses, and markets - both offline and online - several popular apparel brands that appeal to children and teens, including Mudd, Candie's, Bongo, and OP. Iconix required consumers on many of its brand-specific Web sites to provide personal information, such as full name, e-mail address, zip code, and in some cases mailing address, gender, and phone number - as well as date of birth - in order to receive brand updates, enter sweepstakes contests, and participate in interactive brand-awareness campaigns and other Web site features. Since 2006, Iconix knowingly collected and stored personal information from approximately 1,000 children without first notifying their parents or obtaining parental consent, according to the FTC's complaint. On one Web site, MyMuddWorld.com, Iconix also enabled girls to publicly share personal stories and photos online, according to the complaint. "Companies must provide parents with the opportunity to say 'no thanks' to the collection and disclosure of their children's personal information," said FTC Chairman Jon Leibowitz. "Children's privacy is paramount, and Iconix really missed the boat by denying parents control over their kids' information online.""

Congress has been dithering over the adoption of a federal data security breach notice law for the last several years without coming to an agreement on a national standard for reporting breaches in the security of personal and financial data, but on February 17, data breach notice provisions applicable to health information were signed into law as part of the HITECH Act provisions of the massive economic stimulus legislation, H.R. 1 (111th Cong., 1st Sess. Feb. 17, 2009). Beginning no later than September 16 of this year, "covered entities" under the Health Insurance Portability and Accountability Act (HIPAA) will be required to give notice of breaches in the security of protected health information, and "business associates" of HIPAA-covered entities will be required to report such breaches to the covered entities. §13402(a) & (b). Currently, California and Arkansas are the only states that require that notification be given in the case of a breach in the security of medical or health insurance information. The HIPAA Privacy Rule currently does not contain a requirement that individuals be notified in the event of such as breach. However, some covered entities interpret the existing HIPAA Privacy Rule requirement that covered entities mitigate harmful effects of uses or disclosures of health information in violation of either the Privacy Rule or the entity's policies and procedures as suggesting that such notice be given, and many covered entities currently provide such notification.