2020Looking Back on 2020’s Top Privacy and Cybersecurity Trends

Looking Back on 2020’s Top Privacy and Cybersecurity Trends

As 2020 comes to a close, Beckage looks back on the ways this difficult and unprecedented year impacted the data privacy and cybersecurity landscape both domestically and across the globe.

Enhanced Privacy Challenges and Concerns Due to Covid-19

In response to the COVID-19 pandemic, businesses around the globe made a major pivot to online or virtual operations early this year. An intentional focus on data protection and a solid understanding of the regulatory landscape is a legal requirement that demands the integration of data protection up front in any network design or business practice. The increase in exposure of company assets made it necessary to implement a variety of technical safeguards. Companies still had to meet the compliance milestones of the NY SHIELD Act and California’s Consumer Protection Act (CCPA) while dealing with new privacy challenges caused by a distributed workforce and a global health pandemic. Beckage reminds organizations of the importance of revisiting their readiness through business continuity, incident response, and more expansive administrative, technical, and physical safeguards when shifting to a work-from-home model and recommends continued assessment of your company’s privacy pitfalls in this ever-shifting legal landscape.

Increased Ransomware and Cyberattacks

With rapid changes in organizational operations caused by the COVID-19 pandemic, attackers became more sophisticated in their strategies and unleashed several unrelenting, simultaneous attacks on service providers and the organizations they serve in 2020. Victims of recent cyber attacks, such as the SolarWinds campaign carried out in December, include government agencies, healthcare providers, consulting agencies, and , technology, telecom, and oil and gas companies. In many of these campaigns, attackers were able to gain access and move freely throughout an organization’s server, installing additional software, creating new accounts, and accessing sensitive data and valuable resources while remaining largely undetected. In response to the uptick in data incidents this year, the Beckage Incident Response Team recommends organizations implement several preventative steps to safeguard their organization to help minimize legal risk.

Patient Access Rights and Interoperability

Recent developments in 2020 concerning patients’ right to access health information to implement interoperability and record access requirements intend to help patients obtain access to health records and payment data to make informed decisions about their healthcare. The CMS Proposed Rule and the OCR Proposed Rule represent a complete overhaul of well-established standards and an introduction of new and highly technical requirements with healthcare compliance. The experienced Health Law Team at Beckage can help to distill these lengthy and complicated rules so organizations can understand practical implications on daily operations.

Increased International Focus on Consumer Privacy

On the heels of EU’s General Data Protection Regulation (GDPR), many countries followed suit by establishing legal frameworks for governing how organizations collect, use, and store their citizens’ personal data. One example is Brazil’s Lei Geral de Proteção de Dados (LGPD), which went into effect in August of 2020. This general data protection law, which closely mimics the GDPR, places strict requirements on organizations that process Brazilian citizen’s personal data.

At the same time, Europe continued to elevate its enforcement of the GDPR, with major decisions from various member state Data Protection Authorities, the European Court of Justice (ECJ), and the European Data Protection Board (EDBP). The most impactful for businesses across the globe was the ECJ’s decision in Schrems II, which invalidated the EU-US Privacy Shield and called into question the long-term viability of the Standard Contractual Clauses (SCCs) to transfer data from the EU to the US. In 2021, companies should closely monitor the evolving guidance on international data transfers and be prepared to mitigate risk of global data transfers.

Beckage’s Global Data Privacy Team expects continued adoption of data protection regulations across many regions, and an emphasis on creating global security and privacy compliance programs in the year ahead.

Uptick in ADA Litigation

This past year, the Beckage Accessibility Team has witnessed a drastic increase in litigation under Title III of the Americans with Disabilities Act. On average, about eight new lawsuits are filed a day by disabled individuals alleging unequal access to goods and services provided on a company’s digital platforms. While the Department of Justice (DOJ) has consistently held that the ADA applies to websites and mobile apps, they have failed to clarify the precise requirements for a business to be deemed compliant. This has prompted a wave of litigation by plaintiffs’ who claim a website or mobile app’s incompatibility with assistive technology, like screen-reading software, has denied them full access to and equal enjoyment of the goods, services, and accommodations of the website, therefore violating the ADA. Most of these lawsuits are settled quickly out of court to avoid litigating in such uncertain legal terrain.

Beckage handles the defense of website accessibility lawsuits as well as assists companies in navigate pre and post-suit settlement agreements for this unique area of the law.  Beckage also works with clients under privilege to conduct internal and remedial audits of client websites and mobile applications, evaluate platform compatibility and oversee implementation of recommended remedial or accessibility-enhancement measures.

California Consumer Protection Act (CCPA)  

Enforcement of California’s comprehensive California Consumer Privacy Act (CCPA) began on July 1, 2020 and has brought a range of plaintiff related lawsuits under its private right of action provision expanding California breach laws. For a data breach to be actionable, the information accessed must be identified as personal information, as narrowly defined by California’s data breach notification law. Recently, in November 2020, the Consumer Right To Privacy Act (CRPA) ballot initiative was passed, creating additional privacy rights and obligations pertaining to sensitive personal information that will go into effect. CPRA also expands data breach liability created by the CCPA, adds a private right of action for unauthorized access that permits access to an account if the business failed to maintain reasonable security, and imposes data protection obligations directly on service providers, contractors, and third parties. Beckage urges businesses who operate in or serve California citizens to continue to follow CCPA developments and carefully monitor related litigation in the coming months.

Emerging Technologies

The recent expansion of the Illinois Biometric Information Privacy Act (BIPA) has resulted in numerous class actions suits against organizations alleged to have collected plaintiffs’ biometric data. With the expanding use of biometric equipment, these claims often allege defendants obtained plaintiffs’ biometric data without complying with the BIPA’s notification and consent requirements. Upcoming class suits may address the issue of BIPA having an extraterritorial effect when bringing claims against out of state vendors.

Similarly, computers that manipulate the media, known as deep fakes, advance the dangers of influenced perceptions. The advancements of deep fakes are giving rise to laws regarding defamation, trade libel, false light, violation of right of publicity, or intentional infliction of emotional distress. Sophisticated tech lawyers can assist in determining rights and technological solutions to mitigate harm. As former tech business owners, Beckage lawyers want to drive innovation with use of these new and emerging technologies while understanding standards and laws that may impact such development. Beckage recommends that companies proactively mitigate the risks associated with collecting biometric information and deep fakes to prevent legal repercussions and defamation. 

Key Takeaways

2020 proved to be an unpredictable year in more ways than one. The COVID-19 pandemic forced companies to rapidly adapt to new privacy and data security challenges caused by a distributed workforce, emerging technologies, and an increased focus on ecommerce with in-person shopping and events. As we move towards 2021 with no definitive end to the pandemic in sight, it is crucial for companies to prioritize data privacy and cybersecurity initiatives by consulting qualified legal tech experts who can help navigate the uncertainty next year will bring. Beckage attorneys can assist in creating, implementing, and evaluating robust data security and privacy infrastructures that will help put your business in a position to tackle all the challenges 2021 has in store.

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Disinformation and Deep FakesThe Risks Associated with Disinformation and Deep Fakes

The Risks Associated with Disinformation and Deep Fakes

Disinformation is the deliberate spreading of false information about individuals or businesses to influence public perceptions about people and entities.  Computers that manipulate the media, known as deep fakes, advance the dangers of influenced perceptions.  Deep fakes can be photos, videos, audio, and text manipulated by artificial intelligence (AI) to portray known persons acting or speaking in an embarrassing or incriminating way.  With the advancements of deep fakes becoming more believable and easier to produce, disinformation is spreading at alarming rates.  Some risks that arise with disinformation include:

·       Damage to Reputation

Reputational damage targets companies of all sizes with rumors, exaggerations, and lies that harm the reputation of the business for economic strategy and gain. Remedying reputational damage may require large sums of money, time, and other resources to prove the media was forged.

·       Blackmail and Harassment

Photos, audio, and text manipulated by AI can be used to embarrass or extort business leaders, politicians, or public figures through the media.

·       Social Engineering and Fraud

Deep fakes can be used to impersonate corporate executives’ identities and facilitate fraudulent wire transfers.  These tactics are a new variation of Business E-mail Compromise (BEC), traditionally considered access to an employee or business associate’s email account by an impersonator with the intent to trick companies, employees, or partners into sending money to the infiltrator.

·       Credential Theft and Cybersecurity Attacks

Hackers can also use sophisticated impersonation and social engineering to gain informational technology credentials through unknowing employees.  After gaining access, the hacker can steal company data and personally identifiable information or infect the company’s system with malware or ransomware.

·       Fraudulent Insurance Claims

Insurance companies rely on digital graphics to settle claims, but photographs are becoming less reliable as evidence because they are easy to manipulate with AI.  Insurance companies will need to modify policies, training, practices, and compliance programs to mitigate risk and avoid fraud.

·       Market Manipulation

Another way scammers seek to profit from disinformation is through the use of fake news reports and social media schemes using phony text and graphics to impact financial markets.  Traders who use social post and headline-driven algorithms to make market decisions may find themselves prey to these types of schemes.  As accessibility to realistic but manipulated video and audio increases, these misperceptions and disinformation will become substantially more believable and difficult to correct.

·     Falsified Court Evidence

Deep fakes also pose a threat to the authenticity of media evidence presented to the court.  If falsified video and audio files are entered as evidence, they have the potential to trick jurors and impact case outcomes.  Moving forward, courts will need to be trained to scrutinize potentially manipulated media.

·     Cybersecurity Insurance

Cybersecurity insurance helps cover businesses from financial ruin but has not historically covered damages due to disinformation.  Private brands, businesses, and corporations should consider supplementing their current insurance policies to address disinformation to help protect themselves from risk.

Legal Options

There are legal avenues that can be pursued in responding to disinformation.  Deep fakes that falsely depict individuals in a demeaning or embarrassing way are subject to laws regarding defamation, trade libel, false light, violation of right of publicity, or intentional infliction of emotional distress if the deep fake contains the image, voice, or likeness of a public figure.  

Preventative Steps

Apart from understanding the risks associated with disinformation, companies can work to protect themselves from disinformation and deep fakes by:

1. Engaging in social listening to understand how a company’s brand is viewed by the public.

2. Assessing the risks associated with the business’ employed practices.

3. Registering the business trademark to have the protection of federal laws.

4. Having an effective incident response plan in the event of disinformation, deep fakes, or data breach to mitigate costs and prevent further loss or damage.

5. Communicating with social media platforms in which disinformation is being spread.

6. Speaking directly to the public, the media, and their customers via social media or other means.

7. Bringing a lawsuit into court if a business is being defamed or the market is manipulated.

What To Do When Facing Disinformation

If a business is facing disinformation, sophisticated tech lawyers can assist in determining rights and technological solutions to mitigate harm.  Businesses are not defenseless in the face of disinformation and deep fakes but should expand their protective measures to mitigate the risks associated.  

About Beckage

Beckage is a team of skillful technology attorneys who can help you protect your company from cyber attacks and defamation cause by disinformation and deep fakes. Our team of certified privacy professionals and lawyers can help you navigate the legal scope of the expanding field of disinformation.

*Attorney Advertising.  Prior results do not guarantee similar outcomes.*

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