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Kirk Nahra Quoted in Coverage of Top Privacy and Cybersecurity Developments of 2018

Law360
July 25, 2018

Kirk J. Nahra, chair of Wiley Rein’s Privacy & Cybersecurity Practice, was quoted by Law360 in a July 23 article regarding notable developments on the privacy and cybersecurity front during the first half of 2018.

One of the three cases noted in the article – the first of a two-part series – concerned the widely watched LabMD, Inc. v. FTC  case, decided by the U.S. Court of Appeals for the Eleventh Circuit in June. The Eleventh Circuit dismissed a Federal Trade Commission (FTC) order directing LabMD to overhaul its data security program, finding that that agency hadn’t spelled out specific measures on how the changes should be implemented, according to the article.

Law360 noted that in its ruling, the three-judge panel avoided the broader question of whether the FTC had the authority to bring such data security enforcement actions at all; the judges pointed out they had decided to “assume arguendo” that the Commission was correct in asserting that a failure to institute reasonable data security practices constituted an “unfair practice” that the agency  could pursue under Section 5 of the FTC Act.

“The LabMD decision is one of the crucial decisions defining how the FTC will play its ongoing role in privacy and security enforcement,” said Mr. Nahra. “We can expect that potential defendants will become more aggressive in challenging the FTC up front, and that the FTC in response may direct its challenges in a more focused manner where specific identifiable problems can be enumerated. I also expect that the court’s somewhat illogical decision – where it finds sufficient clarity in the law to bring a case but not to resolve one – will lead to more aggressive challenges from companies.”

The article can be found here (subscription required).