Information Intersection > Troutman Sanders LLP

Category — Information Technology & E-commerce

Healthcare IT Headlines

The healthIT world descended on Las Vegas in March for HIMSS16, the world’s largest conference for all things healthcare digital. Over 42,000 attendees  networked and shared ideas about everything from cyber-security to interoperability to health IT policy. Here are our key take-aways: [Read more →]

April 8, 2016   No Comments

HIT is Hot in Congress

Doctors Studying Data on ComputerLately there’s been a flurry of activity related to health IT in the 114th Congress.  At the end of March, the House passed the SGR bill, or “Doc Fix,” by an overwhelming vote of 392-37.  If there are no hang-ups, the Senate is expected to pass it Tuesday night.

The SGR bill repeals the old formula to pay doctors and creates a new formula for a value-based Medicare payment system.  The bill also includes a few key HIT measures: it requires HHS to create metrics to determine if EHRs are interoperable by July 2016, it defines interoperability as the ability of two health systems to exchange clinical data, and it includes language requiring providers to show they are not blocking information – just to name a few provisions. [Read more →]

April 15, 2015   No Comments

Are the Reviews In? Using Online Review Evidence for Advertising Claim Support

one-935157-sIt is a fact of modern commerce that consumers consider online reviews when deciding how to spend their dollars on everything from music, to local restaurants, to electronics.  But what happens when a business wants to use those reviews to formulate advertising claims? [Read more →]

August 25, 2014   No Comments


Health care apps are everywhere.  Electronic medical records and mobile devices have led to an explosion of new applications for health care providers and patients.  The US Department of Health and Human Services, has provided financial incentives to health care providers to adopt EMRs and provide and to share health data electronically.  Since 2011, HHS has supported the widespread adoption of electronic health record (EHR) technology through its Medicare and Medicaid EHR Incentive Programs, which provide money to eligible practitioners and hospitals that can show that they are “meaningfully” using their EHR according to certain specified measures.  New and innovative mobile applications can turn platforms in to medical devices. While exciting, this raises obvious questions about data privacy and patient safety. As the use of more advanced technology becomes widespread in the health care industry, questions have arisen surrounding the level and type of regulation required to ensure patient safety.


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August 4, 2014   No Comments

Breaking the Seal: Does Using Third Party eDiscovery Vendors Raise Privilege and Work Product Issues?

We’re not breaking news when we tell you that the exponential growth of electronic documents generated by clients has complicated the discovery process. Reducing this massive volume of information down to the relevant information needed to resolve a dispute requires the use of technology for collecting, filtering, processing, analyzing and producing electronically stored information. Attorneys now have to deal with metadata, servers, and social media in order to litigate the merits of cases. Ethics rules have been modified to require lawyers to understand the risks and benefits of technology. And preservation sanctions have alerted attorneys to the need to understand the difference between an email server and a locally-archived PST file. Attorneys should not try to lead double lives as data processors and litigators. Given the real need to properly handle these issues, consulting technology and litigation support providers is common and necessary. But does involving these third-party resources create a risk to the attorney client privilege or work product protections?

Attorney Client Privilege

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July 17, 2014   1 Comment

Update: A Potential Roadblock for Cloud-Based Media Avoided

Twice previously this year, we posted about the potential consequences to cloud-based media from the legal dispute between streaming video service Aereo and the television broadcast industry. Last week, the Supreme Court, in a 6-3 opinion, resolved much of the uncertainty detailed in those earlier posts. While the Court ruled against Aereo – holding that its transmission of the broadcasters’ content amounted to a public performance and thus violated the networks’ copyright – the majority’s decision took pains to limit its decision to the facts at issue. Justice Breyer, delivering the opinion of the Court, noted that “we have not considered whether the public performance right is infringed when the user of a service pays primarily for something other than the transmission of copyrighted works, such as the remote storage of content.”

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June 30, 2014   No Comments

Cybersecurity and Antitrust

Recently the United States federal antitrust enforcement agencies — the Federal Trade Commission and the Justice Department’s Antitrust Division — issued a joint policy statement designed to “make it clear that they do not believe that antitrust is, or should be, a roadblock to legitimate cybersecurity information sharing.” The release made headlines globally, but the real story is that the risk of antitrust exposure for exchange of cyber risk information, even among direct competitors, was and remains almost non-existent.

international business

That is because the U.S. antitrust laws (principally Section 1 of the Sherman Act) prohibit horizontal conspiracies and agreements among rivals, like price fixing, that harm competition. In some areas, information exchange can be competitively problematic, for instance where firms share non-public bidding or price data, or M&A transactions where the deal parties “gun jump” by acting as if they were already merged instead of continuing to compete independently. Yet as the policy statement confirmed, “cyber threat information typically is very technical in nature and very different from the sharing of competitively sensitive information such as current or future prices and output or business plans” and is thus “highly unlikely to lead to a reduction in competition.”

That’s hardly new. More than a decade ago DOJ said exactly the same thing in approving a proposal for cybersecurity information sharing in the electric industry, and Antitrust Division chief Bill Baer called the 2014 reaffirmation “an antitrust non-brainer.” But perceptions can have consequences, and some had voiced the fear that the exchange of IT security information among competitors could present a slippery slope, a forum for the kind of hard-core anticompetitive agreements the government loves to prosecute. At least that is what the White House, which called antitrust law “long a perceived barrier to effective cybersecurity,” reasoned in encouraging the FTC-DOJ clarification. So clearing away the underbrush of misinformation should help reassure business executives that companies which share technical cybersecurity information such as indicators, threat signatures and security practices, and avoid exchanging competitively sensitive information like business plans or prices, will simply not run afoul of the antitrust laws.

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April 25, 2014   No Comments

Will My CGL policy Cover a Data Breach? Better Read Your Policy.

Data breaches can happen at any time and to any business that deals with customer, employee or student data – just look at the Heartbleed security bug, the Target data breaches, or any of the other high-profile breaches that have made the news in the last year.  We have posted previously about the importance of having an incident response plan in place before a cyber-security event occurs.  As we explained, a good response plan incorporates several different components, one of which is identifying your insurance carrier well in advance and bringing the carrier into your response team.

But have you considered whether a cyber-security event is actually covered by your insurance policies?  Many insurers now offer a number of dedicated policies or riders that specifically deal with privacy issues, including data breaches and any resulting liability.  If you haven’t already, you should determine whether your current policy covers cyber incidents and the scope of your coverage, particularly if your business deals in large quantities of personally identifiable information.  Having a comprehensive cyber-liability policy can ensure that your business will not directly bear the substantial costs that can arise from a data breach.


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April 23, 2014   No Comments

Are You Ready for a World in Which More People Own a Mobile Device than a Toothbrush? You Better Be – It’s Already Here

In January 2014, we published a post on Why Social Media Matters.  If you didn’t read that post, you should. Regardless, at the end of that article, we included a link to a YouTube video produced by a guy named Erik Qualman.  He leads an increasingly influential organization, which started as a blog, called “Socialnomics.”  Qualman founded Socialnomics to provide “social & mobile statistics, studies & surprises.”  His passion and analysis regarding social media has led to a top-selling book and high-paying gigs as a keynote speaker.  But Qualman’s thoughts on social media have been most widely distributed through social media itself — the popular YouTube video linked at the end of our post.  Its various versions have been viewed millions and millions of times.  It’s full of mind-boggling statistics.  It’s entertaining.  But, most of all, it’s thoroughly thought provoking.

This week, Qualman published the latest version –  #Socialnomics 2014.  If this video doesn’t give you and your business something to think about, we don’t know what will.

And, yes, the claim that More People Own a Mobile Device Than a Toothbrush is apparently true.  So, the question really isn’t whether you are ready for such a world, because it’s already here.  The question is — if you’re not ready, when are you going to start?

April 18, 2014   No Comments

The Persistent Paper Check: Why Are Businesses Resisting E-Payments?

The paper check could disappear from the lives of everyday Americans within 12 years, according to researchers at the Federal Reserve of Philadelphia.  In a recent poll, 38 percent of respondents indicated that they “never” write personal checks.  In fact, the new trend in personal banking is the checkless checking account.

However, American businesses large and small are still pulling out their check ledger and making more 50 percent of their payments the old fashioned way—by paper check.  That rate is down from 81 percent of business-to-business payments by paper check in 2004, 74 percent in 2007, and 57 percent in 2010.  But even though B2B check payments have decreased in the past decade, the rate of decrease has started slowing—suggesting that it may be difficult for businesses to completely convert to a system of electronic payments.


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April 8, 2014   No Comments