On January 18, 2011, Vermont Attorney General William Sorrell announced a settlement with HealthNet, Inc. and Health Net of the Northeast, Inc. over allegations that the company violated the state’s data breach notification law when the company waited over six months to notify state residents of the loss of a portable hard drive that contained their unencrypted personal information. The Attorney General’s settlement is an important reminder that the unpleasantness of a security breach is only compounded by a poor response. If you have not already done so, the time for establishing a comprehensive breach response plan is now!
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On January 19, 2011, the U.S. Supreme Court held that the federal government has broad latitude to conduct background checks on contractors who work at government facilities. Assuming, without deciding, that two parts of a standard government employment background investigation implicated a constitutional privacy interest, the Court held that the government is permitted to ask reasonable employment-related questions that further the government’s interests in managing its internal operations, particularly where the results of such investigations are adequately protected from public disclosure.
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On Monday, the California Supreme Court ruled that the Fourth Amendment to the United States Constitution did not prohibit a deputy sheriff from conducting a warrantless, post-arrest search of the text messages of an arrestee. Specifically, the Court affirmed the decision of the Court of Appeal that the cell phone was “immediately associated with [defendant’s] person at the time of his arrest” and was therefore “properly subjected to a delayed warrantless search.” 

In People v. Diaz, filed on January 3, the Court considered whether the trial court properly denied Diaz’s motion to suppress evidence gathered during a search of his cell phone, which occurred approximately 90 minutes after he was arrested for being a coconspirator in the sale of drugs. Diaz denied knowledge of the sales. A deputy sheriff accessed Diaz’s cell phone, which had been seized from Diaz’s person, and found a coded text message that, based on the deputy’s training and experience, indicated Diaz knew of the transaction.

The California Supreme Court’s ruling hinged on its finding that the cell phone “was an item [of personal property] on [defendant’s] person at the time of his arrest and during the administrative processing at the police station.” People v. Diaz, S1666000, slip op. Majority Op. at 8 (Cal. Jan. 1, 2011). As such, the case was controlled by the United States Supreme Court’s holdings in United States v. Edwards, 415 U.S. 800, 802-803 (1974) and United States v. Robinson, 414 U.S. 218, 224 (1973), in which the High Court affirmed seizures of paint chips from clothing and a cigarette package containing heroin from a coat pocket (respectively).

By a decision dated October 14, 2010, and published on December 8, 2010, the French Data Protection Agency (known under the acronym CNIL) revised the deliberation that it issued on December 8, 2005.
At that time, the CNIL had issued a deliberation to reach a compromise between the United States’ Sarbanes-Oxley (“SOX”) requirements and French law. According to Article 1 of that deliberation, companies were authorized to adopt whistleblowing systems implemented in response to French legislative mandates, regulatory internal control requirements (e.g. regulations governing banking institutions), or the whistleblowing requirements of the SOX Act. According to Article 3 of the 2005 deliberation, alleged wrongdoings not encompassed within these core areas may be covered by the whistleblowing system only if vital interests of the company or the physical or psychological integrity of its employees were threatened.
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