So, you thought our cloud series was over? Wishful thinking. It is time to talk about ethics. Yes, ethics. Historically, lawyers and technologists lived in different worlds. The lawyers were over here, and IT was over there. Here's the reality: Technology - whether we are talking cloud computing, ediscovery or data security generally - IS very much the business of lawyers. This post focuses on three recent documents, ranging from formal opinions to draft issue papers, issued by three very prominent Bar associations -- the American Bar Association (ABA), the New York State Bar Association (NYSBA), and the State Bar of California (CA Bar). These opinions and papers all drive home the following points: as succinctly stated by the ABA, "[l]awyers must take reasonable precautions to ensure that their clients' confidential information remains secure"; AND lawyers must keep themselves educated on changes in technology and in the law relating to technology. The question, as always, is what is "reasonable"? Also, what role should Bar associations play in providing guidelines/best practices and/or mandating compliance with particular data security rules? Technology, and lawyer use of technology, is evolving at a pace that no Bar association can hope to meet. At the end of the day, do the realities of the modern business world render moot any effort by the Bar(s) to provide guidance or impose restrictions? Read on and tell us - and the ABA - what you think.
It often makes sense to refer to an information security management framework or standard in an outsourcing contract, but this is usually not very meaningful unless the customer also understands what particular security measures the vendor will apply to protect the customer's data.
Notice of significant security breaches involving personal information is recommended under federal Privacy Commissioner guidelines and legally required for custodians of personal health information in Ontario. Albert's new Bill 54, not yet in force, sets a new standard for mandatory notification to the provincial Privacy Commissioner, who can determine whether and how individuals must be notified.
In honor of Data Privacy Day and its spirit of education, I thought it might be appropriate (and fun) to celebrate some (but certainly not all) of the A, B, Cs of Data Privacy. Would love to see your contributions, too!
Service contracts that involve protected personal information should include provisions allocating responsibility for protecting that information and responding to security breaches. Increasingly, this means incorporating specific references to applicable laws and information security standards, and often certifications of conformance.
In other posts, I talked about the trend toward more prescriptive encryption requirements in laws and regulations governing certain categories of personal data and other protected information. Here's an overview of the standards and related products available for safe (and legally defensible) handling of protected data.
In other posts, I addressed the trend in the United States to require encryption for certain categories of personal data that are sought by ID thieves and fraudsters - especially Social Security Numbers, driver's license numbers, and bank account or payment card details - as well as for medical information, which individuals tend to consider especially sensitive. These concerns are not, of course, limited to the United States. Comprehensive data protection laws in Europe, Canada, Japan, Australia, New Zealand and elsewhere include general obligations to maintain "reasonable" or "appropriate" or "proportional" security measures, usually without further elaboration. Some nations have gone further, however, to specify security measures.
In the last post, I talked about the role of encryption in fashioning a "reasonable" security plan for sensitive personal information and other protected data routinely collected, stored, and used by an enterprise. But lawmakers and regulators are getting more specific about using encryption and managing data that is risky from an ID-theft perspective. Here are some leading examples of this trend.
"Exactly what data do we have to encrypt, and how?" That's a common question posed by IT and legal departments, HR and customer service managers, CIOs and information security professionals. In the past, they made their own choices about encryption, balancing the risks of compromised data against the costs of encryption. Those costs are measured not merely by expense but also by increased processing load, user-unfriendliness, and the remote but real possibility of lost or corrupted decryption keys resulting in inaccessible data. After weighing the costs and benefits, most enterprises decided against encryption for all but the most sensitive applications and data categories.