A Note About TrustedID Premier (Equifax ID Monitoring Service) Terms of Use

Some people are concerned that by enrolling in the TrustedID Premier credit monitoring service offered by Equifax following the Big Breach, they will be waiving their right to recover from Equifax in the event of a class action.  I thought I'd share my thoughts on that issue.






(By way of background, as described in my earlier post, when Equifax announced yesterday that the personal information of 143 million Americans was potentially exposed in a massive data security breach, it began offering individuals the option to enroll, free of charge, in TrustedID Premier, a credit monitoring and ID theft response service.)








The TrustedID Premier terms do include an arbitration provision that purports to (and likely does) waive a consumer's right to sue or participate in a class action.

The terms relate to "TrustedID, Inc." and its "Products," however, and not to Equifax and the Big Breach.  Furthermore, the waiver is not prominently disclosed to consumers when they enroll through the Equifax breach response website (www.equifaxsecurity2017.com).



In sum, I just don't think that consumers should be concerned about being unable to participate in a class action lawsuit against Equifax if they enroll in the TrustedID Premier service. 







On the other hand, if TrustedID Premier is breached or otherwise botches the remediation services, consumers will be precluded from bringing a class action against TrustedID, Inc.






[Update: Equifax has revised its FAQ to specifically address this issue.  The explanation is consistent with my early analysis.]

The Morning After: What You Can Do To Protect Yourself After The Equifax Breach

You've probably heard that Equifax revealed yesterday that it was the subject of a data security breach that resulted in the exposure of 143 million Americans--almost half the population.  It is likely the largest data security breach in U.S. history.   The information exposed included names, social security numbers, addresses, credit card numbers, drivers license numbers, and sensitive documents.  In other words, this is very, very bad news.

If you're an American (or live in the U.S.), this is a step-by-step guide for protecting your own identity:

1.  First, take advantage of the opportunity to ask Equifax whether your information was exposed. 

Equifax has set up a website for consumers to inquire whether their personal information was among the exposed data.  Go to www.equifaxsecurity2017.com and enter your last name and the final six digits of your social security number. 

Next, click on "Potential Impact" at the bottom left side of the screen.  A new page will open. 

Click on "Check Potential Impact" at the bottom left side of this page as well.

Enter the information where prompted.

If you're lucky (like me), you'll see the following screen:

If your information was potentially exposed, you'll be notified of that instead.  (Please accept my condolences!)

2.  Enroll in free credit monitoring.

When you complete the step described above, Equifax offers to enroll you in a credit monitoring and identity theft protection program called TrustedID Premier.  You can enroll with a single click.

Equifax says that TrustedID Premier includes credit monitoring of Equifax, Experian and TransUnion credit reports; copies of Equifax credit reports; the ability to lock and unlock Equifax credit reports; a type of identity theft insurance; and Internet scanning for Social Security numbers – free for one year.

If you have additional questions, you can call Equifax at 866-447-7559 between 7:00 a.m. and 1:00 a.m. Eastern time.



(Note that if you sign up for the TrustedID Premier service, you will be bound by a mandatory arbitration provision and will be unable to joiny any class action lawsuit against TrustedID, Inc., but you will not be excluded if there is a class action lawsuit against Equifax.  If you are concerned about the ability to join a class action against Equifax, you can send an opt-out notice to Equifax within 30 days.

3. Check for ID Theft.

Because the Equifax breach occurred beginning in May, your identity may already have been assumed by a nefarious character.  You should check you credit report immediately for unfamiliar credit accounts.  Although Equifax will give you a free Equifax credit report, I suggest you obtain your report from Experian and TransUnion (the other two major credit reporting bureaus) as well. You can do that by phone or online:

•  Experian - 1-888-397-3742, www.experian.com
•  TransUnion - 1-800-680-7289, www.transunion.com

You could also use this form if you prefer pen-and-ink.

4.  If you find evidence of fraud, put a fraud alert on your credit report.  

If you see any fraudulent credit accounts on your report, you can call any one of the three major credit reporting agencies and instruct them to place a fraud alert on your credit report.  (Tell the agency you contact to tell the other two to do the same...although there's no harm in calling all three yourself). You'll be required to prove your identity when placing a fraud alert.  There will be no cost.  The purpose of a fraud alert is to make it harder for an identity thief to open more accounts in your name. An initial fraud alert lasts 90 days, but can be renewed.  You can contact the credit reporting agencies at the following:

• Equifax - 1-800-525-6285, www.equifax.com
• Experian - 1-888-397-3742, www.experian.com
• TransUnion - 1-800-680-7289, www.transunion.com

5.  If you are the victim of identity theft, submit an affidavit to the Federal Trade Commission.
 

Write out a description of how you learned about the suspected identity theft and everything you've learned about it since, in as much detail as you can.  Next, you need to put this information into the form of an affidavit (a sworn written statement).  The Federal Trade Commission has a helpful tool (called the "FTC Complaint Assistant") to put your information into the proper form, which you can use for free at https://www.ftccomplaintassistant.gov/.  When finished, submit the affidavit to the FTC through the website.  Print or save a copy for your records. (Alternatively, you can use this form.)

6.  File a Police Report. 

If you are a victim of ID theft, after you complete the FTC affidavit, you should call the local law enforcement agency (a) where the theft appears to have occurred, or (b) where you live, or (c) both.  In North Carolina, this is usually a police department if you live in a city or town, or a county sheriff's department if you live outside a municipality (though there are exceptions to this general rule).  File a police report.  (Either they will send an officer to you, or will ask you to come to the station.)  Give the officer a copy of your FTC Identity Theft Affidavit.  Ask to be given a copy of the police report once it's ready.

Sadly, some local law enforcement agencies are reluctant to take reports on ID theft. You can give the agency a copy of the FTC's official memo for local law enforcement agencies, a copy of which is available here. 

7.   File an FTC ID Theft Report.

Together, your FTC Affidavit and the police report comprise an "FTC ID Theft Report." An FTC Report can help you (i) get fraudulent information removed from your credit report; (ii) stop a company from attempting to collect debts from you that result from identity theft, or from selling the debt to another company for collection, (iii) extend the fraud alert on your credit report; and (iv) get information from companies about any accounts the identity thief opened or misused. Send the ID Theft Report to the credit bureaus and to any organization affected by the ID theft (such as a retailer or credit card company).

Send an ID Theft Report to the credit reporting agencies, and tell them whether you want to extend the fraud alert or initiate a security freeze (see below). In either case, you should notify all three of the credit reporting agencies.

8.  Decide Whether You Want to Extend the Fraud Alert or Institute a Credit Freeze.  

Next, you need to decide whether to (a) extend the fraud alert or (b) initiate a security freeze.
 

Once you have created an ID Theft Report (FTC affidavit plus police report), you are entitled under federal law to extend your fraud alert for seven years.  When you extend the fraud alert, you can get two free credit reports within 12 months from each of the three major credit reporting bureaus, and they must take your name off marketing lists for prescreened credit offers for five years, unless you ask them to put your name back on the list.

North Carolina residents (and residents of certain other states) are entitled by state law to "freeze" their credit reports. When a security freeze is in place, a consumer reporting agency may not release your credit report or information to a third party without your prior express authorization. If you want someone (such as a lender or employer) to be able to review your credit report (for a credit application or background check), you must ask the credit reporting agency to lift the security freeze. You can ask to lift the security freeze temporarily or permanently.  (The credit reporting agency is required by NC law to give you a unique PIN or password when you initiate the security freeze to be used by you when requesting a temporary or permanent lift of the freeze.)  If you request a lift to the freeze by mail, the agency has three business days to comply, but if you request electronically or by telephone, the agency must comply with the request within 15 minutes.  Putting a credit freeze on your credit file does not affect your credit score.

The cost to place and lift a freeze, and how long the freeze lasts, depends upon state law.  Here in North Carolina, a freeze lasts as long as you wish, and a consumer reporting agency cannot charge a fee to put a security freeze in place, remove a freeze, or lift a freeze if your request is made electronically. If you request a security freeze by telephone or by mail, a consumer reporting agency can charge up to $3.00 (unless you are 62 or older, or have submitted a police report--see #4 and #5 above). 

  

So, to summarize, a "security freeze" generally stops all access to your credit report unless you lift it, while an "extended fraud alert" permits creditors to get your report as long as they take steps to verify your identity.  My general preference is  the freeze, because it gives you the most control.

9.  Review Your Credit Reports and Dispute Errors. 

You will have already reviewed your credit reports for unauthorized accounts.  Review them on an ongoing basis.  If errors on your credit report are the result of identity theft and you have submitted an Identity Theft Report, you are entitled to tell the credit reporting companies to block the disputed information from appearing on your credit report.  Here is a sample letter that may be helpful.

The credit reporting agency will notify the relevant business of any disputed information, after which the business has 30 days to investigate and respond to the credit reporting agency. If the business finds an error, it must notify the credit reporting agency so your credit file can be corrected. If your credit file changes because of the business’ investigation, the credit reporting agency will send you a letter to notify you. The credit reporting agency cannot return the disputed information to your file unless the business says the information is correct. If the credit reporting company puts the information back in your file, it will send you a letter telling you that.
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10.  Contact Any Businesses Involved.

 If you are aware of specific accounts that have been opened in your name without authorization, or existing accounts that have been accessed without your authorization, contact those organizations, even if you have already notified the credit reporting agencies of the problem. Ask to speak to someone in the fraud department. Ask them to reverse any unauthorized charges and to preserve all records for use by law enforcement. You might also want to ask them to simply close the accounts, and open new accounts for you. [Use different access credentials (PIN or password) for the new accounts.] Ask for copies of any documents used by the identity thief. (Here's a sample letter.) Ask for a letter confirming that any fraudulent information has been removed or transactions reversed.  Also ask them to stop reporting information relating to the fraud to credit reporting agencies.  As soon as you conclude the conversation, memorialize your discussion in a certified letter to the organization.  Here is a sample.

11.  Stop Debt Collectors from Contacting You about Fraudulent Debts. 

If an identity thief opens accounts in your name and doesn’t pay the bills, a debt collector may contact you. To stop debt collectors from contacting you, in addition to the steps described above, you can send them a letter using this form.

12. Additional Tips: 

• Remember to record the dates you made calls or sent letters.
• Keep copies of all correspondence in your files.
• A number of sample letters are available here.

I hope you find this helpful. 

Please feel free to share it with your family, friends, and colleagues.  

I encourage you to bookmark this post for quick reference, along with the FTC's ID Theft website and the NC DOJ's website.  This post is for general information only, and is not legal advice.  No attorney-client relationship is created by this blog post.

Why A Recent Federal Decision Involving A Grocery Store Matters to Most Organizations with Websites and Apps

A recent case has organizations all over the U.S. concerned about litigation over website accessibility.

In the first federal decision of its kind, a federal judge in Florida concluded that Winn-Dixie, a regional grocery store chain, was obligated to make its website accessible to a blind man, and that it failed to do so.

As a result, the court awarded the plaintiff his attorneys' fees and ordered the parties to agree on a compliance deadline by the end of this month.

I've written previously about the trend in demand letters and the uncertainty in the law regarding the applicability of the Americans With Disabilities Act to websites, applications and other online interfaces. 

Background

By way of background, when the Americans with Disabilities Act was first drafted in 1988 (and adopted in 1990), it is unlikely that even a single member of Congress contemplated that it could be applied to the Internet. The ADA (and specifically Title III) was applied to brick-and-mortar facilities and intended to ensure that people with disabilities could access and enjoy them. Common examples are wheelchair ramps and braille menus. In the quarter-century since, almost everything that was once only brick-and-mortar now has a presence on the Internet.

One of the greatest ADA questions of our day is whether the ADA applies to websites, apps, and other online interfaces. Only a few courts have addressed this issue, and the results have been mixed, and sometimes very fact-specific. Courts must decide whether a given website is a "public accommodation" and, if so, whether the website operator has made "reasonable modifications" to make the website available to people with disabilities. 

The ADA is enforced by the U.S. Department of Justice (DOJ) and through private litigation. The DOJ is reviewing organizations' websites to determine whether they comply with the law’s access requirements. In addition, a number of plaintiffs' law firms across the country are filing lawsuits alleging that organizations' websites are in violation of the ADA. Internet companies, including Netflix, have settled cases that alleged their websites were inaccessible to people with disabilities.

There are currently no specific federal standards for websites under the ADA. Since 2010, the DOJ has been telling us that it is in the process of developing regulations for website accessibility, but those standards are not expected until 2018 or later. In the meantime, the DOJ says it expects organizations to make their websites accessible to the disabled. The DOJ has indicated that it considers the Web Content Accessibility Guidelines (WCAG) [2.0 Level AA] to be satisfactory for the time being (and perhaps these standards go further than legally necessary), and many organizations have been working towards compliance with those standards on the assumption that any future DOJ standards will be consistent with them (although there are no promises).

Why the Winn-Dixie Case Matters

The decision in Gil v. Winn Dixie is the first federal court opinion addressing the applicability of the ADA to the website of a brick-and-mortar retailer. While it is not binding throughout the U.S., it sets an important precedent. 

The court concluded that the ADA applied because Winn Dixie's website is “heavily integrated” with and serves as a “gateway” to its physical stores. That's an important consideration for brick-and-mortar retailers, who may want to re-evaluate accessibility in light of this recent development.

Can Young Lawyers Learn Something From Older Lawyers About Managing Their Professional Reputations Online (and Vice Versa)?

Here's an article that was published this week in the North Carolina Lawyer magazine that might be of interest to some of you.

Can Young Lawyers Learn Something From Older Lawyers About Managing Their Professional Reputations Online (and Vice Versa)?

by Matt Cordell, NCBA YLD Chair

When I have the opportunity to give advice to law students and young lawyers, one of the things I try to impress upon them is the importance of their reputations, including their “online reputations.” Usually the comment is quickly met with a knowing nod. Everyone seems to know that their reputation is important. However, having witnessed many lawyers of all ages impair their professional reputations online, I have begun to realize that many of us fail to recognize some aspects of maintaining our online reputations, and I have begun to be much more specific in my advice to younger lawyers.

...Read the rest here.

A New Chapter





In 2005, I met two exceptional people, Don Eglinton and Leigh Wilkinson, during on-campus interviews at my law school.  I could immediately tell from the way they talked about Ward and Smith and its people that there was something special about the firm.   In the years since, I've experienced firsthand the remarkable culture of this firm and the people who make it so special. I have also had the opportunity to work with some incredibly smart, innovative clients in a number of fields, and I've learned a great deal from many of them.  

My practice has evolved over the past decade, and I have found that I very much enjoy practicing in the areas of privacy law, information security law, and technology law, in particular.  A very attractive opportunity has arisen which will enable me to work on these issues on a global scale.

I will be joining the legal department of VF Corp in Greensboro, N.C. If you are unfamiliar with VF, you are likely familiar with its brands, which include The North Face, Lee, Wrangler, Vans, Timberland, Nautica, Smartwool, Reef, Eagle Creek, Eastpak, JanSport, Kipling, and others.  VF has more than 50,000 employees globally and about $12 billion in annual revenue.  The legal department, like the rest of the company, spans the globe.  I will be managing a small group within the legal department handling privacy, information security, and information technology contracting.

Volunteering at a workday at Camp Challenge
(a financial literacy camp for underprivileged kids)
with my Ward and Smith colleagues
just a few months after joining the firm in 2007

Even though I will miss my law partners and clients, I am looking forward to this new challenge and to starting a new phase of my career.  I am also looking forward to spending a little more time with my family. 

I am confident that all of the clients with whom I have worked over the years are in good hands with the lawyers at Ward and Smith.

I intend to continue to write about interesting legal developments on my personal blogs: www.BizLawNC.com and www.LawOfPrivacy.com / www.PrivacyLawNC.com.  I hope you'll continue to check back in from time to time.