“Surviving Securely & Surviving Security -- Thoughts After 9/11”

“Surviving Securely & Surviving

Security -- Thoughts After 9/11”

Professor Peter P. Swire

Ohio State University

Consultant, Morrison & Foerster LLP

HIPAA Summit, Baltimore

October 31, 2002

Overview

Today is Halloween -- How scared should we be? Of what?

HIPAA and private sector security– Why HIPAA security is scary hard– Why it is not quite so hard

Homeland security– Bioterrorism and other issues post 9/11– Civil liberties, privacy & security

Concluding thoughts

My Background

Clinton Administration Chief Counselor for Privacy, 1999-2001– White House coordinator, HIPAA privacy rule– Chair of White House working group to update

wiretap and surveillance law– Much work on computer security, encryption,

and other security issues

My current work

Professor, Moritz College of Law of the Ohio State University– Based in D.C.

Consultant, Morrison & Foerster LLP– Nationwide HIPAA practice

Writing on privacy & security issues– Op-ed, Washington Post– Testimony, House Judiciary– See www.peterswire.net

I. HIPAA and Private Sector Security

Today have heard the many, many components of state-of-the-art HIPAA security compliance

Your possible concerns:– Cost– Lack of technical expertise– Interfere with health care and other work– No management support to get from here to there

More to worry about

FTC and the Eli Lilly case– Medi-messenger to remind users to refill

prescriptions– 669 names of Prozac users put in the “To” line

rather than the “Bcc” line in June 2001– Everyone agrees was unintentional– ACLU complained to the FTC

Lilly case and the law

Not a HIPAA case– Rules not yet in effect– Very likely not a covered entity

FTC Act, Section 5– Prohibits “unfair and deceptive trade practices”– Broad FTC jurisdiction (except insurance)– Case law -- deceptive if break a material

promise on your web site

Lilly

Lilly web site said: “Eli Lilly and Co. respects the privacy of visitors to its Web sites, and we feel it is important to maintain our guests’ privacy as they take advantage of this resource”

FTC claimed deceptive because of failure to “implement internal measures appropriate under the circumstances to protect sensitive consumer information”

Lilly Settlement, early 2002

Create 4-stage information security program– Designate appropriate managers to oversee– Comprehensive assessment and addressing of

security risks– Annual written review by qualified persons of

compliance– Update program over time

One-time negligence leads to federal case for “deceptive practices”

Your HIPAA web policy and FTC enforcement

New California Security Law

S.B. 1386, signed Sept. 25 requiring notification of security breaches involving personal information

If there is a security breach, then must disclose to any resident of California whose personal information was acquired by the unauthorized person

Breach essentially means unauthorized acquisition of computerized data

Takes effect July 1, 2003

New California Law Breach applies to “personal information”

– Name plus one or more of:– Social Security number– Driver’s license number, or– Account numbers or passwords that permit access to

individual financial accounts Safe harbor if you keep the data encrypted Private civil actions and injunctions Consider preparing your systems for HIPAA and S.B. 1386

together

Security as Scary Hard

To summarize– HIPAA security rule will come– HIPAA privacy rule already will require

reasonable physical and cyber safeguards– Lilly case and deceptive practices– New state law interest in assuring information

security

Security as Less Hard

Draft HIPAA Security Rule– Most of it is codified common sense– Have backups, disaster recovery, good

passwords, and so on– How easy will it be for HHS to surprise

everyone and have a much stricter and more regulatory security rule?

– Not very. Would be unfair surprise and more regulatory than the HIPAA privacy approach.

HIPAA Security as Less Scary

Key concept of “scalability”– Security plan for big research hospital– Security plan for pediatrician office– Rule contemplates they will be very different

“Good faith”, “reasonableness” Enforcement

– Compliance oriented, not penalty oriented– Limited staff at HHS/OCR

Security in the Private Sector

Lilly as less scary:– Limited FTC enforcement staff– Settlement was essentially a good compliance plan

going forward As a society

– We learned to lock our houses and cars– Some have to do more -- jewelry stores– Now are learning what good practices mean for our

networked world

II. Homeland Security after 9/11

Clearly more focus on cyber-security & other homeland security issues

Anthrax scare and bioterrorism USA-PATRIOT Act fall 2001 Homeland Security Department bill Proposals for state public health changes

and more data uses

Don’t Over-react to New Security Threats My recent “State of the Union for Privacy,

Fall 2002” Privacy, civil liberties and foreign

intelligence laws today arose from previous pattern of systematic abuse

“The Lawless State”

Thousands of documented instances of lawbreaking by U.S. law enforcement and intelligence agencies 1950s-70s

Bobby Kennedy & MLK, Jr. Infiltration of fringe groups

– KKK, Black Panthers– Democratic Party, too

Legal Safeguards in Reaction

Federal wiretap law, 1968 Privacy Act, 1974 Freedom of Information Act, 1974 Foreign Intelligence Surveillance Act, 1978 Electronic Communications Privacy Act,

1984 Others as well

III. Privacy & Security After 9/11

Privacy vs. security Privacy and security How to build them together

Security vs. Privacy

Security sometimes means greater surveillance, information gathering & information sharing

New USA-PATRIOT surveillance provisions

Err on the side of public health reporting In short, greater disclosure to build security

Security and Privacy

Good data handling practices become more important -- good security protects PHI against unauthorized use

Audit trails, accounting, are more obviously desirable -- helps with some privacy compliance

Part of system upgrade for security can be system upgrade for other requirements, such as HIPAA privacy

Building Them Together

Step One: Does the new security proposal in fact improve security?

Step Two: Is the new security proposal drafted consistently with privacy and other values?

Step Three: Are the right checks and balances in place to achieve security and other goals over time?

Conclusion

Many of our organizations need a security upgrade to comply with HIPAA– But, meet other goals such as efficiency (good

medical care), contain costs, etc. Many of our organizations need a security

upgrade to create homeland security– But, meet other goals such as efficiency (society’s

business continues), contain costs, & privacy and civil liberties

Conclusion

In both private and public sectors:– Survive Securely -- move up the learning curve

to better practices– Survive Security -- do it without letting the

security concerns prevent solid analysis of the other goals at stake

Contact Information

Web: www.peterswire.net Email: [email protected] Phone: (240) 994-4142