The Secure Times

An online forum of the ABA Section of Antitrust Law's Privacy and Information Security Committee


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The UK Information Commissioner’s Office Issues First Fines Under the Data Protection Act.

The UK Information Commissioner’s Office (“ICO”) utilized its new power to issue monetary penalty notices for the first time last week in response to two serious breaches of the UK Data Protection Act (“DPA”), one case involves misdirected faxes and the second involves theft of a laptop. 
 
Since April 6, 2010, the ICO has had the power to issue a fine up to £500,000 if a data controller commits a serious violation of the DPA which is (1) likely to cause substantial damage or distress, and (2) the violation was either deliberate, or the data controller knew or should have known there was a risk that a violation could occur and failed to take reasonable steps to prevent it. The first prong can be met by merely showing that substantial damage or substantial distress is likely, and the ICO has taken the position that “distress” means “any injury to feelings, harm or anxiety suffered by an individual.” Thus, as these two cases demonstrate, careless mistakes coupled with lack of reasonable procedures or reasonable technological protections could lead to significant fines, even if actual harm does not occur.
 
In the first case, the Hertfordshire County Council was fined £100,000 for two violations of the DPA where council employees in its Childcare Litigation Unit accidentally faxed highly sensitive information to the wrong recipients.  The first fax was sent without a cover sheet containing instructions on what the recipient should do if the fax was misdirected. It contained confidential and sensitive personal data of seven individuals related to a child sexual abuse case and was sent to a member of the public, who reported the fax to the Council and the ICO.  In response, the Council obtained a court injunction to prevent disclosure of the details in the fax. The second fax, sent by a different employee within two weeks of the first, was sent to a barrister’s chambers instead of a court, and contained confidential and sensitive personal data of 18 individuals related to care proceedings of three children, including names and birthdates, records of domestic violence, and the opinions of care professionals regarding things such as the adults’ personal relationships and ability to care for children. This time the fax was sent with a cover sheet, and clerk in the barrister’s chambers which received the fax contacted the Council and confirmed that the fax had been destroyed without reading it. 
 
The Hertfordshire County Council voluntarily reported both incidents to and worked with the ICO to improve their processes for sending faxes with highly sensitive information. Despite this, and despite the fact that there is no indication that the misdirected faxes led to actual damage or distress, the ICO ruled that the £100,000 was appropriate because (1) the Council’s procedures failed to stop two serious breaches where access to the data could have cause substantial damage and distress, and (2) after the first breach occurred, it failed to take sufficient steps to reduce the likelihood of another breach.
 
The second case involved the theft of an unencrypted laptop from the home of an employee of A4e Limited, and resulted in a fine of £60,000. A4e operates community legal advice centers in two UK cities and provides laptops to employees to work at home or remotely. The stolen lap contained sensitive information of approximately 24,000 individuals who had used the advice centers, including full names, dates of birth, postcodes, employment status, disability status, ethnicity, income level, information about alleged criminal activity and whether an individual had been a victim of violence. Although A4e was aware of the risk of issuing unencrypted laptops to its employees for use outside of the office and had started a program to roll out encryption, the stolen laptop was unencrypted and only protected by a password. A4e reported the breach to the ICO and notified the individuals whose data may have been accessed.  The ICO ruled that the £60,000 fine was appropriate because (1) access to the data could have caused substantial distress and substantial damage; and (2) issuing the employee an unencrypted laptop was unreasonable given the type and amount of data that would be processed on it.
 
Links to PDFs of the ICO’s monetary penalty notices for both cases are on its website.
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Will legislation or technology be the solution to protect consumer privacy against unwarranted collection of online data?

Behavioral targeting is the process of collecting consumer online data by placing a persistent cookie on the consumer’s computer, which then tracks their cyber wanderings. This data is collected and aggregated, allowing marketers to fine tune which online advertisements are likely to interest a particular consumer.

The Washington Post reported this week that the House subcommittee for commerce, trade, and consumer protection is planning a hearing in early December on Internet privacy. The hearing will include testimony from Web firms on the idea of a Do Not Track registry.

H.R. 5777, the Best Practices Act, is a bill introduced by subcommittee Chairman Bobby Rush, which would require that entities collecting or storing data containing personal information or sensitive information to inform consumers about which information is collected and for what purpose. However, the bill would provide an exception for entities either storing this information about fewer than 15,000 individuals, or collecting this information about fewer than 10,000 individuals during any 12-month period.

It has been a while since the idea of a “Do Not Track” registry has been introduced in Washington. Several consumer groups advocated as early as 2007 for the Federal Trade Commission (FTC) to create a Do Not Track registry. Just as the FTC created a “Do Not Call” list to protect consumers against unwarranted phone calls, by allowing them to opt-out, a “Do Not Track” registry would allow consumers to opt out of having their data collected when surfing the Web.

However, FTC Chairman Jon D. Leibowitz mentioned last July during a U.S. Senate committee on commerce, science, and transportation hearing on consumer online privacy that the FTC was currently assessing whether it was technologically feasible to implement a “Do Not Track” system through browsers.  Such a system which would allow consumers to opt out easily from cookies tracking their cyberspace activities, and would be either run through the FTC, or through a private sector entity (see archived webcast @ 58:50). So the FTC seems to advocate a technological solution, not the creation of a registry.

Should browsers be the solution to protect consumers against online tracking? Researchers at the Stanford Law School Center for Internet and Society and the Security Laboratory at the Stanford Department of Computer Science introduced ”DoNotTrack.us.” It is a universal Web tracking opt-out systems, which would work  by adding a HTTP header to browsers, indicating that the user does not wish to be tracked.  

The researchers note on the site that “[c]ompliance with Do Not Track could be purely voluntary, enforced by industry self-regulation, or mandated by state or federal law. We do not take a position on these alternatives.”

This issue is also currently debated in the European Union. The Article 29 Working Party Group (WP29) adopted Opinion 2/2010 on online behavioral advertising. It noted that Article 5(3) of the 1995 Data Protection Directive “requires obtaining informed consent to lawfully store information or to gain access to information stored in the terminal equipment of a subscriber or user.… [T]racking cookies are ‘information’ stored in the data subject’s terminal equipment and… they are accessed by advertising network providers when data subjects visit a partner website…. Hence, any storage of cookies… and any subsequent use of previously stored cookies to gain access to data subjects’ information will have to comply with Article 5(3).” The WP29 also stated that “consent must be obtained before the cookie is placed and/or information stored in the user’s terminal equipment is collected… and…  informed consent can only be obtained if prior information about the sending and purposes of the cookie has been given to the user.”

We may see both the U.S. and the E.U. adopt a technological solution. They may differ though, in their choice of whether or not such a solution should be enforced by governments, or be a best-practice solution. The debate is still open on both sides of the Atlantic.


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Being “Friend” With Your Employer May Allow Him to Acquire Your Genetic Information

The Equal Employment Opportunity Commission (EEOC) has issued a final rule to implement Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which takes effect January 10, 2011. These regulations, which include a section-by-section analysis of GINA, amends 29 CFR chapter XIV by adding part 1635.

GINA was enacted to protect job candidates and employees against discrimination based on their genetic information, and to restrict acquisition and disclosure of this information. Title II of GINA required the EEOC to issue implementing regulations, and these have just been published in the Federal Register.

Section 1635.9(c) deals with GINA’s relation with HIPAA Privacy Regulations. GINA section 206(c) provides that Title II of GINA does not apply to uses and disclosures of health information governed by the HIPAA Privacy Rule. Therefore, states section 1635.11(d), “entities subject to the HIPAA Privacy Rule must continue to apply the requirements of the HIPAA Privacy Rule, and not the requirements of GINA Title II and these implementing regulations, to genetic information that is protected health information. For example, if a hospital subject to the HIPAA Privacy Rule treats a patient who is also an employee of the hospital, any genetic information that is obtained or created by the hospital in its role as a health care provider is protected health information and is subject to the requirements of the HIPAA Privacy Rule and not those of GINA.”

However, if the covered entity acts as an employer, any genetic information obtained by the entity in its capacity as an employer is subject to GINA Title II and the EEOC rule.

The final rule also modifies slightly the language of GINA on Purpose, following comments made by the American Civil Liberties Union, Coalition for Genetic Fairness, Genetic Alliance and the Genetics and Public Policy Center (see Section 1635.1). GINA used to refer to the “deliberate acquisition” of genetic information as being prohibited, but this reference has been removed, as the EEOC agreed with these organizations that a covered entity may violate GINA even without having a specific intent to acquire information. Some organizations had pointed out that a covered entity may engage in acts that would present a heightened risk, “even without a specific intention to do so, such as when they… access sources of information (e.g., certain types of databases, Web sites or a social networking sites that are likely to contain genetic information about individuals).

Indeed, there has been quite a bit of reporting lately on the use by employers of social media sites to gather information about job candidates, including police departments. How should we interpret the wording of the regulations, “likely to contain genetic information about individuals”? GINA section 201(4) defines genetic information as information from genetic tests, genetics tests of family members, family medical history, and an individual’s or one of his family member’s request for or receipt of genetic services. So posting on a wall a message such as “Mom just got tested for the breast cancer gene” qualifies as “genetic information” under GINA. Therefore, every single social networking site is “likely to contain genetic information about individuals.”

However, Section 1635.8(b) provides for several inadvertent acquisition exceptions to the general prohibition to acquire genetic information. One of these inadvertent acquisition exceptions is stated in Section 1635.8 (b)(4)(ii)(D), and applies when a “manager, supervisor, union representative, or employment agency representative inadvertently learns genetic information from a social media platform which he or she was given permission to access by the creator of the profile at issue (e.g., a supervisor and employee are connected on a social networking site and the employee provides family medical history on his page.” Therefore, whether the employee or the candidate has accepted the covered entity (or one of its agents) as a “friend” or a contact will determine whether the acquisition of genetic information on a social networking site will be inadvertent or not. Should this be one more reason not to “friend” your employer?


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You’ve Got (Facebook) Mail: Privacy Issues Not Addressed During Conference Announcing New Messaging Service

It had been widely anticipated that Facebook would announce today a Facebook email service, similar to gmail.com or yahoo.com. Almost, but not quite.

Instead, Mark Zuckerberg, who founded the company, announced today at a conference, which was broadcast live on Facebook,  a new Facebook messaging service designed to  allow users to “seamlessly integrate” all the messages they send across the different channels , texts and SMS, emails, and IMs.  As Mr. Zuckerberg described it, “it is a messaging system that includes email as part of it.” Mr. Zuckerberg was careful to point out that it is not a Facebook email messaging service, nor was it designed to rival Gmail.  Actually, according to the founder of Facebook,the modern messaging system will not be email.

From Facebook’s blog:

You decide how you want to talk to your friends: via SMS, chat, email or Messages. They will receive your message through whatever medium or device is convenient for them, and you can both have a conversation in real time.  You shouldn’t have to remember who prefers IM over email or worry about which technology to use.  Simply choose their name and type a message.”

Some features of the new product resemble email. Indeed, Facebook will provide an email address, yournameonfacebook@facebook.com . Users will be able to send and to receive messages to and from everybody, regardless of whether people are their “friends” or even Facebook’s users. Users will be able to forward messages, and add people to a conversational thread. The system will support sending file attachments.

This new service will be introduced gradually in the next months, and will be offered first by invitation only. Its privacy policy is thus not available yet. Even before the announcement, The Washington Post wondered if Facebook e-mail was a brilliant idea or a privacy concern.

The email service provided by Facebook will be integrated in the user’s account, and Mr. Zuckerberg noted that synching this service with other email systems “is on the roadmap.” How will the privacy of the messages sent through this new messaging service be protected? This was not specifically addressed during the press conference.  

However, answering a question from the audience, Mr. Zuckerberg said that the new service will not target advertisements based on the content of the message. Also, people will be able to decide which information will not be stored.

One remembers that, when Google unveiled in February 2010, Buzz, its social networking service, it opted-in all Gmail users to Buzz, and allegedly made private data belonging to Gmail users publicly available without their knowledge or authorization, leading to a class action privacy lawsuit.

It remains to be seen if users will be satisfied that the level of privacy and controls offered by this new service is sufficient for them to entrust it with all their daily messages.  

 


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Will the U.S. have soon a Data Protection Commissioner?

The Wall Street Journal reported last week that the Obama administration plans to introduce soon new Internet privacy legislation. The Wall Street Journal also reported that the administration will create a new position to oversee these efforts, which should be announced in the next few weeks, when a much anticipated U.S. Department of Commerce report on privacy will be published.
The White House National Science and Technology Council already announced last month the launch of a new Subcommittee on Privacy and Internet Policy. Its members will be representatives from more than a dozen Departments, agencies and Federal offices, and will be co-chaired by Cameron Kerry, the Department Commerce General Counsel, and by Department of Justice Assistant Attorney General Christopher Schroeder. The co-chairs wrote: “[r]ecognizing the global nature of the digital economy and society, the Subcommittee will monitor and address global privacy policy challenges and develop approaches to meeting those challenges through coordinated U.S. government action.”
According to the Wall Street Journal article, this Subcommittee should help to implement the Department of Commerce’s recommendations into policy. Although the proposals of the Department of Commerce privacy report are not yet known, one may gather some clues from Mr. Kerry’s remarks last month, when he was one of the panelists at the OECD 30th Annual Privacy Guidelines Conference in Jerusalem. He stated that “the time has come to adapt the legal and policy framework and avoid fragmented, inconsistent, and unpredictable rules that frustrate innovation and undermine essential consumer trust.”
Should this be interpreted as a U.S. commitment to have a comprehensive internet/data privacy law? Currently, the U.S. privacy laws are diverse, and legal remedies stem from federal laws, state laws, common law, and case law. Mr. Kerry was careful to add that “[b]uttressing these [privacy] laws and legal remedies is a robust system of industry self-regulation, combined with informal agency guidance and enforcement by the Federal Trade Commission and state attorneys general. Taken together, these strands weave a fabric of privacy protection as strong in practice as any omnibus system.”
Will the U.S. soon have a Data Protection Commissioner, as most Western nations do? If so, it will be interesting to find out how the new Data Commissioner will share his responsibilities with the Federal Trade Commission. Mr. Kerry stated that “[a] federal privacy office would help our efforts to bolster the role of privacy policy and urge greater privacy by design. Such an office would work closely with the FTC, while respecting its status as an independent enforcement authority.” However, the Wall Street Journal reports that the Republicans are unlikely to support a bill which would expand the Federal Trade Commission’s enforcement powers.
European Union Data Protection Commissioners have struggled in the past because of lack of enforcement powers. As the European Union may soon expand criminal penalties to enforce data protection, the U.S. will need to decide whether a comprehensive Internet privacy legislation and a Data Protection Commissioner with the power to enforce it, is the route that needs to be taken to preserve consumers’ trust in the Internet, while promoting electronic  commerce, cultural and social exchange on the Internet.


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Congress and President Obama’s Administration Continue to Debate Privacy Regulation

The Obama administration recently announced that it is preparing a report that will be issued by the U.S. Commerce Department regarding Internet privacy regulation. The Commerce Department’s report is intended to outline the Obama administration’s approach to regulating Internet privacy and steps that should be taken to protect consumers’ online privacy. While the report purportedly does not recommend specific legislation, it does indicate that self-regulation is not as robust and effective as the administration believes privacy protection should be and that Internet privacy protection should be strengthened. The Commerce Department’s report is expected to be released in the next few weeks.

This announcement follows the creation by the White House of a National Science and Technology Council Subcommittee on Privacy and Internet Policy, comprised of representatives from federal departments, agencies, and offices, including the Department of Commerce, the Federal Trade Commission (“FTC”), and the Federal Communications Commission (“FCC”). In addition to the Obama Administration’s efforts regarding privacy protection, the FTC has indicated that it will release a comprehensive report by the end of the year regarding the “Exploring Privacy” roundtables that were hosted by the Commission in fall 2009 and early 2010. The report will also contain recommendations for privacy protection and changes to the FTC’s privacy protection framework. Further, Representative Joe Barton (R-TX), currently the ranking minority member of the House of Representatives Committee on Energy and Commerce, has indicated that he intends to support tougher Internet privacy polices when Congress begins its January 2011 session.


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Connecticut Data Breach Suit Settled for $375,000 in Penalties

On November 8, 2010, the Connecticut Insurance Commissioner announced that the Connecticut Insurance Department has reached a settlement with Health Net of Connecticut (“Health Net”) over Health Net’s actions during a 2009 data breach affecting approximately 500,000 Connecticut residents. The Insurance Department alleged that Health Net failed to safeguard personal health information and other personally indefinable information, including social security numbers and bank account numbers, of Connecticut residents from misuse by third parties and failed to timely notify affected residents of the data breach. The settlement requires Health Net to pay $375,000 in penalties. Since the 2009 data breach, Health Net has also provided credit monitoring protection for two years to affected Connecticut residents and agreed to improve data and information security standards to better protect information from unauthorized disclosure. Health Net’s settlement with the Insurance Department is in addition to a settlement between Health Net and the Connecticut Attorney General reached in July 2010, which required Health Net to pay the state $250,000. The Connecticut Attorney General had alleged that Health Net violated Connecticut data breach and data safeguard laws, as well as the federal Health Insurance Portability and Accountability Act (“HIPAA”).