Welcoming Andrea Looney, Addressing Data Breaches, And A Victory For Western Values In Ukraine

Thursday, May 29, 2014 - 15:43

This month we are pleased to welcome Andrea Looney, the eminently qualified new executive director of Lawyers for Civil Justice. She joins the staff of LCJ in the wake of LCJ’s great success in setting in motion a process that shows promise of reducing the cost of litigation by changing the Federal Rules of Civil Procedure to substantially decrease the costs and burdens of discovery. Contributing to this success was the involvement of LCJ’s corporate counsel and law firm members and the dedicated support of the three major defense counsel organizations that are active LCJ supporters. The Metropolitan Corporate Counsel helped by making it possible for LCJ to alert many corporate counsel to the opportunity to comment favorably on the Rules’ changes. Our mission includes using our resources to support those LCJ initiatives that we feel directly or indirectly benefit corporate counsel and their companies.  

We highlight timely issues that are of concern to corporate counsel. In this issue, we feature interviews on cybersecurity. Data breaches are of great concern to every organization and to the individuals whose personal information is in their custody. Hardly a day passes without an announcement of a new breach at a major organization.  The consequences of a data breach can have an immense impact on businesses and organizations of all kinds, including law firms in their capacity as custodians of sensitive client information.

The strength of the U.S. depends to a great extent on the value of its intellectual property which includes the industrial processes that enable its businesses to offer superior products. It is reported that hackers working for other countries and businesses within those countries are using the Internet to access the trade secrets and technologies that account for our superiority. 

Forty-eight states plus Puerto Rico, U.S. Virgin Islands and Guam have already adopted requirements for notifying those whose information has been breached, and a notifications bill has been introduced in Congress by Senator Feinstein. This helpful legislation focuses on the duties of the custodian of the information and not on penalizing the hacker.

The most urgent and immediate need is for hackers to be made aware of the severe penalties they face under federal and state law. Prosecutors need to raise the level of public consciousness about how data breaches directly affect the many consumers whose personal information is disclosed and to emphasize the guilt of the hackers who trigger the disclosures, particularly where their actions were motivated by personal gain as part of their intention to sell or use the information collected.

When federal or state prosecutors apprehend such hackers, it creates an opportunity for the prosecutors to go public, mentioning the nature of the breach, the public interest in deterring such breaches and that they are seeking maximum penalties, including jail time, provided for under the applicable statutes. A recent development was the publication by the U.S. government of the photos of members of the Chinese military charged with hacking into our governmental and industrial secrets.

Corporate counsel working with defense counsel and their organizations need to focus on amending existing federal and state legislation to more effectively deter hackers, to insulate from liability businesses and other organizations that have taken reasonable steps to safeguard personal information, and to address the class action and other litigation issues that will be inevitable as a result of data breaches.

We have been watching with great interest developments in Ukraine. In our combined July-August issue, we are inviting articles and interviews about what those developments mean for U.S. businesses that may be attracted to invest in Ukraine as it moves toward establishing closer relationships with the EU. It is difficult to believe that the success of a free market and other Western values in nearby Poland did not influence events in Ukraine.  The ultimate question is whether Putin may not have learned lessons that may open Russia itself to Western values.

Another issue that we will be closely tracking is the impact of the privacy regulations now being considered by the EU on the ability of U.S. courts to gain access to information located within member states of the EU and on the ability of Google and like browsers to make personal information available to users within the EU.