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Workplace Privacy, Data Management & Security Report

Top 13 for 2013 – Happy Privacy Day

Prepared by Jason Gavejian and Joseph Lazzarotti

In honor of National Data Privacy Day, we have laid out 13 key issues affecting businesses in 2013. While the list is by no means exhaustive, it does provide critical areas businesses will need to consider in 2013.

  1. BYOD. As advancements in technology continue at a breakneck pace, many businesses are confronted with the idea of implementing a Bring Your Own Device (“BYOD”) program. Under these programs, employees are permitted to connect their own personal devices to the company’s networks and systems to complete job tasks either in the office or working remotely. While BYOD programs have advantages, they also have associated risks. Developing a thorough implementation strategy with appropriate policies is critical.
  2. Bans On Requesting Social Media Passwords. As we have previously discussed  fourteen states introduced legislation in 2012 which would prohibit employers from requiring current, or prospective, employees to disclose a user name or password for a personal social media account. Six states have passed and/or enacted such legislation and it is anticipated that other states will pass similar measures in 2013.
  3. Final HIPAA Regulations. On January 17, 2012, the Office for Civil Rights released final privacy and security regulations under the Health Insurance Portability and Accountability Act. In addition to incorporating the HITECH Act which, among other things, expands the application of the rules to business associates, the final rules also apply the rules to subcontractors and remove the risk of harm trigger for data breaches affecting unsecured protected health information.
  4. Disaster Recovery Plans. Hurricane Sandy caused extensive damage on the east coast in 2012, greatly affecting not only personal residences, but many businesses up and down the coast. Unfortunately, protecting information and technology assets from natural disasters and other emergencies is often an afterthought. However, developing a comprehensive disaster recovery plan now can avoid the significant expense, and often irretrievable loss of data, associated with natural disasters.
  5. Develop a Plan for Responding to a Breach Notification. All state and federal data breach notification requirements currently in effect require notice be provided as soon as possible. Delays in notification viewed as unreasonable could trigger an inquiry by the state’s Attorney General, or in the case of HIPAA protected health information, the Office of Civil Rights. This is true even when the number of individuals affected is relatively small.
  6. Investigating Social Media. As the use of social media continues to grow throughout the world, it is only natural that social media content is being sought to aid in litigation. While public content may generally be utilized without issue, if private content is accessed improperly, serious repercussions can follow. This is especially true for attorneys and their staff who attempt to aid their clients by accessing social media content.
  7. International Data Protection. More and more company information is being stored in electronic format and shared with various corporate divisions through company intranets or email. While U.S. law requires some safeguarding of this information, international protections on personal information can be much more stringent. When the transfer of data across international borders is possible, or actively occurring, companies should be advised on the potential risks and requirements associated with same.
  8. Develop a Written Information Security Program. Even if adopting a written information security program (WISP) to protect personal information is not an express statutory or regulatory mandate in your state, having one is critical to addressing information risk. Not only will a WISP better position a company when defending claims related to a data breach, but it will help the company manage and safeguard critical information, and may even help the company avoid whistleblower claims from employees. For some companies, a WISP can be a competitive advantage. Of course, in states like Massachusetts, Maryland, Oregon, Texas, Connecticut and others, a WISP in one form or another is required.
  9. Risk Assessment. Many businesses remain unaware of how much personal and confidential information they maintain, who has access to it, how it is used and disclosed, how it is safeguarded, and so on. Getting a handle on a business’ critical information assets must be the first step, and is perhaps the most important step to tackling information risk. You simply can’t adequately safeguard something you are not aware exists. And failing to conduct a risk assessment may subject the business to penalties under federal and/or state law.
  10. Insurance. Like many other risks, information risk can be addressed in part through insurance. More carriers are developing products dealing with personal information risk, and specifically data breach response. This kind of coverage should be a part of any CIO, privacy officer or risk manager’s toolkit for safeguarding information.
  11. Training. A necessary component of any WISP and a required element under most federal and state laws mandating data security is training. In addition to meeting compliance requirements, training employees and supervisors also will aid in defending any potential breach of privacy claim that may be asserted against the company.
  12. Carefully Integrate New Technologies. As businesses look for new technologies to increase productivity, cut costs, and gain a competitive advantage, how those technologies address information risk must be a factor in the decision to adopt.
  13. Watch for New Legislation. Today, managing data and ensuring its privacy, security and integrity is critical for businesses and individuals, and is increasingly becoming the subject of broad, complex regulation. As no national law requiring the protection of personal information has yet to be passed in the U.S., companies are left to navigate the constantly evolving web of growing state legislation. Companies therefore need to stay tuned in order to continue to remain compliant and competitive in this regard.
  • http://justitialegalservices.com Dominique

    Very informative blog. Health care providers in California have a somewhat different take on patient privacy. Waiving doctor patient confidentiality to avoid med mal suits or adminsitrative action. Using new technology and health information systems to share patient information with other providers about patients who are complaining about a misdiagnoses or about being incorrectly billed. In essence “bad mouthing” patients to prevent treatment by another provider.