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By now, many employees are uncomfortably aware that their every keystroke at work, from email on office computers to text messages on company phones, can be monitored legally by their employers. What employees typically don't expect is for the company to spy on them while on password-protected sites using nonwork computers. But even that privacy could be in jeopardy. A case brewing in federal court in New Jersey pits bosses against two employees who were complaining about their workplace on an invite-only discussion group on MySpace.com, a social-networking site owned by News Corp., publisher of The Wall Street Journal. The case tests whether a supervisor who managed to log into the forum -- and then fired employees who badmouthed supervisors and customers there -- had the right to do so. The case has some legal and privacy experts concerned that companies are intruding into areas that their employees had considered off limits. "The question is whether employees have a right to privacy in their non-work-created communications with each other. And I would think the answer is that they do," said Floyd Abrams, a First Amendment expert and partner at Cahill Gordon & Reindel LLP in New York. The legal landscape is murky. For the most part, employers don't need a reason to fire nonunion workers. But state laws in California, New York and Connecticut protect employees who engage in lawful, off-duty activities from being fired or disciplined, according to a report prepared by attorneys at the firm Proskauer Rose LLP. While private conversations might be covered under those laws, none of the statutes specifically addresses social networking or blogging. Thus, privacy advocates expect to see more of these legal challenges. In February, three police officers in Harrison, N.Y., were suspended after they allegedly made lewd remarks about the town mayor on a Facebook account. The officers mistakenly thought the remarks were protected with a password, but city officials view

This tip is part of SearchSecurity.com's Data Protection School lesson, E-discovery and security in the enterprise. Visit the E-discovery and security in the enterprise lesson page for additional learning resources. Most information security pros have a handle on the major data types found in their environments, but they also know that there is a whole lot more data lurking around the edges. These unknown data types can include documents used by individuals, or whole applications owned by departments that have quietly become essential to the business. Most of the time, focusing on the squeaky wheels is an acceptable strategy; if there's no "squeak" then there's no need to worry. But when it comes to litigation, and especially managing the electronic discovery process, what you don't know can hurt you. There are four major types of data in use today: paper documents; structured data sets, like databases; semi-structured applications, like email and image stores; and unstructured repositories, like file servers. Comprehending the vast volume of these varied records can be a challenge for everyone involved, which includes information technology, records management, legal staff, and even the data owners themselves. But since almost all business information is stored in digital formats today, electronic storage systems are the most popular target for the discovery motions filed as part of legal proceedings. It is most efficient for a litigator to head straight for your email, spreadsheets and applications, looking for what they term electronically stored information (ESI). Making matters worse for IT administrators, new rules for civil litigation enacted at the end of 2006 (called the Federal Rules of Civil Procedure, or FRCP) have pushed up the timetable of electronic discovery. What was once a delayed and informal process has become much more structured, with lawyers meeting to discuss available ESI, typically just a few weeks after legal action commences. When l

Jan 15, 2009 There may be only a handful of days left in the Bush administration, but the brouhaha over White House e-mail retention policies promises to continue right up to the last day. A federal court yesterday extended a preservation order to ensure that the outgoing administration does everything it can to recover any missing White House e-mails. The White House IT staff now has five days to scour workstations for missing e-mail before administration data records are archived on Jan. 20. The ruling, by U.S. District Judge Henry Kennedy Jr., also orders staff of the Executive Office of the President (EOP) to relinquish any digital media that may contain e-mails from March 2003 and October 2005. The legal action is the latest resulting from a lawsuit filed in September 2007 by the National Security Archive against the EOP, seeking to preserve and restore White House e-mails it alleged were missing. "There is nothing like a deadline to clarify the issues," Tom Blanton, the National Security Archive's director, said in a statement. "The White House will complain about the last-minute challenge, but this is a records crisis of its own making." The Archive, an independent nongovernmental research institute based at George Washington University, is a repository of government records and does not receive U.S. government funding. The Citizens for Responsibility and Ethics in Washington (CREW), a left-wing public advocacy group, also filed suit, but its legal action was subsequently consolidated with the Archive's legal action, which is taking place in the U.S. District Court for the District of Columbia. Last May, the White House's top tech staffer acknowledged that three months of data were missing from backup tapes. In earlier testimony before a congressional committee, White House technical staff said millions of e-mails from the past eight years could potentially have been erased. Also yesterday, Magistrate Judge John M. Facciola held an emergency status con

European Union's move indicates growing government concern over how Internet companies are using individuals' private data The European Commission began legal action against the U.K. Tuesday over its failure to protect Internet users from Phorm -- a covert behavioral advertising technology tested by the U.K.'s biggest fixed line operator, BT, in 2006 and 2007. The move signals growing concern in Brussels over the way new Internet-based technologies are using people's personal data. In addition to taking legal action against the U.K., the Commission also issued a general warning to all 27 E.U. countries to uphold privacy laws, especially regarding social-networking Web sites and users of RFID (radio frequency identification) technologies. In Canada, the federal government has even proposed a legislation that will provide law enforcement agents sweeping powers to obtain user information from ISPs. The Commission, the executive body of the European Union responsible for upholding laws, said the U.K. had failed to enforce E.U. data protection and privacy rules, because broadband Internet subscribers were not informed that their browsing was being tracked.

A National Security Agency eavesdropping program exceeded legal limits intended to safeguard privacy, and officials have taken steps to bring the intercepts program into compliance, the Justice Department said Wednesday. The department, in a statement, said problems with the NSA program were uncovered as the Justice Department and National Security Agency were conducting routine oversight of intelligence activities to ensure compliance with laws and court orders. Attorney General Eric Holder has sought court approval to renew the NSA program after instituting new safeguards. The House intelligence committee was informed of the compliance issues and is conducting an inquiry, a House congressional official said. The New York Times on Wednesday reported on its Web site that the program intercepted private email messages and phone calls of Americans. However, intelligence officials have described the program as primarily searching for information based on data about communications, such as email addresses, subject headers and the time a message or phone call was placed. The Justice Department said officials notified the Foreign Intelligence Surveillance Court of the problems with the NSA program and took "comprehensive steps" to correct the matter. "The Justice Department takes its national security oversight responsibilities seriously and works diligently to ensure that surveillance under established legal authorities complies with the nation's laws, regulations and policies, including those designed to protect privacy interests and civil liberties," the department said.

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Enterprise employees frequently use social networking tools, most notably Web-based applications. It's no surprise more organizations are wondering what happens if social networking data becomes relevant to an e-discovery investigation. How does an enterprise go about discovering and assessing Web 2.0 data? How responsible is an organization, legally speaking, for the information that's out there in the Web 2.0 world? What risks arise from e-discovery as it relates to Web 2.0 data, and how can you mitigate them? In this tip, we will look at e-discovery as it relates to Web 2.0 and consider the strongest options for minimizing risks to the organization. E-discovery basics We begin with a quick look at what e-discovery is and how it can create risk. Essentially, e-discovery is the electronic extension of the legal process of discovery, which Wikipedia defines as "the pre-trial phase in a lawsuit in which each party through the law of civil procedure can request documents and other evidence from other parties or can compel the production of evidence by using a subpoena or through other discovery devices, such as requests for production and depositions." If you're an IT person, not a lawyer, it's important to note that the rules governing the discovery process now require plaintiffs to address all electronically stored information or ESI. In other words, if your organization faces litigation, it will have to deal with the issue of e-discovery, which will entail a whole lot more than turning over some old emails. Depending upon your role in the organization, the first you may hear of this is a "notice of litigation" with perhaps a "litigation hold directive" containing a "preservation directive." Here is a generic e-discovery request below. Apart from a few limiting factors, such as subject matter, named persons and a specified time period, the scope of such a notice is likely to be broad; blame standard procedure, not some high-powered attorney pushing his or her lu

On Wednesday, February 11, 2009, the Data Protection Working Party, an independent European advisory body on data protection and privacy, released its Working Document 1-2009 (.pdf) on pre-trial discovery for cross border civil litigation. The Working Document attempts to reconcile the tension between U.S. discovery rules and the European Union's Directive 95/46/EC (.pdf), which outlines the EU's privacy requirements. What follows is a summary of the Working Document and an analysis of how it begins to bridge the gap between U.S. discovery rules and the European privacy framework. The Working Document offers guidance to EU data controllers responding to U.S. discovery requests. As the Working Document explains, those controllers often find themselves in a bind. On the one hand, U.S. law allows for broad discovery, which may require a controller to provide, or "process," personal data of customers or employees. On the other hand, Article 7 of EU Directive 95/46 limits a member state's authority to process such data. Under Article 7, a member state may process personal data only if one of six identified grounds for processing applies. The Working Document considers the Article 7 grounds most likely to supply a legitimate basis for compliance with a discovery request - namely 1) consent, 2) necessary for compliance with a legal obligation, and 3) necessary for the purposes of a legitimate interest, where such interests are not "overridden by the interests for fundamental rights and freedoms of the data subject." Recognizing that the "interests of justice would be served by not unnecessarily limiting the ability of an organisation to act to promote or defend a legal right," the Working Document suggests that the third basis - necessary for the purposes of a legitimate interest - will often provide a ground for processing data in response to a U.S. discovery request.

"Yesterday, the U.S. District Court for the District of Columbia issued the attached opinion upholding the American Bar Association's challenge to the FTC's Identity Theft Red Flags Rule and enjoining the FTC from enforcing its Rule against lawyers. This memorandum opinion follows an October 29 oral argument and bench ruling. This ruling may have significance beyond the legal profession, and may limit the FTC's ability to enforce its Red Flags Rule against professionals, retailers, health care providers and other businesses that bill their clients and customers in a manner similar to lawyers. "

The Homeland Security Department's privacy office will hold a conference to explore the use of social media as if affects security and privacy. The "Government 2.0: Privacy and Best Practices" conference will be held June 22 to June 23 in Washington and is open to the public. The workshop is meant to help agencies use Web 2.0 technologies in ways to protect privacy and security, and to explore the best practices for implementing President Barack Obama's memo on open government that was released in January, according to a notice published in the federal register April 17. Panelists will discuss topics such as transparency and participation in government, privacy and legal concerns brought by the government's use of social media, and how the government can best use the technologies while protecting privacy rights during the conference, DHS officials said. DHS is asking for comments by June 1 on topics such as: * How the government is using social media. * The risks, benefits and operational concerns that come from government use of the technologies. * Privacy, security and legal issues raised by the government's use of social media. * Recommendations on best practices for government use of the technologies.

The fuss over Facebook's attempt to modify the contract with its millions of users has died down for the moment, and I haven't noticed any of my friends closing their account or even significantly changing their behaviour in protest despite the widespread coverage. The problem started in early February when Facebook updated the section on its site which establishes the legal agreement with its users. Like most people who use it I didn't notice the change, and even though Facebook clearly knows who I am and how to contact me I didn't get a message or see a notification in my news feed about it. This is pretty common practice on the web, where long legal contracts are agreed with a click of a mouse and sites update them at will because they contain a clause saying that you accept the changes if you carry on using the site. Term paper Unlike laws passed by Parliament, which have to be properly promulgated to those affected, contracts can evidently be changed without any proper notice.

January 26, 2009 - As a presidential candidate, Barack Obama made his position on abortion very clear. During his campaign, he stated that he would sign the Freedom of Choice Act and that he opposed restrictions on Partial Birth Abortions. Now as President, Obama used the 36th anniversary of the Supreme Court's Roe v. Wade decision to reiterate his quite extreme position. Obama made several statements about "ensuring that our daughters have the same rights and opportunities as our sons...." However, his key statement appears to demonstrate an utter misunderstanding of the legal aspects of abortion, was that government "should not intrude on our most private family matters." An Associated Press subheader put it as "the ruling legalizing abortion represented a broader principle that government should not intrude on private family matters." Obama seemingly fails to understand three things about the "right to privacy." First, in that as far as it has been applied to abortion and contraception (Griswold vs. Connecticut); it is not a principle about "family matters." It is a principle purely about individual choice. Under Roe, no one else in the "family" has any say about the abortion decision. If the woman is not married to the father of the baby, he is not "family" anyway. Second, the right to privacy is not absolute. Third and most important, that under Roe, the "right to privacy" is secondary to two considerations about the unborn child: whether or not the unborn child is a "person," or at least "potential life." For these last two, we can turn to Roe itself. The "Right to Privacy" The majority opinion of Roe admits that, "The Constitution does explicitly mention any right of privacy." Majority author Harry Blackmun cites various past court decisions which recognize personal rights that are "fundamental" or "implicit in the concept of ordered liberty." Since these private rights had been found to have extension to areas such as marriage, procreation, contraception

THE Government is looking to develop a way to protect individuals' personal data that can 'best address' three issues. These are privacy concerns, commercial requirements and national interest. An inter-ministry committee is already reviewing the issue, said Minister for Information, Communications and the Arts Lee Boon Yang. 'As data protection is a complex issue, with extensive impact on all stakeholders, this review will take some time,' he said. He said this in a written reply to a question posed by Ms Lee Bee Wah of Ang Mo Kio GRC in Parliament on Monday. She had asked if his ministry will consider a comprehensive privacy law, and wanted to know what laws there are to protect people from spam mail and the unauthorised sale of personal information. Also, what about those whose photographs have been posted on blogs and other new media platforms without their authorisation, she had asked. This would be considered a 'civil matter', said Dr Lee. 'The aggrieved persons could first ask the site's webmaster to remove the pictures,' he said. 'As with matters relating to online libel and personal defamation, they could also seek professional legal advice to determine the most appropriate legal recourse.' As for the protection of personal data, the minister said that although no generic data protection law exists, such data is still protected. He listed the various measures that are already in place. For instance, there are 'strict provisions' in sectoral laws such as the Banking Act, and codes for medical professionals to protect sensitive financial and health information, he said. There are also other industry codes of practices against the unauthorised use of personal information, he added. For example. the Telecom Competition Code requires licensees to take 'reasonable measures' to prevent the unauthorised use of consumers' information. In addition, there is a voluntary privacy code, which has been adopted by many companies in the private sector, said Dr

The new year has come and gone on the Gregorian calendar. But the new year for legal technology is still in progress at LegalTech New York, where vendors are unveiling their new products and services and attendees are helping them celebrate. LegalTech attendees should revel in the number of vendor initiatives aimed at reducing e-discovery costs from acquisition to review and production. And, like last year, EDD vendors continue to design and manufacture their products for international litigation. But LegalTech is not all about e-discovery. There were still plenty of vendors with products outside the Electronic Data Reference Model. EDD PARTIES Readers should be aware that Index Engines can access and extract data from tape and tape libraries -- and can do so really fast. But now they can also extract data from network storage systems, file shares, forensic images and hard drives and still provide users a single point of access to it -- via a Web browser. Index Engines first indexes data on disparate resources. Once the index is compiled, data can be deduped, searched, reviewed and extracted on demand. Also note that Index Engines can now filter unwanted file types such as EXE, DLL, etc., during the indexing process to reduce the time it takes to review the data. Read LegalTech New York 2009 Coverage on Legal Blog Watch In preparation for the new year, Kazeon Systems introduced new pay-as-you-go pricing models that augment their current standard software licensing option and focus on case matters. Kazeon hopes the new pricing models allow customers to implement an e-discovery solution that does not require a major financial investment or lengthy rollout. Vendors are starting to "go left" of the EDRM to provide organizations a better view of the end of litigation via early case assessment tools. In fact, KPMG promoted the concept with a T-shirt emblazoned with "go left." Toward that end, Daticon EED announced the availability of its Early Case Assessment servic

A coalition of privacy groups today urged the Obama Administration to defend California's landmark financial privacy law against the banking industry's legal efforts to overturn it. The US Supreme Court is currently considering taking up the banks' appeal of a 2008 decision by the 9th Circuit Court upholding almost all provisions of the Financial Information Privacy Act of 2003 (SB 1 - Speier). On March 9th, the Supreme Court invited the Obama Administration to voice its opinion on the California privacy law. The case is American Bankers Association v. Brown, Supreme Court Docket Number 08-730. Letters to President Obama and Solicitor General Elena Kagan were signed by The Consumer Federation of California, Privacy Rights Clearinghouse, CALPIRG, Consumers Union, Consumer Action, The Older Women's League, The California Alliance for Retired Americans, and Chris Larsen, Propser Marketplace, and founder of Californians for Privacy Now, the organization that spearheaded a 2003 ballot initiative campaign that turned fierce banking industry opposition into acquiescence with SB 1. "This represents a defining moment for privacy rights" the letter states. We ask you to stand with consumers by telling the Supreme Court to reject the banks' appeal in Brown." Privacy advocates support the State of California's position in this legal matter, which is that there is no merit to the appeal filed by the American Bankers Association. At issue is whether federal laws preempt portions of California law that regulate the sharing of private consumer information within a financial institution's family of affiliates.

Big Brother may be at it again. Behavioral advertising -- the tracking of consumer's Internet surfing activity to create tailored ads -- has triggered an intense legal controversy that has law firms scrambling to stay on top of a burgeoning practice. Attorneys say that behavioral advertising is raising privacy, litigation and regulation fears among consumer advocates, the electronic commerce and advertising industries and legislators. Law firms are busy helping companies come up with a transparent way of letting consumers know that their online activities are being tracked and possibly shared. "Lawmakers and companies are having a tough time keeping up with this new frontier of Internet privacy issues, and there is growing consumer unrest about behavioral advertising, leading in some cases to consumer rebellion," said Lisa Sotto, a partner and head of the privacy and security data group in the New York office of Richmond, Va.-based Hunton & Williams. "Consumers find this type of tracking intrusive, and businesses are starting to take the consumer reaction seriously," she said. The buzz over behavioral advertising has been building since congressional hearings that were held last year, during which Congress called on Internet service providers (ISPs) to testify about a highly controversial advertising practice known as "deep-packet inspection." The practice gives companies the ability to track every Web site consumers visit and provides a detailed look at everything they're doing, such as where they're going on vacation, who is going, how much they spent on the trip and what credit card was used. But then came the first class action targeting behavioral advertising, filed against Foster City, Calif.-based NebuAd Inc., an online advertising company accused of spying on consumers from several states and allegedly violating their privacy and computer security rights. The lawsuit specifically alleges that NebuAd engaged in deep-packet inspection. Valentine v. Ne

From the Heartland data breach to the new Massachusetts data protection law, privacy is the hot topic in business and government. In an exclusive interview, Peter Kosmala, assistant director of the International Association of Privacy Professionals (IAPP), discusses: The top privacy topics in business and government; How organizations are tackling these issues; The potential impact of state and federal privacy legislation; The value of the Certified Information Privacy Professional (CIPP) credential. Kosmala oversees product management for the IAPP with specific oversight of distance learning products, privacy certifications and industry awards programs. He also manages business development efforts between the IAPP and peer organizations in the information security, information auditing and legal compliance arenas as well as organizations based in the Asia-Pacific region. The IAPP, based in York, Maine, was founded in 2000 with a mission to define, promote and improve the privacy profession globally. Kosmala oversees product management for the IAPP with specific oversight of distance learning products, privacy certifications and industry awards programs. He also manages business development efforts between the IAPP and peer organizations in the information security, information auditing and legal compliance arenas as well as organizations based in the Asia-Pacific region. The IAPP, based in York, Maine, was founded in 2000 with a mission to define, promote and improve the privacy profession globally.

Heartland Payment Systems Inc. said it was experiencing losses this quarter as a direct result of a massive data breach it disclosed in January when investigators discovered a malicious program sniffing credit card data passing through its systems. The company said it took a $2.5 million loss for the quarter as a result of spending more than $12.6 million in legal bills, fines from MasterCard and Visa and administrative costs. The announcement was made during the company's financial earnings call, where Carr said the costs associated with the breach could continue to climb. "Our defense of the claims regarding the processing system intrusion remains ongoing," he said. "Much of the legal work remains to be done and it is difficult to anticipate when these matters will come to a conclusion." Carr also admitted for the first time that since the Princeton, N.J.-based processing giant announced a breach of its systems, some of the payment processor's clients have switched to competitors as a result of the breach. He said some competing processors resorted to scare tactics. "We have had many competitors that have been very supportive and professional, and we certainly don't want to tar all of our competitors with the same brush," Carr said. "We have had some competitors telling merchants falsely that they would be fined $10,000 a day if they stay with Heartland. We think we're through the worst of that." Car said less than $1 million of the breach costs were fines levied by MasterCard and Visa against the company's sponsored banks. The fines are being contested, he said. More than $500,000 relates to a fine assessed by MasterCard against the sponsored banks in which the card company said Heartland failed to take appropriate action upon learning that a breach was suspected. Carr said the fine is in direct violation of both the MasterCard rules and law.

A law designed to keep college students' grades private often is used for a much different purpose -- to shield universities from potentially embarrassing situations. Some critics say a number of schools are deliberately misreading the Family Educational Rights and Privacy Act in order to keep scandals and other unflattering news from hitting the media. "Some schools have good-faith misunderstandings of the law, but there are others that simply see this as a handy excuse to hide behind," says Frank LoMonte, executive director of the Student Press Law Center, which provides student journalists with legal help. Legal experts say part of the problem is that the law is loosely defined. In addition, the potential consequences of violating the law -- namely, that schools would lose their federal funding -- prompt university officials to be conservative in their decisions about releasing information. Those complaints rankle advocates of student privacy, who say that, if anything, the three-decade-old law should be expanded. "Most of these kids are adults, and they should be able to make their own decisions," says Daren Bakst, president of the Council on Law in Higher Education. Congress already reworked the law to clarify when universities can disclose student information, especially involving health and safety matters. Those changes, adopted in January, followed the 2007 shooting rampage at Virginia Tech by a mentally troubled student.

All but one of the legal claims filed against Hannaford Bros. -- the Maine-based retailer that suffered a security breach exposing some four million credit and debit cards -- has been dismissed. U.S. District Court Judge Brock Hornby threw out the civil claims against the grocer for its alleged failure to protect card holder data and to notify customers of the breach in a timely fashion. In dismissing the claims, Hornby ruled that without any actual and substantial loss of money or property, consumers could not seek damages. The only complaint he allowed to stand was from a woman who said she had not been reimbursed by her bank for fraudulent charges on her bank account following the Hannaford breach.

It was only a matter of time! Auditor accuracy being examined in lawsuit may signal change in PCI and other compliance processes.

When CardSystems Solutions was hacked in 2004 in one of the largest credit card data breaches at the time, it reached for its security auditor's report. In theory, CardSystems should have been safe. The industry's primary security standard, known then as CISP, was touted as a sure way to protect data. And CardSystems' auditor, Savvis Inc, had just given them a clean bill of health three months before. Yet, despite those assurances, 263,000 card numbers were stolen from CardSystems, and nearly 40 million were compromised. More than four years later, Savvis is being pulled into court in a novel suit that legal experts say could force increased scrutiny on largely self-regulated credit card security practices. They say the case represents an evolution in data breach litigation and raises increasingly important questions about not only the liability of companies that handle card data but also the liability of third parties that audit and certify the trustworthiness of those companies. "We're at a critical juncture where we need to decide . . . whether [network security] auditing is voluntary or will have the force of law behind it," says Andrea Matwyshyn, a law and business ethics professor at the University of Pennsylvania's Wharton School who specializes in information security issues. "For companies to be able to rely on audits . . . there needs to be mechanisms developed to hold auditors accountable for the accuracy of their audits." The case, which appears to be among the first of its kind against a security auditing firm, highlights flaws in the standards that were established by the financial industry to protect consumer bank data. It also exposes the ineffectiveness of an auditing system that was supposed to guarantee that card processors and other businesses complied with the standards. Credit card companies have touted the standards and the auditing process as evidence that financial transactions conducted under their purview are secur