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Cybersecurity is paramount to secure online communications whether they are for sending or receiving sensitive or confidential information – e.g., trade secrets, intellectual properties, financial information. Many people assume they are protected on the internet when transferring or receiving files over computer networks. They may attach tax-related documents to their message and press the send button without hesitation. What most people do not realize is that information may be intercepted without authorization. Now, most laws require “reasonable security measures” to ensure the privacy of confidential records.

What are the state laws?

There is no single state law that applies to all cybersecurity-related issues. So, every state has promulgated several statutes in order to address and promote cybersecurity. These state laws are usually similar in their nature and scope. For example, California recently passed the California Consumer Privacy Act (“CCPA”) codified under Civil Code Sections 1798.100, et seq., to enhance consumer privacy rights. It grants consumers the right to know what kind of personal information is being collected about them, whether the personal information is sold or disclosed, to refuse the sale of their personal information, to gain access to their personal information, to request deletion of their personal information, and to not be discriminated against for exercising their privacy rights.

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Internet fraud and scams have exponentially increased in recent years. There are several reasons for this development which include the expansion of technology and usage of electronic devices in our daily lives.

The fraudsters find different ways to retrieve sensitive or confidential information in order to commit their crimes. For example, they may extract the information by dumpster diving next to corporations and financial institutions. There have been cases where sensitive information of a corporation’s employees was extracted without authorization. They may also engage in “shoulder surfing” which is another way to surreptitiously extract confidential information from the unsuspecting victim. These activities usually take place close to a bank’s ATM in order to steal the victim’s debit card PIN. They can also use what is referred to as a “skimming device” as a way to obtain sensitive information from debit or credit cards. These devices can be placed on ATMs to procure the confidential information without suspicion. The fraudsters can also obtain sensitive or confidential information by breaking and entering into the victim’s property. This way, they can look into the victim’s house or vehicle for valuable items or confidential documents.

There is a long list of internet fraud methods such as auction scams, rental scams, dating scams, lottery scams, and charity scams. The criminals are finding new ways to trick their victims into relinquishing valuable information – e.g., address, telephone, date-of-birth, social security number, debit or credit card number. Social engineering is another method to obtain information which is usually done by gaining the victim’s trust. It has become one of the main methods for extracting valuable information from unsuspecting victims. The internet allows culprits to anonymously communicate with their victims which is the major issue in lawsuits simply because it takes time and effort to launch an investigation. Our law firm is able to unmask the anonymous culprit’s identity by using the proper tools and techniques. We have access to a network of experts and investigators who can help our clients. We have also established relationships with local, state, and federal law enforcement agencies.

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The parties are generally entitled to discovery of relevant and admissible evidence during litigation. This process includes the discovery of electronically-stored information (“ESI”) which can be stored at internal and external locations such as the local area network and cloud.  It has become more prevalent for companies to transfer their electronic files to the cloud to reduce costs. It is now more practical to upload and transfer data to a third-party’s servers. However, there are certain risks associated with this process. First, you will be relinquishing control over the electronic information. Second, you will not have control over the third-party’s information security protocols. In other words, even if the electronic information is originally encrypted, it may lose its encryption status if uploaded or transferred to the third-party’s servers.

It is important for attorneys to have a general understanding of the client’s network infrastructure. So, it is always recommended to interview the client’s information technology staff. This way, legal counsel can be better prepared to ask and answer discovery-related questions. Moreover, the relevant discovery rules are outlined in the Federal Rules of Civil Procedure 26, 33, 34, 37, and 45, and Federal Rule of Evidence 502.

Court Mandated Guidelines

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Sextortion is a type of online blackmail. It’s one kind of sexual exploitation that takes place on the internet when an anonymous individual threatens to distribute the victim’s explicit videos or pictures if he or she does not comply with the demands which can include transferring funds through digital currencies. The culprit may use a webcam to extract private information and make threats to harm the victim if the victim fails or refuses to comply with the demands.

The culprit usually follows his victims on websites and chatrooms to gain their trust. The culprit may send a message to the victim that has malware in an effort to hack into the victim’s electronic devices. The victim can make the mistake of clicking on the link which releases the virus on to the computer. The infected computer is now compromised and can be used for nefarious purposes.

The courts have been dealing with sextortion since it is a new problem in the technology age. The law prohibits the non-consensual dissemination of intimate pictures or videos but the litigants or their lawyers have been using laws related to harassment, extortion, bribery, or child pornography. For example, 18 U.S.C. § 2251 prohibits sexual exploitation of children. The following federal statutes could be relevant to these activities: 18 U.S.C. § 2252, 18 U.S.C. § 2422, and 18 U.S.C. § 875.

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We’ve discussed how the states have passed privacy laws to protect their residents. We have also referenced the state and federal rules or regulations that are designed to promote transparency, security, accuracy, proper data collection, and accountability.

The Federal Constitution has not expressly mentioned the right to privacy. However, under Article I Section 1, the California Constitution has mentioned the “inalienable right to privacy” that is applicable to the government and private individuals. The courts have confirmed this fundamental right. In White v. Davis (1975) 13 Cal.3d 757, 774, the Supreme Court analyzed the facts and confirmed the right of privacy. In Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1, 39, the Supreme Court outlined the following framework to decide whether there is a constitutional violation: (1) there must be a legally protected privacy interest; (2) there must a reasonable expectation of privacy; and (3) there must be a serious invasion of privacy interest.

There is also a common law right of privacy. First, there is intrusion into plaintiff’s seclusion. Second, false light as a result of false and negative publicity. Third, public disclosure of private facts. Fourth, there is the commercial appropriation of plaintiff’s name or likeness without consent. The courts have also recognized negligence as a cause of action when the defendant fails or refuses to manage data in a reasonable manner. In other words, the defendant can be sued for failing to comply with the industry data management standards if it causes damages to the plaintiff.

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We have briefly discussed some of the state and federal privacy laws that are applicable to consumers and commercial organizations. It is important to understand how personal information is being obtained and distributed by businesses. Personal information is also being obtained and distributed by bad actors – i.e., criminals who gain access to customer information through clandestine methods and sell the information for profit. This information can be extracted by using cookies which is a software program that records the customer’s activities when visiting the website. Yet, a computer can be configured to not automatically accept cookies. Tracking software is being used to follow and monitor the customer’s online activities. The Federal Trade Commission, which has the authority to bring legal action for unfair or deceptive trade practices affecting commerce, has prosecuted companies for their failure to properly disclose this information.

What are the federal privacy laws?

The Federal Constitution has implicitly granted privacy rights. The Fourth Amendment prohibits unreasonable searches and seizures. There has been a series of legal cases that have dealt with this provision in order to determine the definition of unreasonable searches and seizures. However, some courts have held website monitoring programs that may reveal Internet Protocol or electronic mail addresses do not implicate the Fourth Amendment. The federal privacy laws that have been promulgate by the federal government include: (1) Driver’s Privacy Protection Act; (2) Electronic Communications Privacy Act; (3) Family Educational Rights and Privacy Act; (4) Fair Credit Reporting Act; (5) Fair Debt Collection Practices Act; (6) Federal Privacy Act; (7) Financial Services Modernization Act a/k/a “Gramm-Leach Bliley Act;” and (8) Video Privacy Protection Act which grants consumers the right to opt-out from disclosure of their personal information and file a legal action if their rights are violated. Also, the Federal Identity Theft and Assumption Deterrence Act prohibits the production and possession of false or unauthorized documents or the usage of another person’s identity.

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There are state and federal privacy laws that are applicable to consumers and commercial organizations. There has been much activity with the collection and distribution of private or confidential information in recent years. Personal information can be collected through several methods such as voluntary disclosures, cookies, website bugs, tracking software, malware (e.g., worms, trojans, spyware), and phishing. For example, tracking software can be used to collect information but there must be proper disclosure. Nonetheless, criminals do not follow the rules or guidelines and it is a known fact they have access to the tools and techniques to extract customer information without obtaining authorization.

Personal information is certainly valuable to its owner. It is also valuable to a bad actor who is seeking to misuse the personal information without authorization. The bad actors who obtain personal information in a secretive manner are planning to gain a profit. They may engage in identity theft or online impersonation by using the wrongfully obtained personal information. Identity theft has caused a significant amount of monetary damages to the victims. There are state and federal laws that prohibit identity theft in every jurisdiction. The National Conference of State Legislatures provides a comprehensive list of these laws. In California, the following state laws prohibit identity theft and provide remedies:

  1. California Penal Code § 368: It prohibits identity theft against elders and disabled persons;
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International e-commerce laws have been evolving since the inception of the information technology age. International e-commerce transactions take place over a network of computers and have become more streamlined with technology advancements. The following topics will be evaluated and addressed in this article: alternative dispute resolution and insurance.

Alternative Dispute Resolution (“ADR”) is an important factor when it comes to international e-commerce transactions. It is much easier to resolve local disputes without geographical challenges. However, that is not the case with international commercial transactions because the parties can be anywhere in the world. So, tracking, identifying, or locating the customer is not an easy task for international commercial transactions and presents jurisdictional issues. In most cases, they are related to contractual disputes for the purchase and sale of products or services. There could be non-contractual disputes such as trademark, copyright, data protection, and domain name disputes. The parties should have the option to engage in mediation or arbitration to resolve the dispute. Mediation is conducted by a neutral expert who renders a non-binding decision after reviewing the file. Arbitration is conducted by a neutral expert who renders a binding decision after reviewing the file. Our international mediation and arbitration attorneys regularly provide professional legal services to clients.

In some European countries, the customers are permitted to file a lawsuit against the e-commerce company in their own country or where the e-commerce company is located even if the company has no business operations therein. For example, in LICRA v. Yahoo, the French courts issued an order against Yahoo, which is based in the United States, to prevent French residents from purchasing Nazi memorabilia through its website.

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International e-commerce laws have been evolving since the inception of the information technology age. International e-commerce transactions which take place over the vast network of computers have become more streamlined with the advancement of technology. The following topics will be evaluated and addressed in these series of articles: Intellectual properties, taxes, and alternative dispute resolution.

Intellectual property rights can be protected by registering trademarks, copyrights or patents with governmental agencies. For example, the United States Patent and Trademark Office (“USPTO”) registers patents and trademarks. The United States Copyright Office registers copyrights. However, trade secrets cannot be registered with any government agencies. The trade secret owner is responsible to protect it by taking precautionary steps. International e-commerce and business law attorneys should recommend the following steps to their clients: (1) locate, identify, and mark the trade secrets; (2) restrict access to the trade secrets; (3) sign non-disclosure agreements with the trade secret holders; and (4) restrict access to the trade secrets. The Uniform Trade Secrets Act (“UTSA”) defines a trade secret as information that derives independent economic value because it is not generally known or readily ascertainable and is the subject of efforts to maintain secrecy. It includes formulas, patterns, compilations, programs, devices, methods, techniques, or processes that yield economic value – e.g., customer lists.

International e-commerce transactions will be taxed by the appropriate government agencies. In 2018, the United States Supreme Court addressed this issue in South Dakota v. Wayfair and acknowledged the states are losing revenue due to their incapability to collect sales tax from out-of-state retailers. Thus far, the Internet Tax Freedom Act (“ITFA”) and Streamlined Sales Tax Project have been implemented to prevent new taxes on e-commerce transactions and to simplify sales and use taxes.

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International e-commerce laws pertain to online commercial transactions that takes place for the purchase or sale of goods and services.  Electronic contracts are used for the purchase or sale of software through shrink-wrap, click-wrap, and browse-wrap agreements. In general, these electronic transactions have a correlation to taxes, duties, and custom laws. In addition, the topic of intellectual property must be addressed to protect confidential information such as trademarks, copyrights, patents, and trade secrets.

There are six principles that apply to electronic agreements. First, the users should have automatic access to the agreement’s terms. Second, the contractual terms should comply with the applicable laws in relation to form, content, notice, and disclosure. Third, the users should be given the opportunity to take some form of affirmative action to consummate the transaction. Fourth, users should be given the opportunity to reject the agreement. Fifth, the agreement process should provide the user to detect and correct errors. Sixth, users should be able to print the agreement and software developers should provide a method to preserve the electronic records.

It is important for e-businesses to comply with the guidelines. For example, e-businesses should use fair advertising and marketing strategies for the online transactions. They should provide correct and accessible information about their company and its goods and services. They should fully disclose information regarding the transaction’s terms and conditions. They should provide a secure method for online payments. They should protect the customer’s privacy during the e-commerce transactions.

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