Peter A Clarke

Lawyers are far from immune from data breaches.  In fact law firms are attractive targets for ransomware attacks and malicious actors, sometimes state sponsored ones, who are interested in the sensitive information about clients held behind often poorly protected cyber defences. Nothing so nefarious has hit the State Bar of the US state of California with over 322,000 confidential attorney discipline records being  erroneously published on public records aggregator Judyrecords from 15 October 2021 until 26 February 2022.  The Bar claimed that this error was due to  a bug in its case management system. While a a data breach caused by a flaw in the IT system rather than a malicious hack is a minor consolation the mortification level remains high nevertheless.  And it remains a data breach.  The breach was discovered on 24 February 2022.  It has been required to notify 1,300 complainants, witnesses, or respondents.

The episode highlights the importance of checking the operability of IT systems as well as cyber security defences. Clearly the glitch which caused this data breach was due to a malfunction in the system.  That is an explanation, not an excuse.

The State Bar first issued a Media release, State Bar of California Addresses Breach of Confidential Data, on 26 February 2022.  At that time Read the rest of this entry »

It is obvious to anyone practising in the privacy and data security area that reliable statistics about the incidence of cybercrime, the number of people or organisations affected and the cost of those criminal acts are hard to come by.  The causes are numerous, victims being unwilling to report crimes, organisations affected by hacks doing their best to keep the publicity to a minimum, differing definitions of certain crimes and the inefficient collation of what data there is.

It is therefore welcome that the US is regularising the collection of data realting to cyber crime and cyber enabled crime.  The Act Read the rest of this entry »

In the United States the states have traditionally been active in law reform, often leading the way until the Federal Government steps in and makes nationwide laws, to the extent permissible by the constitution.  There have been notable exceptions, such the New Deal legislation of the 1930s and the Lyndon Johnson’s frenetic legislative activity of the 1960s.  But with privacy the US states have lead the way, with the California Consumer Privacy Act of 2018 (CCPA) being the most comprehensive.

Australian States could legislate for proper privacy protections in Australia.  There is ample scope to provide greater protections and  but choose not to do so.

The US North Eastern State of Connecticut has passed a comprehensive privacy Act, S.B.6  AN ACT CONCERNING PERSONAL DATA PRIVACY AND ONLINE MONITORING.  With Connecticut’s Bill that will be the fifth state of the Union to have have a comprehensive privacy law.  It will take effect on 1 January 2023.

The official description of what the legislation, if signed by the Governor, is:

To: (1) Establish (A) a framework for controlling and processing personal data, and (B) responsibilities and privacy protection standards for data controllers and processors; and (2) grant consumers the right to (A) access, correct, delete and obtain a copy of personal data, and (B) opt out of the processing of personal data for the purposes of (i) targeted advertising, (ii) certain sales of personal data, or (iii) profiling in furtherance of decisions that produce legal or similarly significant effects concerning consumers.

The legislation applies to persons conducting business in Connecticut or persons that produce products or services that are targeted to residents of Connecticut that :

• controlled or processed the personal data of not less than 100,000 consumers, excluding personal data controlled or processed solely for the purpose of completing a payment transaction, or
• controlled or processed the personal data of not less than 25,000 consumers and derived more than 25% of their gross revenue from the sale of personal data.

The legislation does not regulate:

• nonprofit organizations,
• institutions of higher education,
• financial institutions or data subject to the GLBA,
• HIPAA covered entities or business associates.
•  business-to-business and employee data. Consumer Rights
• certain personal information under the
  • Fair Credit Reporting Act,
  • Driver’s Privacy Protection Act of 1994,
  • Family Educational Rights and Privacy Act,

Under the Bill consumers have the right Read the rest of this entry »

The Full Bench of the High Court heard argument in Google LLC v Defteros [2022].  It is a case of considerable interest to defamation practitioners.  The key issue is whether a search engine a publisher of defamatory material on a third party website to which that search engine provides a hyperlink when the search result on its own conveys no defamatory imputation.  Also Google seeks a ruling on what is required to notify the search engine of defamatory publication for the purposes of the common law doctrine of innocent dissemination and the statutory defence under section 32 of the Defamation Act 2005. 

The transcript of oral argument before their Honours can be found here.

It is an appeal from a decision from the Victorian Court of Appeal in Defteros v Google LLC [2021] VSCA 167 (17 June 2021).  Interestingly on that occasion the appellant, Defteros, was unsuccessful.  Google’;s cross application for leave to appeal was refused. 

Special leave was granted on 10 December 2021 conditional upon Google paying Defteros’s costs of the appeal and not disturbing the costs orders in the Court of Appeal and at trial.  The transcript of the Special Leave Application can be found here.  In short, there is a public interest in resolving the issue. 

The essence of Google’s submissions is that the trial judge and the Victorian Court of Appeal erroneously found that the provision of a hyperlink was participation in the communication of defamatory material for the purpose of publication.  

The submissions of both parties can be found Read the rest of this entry »

The Federal Bureau of Investigation (“FBI”) has issued a public service announcement reporting that there were 241,206 domestic and international incidents involving a total loss of $43,312,749,946 arising from what is described as a Business Email Compromise.  

A business Email Compromise is defined as:

Business Email Compromise/Email Account Compromise (BEC/EAC) is a sophisticated scam that targets both businesses and individuals who perform legitimate transfer-of-funds requests.

The scam is frequently carried out when an individual compromises legitimate business or personal email accounts through social engineering or computer intrusion to conduct unauthorized transfers of funds.

The scam is not always associated with a transfer-of-funds request. One variation involves compromising legitimate business email accounts and requesting employees’ Personally Identifiable Information, Wage and Tax Statement (W-2) forms, or even crypto currency wallets.

Interestingly there was a 65% increase in global losses between July 2019 and December 2021. The FBI concludes that that is due to the COVID restrictions which caused more work and business virtually. 

With every scam there needs to be Read the rest of this entry »

The concept of Privacy by design has been in existence since the 1990.  It has been hugely influential and a very important set of principles for businesses and government in developing and maintaining an adequate privacy structure. It is described by the Australian Information Commissioner as:

‘Privacy by design’ is a process for embedding good privacy practices into the design specifications of technologies, business practices and physical infrastructures. This means building privacy into the design specifications and architecture of new systems and processes.

It’s more effective and efficient to manage privacy risks proactively, rather than to retrospectively alter a product or service to address privacy issues that come to light.

The CyberCX Privacy has awarded  Design Awards for organisations who have successfully implement privacy by design.  The awards for 2022have been announced. 

The results are:

CyberCx grouped organisations into 11 sectors being Read the rest of this entry »

Artificial Intelligence (“AI”) is becoming a significant issue for lawyers generally and regulators in particular.   Its impact on the law is apparent with the Full Bench, of 5 justices, ruling in Commissioner of Patents v Thaler [2022] FCAFC 62 last month that an inventor in terms of patent law must be a natural person, not AI.  This was an appeal from a decision of Justice Beach on 30 July 2021 in Thaler v Commissioner of Patents [2021] FCA 879 who relevantly ordered:

• The determination of the Deputy Commissioner that s 15(1) of the Patents Act 1990 (Cth) is inconsistent with an artificial intelligence system or device being treated as an inventor be set aside.
• The matter as to whether patent application no. 2019363177 satisfies the formalities under the Patents Regulations 1991 (Cth) and its examination be remitted to the Deputy Commissioner to be determined according to law in accordance with these reasons.

In its reasons the Full Court found  that identification of the “inventor” was central to the operation of the legislation. Under s 15, only the inventor or someone claiming through the inventor is entitled to a patent.

Thaler will probably make its way to the High Court. 

But the use of AI is more prosaic and ubiquitous than in inventing devices.  That is likely to be both a public good and a cause for concern.  At the moment the technology and its implementation is far outpacing the law and regulation.  That is a concern given the potential forseeable and unforseeable consequences.  In that regard I thoroughly recommend Machines Behaving Badly; the Morality of AI by Toby Walsh.   I attended a presentation by Professor Walsh organised by the Centre for Artificial Intelligence and Digital Ethics (CAIDE) last Wednesday. 

Regulators in the United Kingdom and Europe have been much more alive to the need for guidance and consideration of AI and its effect on privacy and data security than in Australia where the regulator takes a more languid approach and seems to be letting the ACCC to take the running on big tech issues.  In that vein the Information Commissioner’s Office (‘ICO’) announced, on 4 May 2022, that it had launched its updated AI and data protection risk toolkit. It is an important document for Read the rest of this entry »

The National Institute of Standards (“NIST”) and Technology today released the updated guidance Cybersecurity Supply Chain Risk Management Practices for Systems and Organizations. It was prepared in response to to Presidential Executive order 14028.  

It is a timely and valuable resource dealing with cyber security risks in supply chains.  Supply chain vulnerabilities is a chronic problem for organisations.  Given the relatively sparse material generated in Australia on this issue it should be used by those working in the cyber security and privacy sphere.

NIST’s summary of the Executive Order in so far as it is relevant to it provides:

The President’s Executive Order (EO) 14028 on Improving the Nation’s Cybersecurity  issued on May 12, 2021, charges multiple agencies – including NIST – with enhancing cybersecurity through a variety of initiatives related to the security and integrity of the software supply chain.

Section 4 directs NIST to solicit input from the private sector, academia, government agencies, and others and to identify existing or develop new standards, tools, best practices, and other guidelines to enhance software supply chain security. Those guidelines, which are ultimately aimed at federal agencies but which also are available for industry and others to use, include: 

• • criteria to evaluate software security,  
  • criteria to evaluate the security practices of the developers and suppliers, and 
  • innovative tools or methods to demonstrate conformance with secure practices. 

NIST is to consult with other agencies in producing some of its guidance; in turn, several of those agencies are directed to take steps to ensure that federal procurement of software follows that guidance.

The EO also assigns NIST to work on two labeling efforts related to consumer Internet of Things (IoT) devices and consumer software with the goal of encouraging manufacturers to produce – and purchasers to be informed about– products created with greater consideration of cybersecurity risks and capabilities.

The Guide is 326 pages long, extensive even for NIST.  

The abstract Read the rest of this entry »

The National Institute of Science and Technology (“NIST”) today released NISTIR 8320, Hardware-Enabled Security: Enabling a Layered Approach to Platform Security for Cloud and Edge Computing Use Cases.

The abstract provides:

In today’s cloud data centers and edge computing, attack surfaces have shifted and, in some cases, significantly increased. At the same time, hacking has become industrialized, and most security control implementations are not coherent or consistent. The foundation of any data center or edge computing security strategy should be securing the platform on which data and workloads will be executed and accessed. The physical platform represents the first layer for any layered security approach and provides the initial protections to help ensure that higher-layer security controls can be trusted. This report explains hardware-enabled security techniques and technologies that can improve platform security and data protection for cloud data centers and edge computing.

The report is aimed at security professionals on the technical side however anyone involved in privacy and data protection would get a benefit from it.  

It is, as is common with NIST reports and guides, a voluminous document, at 94 pages, making Read the rest of this entry »

The Cybersecurity and Infrastructure Security Agency (‘CISA’) along with:

• the Federal Bureau of Investigation (‘FBI’),
• National Security Agency (‘NSA’),
• Australian Cyber Security Centre (‘ACSC’),
• Canadian Centre for Cyber Security (‘CCCS’),
• New Zealand National Cyber Security Centre (‘NCSC’), and the UK’s National Cyber Security Centre (‘NCSC’),

has published a joint cybersecurity advisory, titled ‘2021 Top Routinely Exploited Vulnerabilities’.

The advisory provides a detailed overview of the 15 most commonly exploited cybersecurity vulnerabilities and exposures of 2021.

The advisory aims to help organisations prioritise their mitigation strategies, and highlights the importance of prioritising several mitigation measures related to:

• vulnerability and configuration management;
• identity and access management; and
• protective controls and architecture.

The  press release relevantly provides:

The Cybersecurity and Infrastructure Security Agency (CISA), National Security Agency (NSA), Federal Bureau of Investigation (FBI), Australian Cyber Security Centre (ACSC), Canadian Centre for Cyber Security (CCCS), New Zealand National Cyber Security Centre (NZ NCSC), and the United Kingdom’s National Cyber Security Centre (NCSC-UK) issued a joint Cybersecurity Advisory today on the common vulnerabilities and exposures (CVEs) frequently exploited by malicious cyber actors, including the 15 most commonly exploited of 2021.?? 

Malicious cyber actors continue to aggressively target disclosed critical software vulnerabilities against broad target sets in both the public and private sectors. While the top 15 vulnerabilities have previously been made public, this Advisory is meant to help organizations prioritize their mitigation strategies. Read the rest of this entry »