The Secure Times

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


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New article on email privacy and data collection

An interesting new article by Jeff Gould on email privacy and data mining.

Google Mines Gmail for Big Data Gold


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New Article on Standards for Privacy in the Cloud

An interesting article from Kurt Wimmer and Meena Harris

ISO/IEC Develop First-Ever International Standard Focusing on Privacy in the Cloud

Kurt Wimmer, Co-Chair, Privacy and Data Security Group, Covington & Burling LLP
Meena Harris, Associate, Covington & Burling LLP

Those who long have been concerned about a lack of consistent principles to guide the implementation of cloud services now have access to a new tool — one that promises to provide a useful guide to categories and controls in this important and expanding area of our practice.

This past summer, the International Organization for Standardization (“ISO”) together with the International Electrotechnical Commission (“IEC”) published ISO/IEC 27018, a new voluntary code of practice for the protection of personally identifiable information (“PII”) that is processed by a cloud-service provider. Used in conjunction with and as an expansion of ISO/IEC 27002, a best-practice guide for implementing information-security management, ISO/IEC 27018 creates a common set of security categories and controls intended specifically for cloud services. As the first-ever security standard for the cloud, ISO 27018 has the following key objectives:

• Help cloud-service providers that process PII to address applicable legal obligations as well as customer expectations.
• Enable transparency so customers can choose well-governed cloud services.
• Facilitate the creation of contracts for cloud services.
• Provide cloud customers with a mechanism to ensure cloud providers’ compliance with legal and other obligations.

While ISO/IEC 27018 does not replace existing laws and regulations, it provides a global common standard, which is particularly helpful for those cloud providers that offer services to customers in different countries. Because the requirements of such laws and regulations governing the protection of PII vary significantly from country to country, and obligations as between cloud-service providers and their customers can differ according to individual contract terms, ISO/IEC 27018 addresses the special challenges faced by cloud services operating internationally.

ISO states that the new standard is “applicable to all types and sizes of organizations, including public and private companies, government entities, and not-for-profit organizations, which provide information processing services as PII processors via cloud computing under contract to other organizations.” Still, ISO notes that the new standard should be adopted only as a “starting point.” In other words, not all aspects of the standard will be appropriate for all cloud services, and additional controls not included in ISO/IEC 27018 might be necessary for particular services to develop. Likely sometime next year, ISO will release ISO/IEC 27017, which more broadly will address information-security best practices for cloud computing.

In order to achieve ISO/IEC 27018 certification, a cloud service must undergo an audit by an accredited certification body that ensures that the cloud provider:

• Helps customers comply with their obligations to allow end-users to access, correct and/or erase their personal information.
• Processes PII only in accordance with a customer’s instructions.
• Processes PII for marketing or advertising purposes only with the customer’s express consent.
• Discloses information to law-enforcement authorities only when legally bound to do so.
• Discloses the names of any sub-processors and the possible locations where personal information may be processed prior to entering into a cloud-services contract.
• Helps customers comply with their data breach notification obligations.
• Implements a policy for the return, transfer, or disposal of personal data that specifies the retention period following the termination of a contract.
• Agrees to independent information-security reviews at planned intervals or when significant changes occur.
• Enters into confidentiality agreements with staff who have access to personal data and provide them training.

To maintain certification under ISO 27018, a cloud-services provider must undergo periodic third-party reviews.

Key cloud players in the U.S. and Europe already have announced intentions to become certified under ISO/IEC 27018.


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Does Free E-mail Threaten the Attorney Client Privilege and Other Ethical Duties to the Client?

An interesting article by Chris Castle:

http://www.christiancastle.com/articles/2014/10/11/free-email-and-attorney-client-privilege-from-texas-lawyer-22-october-13-2014


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Snapchat Settles FTC Charges That Promises of Disappearing Messages Were False

“Before u send any photo, msg or video, consider how u would feel if it reached a broader audience than you intend”, the FTC tweeted today after announcing a settlement with Snapchat, a popular messaging app that promised its users that their messages disappeared once expired.  Users are able to take photos, record videos, add text and drawings, known as snaps, and send them to a controlled list of recipients. Users also set a time limit for how long recipients can view their snaps (up to 10 seconds), and Snapchat claimed that after the time limit expired, the snaps would “disappear”.  However, the Commission alleged the snaps can be saved in several ways, such as using a third-party app or taking screenshots of snaps, without detection.

The FTC also alleged that Snapchat misled consumers about how much personal information was collected and the security measures in place to protect such information through its Find Friends feature.  For example, the app transmitted users’ location information and collected data like address book contacts, despite stating that it did not collect such information.  Further, the Commission charged that Snapchat’s failure to secure this feature resulted in a security breach that allowed hackers to compile a database of 4.6 million Snapchat usernames and phone numbers.

According to the New York Times, in response to the announcement the company stated “While we were focused on building, some things didn’t get the attention they could have,” and added: “Even before today’s consent decree was announced, we had resolved most of those concerns over the past year by improving the wording of our privacy policy, app description, and in-app just-in-time notifications. And we continue to invest heavily in security and countermeasures to prevent abuse.”

The settlement prohibits Snapchat from misrepresenting the extent to which it maintains the privacy, security, or confidentiality of users’ information.  Snapchat is also required to implement and maintain a comprehensive privacy program for the next 20 years.  The Commission stated that the settlement with Snapchat is part of the FTC’s ongoing effort to ensure that companies market their apps truthfully and keep their privacy promises to consumers.


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Windows XP End of Life Poses Risks to the Significant Percentage of Companies Still Tied to the Platform

On April 8, Microsoft officially ended all support and ceased providing updates for their Windows XP operating system. This “end of life” (EOL) announcement is not uncommon with software platforms, where continued support of aging software (XP is over 12 1/2 years old) becomes too expensive or too impractical, and the user is thus encouraged to upgrade to a newer version of that software. This all makes sense on the surface. As we’ve seen time and time again, software–especially large, complex pieces of software like operating systems–tends not to age well. Due to the sheer complexity of systems like XP, retrofitting patches to fix errors and vulnerabilities can be quite difficult, and may even lead to unintended consequences (i.e., more bugs). Thus, over time, software companies may urge their customers to migrate to the (relatively) clean slate provided by upgraded versions of their software.

The XP EOL announcement came as no surprise. Microsoft has been urging customers to start planning for upgrades since it terminated all retail sales of the operating system in 2008. But according to recent statistics provided by Net Applications, nearly 28% of Internet users are still running some version of Windows XP. Even worse, this number does not include those computers running XP that aren’t use for web browsing, e.g., servers, point-of-sale (POS) systems, medical systems, industrial systems, security systems, and ATMs. This number includes large organizations such as banks and governments which, due mainly to their size and conservative technology adoption policies, take more time to migrate away from software platforms, especially those that provide core services, such as operating systems. This has led to multi-million dollar agreements between these organizations and Microsoft in order to provide continued support for the short term.

But what about those companies and organizations who don’t necessarily have the wherewithal to negotiate individual support contracts with Microsoft? In addition, these smaller companies too often don’t have the depth of IT support required to keep up with these updates, and some organizations may not even be aware they’re still running XP within their network. For these companies, the fact that Microsoft will no longer be providing public patches for future vulnerabilities could prove to be a serious problem.

The first example of this problem showed up this week. On Monday, a new “zero-day” vulnerability in Microsoft’s Internet Explorer (IE) web browser was announced. This vulnerability is quite serious, as it could allow for remote code execution on a user’s computer, and had already been detected as an attack being used in the wild. Technology news sources were referring to this bug as the first sign of the “XPocalypse,” where users and organizations still running the unsupported platform would be left to the wolves, so to speak.

Yesterday, Microsoft took the unusual step of issuing a patch for this IE vulnerability for all of its platforms, including the “unsupported” Windows XP. While this step may have averted disaster for XP users–at least for the time being–many technology experts are warning that providing retroactive support for EOL platforms will not solve the larger problem of a significant number of users running aging, vulnerable software. This should concern not only the companies still running XP, but the entire Internet ecosystem, since compromised computer systems are often repurposed as platforms for further attacks.

It’s still too early to tell whether any of the dire predictions presented by the so-called XPocalypse will come to pass. Some cynics have pointed out that we are not likely to see a sudden surge of attacks on XP, since XP has been quite vulnerable to attack for some time, even when it was supported. Either way, companies would do well to make software security a priority, from the C-Suite on down. Companies are coming to realize that many (or most) of them are actually in the software business, as so much of their operation depends on the software that sits behind the scenes. There may come a time that the FTC views the unsupported use of XP as failing to take reasonable security measures. Adopting a wait-and-see approach to software security is bound to make a potentially bad situation even worse.


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White House releases Big Data Report

The White House released its report on big data, “Big Data: Seizing Opportunities, Preserving Values,” on Thursday, May 1, 2014, which looks at the ways that businesses and the government are able to perform analytics on massive data sets culled from a wide variety of sources to develop new observations and measurements about individual consumers.   The Report offers findings and recommendations, based on 90 day review of big data and privacy led by White House counselor John Podesta and an executive branch working group, including the Secretaries of Commerce and Energy, the President’s Science and Economic Advisors and other administration officials at the request of President Obama. The working group sought public input from academic researchers, privacy advocates, advertisers, civil rights groups and the public during its review in an effort to evaluate the opportunities and challenges presented by big data.

The Report recognizes the inherent value big data has added to society, citing as examples the ability of big data analysis to enhance and improve medical treatment of premature infants, increase efficiencies across transportation networks and utility providers, and identify fraud and abuse in Medicare and Medicaid reimbursements. However, the Report also acknowledges serious privacy concerns, noting that big data may reveal intimate personal details of an individual user, and that big data tools may lead to discriminatory outcomes, particularly with regard to housing, employment and credit.

The Report offered several policy recommendations:

  • Move forward with the Consumer Bill of Rights.  In 2012, the President announced the concept of a Consumer Bill of Rights, which establishes certain baseline consumer privacy principles such as offering transparency about data privacy and security practices, providing consumers control over data practices, respecting the context in which the data was collected, increasing the accuracy of data files, and providing the opportunity for consumers to access collected data. This Report reiterates the importance of passing legislation to enforce the Bill of Rights principles, but also questions whether the principles are well-suited to the world of big data.  Perhaps, the Report suggests, there should be a greater emphasis placed on how the data is used and reused rather than an emphasis on establishing notice and consent for the initial data collection.
  • Pass National Data Breach Legislation.  The Report notes that the amalgamation of so much information about consumers results in much greater harm to the consumer in the event of a data breach, and finds an even greater need for Congress to pass national data breach legislation to preempt the 47 different state laws currently in effect.
  • Extend privacy protections to non-US persons.  The Report urges government departments and agencies to apply the Privacy Act of 1974 and other privacy protections to all individuals, regardless of nationality.
  • Ensure data collected on students in schools is used for educational purposes.  Acknowledging the growing and valuable use of educational technologies in schools, the Report calls for protections to ensure that student data is not used inappropriately when it is collected in an educational setting.  The Report suggests modernizing COPPA and FERPA to protect student data in the digital age, while still encouraging innovation in the educational technology industry.
  • Expand technical expertise to stop discrimination.  Businesses decisions affecting consumers’ access to healthcare, education, employment, credit and goods and services are increasingly made on the basis of big data algorithms. The Report calls on the DOJ, the FTC, the CFPB and the EEOC to develop their technical expertise to be able to detect whether these automated decision-making processes have discriminatory effects on protected classes of people, and to develop tools to redress such discrimination.
  • Amend the Electronic Communications Privacy Act (ECPA).  The Stored Communications Act, which is part of the ECPA, articulates the rules for obtaining the content of stored communications including email and cloud servers, but was written well before personal computing, email, texting, cloud storage, and smart phones were used as the primary means of communication.  The Report calls on Congress to amend the ECPA to ensure the standards of protection for digital online content is consistent with the protections afforded in the physical world.

While the Report provides a useful overview of the big data phenomenon, its benefits and its challenges, it remains to be seen what impact this Report will have on the industry.  By and large, the Recommendations do not contain wholly new ideas.  The ECPA is widely considered to be antiquated and there have been repeated calls for reform.  There have been many attempts to offer national data breach notification legislation, but no bill has made it through Congress to date.  The White House first offered its support for a Consumer Bill of Rights in 2012, but spent the last 2 years involved in multi-stakeholder meetings without producing draft legislation. This recent Recommendation shows little evidence of advancing the ball significantly on that front, as calls for additional “stakeholder and public comment” before crafting the legislative proposal.  However, the call for greater protections for student data is well-timed, as one of the largest school technology providers, inBloom, was forced to shut down over privacy concerns just a few weeks prior to the Report’s release.