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Affirmative Defense Response System (A D R S) MINIMIZE MY RISK
[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],Today’s Topics
“ A rise in identity theft is presenting employers with a major headache:  They are being held liable for identity theft that occurs in the workplace.” Who Is Being Held Responsible? Douglas Hottle, Meyer, Unkovic & Scott,  “ Workplace Identity Theft: How to Curb an HR Headache” BLR: Business and Legal Reports , September 19, 2006
“ With the  workplace being the site of more than half  of all identity thefts, HR executives must  ‘stop thinking about data protection as solely an IT responsibility,’  says one expert.  Identity Theft Prevalent at Work ,[object Object],More education  on appropriate  handling  and  protection of information  is necessary, among other efforts.”
ID Theft is an international crime and   Access to an Attorney may be critical!   Five Common Types of Identity Theft 28% Identity Theft is not just about Credit Cards! Drivers License Identity Theft Medical Identity Theft Financial Identity Theft Social Security Identity Theft Character/Criminal  Identity Theft
Your Name 1000’s of aggregators FingerprintsDNA FBI, State, Local DBS Insurance Claims C.L.U.E. DBS, etc Military Record DOD DBS Criminal History NCIC DBS Real Estate Deeds Clerks of Court DBS Legal History State, Fed. Court DBS Credit History Credit Repositories’ DBS Birth Certificate Choice Pt. DBS, State, etc Phone Number & Tracking Info 1000’s of aggregators Social Security SSA DBS Address 1000’s of DBS Why I Am At Risk Driver’s License, Record  DMV DBS Medical Records MIB DBS, etc Car Registration & Info DMV, Local Treasurer, OnStar, etc The DataBased You tm
Correcting the victims’ records is so overwhelming it is imperative for businesses to protect the data. Where the Law Becomes Logical “ Once the credit systems accept bad data it can be next to impossible to clear.  ”   USAToday  June 5, 2007 “ Medical identity theft can impair your health and finances . . . and detecting this isn’t easy   .   .   . and remedying the damages can be difficult.” Wall Street Journal   October 11, 2007 TM
The Cost to Businesses ,[object Object],[object Object],[object Object],*CIO Magazine,  The Coming Pandemic , Michael Freidenberg, May 15 th , 2006 40% will consider ending the relationship,  and 5% will be hiring lawyers!”*
[object Object],[object Object],[object Object],[object Object],[object Object],Ask Myself This Question Answer: Liability, both civil and criminal
[object Object],[object Object],[object Object],[object Object],[object Object],Important Legislation Be Sure To Check With Your Attorney On  How This Law May Specifically Apply To You
[object Object],[object Object],[object Object],[object Object],[object Object],Be Sure To Check With Your Attorney On  How This Law May Specifically Apply To You Fair & Accurate Transaction Act  (FACTA) Applies to every business and individual who maintains, or otherwise possesses, consumer information for a business purpose  * and requires  businesses to develop and implement a written privacy and security program.
[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],Be Sure To Check With Your Attorney On  How This Law May Specifically Apply To You Red Flag Rules  (FACTA)   Red Flag Rules became effective in January 2008, compliance is required by November 2008. Under these rules,  covered accounts, creditors and businesses:
[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],Be Sure To Check With Your Attorney On  How This Law May Specifically Apply To You Red Flag Rules  (FACTA) Covered accounts, creditors & businesses must ensure their service providers & subcontractors comply & have reasonable policies & procedures in place  . . .   rules   state :
If an employer obtains, requests or utilizes consumer reports or investigative consumer reports for hiring purposes and/or background screening, then the employer is subject to  FCRA  requirements. www.ftc.gov/os/statutes/031224fcra.pdf Fair Credit Reporting Act  (FCRA) Be Sure To Check With Your Attorney On  How This Law May Specifically Apply To You
Gramm, Leach, Bliley Safeguard Rules Be Sure To Check With Your Attorney On  How This Law May Specifically Apply To You Eight Federal Agencies & any State can enforce this law Applies to Any Organization that Maintains Personal Financial Information Regarding It’s Clients or Customers ,[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object]
These laws apply to any organization including: Be Sure To Check With Your Attorney On  How This Law May Specifically Apply To You Privacy and Security Laws  ,[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],*The FTC categorizes an impressive list of businesses as “FI” and these so-called “non-bank” businesses comprise a huge array of firms that may be unaware they are subject to GLB.
Privacy and Security Laws Be Sure To Check With Your Attorney On  How This Law May Specifically Apply To You ,[object Object],[object Object],[object Object],[object Object],[object Object]
[object Object],Protecting Personal Information  A Guide For Business ,[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object],[object Object]
[object Object],Protecting Personal Information  A Guide For Business ,[object Object]
ABA Journal March 2006
Betsy Broder: “The FTC will act against companies that don’t protect customers’ data.” “ Stolen Lives” ABA Journal March 2006
“ Broder says she understands that most small businesses cannot . . . hire a full-time  . . . specialist, but . . . all businesses   must be able to show they have a  security plan  in place. ‘ We’re not looking for a perfect system . . . but we need to see that you’ve  taken reasonable steps  to protect your customers’ information.’” “ Stolen Lives” ABA Journal March 2006
Law Firms Are Looking for Victims
Law Firms Are Looking for Victims “ Instead of losing our identities one by one, we're seeing criminals grabbing them in massive chunks -- literally millions at a time.”
Law Firms Are Looking for Victims “ Do you suspect that a large corporation or your employer has released your private information (through an accident or otherwise)? If you are one of many thousands whose confidential information was compromised, you may have a viable class action case against that company.  Contact an attorney at the national plaintiffs' law firm of Lieff Cabraser to discuss your case. Lieff Cabraser defends Americans harmed by corporate wrongdoing.”

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Affirmative Defense Reponse System

  • 1. Affirmative Defense Response System (A D R S) MINIMIZE MY RISK
  • 2.
  • 3. “ A rise in identity theft is presenting employers with a major headache: They are being held liable for identity theft that occurs in the workplace.” Who Is Being Held Responsible? Douglas Hottle, Meyer, Unkovic & Scott, “ Workplace Identity Theft: How to Curb an HR Headache” BLR: Business and Legal Reports , September 19, 2006
  • 4.
  • 5. ID Theft is an international crime and Access to an Attorney may be critical! Five Common Types of Identity Theft 28% Identity Theft is not just about Credit Cards! Drivers License Identity Theft Medical Identity Theft Financial Identity Theft Social Security Identity Theft Character/Criminal Identity Theft
  • 6. Your Name 1000’s of aggregators FingerprintsDNA FBI, State, Local DBS Insurance Claims C.L.U.E. DBS, etc Military Record DOD DBS Criminal History NCIC DBS Real Estate Deeds Clerks of Court DBS Legal History State, Fed. Court DBS Credit History Credit Repositories’ DBS Birth Certificate Choice Pt. DBS, State, etc Phone Number & Tracking Info 1000’s of aggregators Social Security SSA DBS Address 1000’s of DBS Why I Am At Risk Driver’s License, Record DMV DBS Medical Records MIB DBS, etc Car Registration & Info DMV, Local Treasurer, OnStar, etc The DataBased You tm
  • 7. Correcting the victims’ records is so overwhelming it is imperative for businesses to protect the data. Where the Law Becomes Logical “ Once the credit systems accept bad data it can be next to impossible to clear. ” USAToday June 5, 2007 “ Medical identity theft can impair your health and finances . . . and detecting this isn’t easy . . . and remedying the damages can be difficult.” Wall Street Journal October 11, 2007 TM
  • 8.
  • 9.
  • 10.
  • 11.
  • 12.
  • 13.
  • 14. If an employer obtains, requests or utilizes consumer reports or investigative consumer reports for hiring purposes and/or background screening, then the employer is subject to FCRA requirements. www.ftc.gov/os/statutes/031224fcra.pdf Fair Credit Reporting Act (FCRA) Be Sure To Check With Your Attorney On How This Law May Specifically Apply To You
  • 15.
  • 16.
  • 17.
  • 18.
  • 19.
  • 21. Betsy Broder: “The FTC will act against companies that don’t protect customers’ data.” “ Stolen Lives” ABA Journal March 2006
  • 22. “ Broder says she understands that most small businesses cannot . . . hire a full-time . . . specialist, but . . . all businesses must be able to show they have a security plan in place. ‘ We’re not looking for a perfect system . . . but we need to see that you’ve taken reasonable steps to protect your customers’ information.’” “ Stolen Lives” ABA Journal March 2006
  • 23. Law Firms Are Looking for Victims
  • 24. Law Firms Are Looking for Victims “ Instead of losing our identities one by one, we're seeing criminals grabbing them in massive chunks -- literally millions at a time.”
  • 25. Law Firms Are Looking for Victims “ Do you suspect that a large corporation or your employer has released your private information (through an accident or otherwise)? If you are one of many thousands whose confidential information was compromised, you may have a viable class action case against that company. Contact an attorney at the national plaintiffs' law firm of Lieff Cabraser to discuss your case. Lieff Cabraser defends Americans harmed by corporate wrongdoing.”
  • 26.
  • 27.
  • 28.
  • 29.
  • 30. 3. Privacy and Security Letter To All Employees/Agents [Company Name ] RE: MANDATORY EMPLOYEE MEETING PRIVACY & SECURITY COMPLIANCE PROGRAM & IDENTITY THEFT TRAINING May 10, 2008On , in the Conference Room, [Company] will host a mandatory employee meeting and training session on identity theft and privacy compliance. Additionally, as an employee, you will be provided an opportunity to purchase an identity theft product. As you know, [Company] makes every effort to comply with all Federal Trade Commission guidelines to protect personal employee   Sincerely, [Name] [Company] Owner Mailed to All Employees, With a Copy in File . . .
  • 31. Identity Monitoring Services Life Events Legal Plan & Legal Shield Identity Restoration Services Me 4. May Reduce Company Losses In the event of a data breach, this may help mitigate potential losses for my company. PPL’s program may reduce my exposure to litigation, potential fines, fees and lawsuits. * Subject To Terms And Conditions PPL will train on privacy and security laws and offer my employees a payroll deduction benefit that includes:
  • 32.
  • 33. Identity Monitoring Services Life Events Legal Plan & Legal Shield Identity Restoration Services Me 4. May Reduce Company Losses This means employees who participate in this program may reduce my company’s exposures. The majority of the time restoring an employee’s identity is covered by the memberships and not done on company time &/or company expense. Also, use of PPL’s Life Events Legal Plan provides help* that addresses related issues. * Subject To Terms And Conditions
  • 34. If a number of my employees are notified of improper usage of their identities, this may act as an early warning system to my company of a possible internal breach which could further reduce my losses. 5. Potential Early Warning System
  • 35. BLR says this “Provides an Affirmative Defense for the company.” 6. May Provide an Affirmative Defense “ One solution that provides an affirmative defense against potential fines, fees, and lawsuits is to offer some sort of identity theft protection as an employee benefit. Business and Legal Reports January 19, 2006 An employer can choose whether or not to pay for this benefit. The key is to make the protection available, and have a employee meeting on identity theft and the protection you are making available, similar to what most employers do for health insurance . . . Greg Roderick, CEO of Frontier Management, says that his employees "feel like the company's valuing them more, and it's very personal."
  • 36.
  • 37.
  • 38. 8. Mitigating Damages Use of Confidential Information by Employee I, ___________________, as an Employee or Independent Contractor of _________________ , in the City of , State of , do hereby acknowledge that I must comply with a number of State and Federal Laws which regulate the handling of, HIPAA, The Economic Espionage Act, The Privacy Act, Gramm/Leach/ Bliley, ID Theft Laws (where applicable), Trade Secrets Protections, and Implied Contract Breach.  . _______________ ____________________ Employee Name Employee Signature ______________ ________________ Witness Name Witness Signature ________________Date This form or one similar to it is required by the FTC for all employees* Be Sure To Check With Your Attorney Before Using A Form Such As This
  • 39.
  • 40. Advisory Council was established to provide quality counsel and advice. Legal Advisory Council Duke R. Ligon Advisory Council Member Former Senior V.P. & General Counsel Devon Energy Corp Grant Woods Advisory Council Member Former Arizona Attorney General Andrew P. Miller Advisory Council Member Former Virginia Attorney General Mike Moore Advisory Council Member Former Mississippi Attorney General
  • 41.