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Last week on the official LinkedIn blog, the company’s chief information security officer, Cory Scott, reported the company had become aware of an additional set of data that has just been released consisting of e-mail and hashed password combinations of more than 100 million LinkedIn members. This recent release is related to a 2012 unauthorized access and disclosure of LinkedIn members’ passwords:

Yesterday, we became aware of an additional set of data that had just been released that claims to be email and hashed password combinations of more than 100 million LinkedIn members from that same theft in 2012. We are taking immediate steps to invalidate the passwords of the accounts impacted, and we will contact those members to reset their passwords. We have no indication that this is as a result of a new security breach. –Linkedin Official Blog, May 18, 2016

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It’s no secret that the Consumer Financial Protection Bureau (CFPB) views arbitration agreements in contracts between financial services providers and consumers rather unfavorably. This antipathy has been maintained even after a 2011 Supreme Court decision (ATT Mobility LLC v. Concepcion) affirming the practice. Back in October, the bureau announced its consideration of a proposed rule that would prohibit this practice in some cases, and in other cases, require companies that use arbitration clauses to report information regarding claims filed and awards issued to the CFPB. On May 5th, the CFPB released the proposed rule.

In their client alert, Arbitration Provisions Mauled by Consumer Watchdog, colleagues Christine Scheuneman, Mercedes Tunstall, Amy Pierce and Andrew Caplan examine the rule in depth, pointing out some of its contradictions and areas in which the proposed rule may be susceptible to (the inevitable) legal challenges that will follow.

 

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Until recently, social media has been one of the only recourses for fashion designers and labels that have had their designs knocked off. Take the Acquazurra “Wild Thing” sandal, for example. Acquazzura is a high-end shoe brand that designed and released the $785 sandal, identifiable by its “wild” fringe on the toes. Shortly after, Ivanka Trump released the “Hettie” sandal, an almost identical shoe which, priced at $145, was almost $600 less expensive.

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NewsofNote

AI teaching assistants and the NBA’s interest in VR aside, this week’s roundup has plenty of darker-themed stories, including torture-proof passwords, live-streamed suicide and death while AR gaming.

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In the Joint Commission Perspectives May 2016 edition, the Commission reversed its 2011 position prohibiting clinician texting of patient orders within accredited health care institutions, stating technological advancements now allow for secure transmission. The Joint Commission first issued its ban in 2011 by posting an often overlooked response to the frequently asked question  regarding the by then ubiquitous communication tool: “[I]t is not acceptable for physicians or licensed independent practitioners to text orders for patients to the hospital or other healthcare setting. This method provides no ability to verify the identity of the person sending the text and there is no way to keep the original message as validation of what is entered into the medical record.” iStock_000075033043_SmallWhile the Commission did not have a specific policy against electronic communications, its FAQ response highlighted concerns surrounding texting’s privacy, security, reliability and record retention shortcomings. Following FAQ response’s posting, institutions accredited by the Commission were expected to comply with the texting ban on clinical orders. However, recent studies have shown that permitting the texting of orders within health systems could significantly increase hospital efficiencies and reduce the length of patient stays.

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On April 29, 2016, Judge Ross issued his ruling on Ashley Madison’s motion for a protective order, prohibiting Plaintiffs from using the leaked documents, reports quoting the leaked documents, and information “stolen from Avid” in drafting their consolidated class action complaint. The result was largely policy driven, with Judge Ross stating broadly, “the Court cannot and will not allow Plaintiffs to take advantage of the work of hackers to access documents outside the context of formal discovery. To do so would taint these proceedings and, if left unremedied, potentially undermine the integrity of the judicial process.” The Court also ruled that it had inherent authority to issue a protective order with respect to documents obtained outside the course of normal discovery, and distinguished cases cited by the Plaintiffs in opposition. Rejecting Plaintiffs’ First Amendment argument, Judge Ross notes, “[j]ournalists … are in a completely different position than parties involved in private litigation. No doubt exists that the news media enjoy the freedom of ‘the press;’ however, the conduct of attorneys is informed by their ethical responsibilities as officers of the Court.” The amici briefs submitted by other Ashley Madison users made an impact on the Court as the Court found that the leaked information could not truly be considered “readily available to the public” due to the efforts of the other users to protect their privacy following the leak, as asserted in their briefs. Ultimately, Judge Ross emphasized the need to “protect the integrity of the internet and make it a safer place for business, research and casual use.”

Earlier posts on the topic:
Ashley Madison and Coming to “Terms” with Data Protection
From Ashley Madison to the Panama Papers: Is Hacked Data Fair Game?

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The Federal Trade Commission recognizes that many people benefit from companies’ online tracking by getting advertising that is more targeted to their preferences. However, as the technologies and techniques used by companies and advertisers to uniquely identify and track individuals’ online behavior advances, the FTC warns that companies’ privacy disclosures and practices must be updated. Failure to do so could be considered deceptive under the FTC Act.

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NewsofNoteMainSeveral companies cast an eye toward the Internet of Things, Twitter’s AI gets pretty good at live video, some industry giants get behind the driverless car, and more …

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A Chicago law firm has challenged Jay-Z and Kanye West, filing a class action complaint for violations of the California Business & Professions Code, fraudulent inducement and unjust enrichment in the Northern District of California. The complaint alleges that Tidal, a music streaming service owned by Shawn “Jay Z” Carter and Kanye West, was in financial straits earlier this year but that help arrived when Kanye West used his Tidalvaluable star power on Twitter to encourage his followers to subscribe to Tidal by tweeting that his highly anticipated new album The Life of Pablo would only be available on Tidal. Mr. West also tweeted that the “album will never never never be on Apple. And it will never be for sale… You can only get it on Tidal.” The complaint further alleges that subsequently “[n]ew subscriptions to the streaming platform skyrocketed, tripling its consumer base from 1 million to 3 million subscribers in just over a month.” All would have been well except that Mr. West made The Life of Pablo available through Apple Music, Spotify and his own online marketplace a month and a half after its initial release.

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We’ve previously written about the distinctions between hacking credit and other financial data in comparison to hacking private information. (See Ashley Madison and Coming to “Terms” with Data Protection.) The issue of how much protection the latter receives when it relates to attorney-client communications is currently before the District Court of the Eastern District of Missouri in the multi-district litigation arising from the July 2015 Ashley Madison leaks. Plaintiffs—former users of the site who claim that Ashley Madison defrauded the public by creating fake female profiles to lure male users—hope to use leaked information in their consolidated complaint against the site, due to be filed June 3 of this year. The leaked information sought to be used includes references and citations to emails between Ashley Madison’s parent company, Avid Dating Life, and its outside counsel.

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