Workplace Privacy, Data Management & Security Report : Privacy Lawyers & Attorneys : Jackson Lewis Law Firm : Data Security, HIPAA & Confidentiality Issues

In addition to concerns about social media, school districts across the country need to address a growing interest in the personal data of the students they educate. No, this interest does not stem from a desire to see if kids are reading at the desired level, or if the children have the resources they need to receive an adequate education. Data thieves want this information to commit identity theft. 

As reported by the Huffington Post:

Identity theft in schools is more than theoretical. Last July, Sheyla Diaz, 44, a former Broward County, Florida high school teacher, was sentenced to six months of house arrest for stealing the identities of former students. In 2009, Jonathan E. Kelly, who worked as a police officer for the Palm Beach County School District, was sentenced to eight years in prison for stealing the identities of former students and teachers.

The thieves know that children have pristine credit and that school districts, hampered by substantial budget cuts, may not be doing all they could to safeguard this information. Parents and school districts need to take steps to address this growing risk.

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As we suspected, California's current governor, Edmund G. “Jerry” Brown, Jr. (D), signed into law S.B. 24, which adds some additional protections to the state's current data breach notification requirements. The champion of this law and its recent enhancements, State Sen. Joe Simitian (D-Palo Alto), has finally succeeded after a number of prior attempts to pass this measure were vetoed by then-Gov. Arnold Schwarzenegger (R).

Summary of Changes

Under S.B. 24, breaches occurring on and after January 1, 2012, that require notification to California residents will have to meet the following additional requirements:

• The notifications themselves will need to satisfy specific content requirements, such as including a description of the type of information breached, time of breach, and toll-free telephone numbers and addresses of the major credit reporting agencies;
• If more than 500 California residents are affected by a single breach, an electronic copy of the breach notification must be send to the California Attorney General;
• If the law's "substitute notice" provisions are used, notice also must be provided to the Office of Information Security or the Office of Privacy Protection. Substitute notice is permitted when the person or business required to provide the notice demonstrates that (I)(i) the cost of providing notice would exceed two hundred fifty thousand dollars ($250,000), or (ii) that the affected class of subject persons to be notified exceeds 500,000, or (II) the person or business does not have sufficient contact information. Prior to the change, substitute notice consisted of only email notification, conspicuous posting of the notice on the person or business' website, and notification to statewide media.

Companies responding to multi-state breaches face significant challenges trying to harmonize the various state law requirements. See, for example, the recent changes to the Illinois statute. Presently, a number of bills are being considered in Congress that would preempt all of the state laws in this area, however, passage of one of these laws does not appear to be imminent. As data breaches go global, similar concerns exist as countries are enacting their own breach notification mandates.

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Illinois Governor Pat Quinn approved a measure on August 22, 2011, amending his state's data breach notification law. The changes, which become effective January 1, 2012, are designed to increase protections for Illinois residents in the following ways:

New information that must be included in breach notifications:

• the toll-free numbers and addresses for consumer reporting agencies,
• the toll-free number, address, and website address for the Federal Trade Commission, and
• a statement that the individual can obtain information from these sources about fraud alerts and security freezes.

Information that may not be included in breach notifications:

• information concerning the number of Illinois residents affected by the breach.

New requirements for "data collectors" that maintain or store, but do not own or license, computerized data:

As with most breach notification statutes, entities that maintain or store certain personal information on behalf of the owner or licensee of that data also have obligations in the event of a breach of the security of that data. Generally, the obligation is to notify the owner of the breach. So, for example, a third party claims administrator or an accounting firm might perform services for ABC Corp. (the owner) requiring the administrator or accounting firm to maintain or store the personal information. If an employee of the administrator or accounting firm loses a laptop containing ABC Corp.'s personal information, or the employee or some third party impermissibly accesses or acquires the information, the administrator or accounting firm would be required to notify ABC Corp. which, in turn, would need to notify the affected individuals.  

As amended, Illinois' breach notification law requires companies that maintain or store personal information to cooperate with the owner or licensee in matters relating to the breach, by notifying the owner or licensee of: 

• the date or approximate date of the breach and the nature of the breach, and
• any steps the entity has taken or plans to take relating to the breach.

However, this cooperation shall not require either (i) the disclosure of confidential business information or trade secrets of the company that maintains or stores the information, or (ii) the notification of an Illinois resident who may have been affected by the breach.

New Mandates for Disposing of Materials Containing Personal Information 

The amended law requires "persons" (including natural persons, corporations, partnerships, associations, or other legal entities, including governmental entities) to dispose of the materials containing personal information "in a manner that renders the personal information unreadable, unusable, and undecipherable." The law provides examples of proper disposal methods: 

• Paper documents containing personal information may be either redacted, burned, pulverized, or shredded so that personal information cannot practicably be read or reconstructed.
• Electronic media and other non-paper media containing personal information may be destroyed or erased so that personal information cannot practicably be read or reconstructed.

Companies may engage third parties to carry out the disposal of personal information, provided that third parties performing these services must implement and monitor compliance with policies and procedures that prohibit unauthorized access to or acquisition of or use of personal information during the collection, transportation, and disposal of materials containing personal information. It is recommended that service contracts be carefully drafted to address these issues and appropriate steps be taken to monitor compliance.

Penalties for violations of the disposal requirements can be up to $100 for each individual with respect to whom personal information is disposed, subject to a maximum penalty of $50,000 for each instance of improper disposal.

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Reuters and other news outlets are reporting that Representative Mary Bono Mack has circulated draft legislation in response to the steady stream of data breaches that have occurred this year. According to the report, Senate Majority leader Harry Reid also has asked four Senate committees to pull together a comprehensive cybersecurity bill, hoping it will be brought to the floor by late summer. After years of failed attempts at data breach legislation, the federal government could be poised to enact broadly applicable requirements for safeguarding data and responding to data breaches. 

Some key provisions of the draft legislation would require covered entities (basically, any person engaged in interstate commerce) to:

• establish and implement policies and procedures to protect personal information (defined in a manner similar to most current state breach notification laws) to include, without limitation, designating a point person to manage information security, and having a process for identifying and assessing foreseeable vulnerabilities;
• erase personal data that is no longer needed and otherwise take steps to minimize the amount of personal information maintained;
• notify law enforcement within 48 hours of a data breach, and if data could be used to steal a customer's identity, notify the Federal Trade Commission within 48 hours and begin contacting the affected persons; and
• provide 2 years of credit reporting services or credit monitoring services to individuals affected by a covered data breach.

The law would be enforceable by state attorneys general and the Federal Trade Commission with maximum penalties running into the millions of dollars. The law would generally preempt similar state laws, but would not permit private lawsuits. 

Of course, companies should not be waiting to see if any action is taken at the federal level. There are a number of states with similar laws already on the books. In addition, exposure from a data breach, particularly when there were no safeguards in place to prevent the breach, should be sufficient motivation to take steps to safeguard personal data.

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Today the White House issued a Cybersecurity Legislative Proposal. The proposed legislation focuses on protecting the American people, the nation’s critical infrastructure, and the federal government's computers and networks.  While legislation of this nature would simplify the breach reporting process for businesses, and overall streamline cybersecurity laws, a number of legislative attempts to do this have previously failed.  It is important to note that while this proposal sets forth some guidelines, the specific details of how each provision would be instituted are not yet clear

Our critical infrastructure – such as the electricity grid, financial sector, and transportation networks that sustain our way of life – have suffered repeated cyber intrusion, and cyber crime has increased dramatically over the law decade. The President has thus made cybersecurity an Administration priority. 

1.  To protect the American people, the proposed legislation calls for a national data breach reporting law which would simplify and standardize the existing patchwork of 47 state laws that contain these requirements. Additionally, the proposal calls for penalties for computer criminals and clarifies the penalties for computer crimes, synchronizes them with other crimes, and sets mandatory minimums for cyber intrusions into critical infrastructure.
2. To protect our nation’s critical infrastructure the proposal calls on legislative changes to fully protect this infrastructure. Specifically, proposal will enable the Department of Homeland Security (DHS) to quickly help a private-sector company, state, or local government when that organization asks for its help. It also clarifies the type of assistance that DHS can provide to the requesting organization.

Additionally, the proposal permits businesses, states, and local governments to share information about cyber threats or incidents with DHS. To fully address these entities’ concerns, it also provides them with immunity when sharing cybersecurity information with DHS. At the same time, the proposal mandates robust privacy oversight to ensure that the voluntarily shared information does not impinge on individual privacy and civil liberties.

Further, the proposal emphasizes transparency to help market forces ensure that critical-infrastructure operators are accountable for their cybersecurity.

Finally, the proposal requires DHS to work with industry to identify the core critical-infrastructure operators and to prioritize the most important cyber threats and vulnerabilities for those operators. Critical infrastructure operators would then take steps to address cyber threats, develop risk mitigation plans, and permit DHS to modify the processes which are implemented if they are insufficient. 

3.  To protect federal government computers and networks the legislative proposal includes: an update to the Federal Information Security Management Act (FISMA) as well as formalizing DHS’ current role in managing cybersecurity for the Federal Government’s civilian computers and networks, in order to provide departments and agencies with a shared source of expertise; giving DHS more flexibility in hiring highly-qualified cybersecurity professionals; the permanency of DHS’s authority to oversee intrusion prevention systems for all Federal Executive Branch civilian computers while codifying strong privacy and civil liberties protections, congressional reporting requirements, and an annual certification process; and preventions on states requiring companies to build their data centers in that state, as opposed to in the cloud, except where expressly authorized by federal law.

The Administration’s proposal also attempts to ensure the protection of individuals’ privacy and civil liberties through a framework designed expressly to address the challenges of cybersecurity. Some of these provisions include: requiring federal agencies (and likely federal contractors) to follow privacy and civil liberties procedures; limitations on monitoring, collecting, using, retaining, and sharing of information; requiring efforts to remove identifying information unrelated to cybersecurity threats; as well as immunity provisions for those business which comply with the proposal’s requirements.  

As the proposal concludes: 

Our Nation is at risk… [t]he Administration has responded to Congress’ call for input on the cybersecurity legislation that our Nation needs, and we look forward to engaging with Congress as they move forward on this issue.

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NBC's Bob Sullivan reported on a rising trend of identity thieves targeting children. Why? Well, having no real credit history, most children’s credit is clean and good. Also, children, particularly younger children, are not going to be needing or looking at their credit for some time. These factors make children more attractive targets of identity theft.

Mr. Sullivan’s colleague Jeff Rossen and the "TODAY" show dig into this issue and provide some valuable information for parents about the problem and how to safeguard their children.

Businesses need to be in tune to this as well. All of the country’s data breach notification laws (46 states, plus other jurisdictions), as well as the laws requiring safeguards for personal information apply to “individuals,” not adults or persons over a certain age.

Some companies may believe they do not have personal information about children, but most companies do. For example, companies sponsoring medical, dental or vision coverage for employees, or health and dependent care flexible spending accounts maintain (or require vendors to maintain) personal information about children of covered employees. This kind of information also could be contained in retirement or life insurance plan beneficiary designation records, as well as records supporting leaves of absence and other matters.
 

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Acknowledging the need "to help states combat the growing threat of business identity theft," the National Association of Secretaries of State (NASS) announced on April 18, 2011, the formation of a "Business Identity Theft Task Force." The focus of this task force is to assist states (not necessarily private business) with combating business identity theft in areas such as "the types of technology used by states in housing business documents, solutions for securing state business filing information and records, and key partnerships/liaisons for conducting outreach."

However, this action by the NASS highlights a growing problem for small and medium sized businesses: 

"With the downturn in the economy, the newest victims of identity theft are small and medium-sized businesses, including dormant or inactive companies," said NASS President Mark Ritchie of Minnesota, who serves on the task force. "As the state officials who oversee business registrations and corporate filings, secretaries of state have come together to educate business owners on how they can reduce their chances of falling prey to identity thieves and to explore safeguards for state filing systems." 

Identity thieves are not just attacking state filing systems, so businesses need to take steps of their own to safeguard not only personal information of customers, employees and others, but also the businesses' corporate and financial data. Many of the same principles that apply in the safeguarding of personal information also would apply to safeguarding the information of the business. Two critical steps in this process are conducting a risk assessment and developing a written information security program.

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Most would expect that when an entity experiences a data breach, that entity would take reasonable and appropriate steps to investigate the breach and mitigate harm. Making credit monitoring services available to affected persons is a typical way companies attempt to mitigate harm, and that is exactly what the Plymouth County Correctional Facility did when one of its prisoners hacked into its personnel records. Including these monitoring costs in a restitution award to the prison facility was proper, the U.S. Court of Appeals for the First Circuit ruled in United States v. Janosko.

Charged under the criminal provisions of the Computer Fraud and Abuse Act (CFAA), the inmate who hacked into the prison's records while incarcerated pleaded guilty

not only to causing such “damage” but also to causing “loss” by his damaging conduct, § 1030(a)(5)(B)(i).

The Court found that the "near juxtaposition of “loss” to “damage” inflicted on items or systems of equipment indicates some broader concept of forbidden effect and consequent scope of restitution" and that the definition of "loss" under the CFAA includes “any reasonable cost to any victim, including the cost of responding to an offense.” In this case, recovery by the prison facility was further enabled under the Mandatory Victims Restitution Act which mandates restitution for “expenses incurred during … the investigation or prosecution of the offense.”

Actually recovering these costs from this or any other hacker will likely be difficult. However, companies are increasingly experiencing breaches and are getting better at being able to identify those committing the breach, which often times are employees or former employees. This decision provides support for those companies seeking to recover the costs they incur when taking appropriate steps to investigate these data incidents and mitigate harm when a breach is found to have occurred. As this court noted:

It should go without saying that an employer whose personnel records have been exposed to potential identity thieves responds reasonably when it makes enquiry to see whether its employees have been defrauded. This act of responsibility is foreseeable to the same degree that indifference to employees’ potential victimization would be reproachable. It is true, of course, that once they were told of the security breach, the individual employees and former workers involved in this case could themselves have made credit enquiries to uncover any fraud, but this in no way diminishes the reasonableness of the Facility's investigation prompted by the risk that its security failure created. And quite aside from decency to its workers, any employer would reasonably wish to know the full extent of criminality when reporting the facts to law enforcement authorities.
 

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Last month, the Federal Trade Commission's Bureau of Consumer Protection posted FAQs on its website to guide health care providers and health plans when their patients and subscribers are affected by medical identity theft. 

When most people hear about an identity theft or a data breach, they typically think about credit card data or Social Security numbers being stolen and used by unauthorized parties, and the damage to one's credit rating that sometimes follows. However, as reported by Businessweek, medical identity theft is one of the fastest growing types of identity theft. According to the article, the number of incidents of medical identity theft was approximately 275,000 in 2009; double the number in 2008. As the country implements the new health care reform law, assuming it gets past some significant obstacles, there likely will be periods of confusion and transition that may create the perfect conditions for even higher levels of medical identity theft.

The FTC's FAQs point out that health care providers and health plans may have some obligations when they learn about medical identity theft affecting their patients or subscribers. For example, depending on the circumstances, the provider or plan may have to revisit its privacy and security policies and procedures under HIPAA and other federal and state laws. The theft also may have resulted from a data breach that requires the provider or plan to notify other affected persons. Providers and plans also need to be prepared to help victims get the information they need and exercise their rights under HIPAA and other laws to help mitigate the adverse effects of this unfortunate crime.

Providers and plans should be taking steps to be prepared to address medical identify theft situations.

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As we reported here, the Senate passed legislation to clarify the application of the "red flag" rules to "creditors."  The law, the Red Flag Program Clarification Act of 2010, made its way through the House and, on December 18, 2010, was signed into law by President Barack Obama.

The Act makes clear that the red flag rules apply to a creditor that:

regularly and in the ordinary course of business - 

(i) obtains or uses consumer reports, directly or indirectly, in connection with a credit transaction;

(ii) furnishes information to consumer reporting agencies [defined elsewhere in the Fair Credit Reporting Ac] in connection with a credit transaction; or

(iii) advances funds to or on behalf of a person, based on an obligation of the person to repay the funds or repayable from specific property pledged by or on behalf of the person.

The definition of "creditor" under the Act goes on, however, to exclude those creditors that fall into item (iii) above, if the creditor advances funds for expenses incidental to a service provided by the creditor to the person. For many who believed that the red flag rules were never intended to apply to them, such as health care providers and attorneys, this language is expected to provide the relief they were seeking.

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As reported by the American Bar Association and PHIprivacy.net, lawyers, accountants, health care providers and others soon may get some clarity as to whether the "red flag" rules apply to them. The United States Senate voted unanimously to pass the Red Flag Program Clarification Act of 2010. Under the Act, according to statements from Sen. Christoper Dodd (D) of Connecticut:

lawyers, doctors, dentists, orthodontists, pharmacists, veterinarians, accountants, nurse practitioners, social workers, other types of health care providers and other service providers will no longer be classified as “creditors” for the purposes of the Red Flags Rule just because they do not receive payment in full from their clients at the time they provide their services, when they don’t offer or maintain accounts that pose a reasonably foreseeable risk of identity theft.

After the Red Flags Rule became final, many businesses indicated that they were not aware that they would be covered by this rule. Despite the Federal Trade Commission delaying enforcement of the rule several times to allow these entities time to come into compliance, a number of professional organizations, including the American Bar Association and the American Medical Association, sued the FTC for taking the position that professionals were “creditors” when they allowed consumers to pay later, and would have to comply with its Red Flags Rule. On May 28, 2010, the FTC announced that it would delay enforcing its Red Flags Rule through December 31, 2010 and asked Congress to pass legislation that would resolve any questions about which entities should be covered as “creditors” and to obviate the need for further enforcement delays.

Presently, only the Senate has acted on this request. The measure will need to be approved by the House of Representatives and signed by President Obama. Still, this is encouraging news for many concerned about compliance with this new mandate.  

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In another favorable decision for companies, the Maine Supreme Court ruled on September 21, 2010 that consumers affected by a data breach could not claim damages from the company unless they suffered uncompensated financial losses or some other tangible injury. 

The Maine Supreme Court addressed the following:

In the absence of physical harm or economic loss or identity

theft, do time and effort alone, spent in a reasonable effort to

avoid or remediate reasonably foreseeable harm, constitute a

cognizable injury for which damages may be recovered under

Maine law of negligence and/or implied contract?

The Court ruled they do not. Additionally, the Court went on to state that "[t]he tort of negligence does not compensate individuals for the typical annoyances or inconveniences that are a part of everyday life….An individual's time alone, is not legally protected from the negligence of others."

The underlying suits were filed following a breach, and fraudulent use, which resulted when card holder data of nearly 4.2 million people was stolen. The lawsuits alleged the company was negligent in protecting card holder data and failed to notify of the breach in a timely fashion.  The above holding was issued when the District Court Judge who heard the underlying case, agreed to let the state Supreme Court decide whether the plaintiffs could sue the company for the time and effort put into avoiding or mitigating harm from fraudulent charges on their cards.

Two other cases are similarly instructive. In 2003 the Minnesota Supreme Court found that an invasion of privacy cause of action requires that the dissemination resulted in “publicity” of private facts. Because the disclosure was internal to other employees, and not to the public at large, the Court held the dissemination was insufficient publicity to support an invasion of privacy claim against the employer. Further, in Guin v. Brazos Higher Educ. Serv. Corp. Inc., 2006 U.S.Dist. LEXIS 4846(D. Minn. Feb. 2, 2006), the District Court dismissed plaintiff’s negligence claim holding that the threat of future harm not yet realized will not support a claim for negligence which requires a showing of an injury.

Companies and employers must be on notice of these decisions when faced with individual lawsuits following data breaches. 

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Beginning March 1, 2010, businesses will be required to safeguard from identity theft and other dangers personal information about Massachusetts residents under a “written information security program” or WISP. Similar requirements exist in other states around the country, although those requirements generally are not as comprehensive as those becoming effective in the Bay state.

Our complimentary webinar is designed to help employers and businesses become compliant. The program will cover:

• the emergence of data security mandates across the country,
• the Massachusetts approach to data security – breach notification, data destruction, the nuts and bolts of the identity theft/data security regulations, and
• best practices when creating a WISP.

We hope you enjoy the webinar.

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The most frequent question we hear from clients who want to develop or tighten their data privacy and security policies and procedures: Where do we start?

In most cases, the first step for the group charged with this task is to understand the organization's "information risk." This means, in short, examining what information the company has, the nature of that information, how it moves through the organization and to/from its vendors, and the company's current set of safeguards. The process for gaining this understanding is generally referred to as a risk assessment. 

Click here for a power point presentation on key features of a risk assessment.

Risk assessments come in many forms and should be designed to fit your particular organization. 

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On August 18, 2010, the Connecticut Insurance Commissioner issued Bulletin IC-25 which mandates that entities within its jurisdiction notify the Department of Insurance of any "information security incident." This post provides a brief summary of this new requirement.

Who must provide the notice?

The Bulletin applies to all licensees and registrants of the Department. This generally means all entities regulated by the Insurance Department, including, insurance producers, public adjusters, bail bond agents, appraisers, certified insurance consultants, casualty claim adjusters, property and casualty insurers, life and health insurers, health care centers, fraternal benefit societies, captive insurers, utilization review companies, risk retention groups, surplus line companies, life settlement companies, preferred provider networks, pharmacy benefit managers, and medical discount plans.

Additionally, in cases where the information security incident happens at a vendor or business associate, the Department expects to be notified of the incident as well as how the

licensee or registrant is managing the vendor's/business associate's activities and what protections and remedies are being put in place by the vendor/business associate for the Connecticut consumers.

What is an "information security incident"? 

Under this Bulletin, an information security incident is:

any unauthorized acquisition or transfer of, or access to, personal health, financial, or personal information, whether or not encrypted, of a Connecticut insured, member, subscriber, policyholder or provider, in whatever form the information is collected, used or stored, which is obtained or maintained by a licensee or registrant of the Insurance Department, the loss of which could compromise or put at risk the personal, financial, or physical well being of the affected insureds, members, subscribers, policyholders or providers.

Thus, unlike the general Connecticut data breach notification statute which requires notification only with respect to computerized personal information, this mandate applies to paper documents which includes personal health, financial or personal information. Also, encrypted data is not exempt from this notification requirement.

What is personal health, financial, or personal information?

The Bulletin does not define this term and, therefore, is unclear in this regard. However, in discussing its authority to impose the requirement, the Department cites to Conn. Gen. Stat. §42-471, which defines "personal information" to mean:

information capable of being associated with a particular individual through one or more identifiers, including, but not limited to, a Social Security number, a driver's license number, a state identification card number, an account number, a credit or debit card number, a passport number, an alien registration number or a health insurance identification number, and does not include publicly available information that is lawfully made available to the general public from federal, state or local government records or widely distributed media.

This definition, however, may not be as broad as how the Department views the term "personal health, financial or personal information." Licensees and registrants should be careful here and err on the side of being more inclusive when deciding whether an incident needs to be handled in accordance with this Bulletin.

When must notification be provided?

The Bulletin requires licensees and registrants of the Department to notify it of the incident as soon as the incident is identified, but no later than five (5) calendar days after the incident is identified.

Where should notice be sent?

Notification should be sent to the Insurance Commissioner in writing via first class mail, overnight delivery service or electronic mail.

What must the notice include?

Notification should include as much information as is known concerning the incident. The Bulletin provides the following list of items of information to be reported to the Department:

• Date of the incident
• Description of incident (how information was lost, stolen, breached)
• How discovered
• Has lost, stolen, or breached information been recovered and if so, how
• Have individuals involved in the incident (both internal and external) been identified
• Has a police report been filed
• Type of information lost, stolen, or breached (equipment, paper, electronic, claims, applications, underwriting forms, medical records etc)
• Was information encrypted
• Lost, stolen or breached information covers what period of time
• How many Connecticut residents affected
• Results of any internal review identifying either a lapse in internal procedures or confirmation that all procedures were followed
• Identification of remedial efforts being undertaken to cure the situation which permitted the information security incident to occur.
• Copies of the licensee/registrants Privacy Policies and Data Breach Policy.
• Regulated entity contact person for the Department to contact regarding the incident. (This should be someone who is both familiar with the details and able to authorize actions for the licensee or registrant)
• Other regulatory or law enforcement agencies notified (who, when)

One of the items on this list to note is a Data Breach Policy which all entities should consider adopting even if not subject to this Bulletin.

Does the Department require that credit monitoring be offered in the event of an information security incident?

It looks like the Department may require credit monitoring in some circumstances. The Bulletin states that:

Depending on the type of incident and information involved, the Department will also want to have discussions regarding the level of credit monitoring and insurance protection which the Department will require to be offered to affected consumers and for what period of time. 

In addition, the Department wants to review the draft letters informing individuals of the information security incident.

Will the Department impose penalties?

The Bulletin states that the Department will evaluate each incident independently based on the applicable circumstances, and notes that some situations may warrant imposition of administrative penalties. The Department urges licenses and registrants to follow these procedures in order to minimize the possibility for penalties.

Licenses and registrants surely will need to review this guidance and incorporate it into their information security programs. Other entities should take note of this development and recognize the increasing efforts by federal and state agencies to safeguard personal information.

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Update - On September 29, 2010, Governor Arnold Schwarzenegger for the third time vetoed S.B. 1166.

California led the way in 2002 when it enacted the nation’s first data breach notification law. Last week, the State’s lawmakers sent Governor Arnold Schwarzenegger S.B. 1166 (pdf), which would mandate that data breach notification communications include more detailed information about the breach and that businesses experiencing data breaches affecting more than 500 Californians notify the State’s Attorney General.

Since California enacted its data breach notification law, lawmakers have been trying to make changes to it, with mixed results. Assembly Bill 1298 ("A.B. 1298"), which became effective January 1, 2008, expanded the application of the existing law to include medical and health information. However, to date, attempts to add content requirements to the notice and require notification to the State’s Attorney General have failed, despite similar requirements in the laws of a number of other states, such as Massachusetts, New York, North Carolina.

S.B. 1166 marks the third attempt by Senator Joe Simitian to amend the law in this manner. Both prior attempts were vetoed by the Governor Schwarzenegger. In addition to requiring notice to the State’s Attorney General for certain breaches, his current effort would require notices stating:

• a general description of the breach incident;
• the type of information breached;
• the date and time of the breach;
• whether the notification was delayed because of a law enforcement investigation; and
• a toll-free number of major credit reporting agencies if the breach exposed Social Security numbers, driver's license numbers, or state identification card numbers.

Because many states have similar content requirements and there are a number of websites that report on data breaches, passage of S.B. 1166 should not impose a significant burden in breaches involving individuals in multiple states. Nonetheless, companies should be alert to developments in California and be prepared to update their California data breach notification policies should the measure pass.
 

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On August 5, 2010, U.S. Senators Mark Pryor (D-AR) and John D. (Jay) Rockefeller IV (D-WV)  introduced legislation to require businesses and nonprofit organizations that store consumers’ personal information to put in place strong security features to safeguard sensitive data, alert consumers when this data has been breached, and provide affected individuals with the tools they need to protect their credit and finances, including credit monitoring services.

More specifically, the "Data Security and Breach Notification Act of 2010" would require entities that own or possess data containing personal information to establish reasonable security policies and procedures to protect that data. If a security breach occurs, entities would have to notify each individual whose information was acquired or accessed as a result of the breach within 60 days. Affected consumers would be entitled to receive consumer credit reports or credit monitoring services for two years, as well as instructions on how to request these services.

In support of the new law, the press release issued by the Senate Committee on Commerce, Science, and Transportation notes that data security breaches and identity theft are a growing problem in the United States. In 2009, the business industry experienced the greatest number of data breaches (41.8%), followed by government/military (18.1%) and education sectors (15.7%).

Of course, passage of this measure is possible, but, given the number of prior efforts to pass a national data breach notification law, passage seems unlikely. This outcome is made more likely by the inclusion of the credit monitoring mandate, the cost of which could be considerable to businesses affected by a data breach. Businesses should stay tuned . . .

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Rite Aid Corporation and its affiliates have agreed to pay $1 million to settle potential violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule, the U.S. Department of Health and Human Services (HHS) announced today. At the same time, Rite Aid signed a consent order with the Federal Trade Commission (FTC) to settle potential violations of the FTC Act.

The lesson to be learned from this case:

Disposing of individuals’ health information in an industrial trash container accessible to unauthorized persons is not compliant with several requirements of the HIPAA Privacy Rule and exposes the individuals’ information to the risk of identity theft and other crimes.

The Office of Civil Rights, which enforces the HIPAA Privacy and Security Rules, opened its investigation of Rite Aid after television media videotaped incidents in which pharmacies were shown to have disposed of prescriptions and labeled pill bottles containing individuals’ identifiable information in industrial trash containers that were accessible to the public. These incidents were reported as occurring in a variety of cities across the United States. Rite Aid pharmacy stores in several of the cities were highlighted in media reports.

The investigation also indicated other potential concerns about Rite Aid's policies related to safeguarding patient information during the disposal process, training employees, and a related sanction policy.

The Director of OCR noted:

It is critical that companies, large and small, build a culture of compliance to protect consumers’ right to privacy and safeguard health information. OCR is committed to strong enforcement of HIPAA.

The corrective action Rite Aid has agreed to includes improving policies and procedures to safeguard the privacy of its customers' health information, and applies to all of its nearly 4,800 retail pharmacies. More specifically, the settlement requires Rite Aid to take a number of steps including

• Revising and distributing its policies and procedures regarding disposal of protected health information and sanctioning workers who do not follow them;
• Training workforce members on these new requirements;
• Conducting internal monitoring; and
• Engaging a qualified, independent third-party assessor to conduct compliance reviews and render reports to HHS and FTC.

The HHS corrective action plan will be in place for three years; the FTC order will be in place for 20 years. The length and scope of these plans show the seriousness these agencies are taking concerning compliance with requirements to safeguard personal information.  

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The Federal Trade Commission announced it is further delaying its enforcement of the “Red Flags” Rule through December 31, 2010. This move comes at the request of several Members of Congress who want to further consider legislation that would clarify who is subject to the Rule.

The delay follows the lawsuit (pdf) filed by the American Medical Association and others arguing that the Red Flags Rule should not apply to physicians.  As reported by amednews.com, the plaintiffs bolster their case by pointing to a 2009 federal court ruling (pdf) (American Bar Assn. v. Federal Trade Commission) exempting lawyers from the Rule. That ruling is now on appeal to the U.S. Court of Appeals for the D.C. Circuit

Legislation is pending in the United States House of Representatives that would exempt certain professions, including physicians, from the Red Flags Rule. H.R. 3763 passed the House unanimously in October 2009, but there has been no further movement in Congress on this issue.

The Rule was developed under the Fair and Accurate Credit Transactions Act, in which Congress directed the FTC and other agencies to develop regulations requiring “creditors” and “financial institutions” to address the risk of identity theft. The resulting Red Flags Rule requires all such entities that have “covered accounts” to develop and implement written identity theft prevention programs to help identify, detect, and respond to patterns, practices, or specific activities – known as “red flags” – that could indicate identity theft.

In its announcement, the FTC notes that as was the case with prior enforcement delays, this enforcement delay is limited to the Red Flags Rule and does not extend to the rule regarding address discrepancies applicable to users of consumer reports, or to the rule regarding changes of address applicable to card issuers.

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With Mississippi enacting its own data breach notification law on April 7, Alabama, Kentucky, New Mexico, and South Dakota remain the only states without such a law. Mississippi Gov. Haley Barbour signed H.B. 583 making his state the 46th to enact a breach notification law. The law becomes effective July 1, 2011.

Like many breach notification statutes:

• the notification obligation falls on any business in the state which owns or licenses personal information,
• personal information generally includes name plus either Social Security number, drivers license number, or financial account number,
• encrypted personal information is not subject to the breach notification requirement, and
• the notification obligation applies only when there is a risk of harm to affected state resident in connection with a breach of security.

The law will be enforced by Mississippi’s Attorney General, however, the law prohibits individuals from commencing a privacy lawsuit under the new law.

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Co-authored by Jason Gavejian

Employees’ increasing sensitivity to data privacy and security, and widely accepted public policy to protect personal data maintained by businesses, require employers to respond meaningfully to employee data privacy and security complaints or risk whistle blower claims of retaliation.

The U.S. District Court for the District of New Jersey recently held that an employee who voiced concerns regarding his employer’s handling of data security before he was fired may proceed to trial under the New Jersey Conscientious Employee Protection Act (“CEPA”) on the ground that he was engaged in protected whistle blowing activity under CEPA. This is one of the first decisions linking a NJ CEPA or similar claim and data security concerns, and is in line with increased efforts by both the federal and state governments to protect employee data. 

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We all are deeply saddened by the tragic situation in Haiti. Many are motivated to help in any way they can, which usually means donating to charities that are able to more effectively bring relief to the suffering. At the same time, many see this as an opportunity to commit identity theft.

CBS News and TBG Fraud Solutions remind us to be aware of charity fraud and donate carefully.

In connection with the earthquake with in Haiti, the FBI suggests the following steps to avoid charity fraud:

• Do not respond to any unsolicited (spam) incoming e-mails, including clicking links contained within those messages.
• Be skeptical of individuals representing themselves as surviving victims or officials asking for donations via e-mail or social networking sites.
• Verify the legitimacy of nonprofit organizations by utilizing various Internet-based resources that may assist in confirming the group’s existence and its nonprofit status rather than following a purported link to the site.
• Be cautious of e-mails that claim to show pictures of the disaster areas in attached files because the files may contain viruses. Only open attachments from known senders.
• Make contributions directly to known organizations rather than relying on others to make the donation on your behalf to ensure contributions are received and used for intended purposes.
• Do not give your personal or financial information to anyone who solicits contributions: Providing such information may compromise your identity and make you vulnerable to identity theft.

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The Baltimore Sun reports that Baltimore police are investigating a security breach at Mercy Medical Center that left certain patient records open to possible identity theft. According to the article, affected former patients were sent a letter informing them that their personal patient records may have been accessed by a former employee in order to apply for credit cards and loans. A Maryland state law that became effective in 2008 would require Mercy Medical Center to notify these individuals promptly in the event of such a breach. 

This case is yet another example of personal information being accessed for improper purposes by hospital staff and demonstrates the need for hospitals to establish strict privacy controls and notification procedures.

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Reports indicate that identity theft is the fastest growing crime in the United States. In fact, the FTC lists identity theft as the most reported crime for 2008. Identity thieves use personally identifying information of unsuspecting individuals to open new accounts and misuse existing accounts, creating havoc for individuals and business and costing millions of dollars. To help slow the frequency of these offenses, the federal government passed the Fair and Accurate Credit Transactions Act of 2003 (PDF).

Under the FACT Act, a number of federal agencies, including the FTC, the federal bank regulatory agencies, and the National Credit Union Administration, issued regulations (“Red Flags Rules”) requiring financial institutions and creditors to develop and implement written identity theft prevention programs to detect, prevent, and mitigate instances of identity theft. These programs must be designed to provide for the identification, detection, and response to patterns, practices, or specific activities – known as “red flags” – that could indicate identity theft.

The Red Flag Rules apply to “financial institutions” and “creditors” with “covered accounts.” The FTC has broadly interpreted the term “creditors” to include professionals such a lawyers and doctors. However, the U.S. House of representatives passed H.R. 3763 which would exclude from the meaning of “creditor” any health care practice, accounting practice, or legal practice with 20 or fewer employees. Currently, this Bill awaits action by the Senate.  Similarly, a federal judge in the U.S. District Court for the District of Columbia recently ruled that the FTC cannot force practicing lawyers to comply with the red flags, holding that she had a problem concluding that Congress intended to regulate lawyers when these statutes were enacted. 

Given the November 1, 2009 enforcement date, and the unresolved definition of "creditor," businesses of all sizes and industries will need to take immediate steps to develop a comprehensive strategy for compliance with the Red Flag Rules. Here is helpful information for the Red Flag Rules and small businesses.

Update:  Since the publishing of this post, the FTC has again extended the enforcement date to June 1, 2010.  Additionally, the U.S. District Court for the District of Columbia upheld the American Bar Association's challenge to the Rule and the opinion enjoins the FTC from enforcing the Rule against lawyers. 

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