Data Privacy & Security

SmithAmundsen’s Data Privacy and Security Practice is comprised of a multidisciplinary team of lawyers, who understand that companies, large and small, are constantly trying to navigate the legal implications of data, or cyber security and data privacy. Our attorneys counsel clients, in a variety of industries and sectors, on privacy matters, which can include data mapping and privacy audits and the tailoring of both internal and outward facing policies. We partner with our clients on risk mitigation; data security and PCI compliance; GDPR compliance; HIPAA and HITECH compliance; CCPA compliance; BIPA compliance; employee privacy requirements; record retention and electronic discovery assessments; click-wrap agreements; and compliance with consumer statutes that include the CAN-SPAM Act and the TCPA.

At the same time, we are trusted advisers for incident response plans and serve as breach coaches in the wake of data incidents. Our team has collectively spent years helping clients prepare for, respond to and litigate data breaches. We have built up a network of forensic experts and privacy professionals to ensure that we not only advise our clients on developing vulnerabilities, tactics and cyber threats but also counsel on how to respond to data incidents swiftly, efficiently and with an eye toward getting the business back up-and-running securely. We understand that while data incidents, like ransomware attacks, happen at an alarming pace, the experience for our clients is personal and a chief concern can be preserving your brand post-incident.

We also counsel our clients on cyber incidents that aren’t cyber attacks but rather internal, employee missteps that can harm the company financially and/or trigger notification requirements because a mistake in sharing information could mean “unauthorized access.” Our team has handled virtually all types of incidents across diverse industries including healthcare, financial services, public companies, non-profits, technology support services and small to mid-size organizations. 

Our team also defends businesses in high stakes situations, from class action lawsuits grounded in alleged violations of federal, state and local statutes, to claims of breach within the healthcare industry, and alleged failure to comply with HIPAA and HITECH.

Our team has a global network of privacy professionals, which allows us to develop effective, widespread strategies for addressing cybersecurity, data, and privacy matters worldwide.

A sample of our experience includes:

• Defense of clients against class action data breach litigation based on alleged unauthorized releases of data and misuse of data based upon alleged breaches.
• Review and revision of current security policies and procedures in connection with data collection and data review. We evaluate vulnerabilities and ensure compliance with applicable laws and regulations.
• Assistance in the development of internal policies and procedures that are consistent with consumer protection regulations, data privacy practices, notification requirements, state and federal privacy laws and whistleblower laws to navigate the best methods for the collection and storage of company data.
• Assistance in consumer facing policies and agreements to reflect the cyber-hygiene practices of the company, as required by law, and developing mechanisms for obtaining necessary opt-in and consent for collection of data.
• Audit existing procedures and practices consistent with industry standards and legal requirements to reduce the risk of a data breach.
• Serving as a breach coach: coordinating and implementing the incident response plan or data breach plan, which includes a team of forensic, security, public relations and insurance professionals.
• Crafting a data incident response tailored to our clients’ needs and brand, including notifying affected customers, employees, business partners and regulators in accordance with state and federal laws.

Experience

• Data incident response to a disclosure of protected health information maintained by a vendor for multiple HIPAA covered entities. This work included full investigation of the matter to determine the extent of the breach and the types of information exposed. From there, the disclosed records were reviewed and analyzed to ensure the company met its reporting and notification requirements under the various federal and state laws applicable to the personal and health information.
• Data incident response to a web server that inadvertently exposed social security numbers and payroll information to the public via Internet search engines. This work involved investigation of the matter to determine the extent of the breach and analysis of all applicable state and federal laws to determine notification and reporting obligations for the company.
• Data incident response plan for a small company, whose hardware was stolen and which hardware allowed access to centralized databases which contained encrypted PII. This work involved investigation into the Personal Information Protection Act of certain Midwestern states to confirm whether notification of the potential breach was required and reporting obligations and best practices, moving forward, for the company.
• Data incident response plan for a small company, whose customers’ accounts were accessed by persons located overseas. This work involved the following: forensic examination, with licensed analysts, into the breach; assessment of the scope of the breach; investigation into the Personal Information Protection Act of certain Midwestern states to confirm notification of the potential breach was required; working with the client and public relations specialists on notice; notifying federal officials; and, crafting a response plan and best practices, moving forward, for the company.
• Data incident investigation of a matter where a company discovered that some of its mailings inadvertently disclosed customer social security numbers that could be viewed in the address window of the envelopes it mailed. This work involved full investigation of the mater to determine the number of individuals who may have been affected by the breach, the types of information involved, and a review of applicable state and federal laws to determine notification and reporting requirements.
• Revision and implementation of a record retention program for multi-state nursing, rehabilitation, and retirement facility. This work consisted of creating a record retention program for multiple facilities across twelve states. The facilities operated by the company maintained different types of electronic medical records and were subject to different state laws, and therefore, our team developed a record retention program that applied to all facilities, across all states.
• Drafting, reviewing, and revising numerous HIPAA Business Associate Agreements on behalf of covered entities, business associates, and sub-business associates
• Obtained ruling from the Seventh Circuit affirming dismissal of a lawsuit against a national testing agency in which plaintiffs alleged claims on behalf of a putative class of 16 million persons that their personal identifiable information had been sold without authorization
• Retained to defend hospital from class action arising from data breach involving protected personal information
• Retained to represent business in class action for alleged violations of Illinois Biometric Information Privacy Act 
• Obtained judgment and defeated class certification in FACTA class action lawsuit. The court held that although the plaintiff was personally liable under the cardholder agreement, the entity cardholder was the “consumer”; therefore, there was no private right of action for purposes of the business transaction alleged in the complaint

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