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Cleary Discusses Cybersecurity and Data Privacy Developments: A Look Back on 2017 and Ahead to 2018

Over the last year, the existential risk posed by cyberattacks and data security vulnerabilities has become one of the top concerns for boards of directors, management, government agencies, and the public. 2017 was punctuated by a series of headline-grabbing breaches affecting scores of companies and hundreds of millions of individuals. At the same time, there were fast-moving changes in the regulatory landscape as regulators across the globe tried to respond to the systemic threats and protect their constituents, while not imposing crippling costs on businesses. Of particular note, the New York Department of Financial Services (“DFS”) cybersecurity regulations went into effect in 2017 and many companies spent significant resources preparing for the implementation of the European Union’s General Data Protection Regulation (“GDPR”), which goes into effect in May 2018. There were also other important legal developments, including record-breaking civil and regulatory settlements by companies that had suffered major breaches, while U.S. courts have been grappling with unique standing and privilege issues raised in the context of cyber-related litigation.

This memo surveys some of the key cybersecurity and data privacy developments of 2017, including the major data breaches and cyberattacks, regulatory and legislative actions, and notable settlements and court decisions, with an eye towards what may be in store in 2018.

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Major Cyberattacks and Big Settlements in 2017: The New Norm?

2017 will likely be remembered as the year that the worst-case cyberattacks, which experts have been warning about for several years, came closer to reality than ever before. These mega-attacks drove the conversation among cybersecurity experts and were looming in the background of actions taken by the private sector, regulators, and courts. Some of the year’s more notable incidents included:

Other major breach announcements in 2017 included Verizon, Yahoo!, K-Mart, and Whole Foods, among others. If one can make any safe predictions for 2018, it is that this trend of serial breaches will unfortunately continue and even potentially accelerate.

In addition to the data breaches that took place last year, earlier data breaches continued to make waves in 2017, as companies reached substantial settlements with private litigants and government authorities:

While these settlements were significantly larger than those in prior years, the litigation growing out of the massive breaches that took place in 2017 is likely to eclipse these settlements both in terms of dollar value and the additional data security requirements imposed on the companies that were breached.

U.S. Regulators Make Their Mark

2017 was also the year that the first comprehensive cybersecurity regulations made their debut.

The DFS cybersecurity regulations went into effect on March 1, 2017. Among other things, the regulations require institutions regulated by DFS to maintain a cybersecurity program, design an incident response plan, appoint a Chief Information Security Officer, conduct risk and vulnerability assessments, employ appropriate encryption, and certify compliance on an annual basis. Compliance with several of the requirements was mandated by August 2017 and there are additional upcoming transition deadlines for several other requirements in March 2018, September 2018, and March 2019.[8] In addition to being mandatory for covered entities, the DFS regulations have quickly become a reference point for other regulators and private entities in determining best practices in managing cybersecurity risk.

Other U.S. and state regulators were also active on the cybersecurity front in 2017:

Developments Outside of the U.S.: The GDPR and Other New Cybersecurity Regulations

Companies within and outside of the EU spent 2017 preparing for the new data security and privacy rules under the GDPR, which becomes effective on May 25, 2018. As we have previously discussed,[19] the GDPR imposes strict and far-reaching data protection and breach notification obligations, and grants broad enforcement powers to supervisory authorities. Regulated entities—which include those that operate both within and outside of the EU to the extent they process EU citizen data—are subject to potentially staggering fines, up to 4% of global revenue.

Throughout 2017, the Article 29 Working Party (an advisory group consisting of representatives from EU national data protection authorities together with the European Commission) published waves of guidance for implementing the GDPR, including on risk assessments, administrative fines, the use of profiling and automated decision-making, and data breach notifications.[20] In addition, the European Commission issued guidance in September for implementation of the Network and Information Security Directive (“NISD”),[21] which will operate in parallel with the GDPR to govern certain “operators of essential services” and “digital service providers,” and requires compliance by May 9, 2018.[22]

Outside of the EU, countries across the globe also ramped up their cybersecurity regulations in the face of ongoing challenges, many of which set deadlines for compliance and implementation in 2018. Some notable examples include the following:

These are just some examples of the global explosion of cybersecurity and data privacy laws and regulations. This trend will no doubt continue in 2018 and companies will increasingly find themselves navigating overlapping—and, at times, potentially conflicting—data security, breach notification, and privacy obligations in multiple jurisdictions.

Court Decisions

Courts also shaped the cybersecurity legal landscape in 2017, setting important parameters for future actions by private litigants, as well as government agencies.

Looking Ahead to 2018

Looking ahead, we expect to see the key developments of 2017, from increasing cyberattacks to the growing regulatory response, to continue in the coming year. The unprecedented reach of the recent cyberattacks has sparked a renewed focus on addressing cyber threats prophylactically, through issuance of voluntary guidelines and mandatory regulations, while at the same time recognizing, as the SEC recently noted, that “even the most diligent cybersecurity efforts will not address all cyber risks that enterprises face.”[46] Thus, 2018 will likely continue to see a dual emphasis on preemptive and remedial measures, as well as disclosure requirements. In particular, the SEC is poised to issue new guidelines for the first time since 2011, and the Cyber Unit is primed to bring additional enforcement actions, including, potentially, the SEC’s long-anticipated first cybersecurity disclosure case.

In addition, there appears to be a strong impetus for further legislative action at both the U.S. state and federal level in 2018, with several proposals in the queue. Countries abroad will similarly continue to face ongoing data protection challenges as they introduce and implement cybersecurity measures, which will likely impact companies in the U.S. as well.

Moreover, the settlements reached with private litigants and regulators, in tandem with the regulations and guidance promulgated by government authorities, continue to build on the emerging set of standards for best practices in the cybersecurity context. It further remains to be seen whether any cybersecurity litigation will reach the merits stages, which may, in turn, provide further guidance on preventive and remedial measures.

From a data privacy perspective, the critical issue is how companies respond to the implementation of the GDPR, and how the EU ultimately enforces it. The first enforcement actions, and the accompanying penalties, will clearly set the tone.

Finally, several pending and potentially blockbuster court decisions will have significant implications for the standing to pursue cybersecurity actions, the scope of the government’s enforcement authority, and the privacy rights of individuals.

In sum, while 2017 was a year in cybersecurity like never before, 2018 promises to bring even more dramatic developments that could surpass last year’s high bar.[47]


[1] For Cleary Gottlieb’s previous blog post discussing agencies that initiated probes into the Equifax breach in the immediate wake of its announcement, see

[2] For Cleary Gottlieb’s previous blog post discussing the EDGAR breach, see

[3] For Cleary Gottlieb’s previous blog post discussing the regulatory responses to the Uber breach in the U.S. and EU, see

[4] In re Anthem, Inc. Data Breach Litig., No. 5:15-md-02617-LHK (N.D. Cal. filed June 12, 2015).

[5] In re The Home Depot, Inc., Customer Data Sec. Breach Litig., No. 1:14-md-02583-TWT (N.D. Ga. Sept. 22, 2017).

[6] For Cleary Gottlieb’s Alert Memorandum discussing the Target settlement, see

[7] In re Ashley Madison Customer Data Sec. Breach Litig., No. 4:15-md-02669-JAR (E.D. Mo. filed Dec. 9, 2015).

[8] For Cleary Gottlieb’s Alert Memorandum discussing the DFS regulations and transition periods, see

[9] For Cleary Gottlieb’s previous blog post discussing the charges, see

[10] Ezequiel Minaya, SEC Says Companies Can Expect New Guidelines on Reporting Cybersecurity Breaches, Wall St. J. (Nov. 9, 2017, 5:40 PM),

[11] For Cleary Gottlieb’s previous blog post discussing the Active Cyber Defense Certainty Act, see

[12] H.R. 3975, 115th Cong. (2017).

[13] For Cleary Gottlieb’s previous blog post discussing the Data Security and Breach Notification Act, see

[14] H.R. 4163, 115th Cong. (2017); S. 2020, 115th Cong. (2017).

[15] National Conference of State Legislatures, 2017 Security Breach Legislation (Oct. 16, 2017),

[16] For Cleary Gottlieb’s previous blog post discussing the Delaware legislation, see

[17] For Cleary Gottlieb’s previous blog post discussing the SHIELD Act, see

[18] For Cleary Gottlieb’s previous blog post discussing Governor Cuomo’s proposal, see

[19] For Cleary Gottlieb’s previous Alert Memoranda discussing the GDPR, see and–the-new-regime-under-the-gdpr-and-nisd-5-5-17.pdf.

[20] For Cleary Gottlieb’s previous blog posts discussing the Working Party’s guidance to the GDPR, see and

[21] Eur. Comm’n Corrigendum, Making the most of NIS – towards the effective implementation of Directive (EU) 2016/1148 concerning measures for a high common level of security of network and information systems across the Union (Oct. 4, 2017),

[22] For Cleary Gottlieb’s Alert Memorandum discussing the GDPR and NISD, see–the-new-regime-under-the-gdpr-and-nisd-5-5-17.pdf.

[23] PRC Cybersecurity Law (promulgated by the Standing Comm. Nat’l People’s Cong., Nov. 7, 2016, effective June 1, 2017) China L. & Prac., Jan. 19, 2017.

[24] For Cleary Gottlieb’s Alert Memorandum discussing the CCL and CAC’s regulations, see

[25] Federal Law No. 276-FZ of July 29, 2017, “On Amendments to the Federal Law on Information, Information Technologies, and Information Protection.”

[26] Federal Law No. 241-FZ of July 29, 2017, “On Amendments to Articles 10(1) and 15(4) of the Federal Law on Information, Information Technology and Information Protection.”

[27] Federal Law No. 187-FZ of July 26, 2017, “On Security of Critical Information Infrastructure of the Russian Federation.”

[28] H.K. Sec. and Futures Comm’n Circular, Guidelines for Reducing and Mitigating Hacking Risks Associated with Internet Trading (Oct. 27, 2017),

[29] H.K. Monetary Auth. Circular, Security Controls for Internet Trading Services (Oct. 27, 2017),

[30] For Cleary Gottlieb’s Alert Memorandum discussing the SFC and HKMA’s guidelines, see

[31] Dirección Nacional de Protección de Datos Personales, Anteproyecto de la Ley de Protección de los Datos Personales (“Draft Law on the Protection of Personal Data”) (May 17, 2017),

[32] Ley General de Protección de Datos Personales en Posesión de Sujetos Obligados (“General Law on the Protection of Personal Data Held by Obligated Parties”), Diario Oficial de la Federación [DOF] 26-01-2017.

[33] Camara de Diputados de Chile, Boletín No. 11144-07, Regula la protección y el tratamiento de los datos personales y crea la Agencia de Protección de Datos Personales (“Regulates the Protection and Treatment of Personal Data and Creates the Data Protection Agency”) (March 15, 2017),

[34] In re Premera Blue Cross Customer Data Sec. Breach Litig., No. 3:15-md-2633-SI, 2017 WL 4857596 (D. Or. Oct. 27, 2017).

[35] In re Experian Data Breach Litig., No. 8:15-cv-01592, 2017 WL 4325583 (C.D. Cal. May 18, 2017).

[36] 136 S. Ct. 1540 (2016), as revised (May 24, 2016).

[37] For Cleary Gottlieb’s Alert Memorandum discussing the D.C. Circuit’s ruling and the circuit split, see

[38] See In re SuperValu, Inc., Customer Data Sec. Breach Litig., 870 F.3d 763 (8th Cir. 2017); Whalen v. Michaels Stores, Inc., 689 F. App’x 89 (2d Cir. 2017); Beck v. McDonald, 848 F.3d 262 (4th Cir. 2017), cert. denied sub nom. Beck v. Shulkin, 137 S. Ct. 2307 (2017). For Cleary Gottlieb’s Alert Memorandum discussing additional cases contributing to the circuit split, see

[39] See Santana v. Take-Two Interactive Software, Inc., No. 17-303, 2017 WL 5592589 (2d Cir. Nov. 21, 2017); Katz v. Donna Karan Co., 872 F.3d 114 (2d Cir. 2017); Crupar-Weinmann v. Paris Baguette Am., Inc., 861 F.3d 76 (2d Cir. 2017). For Cleary Gottlieb’s previous blog post discussing the Second Circuit’s rulings, see

[40] Robins v. Spokeo, Inc., 867 F.3d 1108 (9th Cir. 2017).

[41] LabMD, Inc. v. Fed. Trade Comm’n, No. 16-16270 (11th Cir. argued June 21, 2017).

[42] Fed. Trade Comm’n v. Wyndham Worldwide Corp., 799 F.3d 236 (3d Cir. 2015).

[43] United States v. Microsoft Corp., No. 17-2 (U.S. filed June 23, 2017).

[44] Carpenter v. United States, No. 16-402 (U.S. argued Nov. 29, 2017).

[45] For Cleary Gottlieb’s blog post on the decision, see

[46] Chairman Jay Clayton, SEC, Statement on Cybersecurity (Sept. 20, 2017),

[47] This Alert Memorandum was prepared with the assistance of Alanna B. Newman and Guilherme Duraes.

This post comes to us from Cleary, Gottlieb, Steen & Hamilton LLP. It is based on the firm’s memorandum, “Cybersecurity and Data Privacy Developments: A Look Back on 2017, and Ahead to 2018,” dated January 18, 2018, and available here.

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