Data Privacy & Cybersecurity



Businesses and organizations of all sizes and industries are facing increased threats to their data stewardship on the one hand, and constantly evolving regulatory requirements and growing prosecutorial regimes on the other. And it’s only getting more challenging.

Our approach

Our Data Privacy and Cybersecurity team provides counsel on threat prevention and mitigation in the context of your key business drivers: intellectual property, financial/fiduciary, regulatory/compliance, operational, growth/opportunity, strategy, human capital, and reputation/brand.

We employ an integrated approach focused on 1) preventing attacks through proactive mitigation programs; 2) monitoring and detecting potential cyber risks; and 3) responding to breaches and other adverse events. We customize our data privacy and cybersecurity services to your business—size, industry, technologies, stakeholders, and compliance regimes.

Our platform starts with your business needs and “ends” with an intense focus on helping you “get back to business” and drive enterprise value. It’s a comprehensive, business-minded, intelligent approach to managing, mitigating and responding to cyber threats.

Trends we’re watching:

  • Business leaders (not just IT departments) will be increasingly held directly accountable for data privacy controls and response to breaches.
  • Incident response plans will need to consider how to instantly email those affected and reset user passwords on a massive scale.
  • Wearable technologies and internet of things (IoT) will continue to proliferate, expanding the number of access points to and vulnerability of protected health information (PHI) and other sensitive data.
  • Terms of service and vendor agreements will increasingly require provisions to mitigate liability and protocol for privacy matters.
  • Employees will continue to be the biggest threat to cyber security, predominantly through negligence, requiring increased security training programs.
  • State-level regulations will increase, providing a patch-work of data privacy and breach laws, making compliance increasingly difficult.
  • Consumers will increasingly reach “data breach fatigue,” taking less action to protect themselves, requiring businesses to re-think their pre- and post-breach communications.
  • Commercial drone use will continue to proliferate, putting some companies under both aviation and privacy regulations for the first time.

Who we work with

  • All businesses, organizations and government entities that collect, transmit or store sensitive or personally identifiable information
  • All industries including technology, health care, finance, infrastructure, defense, energy, big data, social media, data storage and professional services
  • Companies using mobile apps, websites and social media. Whether communicating with, collecting information from, advertising to or doing business with clients and customers, they and others are impacted by the Telephone Consumer Protection Act (TCPA) and the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM)
  • Health care providers, insurance companies, pharmacies, clearinghouses, business associates and others impacted by the Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health Act (HITECH) and the Omnibus Rule
  • Those who market goods or services to children under the age of 13 and others impacted by the Children’s Online Privacy Protection Act (COPPA)
  • All companies that receive and store the personal financial information of their clients and customers, and others impacted by the Gramm-Leach-Bliley Financial Services Modernization Act (GLBA) and state data security laws
  • Law firms, accounting firms and other professional advisors working with sensitive client information
  • Law enforcement agencies

Recognition

  • Recognized by Chambers USA as a nationwide leader in the field of privacy law

Representative experience

  • Defended a client in litigation involving the theft of 1.7 million patient records
  • Provided emergency response and compliance strategy for clients following the theft or loss of large amounts of sensitive information. Recent examples include:
    • A lost laptop containing the personal information of over 11,000 individuals from 31 different states
    • Website hacking incident involving the personally identifiable information of over 3,000 individuals
  • Represented numerous clients in privacy violation investigations by the Office for Civil Rights and state regulatory entities
  • Provide ongoing privacy and security counsel to a large utility
  • Counseled a pharmaceuticals company in corporate privacy and security issues and provided worldwide employee privacy training
  • Built enterprise-wide privacy and security framework for startup companies in the health care industry, municipalities and large corporations
  • Assisted clients with their applications for “safe harbor” under the Federal Communications Commission (FCC)
  • Developed and implemented website privacy policies and terms and conditions of use for a variety of clients in diverse industries

      The Once-and-Future Privacy Shield

      Rochester Business Journal | November 06, 2020

      Data Privacy & Cybersecurity deputy leader and Rochester associate Jenny Holmes contributed this article analyzing the European Court of Justice’s recent invalidation of the Privacy Shield and its impact on data flows between the US and the EU. This article was co-developed with Los Angeles partner Jason P. Gonzalez and Boston associate Troy K. Lieberman, both from the Data Privacy & Cybersecurity team.

      Incident response plans critical for any organization

      Rochester Business Journal | October 23, 2020

      The following article in Rochester Business Journal’s special report on Cybersecurity quote Data Privacy & Cybersecurity deputy team leader and Rochester associate Jenny Holmes for her insights on state, federal and international cybersecurity laws, and legal best practices on selecting a cloud computing service provider and putting together an incident response plan.

      Transitioning to cloud-based services: Due diligence is key

      Rochester Business Journal | October 23, 2020

      The following article in Rochester Business Journal’s special report on Cybersecurity quote Data Privacy & Cybersecurity deputy team leader and Rochester associate Jenny Holmes for her insights on state, federal and international cybersecurity laws, and legal best practices on selecting a cloud computing service provider and putting together an incident response plan.

      Legal guidance a necessity for companies amid coronavirus uncertainty

      Rochester Business Journal | September 04, 2020

      In this article on the most common COVID-related issues that businesses and companies are seeking legal help for, Data Privacy & Cybersecurity deputy leader Jenny Holmes and Complex Commercial Disputes associate Eric Ferrante, both in Rochester, are quoted for their outlook on cybersecurity best practices, force majeure clauses, and rent concerns from both landlords and tenants.

      'Not a black-and-white issue:' Legal, business implications of facial recognition tech

      Boston Business Journal | July 30, 2020

      Boston Intellectual Property associate and deputy leader of the Data Privacy & Cybersecurity practice group Troy Lieberman was featured in a Q&A for his outlook on facial recognition technologies in light of Boston Mayor Martin Walsh recently signing into law a ban on government use of these technologies in the city.

      5 ERISA Cases To Watch In The 2nd Half Of 2020

      Law360 | July 29, 2020

      San Francisco office managing partner and Corporate partner Karen Ng was quoted in this article for her outlook on the federal government’s interest in Howard Jarvis Taxpayers Association v. California Secure Choice Retirement Savings Program, and the rise in ERISA privacy and cybersecurity lawsuits in Harmon et al. v. Shell Oil Co. et al.

      ANALYSIS | 42 CFR Part 2 Rules Changes a Welcome Sign for Many Providers

      Behavioral Healthcare Executive | July 22, 2020

      This story features New York City Health Care associate Jena Grady for her outlook on the Department of Health & Human Services’ Substance Abuse and Mental Health Services Administration’s final rule to 42 CFR Part 2 relating to substance use disorders.

      Biggest Illinois Decisions So Far in 2020: Midyear Report

      Law360 | July 16, 2020

      This article includes commentary from Chicago Complex Commercial Disputes partners John Ruskusky and Seth Horvath on some of the most noteworthy Illinois decisions thus far in 2020. John discusses a decision related to the Illinois Biometric Information Privacy Act, while Seth comments on a decision regarding parents suing paint makers for children’s lead test costs, as well as a ruling on a record destruction provision in the Chicago police union contract.

      Hospitals balance disclosure and privacy as COVID-19 spreads

      Modern Healthcare | March 12, 2020

      Chicago Health Care partner Valerie Breslin Montague talks about how hospitals can remain in compliance with HIPAA while executing an effective crisis communications plan related to the coronavirus outbreak.

      What’s Next: Why Facebook’s $550M biometrics settlement isn’t a huge deal

      The American Lawyer | February 05, 2020

      This article features Chicago Complex Commercial Disputes partners John Ruskusky and Richard Tilghman analyzing Facebook’s recent $550 million settlement in a class action suit alleging violations of Illinois’ Biometric Information Privacy Act.

      Unwanted pre-recorded calls don’t violate TCPA

      Massachusetts Lawyers Weekly | January 23, 2020

      This article mentions Manchester Complex Commercial Disputes partner Dan Deane and Boston Complex Commercial Disputes associate Troy Lieberman, who earned a favorable ruling on behalf of defendant Boston Scientific in a class action suit alleging violations of the Telephone Consumer Protection Act.

      FTC steps up actions against VoIP providers to abet scammers

      Rochester Business Journal | January 17, 2020

      In his latest monthly column, Rochester Corporate partner Jeremy Wolk analyzes a recent action by the Federal Trade Commission to crack down on VoIP providers who turn a blind eye to their clients’ unlawful telemarketing practices. Washington, DC, Complex Commercial Disputes associate Brian Donnelly and Rochester Complex Commercial Disputes associate Zach Osinski contributed to the article.

      California data security law to have widespread impact

      Rochester Business Journal | November 29, 2019

      Rochester Corporate associate Jenny Holmes talks to the Rochester Business Journal for their special report on the impact of the California Consumer Privacy Act, which goes into effect January 1. Jenny anticipates that companies will have to comply with the strictest state law on the books if Congress does not pass a federal law.

      Keep up with laws developing to protect our consumer data

      Rochester Business Journal | November 15, 2019

      In the latest installment of his monthly column, Rochester Corporate partner Jeremy Wolk analyzes state-level legislation aimed at enhancing consumer privacy rights and protections, similar to the European Union’s General Data Protection Regulation. Rochester Corporate associate Jenny Holmes contributed to the column.

      Corporate spending on cybersecurity continues to increase

      Rochester Business Journal | October 25, 2019

      Jenny Holmes, Nixon Peabody associate, is quoted in this article about the trend of rising costs for cybersecurity protection.

      Read fine print on cyberthreat coverage

      Providence Business News | September 26, 2019

      Providence Complex Commercial Disputes partner Steven Richard is quoted in this article about how more Rhode Island businesses are purchasing insurance to protect against the fallout from potential data breaches.

      What makes you work harder? Strap on a sensor and find out

      Boston Globe | July 16, 2019

      In this story, Rochester Corporate associate Jenny Holmes discusses privacy concerns raised by employers who are leveraging wearable devices such as fitness trackers to learn more about workplace productivity.

      How to contact your customers without getting sued

      Bloomberg Law | June 11, 2019

      San Francisco Complex Commercial Disputes partner Karl Belgum wrote this contributed article explaining that businesses need to perform a self-assessment of the risks of automated customer contact, given the FCC’s failure to clarify the scope of the Telephone Consumer Protection Act.

      Attorneys watch cross-border issues

      Buffalo Business First | June 10, 2019

      In this article, Buffalo Complex Commercial Disputes counsel Ben Dwyer discusses how Canada’s approach to data privacy differs from the United States’, and how that impacts cross-border sharing of consumers’ personal information.

      Is a ransomware attack a reportable data breach?

      Providence Business News | April 26, 2019

      Providence Complex Commercial Disputes partner Steven Richard authored this column about ransomware attacks and how businesses should respond, including considering whether the ransomware attack is reportable or subject to notification requirements.

      3 legal trends will affect retailer strategies

      Retail Environment | February 07, 2019

      Chicago Complex Commercial Disputes partner Rich Tilghman authored this article about how legal trends related to data protection and monetization, ADA accessibility, and leasing will impact retailer strategies.

      Facebook lawsuit underscores importance of transparent collection and use of data

      Rochester Business Journal | January 25, 2019

      Rochester Corporate partner Jeremy Wolk wrote this contributed column analyzing a lawsuit filed against Facebook in Washington, DC, alleging violations of state-level consumer protection laws by the social media company. This article incorporates perspective from an alert written by Washington Complex Commercial Disputes associate Brian Donnelly, Rochester Corporate associate Jenny Holmes, and Los Angeles Government Investigations & White Collar Defense associate Karina Puttieva.

      Problems with the California Consumer Privacy Act

      Los Angeles/San Francisco Daily Journal | January 23, 2019

      Los Angeles Government Investigations and White Collar Defense partner Jason Gonzalez and associate Karina Puttieva co-wrote this contributed article identifying issues with the “remarkably unclear” California Consumer Privacy Act, a measure passed last year that regulates large businesses businesses who buy, sell or share consumers’ personal information.

      High court may upend TCPA litigation landscape

      Law360 | November 13, 2018

      Boston Intellectual Property associate Troy Lieberman is quoted in this article looking at possible FCC changes to the definition of “autodialer” in regard to the Telephone Consumer Protection Act.

      State AGs at odds over Google privacy pact at high court

      Law360 | September 05, 2018

      This article mentions Complex Commercial Disputes partners Chris Mason, Sarah André, Dan Deane and Seth Horvath as counsel for The New York Bar Foundation and The New York State Bar Association in an amicus brief—filed with the United States Supreme Court—in support of the approval by a California District Court, and the Ninth Circuit, of Google’s settlement involving a “cy pres” remedy in a privacy-related case.

      Cybersecurity and benefits plans: The next front in the ongoing battle to protect personal information

      Confero | June 30, 2018

      Rochester Corporate group associate Jenny Holmes contributed this article to the quarterly magazine for Westminster Consulting, discussing why benefit plans are inviting targets for would-be data thieves, and what plan administrators need to do to protect personal data.

      European Union law on data protection takes effect

      Rochester Business Journal | June 07, 2018

      Rochester corporate group partner Jeremy Wolk and associate Jenny Holmes co-wrote this contributed article on the introduction of the General Data Protection Regulation, “a set of tougher rules designed to give European Union citizens more control over their personal data.” The regulation applies to all organizations, regardless of location, that handle the personal data of EU citizens.

      DC Circuit Delivers Relief, but Not Clarity, with TCPA Ruling

      Law360 | March 15, 2018

      Boston IP litigation associate Troy Lieberman is quoted in this article explaining how the DC Circuit Court’s ruling on the FCC’s telemarketing rules will provide some relief for businesses.

      PREVIEWS FROM THE INDUSTRY: Hospital Operations

      Modern Healthcare | December 31, 2017

      In this round-up of health care industry predictions for 2018, Chicago health care partner Valerie Montague provides an outlook on the future of cybersecurity in health care.

      Contacts

      Jason P. Gonzalez

      Partner
      Practice Group Leader, Data Privacy & Cybersecurity

      jgonzalez@nixonpeabody.com

      Phone: 213-629-6019

      Troy K. Lieberman

      Deputy Co-leader, Data Privacy & Cybersecurity

      tlieberman@nixonpeabody.com

      Phone: 617-345-1281

      Jenny L. Holmes

      Deputy Co-leader, Data Privacy & Cybersecurity

      jholmes@nixonpeabody.com

      Phone: 585-263-1494

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      NP Privacy Partner Blog
      Staying ahead in a data-driven world: insights from our Data Privacy & Security team

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