Jeffrey Alberts

Join us in our Boston office on October 30 for an in-depth program focused on modern cybersecurity, covering the current cyber threat landscape, advanced risk management techniques, AI-related risks, and more. Learn more and RSVP below. #Cybersecurity #ArtificalIntelligence

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Join us in our Boston office on October 30 for an in-depth program focused on modern cybersecurity, covering the current cyber threat landscape, advanced risk management techniques, AI-related risks, and more. Learn more and RSVP below. #Cybersecurity #ArtificalIntelligence

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The recent #CFPB report on state consumer #privacy laws and consumer financial data is an important read for anyone interested in the development of state privacy laws. From my perspective, post-election, the report offers a straightforward argument to state policymakers in their ongoing development of privacy legislation: stop exempting financial institutions. As the CFPB explains, existing federal laws protecting consumer financial data (the GLBA and FCRA) do not fully prevent the sharing of such data with third parties (among other things). State laws are becoming better equipped at offering robust protections to consumers; but by exempting GLBA and FCRA covered entities, consumers providing data to financial institutions will not reap the same benefits. As the CFPB explains, state privacy laws are generally not inconsistent with existing federal consumer financial data protection laws. What the CFPB doesn't say is that federal law in the privacy space is now unlikely to change in the foreseeable future, so it's up to states to extend protections to consumer financial data . Expect movement in this space on the state level, with this CFPB report existing as an important exhibit during that process. https://lnkd.in/e6XnvWwu

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Remember that aggressive "game changer" privacy bill that passed the Vermont legislature last month? You know, the one with a private right of action and restrictions for age appropriate design coding? The one that other states may start looking to in an attempt to form more aggressive consumer protection privacy laws? It was VETOED. Last Thursday, Governor Phil Scott vetoed the would-be Vermont Data Privacy Act, citing concerns that it was anti-business (for the private right of action) and could implicate First Amendment concerns (currently being litigated with California's age appropriate coding provisions). Instead, Gov. Scott recommended that Vermont adopt a bill similar to Connecticut's privacy law in an effort to achieve "regional harmony." Check out my latest blog article recapping the veto and how businesses should adjust their privacy practices. https://lnkd.in/gkxwntiK

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The proposed draft amendments to the Colorado Privacy Act rules, released last week, are intended to keep pace with various amendments to the CPA, including its #biometrics identifiers provisions. https://lnkd.in/eG4fPAXK Regardless of whether all of the draft rules updates survive the final rulemaking process unscathed, the biometric-specific statutory amendments to the CPA take effect on July 1, 2025. So, for those businesses subject to the CPA, the length of time a biometric identifier will be retained will soon be a specific notice requirement (like in #BIPA) - something to keep in mind when updating #datagovernance and corporate document retention policies and schedules for next year. #sensitivedata

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New insights on software patenting. We break down the Federal Circuit’s decision in Beteiro, LLC v. DraftKings, Inc. and the importance of patent descriptions under Alice Step 2. https://hubs.la/Q02PpPVP0 #SoftwarePatents #AliceTest #IPStrategy #PatentLaw #TechInnovation

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I was happy to talk with Bloomberg Law about the recent MA hashtag #wiretap decision. You can read the article here (note the paywall):

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The SEC had a record year with $8.2 billion in financial remedies. Over half of that figure derives from enforcement actions in the digital assets sector, including a $4.5 billion settlement with Terraform Labs after the collapse of the Terra ecosystem. With Chairman Gensler and Commissioner Lizárraga both departing the SEC, it will be interesting to see how the agency's enforcement priorities shift (i.e., will the SEC move away from its present regulation-by-enforcement posture with respect to digital assets?) with new leadership under the Trump administration. https://lnkd.in/gHnrQrNW

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Finally a shred of sanity from SCOTUS (except J. Alito and J. Gorsuch) about the Consumer Financial Protection Bureau. Yes: Congress' appropriation of the Bureau's budget through the Federal Reserve comports with the language and the historical implementation of the Appropriations Clause. My favorite part of the opinion summary: "The First Congress’ practice confirms this understanding, as appropriations that supplied funding to the Customs Service and the Post Office were not time limited. The associations resist the analogy to the Post Office and other fee-based agencies, arguing that such agencies do not enjoy the same level of fiscal independence as the Bureau. But, the associations fail to explain the relevance of that difference to the question whether a law complies with the constitutional imperative of an appropriation." And that is the history of the ongoing gaslighting of the CFPB: "No other agency is as unaccountable as the CFPB!" Whenever it's pointed out that many other agencies have a similar governance structure or similar funding mechanism as the CFPB, it's ignored. The most original such contrived argument was that of the Fifth Circuit, who claimed that the problem was that the CFPB's budget is "double-insulated" from Congress. The only precedent I found for such a concept was from the precedential film Animal House with J. (Dean) Wormer: Greg: What do you intend to do sir? Delta's already on probation. Dean Wormer: They are? Greg: Yes, sir. Dean Wormer: Oh. Then as of this moment, they're on double secret probation! Greg: Double secret probation, sir? Dean Wormer: There is a little-known codicil in the Faber College constitution which gives the dean unlimited power to preserve order in time of campus emergency. Find me a way to revoke Delta's charter. You live next door. Put Neidermeyer on it. He's a sneaky little shit, just like you, right? [Greg nods] The time has come for someone to put their foot down. And that foot is me.

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I find Michael Hsu, Acting Comptroller of the Currency, to be one of the most interesting financial regulators to listen to. (Shout out to Hsu's 2022 "Don't Chase" speech on FOMO in the Fintech world. https://lnkd.in/eKxH8nRR). Hsu testified today on the Hill, https://lnkd.in/eeYuzC47, and his remarks contained a few nuggets: ▪ You can see the effect of the CFPB's influence in comments on addressing fairness and discrimination, overdraft and insufficient funds fees, and financial inclusion. ▪ Regulators are like a dog with a bone on third party management issues in bank-fintech relationships. ▪ There has been a "notable increase in the number of generative AI pilots" at larger banks. Talk about FOMO . . . ▪ Hsu is not above a gratuitous dig at the crypto industry. In referencing tokenization initiatives, he said: "In contrast to crypto, tokenization is driven by solving real-world settlement problems and can be developed in a safe, sound, fair, and compliant manner." Ouch. 💥 #fintech #bankfintechpartnerships #regulatorycompliance

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Earlier today, the California Privacy Protection Agency Board voted to advance the new draft CCPA regulations to formal rulemaking. We thought it might be helpful to provide a series of short high-level summary webinars on the new rulemaking topics, starting with automated decisionmaking technology (ADMT). If you missed the Board meeting, the draft ADMT rules were a source of many comments and concerns, including their impact on artificial intelligence. There can be no doubt that the ADMT regulations will generate many proposed revisions. https://lnkd.in/guW-BJPc

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#NJAG defends #DanielsLaw, the #privacylaw intended to protect the privacy of judicial and law enforcement families’ privacy. Over a hundred companies were sued by newly spun up company Atlas Data Privacy Corp. The companies sued are challenging the law on First Amendment grounds. The law on its face requires that once you receive a request from a covered person, you need to stop making unpublished phone or address available. Atlas would drop thousands of requests over a weekend to jam companies up, then sue. The law doesn’t require that the covered person prove that they’re covered or other process based requirements. So Atlas creatively marketed this law, solicited claimants, and now is looking for a big pay day. Companies are evaluating #privacyrisks and exposure, resources needed to address compliance, software needed, etc but the focus is often on the straightforward comprehensive privacy laws / FTC considerations. That’s important. But privacy is in vogue for legal theories of all types. It’s foreseeable (likely) that we will continue to see evolving theories of privacy rooted private rights of action whether under wiretap, Daniel’s law, or the next new thing. We’re fighting about whether federal privacy legislation has a private right of action and preemption but PRAs are being filed now without clear case law dismissing them, and none of the preemption drafts are looking to do away with these types of lawsuits. It would be a breath of fresh air to get past the stale talking points over privacy legislation, then have breathless will it/wont it, inevitably running back to our corners and nothing happens —- and instead be realistic, look at the current landscape with critical eyes on what’s changed and just GSD. Kelley Drye Advertising Law https://lnkd.in/ecmejzy7

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A federal judge granted Madison Square Garden Entertainment Corp.'s (MSGE) motion to dismiss in a case where the plaintiff accused MSG of using biometric data and facial recognition software to identify and remove attorneys in their arenas/facilities who had sued them, in violation of several New York data privacy statutes. Judge Lewis Kaplan of the Southern District of New York wrote that the "profit" plaintiffs allege from using biometric data to ban adverse attorneys from events and discourage them from filing cases was too attenuated from the plain text and reading of the statute, which says it is "unlawful to sell, lease, trade, share in exchange for anything of value or otherwise profit from the transaction of biometric identifier information." In the short opinion (attached), he closes by saying "As objectionable as defendant's use of biometric data may be, it does not--at least on the facts alleged--violate Section 12-1202(b)." So to my attorney friends prepping that lawsuit against MSG, maybe wait until after the playoffs before filing? That or find one of those Mission Impossible masks to wear to the game. #sportslaw #dataprivacy #biometric #facialrecognition

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Please register soon to join the derivatives industry for our region’s annual legal forum. Many industry leaders will be speaking on relevant topics including a panel that I am excited to be moderating on Generative AI in derivatives with some of the industry’s experts. #ISDAALF #generativeAI #derivatives #legaltech #AI #cybersecurity

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Avoid the dark side, you must. As noted in Luis’s summary, according to the CPPA Deputy Director Macko, “[d]ark patterns aren’t about intent, they’re about effect.” This follows on increased scrutiny of dark patterns by the FTC and other authorities. #ccpa #privacylaw

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Nancy Libin, John Sevier, and Jevan Hutson review #Minnesota's new #dataprivacy law in NYU Program on Corporate Compliance and Enforcement's blog: https://lnkd.in/ei_rHhE9 #consumerprivacy #privacyrights Jennifer Arlen, Joseph Facciponti, Carolyn R Pautz, PhD, Judy Jiang

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VT comprehensive privacy bill down for the count? Hear more from Kyle G. Kessler (she/her), Christine Xiao and William Carter #privacylaw

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USPTO Maintenance fees - with the change of leadership happening at the USPTO, could it be time to give Patentees an option to pay Maintenance fees annually? ... I see a couple of advantages to offering this option: 1. Prevents overpaying for unnecessary protection 2. Easier to keep track of remembering to pay 3. Protects patentees cash flows. What do you think? #USPTO

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