It
sounds trivial, but ask yourself what other laws, rules, regulations
or procedures they don't bother following.
Kevin
Cirilli reports:
An internal government report obtained by The Hill says the
Securities and Exchange Commission has failed to properly guard
sensitive nonpublic information. [READ
INSPECTOR GENERAL REPORT.]
The report from the SEC’s Inspector General says the agency failed
to clear the room during non-public executive session votes of the
five-member board.
It also found that officials didn’t keep complete attendance
records during at least one high-profile meeting involving a J.P.
Morgan settlement worth $200 million.
The 16-page Office of the Inspector General (OIG) report didn’t
blame an individual for leaking information, but it raised questions
about how the agency conducts routine business.
Read
more on The
Hill.
(Related)
Preparing
For Your First Board Meeting? Security Now #1 Topic
Corporate
Board Member and FTI Consulting recently conducted a study
involving more than 500 directors and general counsel. Among the
many interesting findings was a significant rise in concerns related
to IT and cyber risk.
When
asked, “What keeps you up at night?” directors
placed data security at the top of their list. Corporate
reputation and crisis preparedness were tied for fifth. General
counsel had data security at number two behind regulatory compliance,
followed by corporate reputation and crisis preparedness as number
three and four respectively.
The
pendulum of the law swings again.
Orin
Kerr writes:
Back in March, I had a long post titled “A
remarkable new opinion on search warrants for online accounts — and
why I think it’s wrong.” My post addressed an opinion by
Magistrate Judge John Facciola that had rejected the common practice
of executing e-mail warrants in two steps. Under the two-step
process, the provider gives the government the entire contents of the
account. Next, investigators search through the account for the
specific evidence sought by the warrant. Facciola ruled that this
procedure was “repugnant to the Fourth Amendment.” According to
Facciola, the better approach — and perhaps the constitutionally
mandated approach — is to have the service provider execute the
warrant for the government and then send on the responsive files to
investigators.
On Friday, Chief Judge Roberts reversed
Magistrate Judge Facciola.
Read
more on WaPo The
Volokh Conspiracy.
How
it should be done?
Failing
Expectations: Fourth Amendment Doctrine in the Era of Total
Surveillance
by
Sabrina I.
Pacifici on Aug 10, 2014
Sylvain,
Olivier, Failing Expectations: Fourth Amendment Doctrine in the Era
of Total Surveillance (July 28, 2014). 49 Wake Forest Law Review 485.
Available for download at SSRN: http://ssrn.com/abstract=2473101
“Today’s
reasonable expectation test and the third-party doctrine have little
to nothing to offer by way of privacy protection if users today are
at least conflicted about whether transactional noncontent data
should be shared with third parties, including law enforcement
officials. This uncertainty about how to define public expectation
as a descriptive matter has compelled courts to defer to legislatures
to find out what public expectation ought to be more as a matter of
prudence than doctrine. Courts and others presume that legislatures
are far better than courts at defining public expectations about
emergent technologies. This
Essay argues that the reasonable expectation standard is particularly
flawed if it has the effect of encouraging judges to seek guidance
from legislatures on constitutional norms and principles.
Judicial review is the vital antimajoritarian check against excessive
government intrusions on individual liberty under our constitutional
scheme. This is a responsibility that courts cannot pass off to the
political branches when, as is the case today, most people expect
that the cost of network connection is total surveillance. It is
beyond irony that, today, courts consult public expectation to
determine private entitlements. This Essays argues that
court-administered privacy law doctrine must change if the protection
against “unreasonable searches and seizures” is to have any
positive legal meaning. The current court-created doctrine will not
be able to keep up if it compels judges to measure public
expectation. It is time for courts to reassert their positive duty
to say what privacy law is.”
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