Announcing Resilience Cybersecurity and Data Privacy Blog

Big news! Followers of this blog know how important I believe new tools and technology are in the practice of law. Over the course of writing The Cyber Advocate, I also turned my moderate knowledge of cyber security matters into a focus of special interest, due to the threat hackers posed to law firms. Today, I officially launch my new blog – Resilience Cybersecurity & Data Privacy! Recently, I opened my own law firm, the Law Offices of Brian C. Focht. My practice is dedicated to civil litigation matters and cyber security law. As part of my practice, I provide cyber security and data privacy legal counsel. Primarily, I focus on helping small businesses improve their cyber security defenses. Actually, that part of my practice simply evolved naturally out of my providing ethical and technology consulting to law firms. Anyway, as I began to develop my practice, it became clear that I could provide a lot more assistance to individuals and businesses in the areas of cyber security and data privacy by doing what I’ve been doing for years with legal technology – write about it. Instead of just helping clients in North Carolina, I can, as with how I’ve used The Cyber Advocate, reach a much larger audience and provide help in many more ways. For those of you who have asked me when I plan to resume writing more regularly on this blog, I have good news for you, too! New posts will be appearing here, hopefully at a rate of about one per week, starting in the coming weeks. Hopefully you will all continue to read... read more

One Thing You Need To Do Before Buying Cyber Liability Insurance

So a few weeks back I was interviewed about several current issues in cyber liability insurance. As part of the lead-up to the interview, I was sent a couple of links concerning issues that the interviewer wanted my take on. Most of them I’d seen before. However, there was one that was new to me: After reading the article, I was stunned that a law firm – as in a business that performs at least most of its work in the practice of law – would even consider filing such a lawsuit. Turns out they even got an attorney in a different firm to represent them. They were at least smart enough about not being – or having – a fool for a client. While you might disagree with me on the merits of this particular lawsuit – as an attorney whose practice includes insurance coverage matters, I can concede that insurance is treated differently from state to state – there’s definitely something that everyone can take away from this incident. There is one thing you absolutely, positively must do before purchasing cyber liability insurance: Talk to a lawyer! Not just any lawyer. A lawyer who understands insurance coverage. And who has at least a basic familiarity with cyber security. They don’t need to have a side career in IT, just an understanding about how cyber attacks work. This knowledge is particularly important concerning how the interpretation of your cyber insurance policy may apply to a real-world cyber attack. Here’s an example of what happens when you wait until after a cyber attack to understand what your insurance covers: The Case: Moses Alfonso Ryan, Ltd. v. Sentinel... read more

5 Things You Need to Know About the New War on Encryption

On Saturday night, the city of London experienced yet another tragic attack, apparently carried out in the name of terror. The city’s second in two months, and England’s third – the terrible bombing in Manchester just two weeks ago, has already led to numerous statements of solidarity and support from (most) leaders around the world. Unfortunately, during that time, Theresa May, British Prime Minister, also said this: That’s right, among the many things we can expect in the near future is another battle over government surveillance powers. In that battle, it’s a virtual guarantee that the British or U.S. government will resume its call for technology companies be able to decrypt any data or communications within their ecosystem, purportedly in the name of fighting terrorism, on demand. Whether it starts now, or as a result of a tragedy yet to come, the new war on encryption is about to begin. The War on Encryption Following any terrorist attack, it’s inevitable that some government official throws out the phrase “gone dark.” Since law enforcement officers have a hard time cracking encryption, the theory goes, terrorists use encrypted messages because they know their terrorist planning and terrorist conversations and terrorist grocery lists can’t be read by Dudley Do Right. They’ve “gone dark,” and as such, new laws are needed to improve the ability of law enforcement and intelligence agencies to monitor and track potential terrorists. Just as inevitable as the “going dark” comment – a proposed new law or regulation expanding the ability of the government to surveil its citizens, including but not limited to a weakening of encryption protocols. Talk... read more

We Are Dangerously Close to a Dystopian Cyber Security World

I try, on this blog, to avoid topics that are purely political. Sure, I spoke strongly in favor of net neutrality, I supported Apple’s position on encryption, and I continue to argue forcefully against the deregulation of the practice of law. Those are all political issues, to be certain. But this post is going to be a little bit different. It’s about the future of cyber security for all small businesses (and even large businesses) who have a legal obligation to protect their clients’ and customers’ data. The Trump Administration has not officially begun, but with its transition currently underway, several of the decisions already made point toward a dystopian future for cyber security. A future where hacking, including by foreign government and industry interests, is rampant; where the tools to protect ourselves are compromised; and where even our access to information is subject to purely corporate interests. Let’s take a look at some of the brilliant ideas for technology held by President-Elect Trump’s team: 1) Donald Trump, President-Elect Donald Trump’s campaign comments on cyber security and technology begin at “cringe-worthy” and go down from there. He refers to what I suppose is everything about computers as “the Cyber,” suggesting that we’re terrible at it and must get better. But, based on his other comments, he has no clue at all what “the Cyber” includes… or even means (not unlike ill-fated procedural CSI Cyber, which was objectively terrible). Those comments and positions are as follows: He proposed a boycott of Apple products during the debate between the DOJ and Apple concerning the encryption of a device used by one... read more

The Five Essential Elements of a CYA Cyber Liability Policy

If you’ve been conscious for 15 consecutive minutes or more at any point over the past five years or so, you’ve no doubt heard news about a major hack. It’s everywhere, extending even to domination of the presidential election campaign. Your business is at risk, your clients’ data is at risk, and you need to be involved. Sure, but even the best laid plans can suffer the same fate of the great city of Constantinople – one unlocked door and your city has fallen! Fortunately, you’ve actually got the opportunity to protect your business in a way that the Byzantine Empire couldn’t – insurance. Specifically Cyber Liability Insurance. There’s a lot to cyber liability insurance, so we’ll take this in several parts. In this part, we’ll be talking about the expenses you’ll likely run into in the event of a cyber-attack, and therefore need to ensure your cyber liability policy covers: The 5 Major Expenses Your Cyber Liability Policy Better Cover! 1) Parachuting Professionals You need an emergency response team. Think of them as a really nerdy version of Seal Team Six. Think I’m being overly-dramatic? Well, you’re right. However, you should be aware that most cyber liability claims that exhaust the policy limits do so covering the costs in this category! So, you’re going to need… Forensic IT Specialists You need immediate and effective analysis of your system to determine the size and scope of any breach, and professionals with the experience and training to eliminate any active threats to your system, limit the damage being caused by existing penetrations, and shore up your short-term defenses. Legal Advisors... read more

Why Hasn’t Technology Been a Major 2016 Election Topic?

Seriously, I understand that this has essentially been the Donald Trump election, and even the legitimate questions raised by the emails hacked from Hillary’s campaign have been drowned out. However, the candidates, the debates, the media coverage, they’ve all failed to ask one salient question about the candidates’ technology policies. And the failure doesn’t rest solely at the presidential level. Candidates for senate, the house of representatives, and governors haven’t focused much time at all into talking about how we’re going to address, you know, 21st Century Problems here in the 21st Century. 2016 Election: Technology Issues Analysis Since I routinely talk about these technology issues, maybe I’m more sensitive to them. Certainly, it’s not like other issues haven’t gotten their fair share of attention, either (cough, Climate Change, cough). So I’ve decided that instead of bitching about the lack of coverage, I would actually provide a service for a change. This post is the official announcement of my 2016 Election coverage of five major technology issues: 1) High-Tech Infrastructure, 2) Privacy/Surveillance, 3) Encryption, 4) Cyber Security, and 5) Net Neutrality/Open Internet. Visit My 2016 Election: Technology Issues Analysis On the 2016 Election page, you’ll find a candidate-by-candidate breakdown of their respective positions on these five key, yet woefully under-discussed, technology issues confronting our world. I’m analyzing the four major candidates for president, along with competitive races for congress and governor. 2016 Elections Analyzed: For Senate, House of Representatives, and Gubernatorial races in the 2016 Election, I am adding these progressively over the next few days. If you see the race you’re looking for in bold, then it means it has... read more

Apple’s Response: 5 Different Ways the FBI’s Argument Blows

Yep, Apple finally submitted it’s response to the FBI today… So, I’ve done you all a huge favor and read Apple’s entire Motion (and supporting brief) to Vacate the Ex Parte Order issued last week. For those of you who don’t know, here are the basics: Note: This is my summary of the situation, so it is not free of bias. I am now and have long been a supporter of strong security measures in mobile devices, and a strong supporter of Apple in this case. If you wish to debate the relative merits, we can do that elsewhere. Last week, a federal magistrate judge for the United States District Court, Central District of California, Eastern Division, issued an ex parte order requiring Apple to assist the FBI in unlocking an iPhone 5c owned and used by Syed Rizwan Farook, one of the two San Bernadino shooters, including the creation and installation of a new operating system that would: Disable the “anti-brute force” security that deletes all data on the phone after 10 consecutive incorrect passwords are entered; Allow passwords to be entered via computer, instead of by hand; and Eliminate the forced delay after incorrect passwords are entered. Famously, Apple refused. Despite being granted an extension to file their response, the Department of Justice filed a motion to compel Apple’s compliance with the order last Thursday (before even the original 5 day response window had ended). Today, Apple filed their motion to vacate. I have summarized Apple’s arguments as best I can: The motion to vacate rests on a few basic themes: the unprecedented nature of the FBI’s request; a thorough... read more

12 Awesomely Funny Gifts for Lawyers (with Issues!) Vol. 3

12 Awesomely Funny Gifts for Lawyers (with Issues!) – Vol. 1 12 Awesomely Funny Gifts for Lawyers (with Issues!) – Vol. 2 12 Awesomely Funny Gifts for Lawyers (with Issues!) – Vol. 3 (You’re here) Once again, we find ourselves approaching that most joyous of holidays – Full Contact Shopping Friday! We should all stop at least once, allowing our aggressive consumerism to rest for a moment, and realize that we’re supposed to be buying things for other people. With that in mind, you’ve likely made your way to this post because one of the people you’re buying for is a lawyer. Or you need a good laugh. Either way, I present to you my third annual “12 Awesomely Funny Gifts for Lawyers (with Issues!)”: 1) Res Ipsa Liquor Flask – $24.99 So there are those interesting times when you need a drink. You know them well, I assume. Those times when liquor is absolutely called for, but for whatever reason, “polite” society has deemed them inappropriate for drinking. Like in church. Or in the middle of a trial. An important one. That’s being televised. So make like it’s Prohibition all over again with this helpful stainless steel flask. It’ll hold 6 ounces of your favorite tummy-warming beverage (aka Moonshine), with a helpful leak-preventing cap. You wouldn’t want to waste any of that precious liquid (or give the bailiff cause to investigate the “moderate odor of alcohol.” And just in case you’ve consumed too much, there’s a helpful instructional diagram right on the flask for what you should do! The thing drinks for itself! (A derivative of Descartes’ “I drink... read more

How to Energize Your Law Firm by Practicing Mindfulness

Special Guest: Jeena Cho Preorder a copy of Jeena’s new book, The Anxious Lawyer, today! (Affiliate link) Download this Episode: Download Audio I was told it was inevitable. “Wait until you have you own clients,” they said. “That’s when it’ll happen.” What were they talking about? Success? no. Money? No. Recognition? Nope. Crippling insomnia due to the inability to get your brain to shut the hell up. That’s what I was promised was in my future as a litigator. Followed by needing an unhealthy amount of caffeine just to function (although, one could probably argue…) Exciting, huh? Fortunately for me, it hasn’t hit me yet – although I do think the little ADD problem I have due to playing too much Rock Band certainly helps. The Chaos of a Lawyer’s Mind However, even though I didn’t have it as bad as the partner at my first firm did, I could certainly feel it creeping up. Those moments that used to be silent are now filled with noise. Sometimes it’s helpful analysis related to my cases, most of the times it’s not. But it’s getting louder. You know the feeling, particularly in those busy times. And you need a break. How can you possibly keep your mind focused and fresh enough to do a job that you have an ethical duty to do well? Jeena Cho has been talking to lawyers all over the country (including an impressive road trip this past summer) about how to practice law and remain mentally sane, by practicing mindfulness. What Does Practicing Mindfulness mean? Essentially, all practicing mindfulness really means is allowing yourself to be... read more

13 Mobile Apps to Help You Enjoy Your Holiday Weekend

There’s just something about the time right around Independence Day. It just feels like vacation. That might have something to do with the fact that even the people staying in town begin leaving the office at around 2 pm in the days before. Just because. So, in that spirit, I’ve decided not to advocate for a paperless law firm, promote the benefits of LinkedIn, or talk about how stupid the EU is for dismantling Net Neutrality (SO. FREAKING. STUPID.) Nope, instead I thought maybe I could give you a hand as the weekend approaches. We’re all going to take some part of our digital lives with us, and maybe you’re looking for a way to improve that. With that in mind, here are the mobile apps I’ll be relying on this holiday weekend: Feedly During a normal work week, I get most of my news from Twitter. As I’ve described before, Tweetdeck operates constantly for most of my day, updating me on the latest information from my lists. Feedly, on the other hand, is my wonderful RSS reader. Instead of displaying the articles I’m subscribed to in real time, it stores them until I have a chance to browse. So while I spend the weekend unable to check out the real-time updates of Twitter, I know that the most important stories are being saved for me. Evernote I wish I could say that I’m going to spend this entire weekend not working. Just not reasonable, sorry. Whether it’s my “day job” as a civil litigator, or writing the next Cyber Advocate post, I’m likely to work on something. Ok, I admit it,... read more
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