I created a new poster about information security training, which is debuting at the RSA conference. This poster is based on the fact that the vast majority of information security incidents and data breaches occur because of human mistakes. Information security is only in small part a technology problem; it is largely a human problem.
If you’re at RSA and are interested in information security awareness training, please drop by the TeachPrivacy booth at Moscone North 4802.
You can pick up a copy of this poster. And you can also learn about our newest training, which includes a really neat Where’s Waldo style game where users spot privacy and security risks.
I’m pleased to announce a new training program: Spot the Risks: Privacy and Security. The program is a Where’s Waldo style risk-spotting game that takes about 5 minutes to complete. Trainees are asked to spot the risks in an office. Feedback is provided about each risk so trainees learn many of the most important best practices.
The passing of Justice Antonin Scalia has brought a wave of speculation about current and future U.S. Supreme Court cases. One area where there might be a significant impact will be the 4th Amendment, which provides the primary constitutional protection against government surveillance and information gathering. A new justice could usher in a dramatic expansion in 4th Amendment protections against government surveillance.
One way to enter the privacy profession is to do a fellowship, and fortunately, an increasing number of fellowship opportunities are emerging.
I have written about the challenges of breaking in to the privacy law profession, especially the challenges that recent law school graduates will face. There are no established career paths in this field yet, so it takes some effort to get started. Once you’re in the club, you’ll be in big demand, but there’s a bottleneck at the entrance. This is why fellowships can be a great way to kick start a career in privacy law.
Here are a few fellowships related to privacy that I’m aware of. If you know of others I should add to the list, please email me.
Last year, the death of the US-EU Safe Harbor Arrangement sent waves of shock and despair to the approximately 4500 companies that used this mechanism to transfer personal data from the US to the EU. But a new day has dawned.
By Daniel J. Solove
For several years, I have been posting about notable books on privacy and security, and this post lists some of the notable books from 2015. To see a more comprehensive list of nonfiction works about privacy and security, you might consult this resource page that Professor Paul Schwartz and I maintain: Nonfiction Privacy + Security Books.
Now, without further ado, here are some of the many privacy and security books published in 2015:
By Daniel J. Solove
The SplashData annual list of the 25 most widely used bad passwords recently was posted for passwords used in 2015. The list is compiled annually by examining passwords leaked during a particular year. Here is the list of passwords for 2015, and below it, I have some thoughts and reactions to the list.
A dramatic legal battle is taking place that will have dramatic implications for the future of technology, privacy, security, and the extent of government power. The FBI obtained an order from a magistrate judge to force Apple to develop software to help the FBI break into an encrypted iPhone.
I created some new training programs last year, and here are some of the highlights:
The Ransomware Attack (~5 mins)
This short program (~5 minutes) consists of an interactive cartoon vignette about malware. The program is highly interactive, and trainees engage with a scenario involving ransomware. Although this program involves ransomware, the lessons it teaches apply broadly to all malware. The program focuses on how to avoid having malware installed on one’s computer and what to do (and not to do) if this ever happens.
The Life Cycle of Personal Data (~ 15 mins)
This privacy awareness training course (~ 15 minutes) is a highly-interactive overview of privacy responsibilities and protections regarding the collection, use, and sharing of personal data. The course has 8 quiz questions. The course tracks the life cycle of personal data, starting from when it is collected or created. The course concludes with a discussion of data retention and destruction.
It’s Data Privacy Day — January 28, 2016 — and to celebrate, here’s a cartoon I created about the Internet of Things.
Professor Woodrow Hartzog and I have just published our new article, The Ultimate Unifying Approach to Complying with All Laws and Regulations, 19 Green Bag 2d 223 (2016). Our article took years of research and analysis, intensive writing, countless drafts, and endless laboring over every word. But we hope we achieved a monumental breakthrough in the law. Here’s the abstract:
There are countless laws and regulations that must be complied with, and the task of figuring out what to do to satisfy all of them seems nearly impossible. In this article, Professors Daniel Solove and Woodrow Hartzog develop a unified approach to doing so. This approach (patent pending) was developed over the course of several decades of extensive analysis of every relevant law and regulation.
A new report by Verizon, the PHI Data Breach report, analyzes 1,931 data breaches of protected health information (PHI) under HIPAA, The incidents occurred between 1994 and 2014, with most occurring from 2004-2014. An article from Computer World sums up the findings of the report.
One interesting statistic is that 392 million PHI records were compromised in these breaches, more than the entire population of the United States.
The report notes that 3 types of incident account for 86% of the data breaches:
(1) Lost or stolen portable electronic devices
(2) Sending records to the wrong individual
(3) Improper access to PHI by employees
What do these things have in common?
These are problems that deal with the human factor. The problems are preventable, and the risk of them can be significantly reduced through training.
To train on these things, organizations must do more then merely say: “Be careful” or “Do not do.” The training must have an impact on people. And education is most effective with repetition. People must be repeatedly educated, over and over again.
I originally posted a version of this post more than 10 years ago, in 2005. I think it is important to re-post it, with a few updates.
I strongly recommend teaching information privacy law in law schools. I have authored several textbooks in the field, and I know that this might seem like a self-plug. But I really am a big believer that all law schools should have not just one course on information privacy law, but several — no matter what textbooks are used!
Information privacy law remains a fairly new field, and it has yet to take hold as a course taught consistently in most law schools. Last year, I wrote a post complaining about the fact that only about 25% of law schools have a course on privacy law. I’m hoping to change all that.
So if you’re an academic interested in exploring issues involving information technology, criminal procedure, or free speech, you should consider adding information privacy law to your course package. If you’re a practitioner, consider teaching an information privacy law course as an adjunct.
Here are some reasons to teach the course:
By Daniel J. Solove
ProPublica has been running a series of lengthy articles about HHS Office for Civil Rights (OCR) enforcement that are worth reading.
A Sustained and Vigorous Critique of OCR HIPAA Enforcement
A ProPublica article from early in 2015 noted that HIPAA fines were quite rare. The article noted that from 2009 through 2014, more than 1,140 large data breaches were reported to OCR, affecting 41 million people. Another 120,000 HIPAA violations were reported affecting fewer than 500 people. “Yet, over that time span,” the article notes, “the Office for Civil Rights has fined health care organizations just 22 times. . . . By comparison, the California Department of Public Health . . . imposed 22 penalties last year alone.”
I am pleased to announce the publication of my article, The Scope and Potential of FTC Data Protection., 83 George Washington Law Review 2230 (2015). I wrote the article with Professor Woodrow Hartzog.
The article addresses the scope of FTC authority in the areas of privacy and data security (which together we refer to as “data protection”). We argue that the FTC not only has the authority to regulate data protection to the extent it has been doing, but that its granted jurisdiction can expand its reach much more. Normatively, we argue that the FTC’s current scope of data protection authority is essential to the United States data protection regime and should be fully embraced to respond to the privacy harms unaddressed by existing remedies available in tort or contract, or by various statutes. In contrast to the legal theories underlying these other claims of action, the FTC can regulate with a much different and more flexible understanding of harm than one focused on monetary or physical injury.
We contend that the FTC can and should push the development of norms a little more (though not in an extreme or aggressive way). We discuss why the FTC should act with greater transparency and more nuanced sanctioning and auditing.
The article was part of a great symposium organized by the George Washington University Law Review: The FTC at 100.
Here is a table of contents of the issue, along with links to where you can access each essay and article.
HIPAA expert Rebecca Herold offers a very compelling explanation of the value of HIPAA training. She writes:
Information security and privacy education is more important than ever because new gadgets and technologies enable more healthcare workers to collect and share data.
In September 2015, Cancer Care Group agreed to settle HIPAA violations by paying a $750,000 fine and adopting a “robust corrective action plan to correct deficiencies in its HIPAA compliance program.” One of the major requirements for Cancer Care Group was to review and revise its training program, because the breach was caused by an easily preventable employee action (leaving a laptop with clear text files of 55,000 patients in an unsecured car).
Training needs to be more than once a year, and as soon as, or prior to, the start of employment. There also need to be ongoing awareness communications and activities, as required by HIPAA.
Every organization of every size needs to invest some time and resources into regular training and ongoing awareness communications. Besides being a wise business decision, it’s also a requirement in most data protection laws and regulations to provide such education.
To this, all I can say is: Amen.
Rebecca is the author of several great resources on HIPAA, including The Practical Guide to HIPAA Privacy and Security Compliance.
I’ve long been saying that privacy need not be sacrificed for security, and it makes me delighted to see that public attitudes are aligning with this view. A Pew survey revealed that a “majority of Americans (54%) disapprove of the U.S. government’s collection of telephone and internet data as part of anti-terrorism efforts.” The anti-NSA surveillance sentiment is even stronger in other countries, as is shown in this chart below.
According to the survey, “74% said they should not give up privacy and freedom for the sake of safety, while just 22% said the opposite.”
As I wrote in my book, Nothing to Hide: The False Tradeoff Between Privacy and Security (Yale U. Press 2011):
The debate between privacy and security has been framed incorrectly, with the tradeoff between these values understood as an all-or-nothing proposition. But protecting privacy need not be fatal to security measures; it merely demands oversight and regulation.
I’ve been going through my blog posts from 2015 to find the ones I most want to highlight. Here are some selected posts about health privacy and security:
I’ve been going through my blog posts from 2015 to find the ones I most want to highlight. Here are some selected posts about security:
I’ve been going through my blog posts from 2015 to find the ones I most want to highlight. Here are some selected humor posts about privacy and security:
I’ve been going through my blog posts from 2015 to find the ones I most want to highlight. Here are some selected posts on privacy issues:
II. PRIVACY LAW
Ransomware is one of the most frightening scourges to hit the Internet. Ransomware is a form of malware (malicious code) that encrypts a person’s files and demands a ransom payment to decrypt them. If the money isn’t paid, the encryption keys are destroyed, and the data is lost forever.
Ransomware began to emerge in 2009, and it has been rapidly on the rise. Recently, it was ranked as the number one threat involving mobile malware. According to one estimate, “at least $5 million is extorted from ransomware victims each year.”
Ransomware became a household name in 2013, when CryptoLocker infected about 500,000 victims in just 6 months.
CryptoLocker was eventually defeated. But new variants of ransomware started popping up more frequently.
Last week, the EU issued the General Data Protection Regulation (GDPR), a long-awaited comprehensive privacy regulation that will govern all 28 EU member countries. Clocking in at more than 200 pages, this is quite a document to digest. According to the European Commission press release: “The regulation will establish one single set of rules which will make it simpler and cheaper for companies to do business in the EU.”
The GDPR has been many years in the making, and it will have an enormous impact on the transfer of data between the US and EU, especially in light of the invalidation of the Safe Harbor Arrangement earlier this year. It will has substantial implications for any global company doing business in the EU. The GDPR is anticipated to go into effect in 2017.
Here are some of the implications I see emerging from the GDPR as well as some questions for the future:
1. Penalties and Enforcement
Under Article 79, violations of certain provisions will carry a penalty of “up to 2% of total worldwide annual turnover of the preceding financial year.” Violations of other provisions will carry a penalty of “up to 4% of total worldwide annual turnover of the preceding financial year.” The 4% penalty applies to “basic principles for processing, including conditionals for consent,” as well as “data subjects’ rights” and “transfers of personal data to a recipient in a third country or an international organisation.”
These are huge penalties. Such penalties will definitely be a wake-up call for top management at companies to pay more attention to privacy and to provide more resources to the Chief Privacy Officer (CPO). Now we can finally imagine the CEO at a meeting, with her secretary rushing over to her and whispering in her ear that the CPO is calling. The CEO will stand up immediately and say: “Excuse me, but I must take this call. It’s my CPO calling!”
To date, EU enforcement of its privacy laws has been spotty and anemic, so much so that many characterize it as barely existent. Will the new GDPR change enforcement? With such huge fines, the payoff for enforcement will be enormous. We could see a new enforcement culture emerge, with more robust and consistent enforcement. If privacy isn’t much of a priority of upper management at some global companies, it will be soon.
By Daniel J. Solove
Proponents for allowing government officials to have backdoors to encrypted communications need to read Franz Kafka. Nearly a century ago, Kafka deftly captured the irony at the heart of their argument in his short story, “The Burrow.”
After the Paris attacks, national security proponents in the US and abroad have been making even more vigorous attempts to mandate a backdoor to encryption.
By Daniel J. Solove
“The US is developing a law of cybersecurity that is incoherent and unduly complex,” says Ed McNicholas, one of the foremost experts on cybersecurity law.
McNicholas is a partner at Sidley Austin LLP and co-editor of the newly-published treatise, Cybersecurity: A Practical Guide to the Law of Cyber Risk (with co-editor Vivek K. Mohan). The treatise is a superb guide to this rapidly-growing body of law, and it is nicely succinct as treatises go. It is an extremely useful volume that I’m delighted I have on my desk. If you practice in this field, get this book.
By Daniel J. Solove
It is essential that children learn about data privacy and security. Their lives will be fully enveloped by technologies that involve data. But far too little about these topics is currently taught in most schools.
Fortunately, there is a solution, one that I’m proud to have been involved in creating. The Internet Keep Safe Coalition (iKeepSafe), a nonprofit group of policy leaders, educators, and various experts, has released the Privacy K-12 Curriculum Matrix.
The Privacy K-12 Curriculum Matrix is free. It can be used by any school, educator, or parent. It contains an overview of the privacy issues that should be taught, including which details about each issue should be covered in various grade levels. It includes suggestions for appropriate learning activities for each grade level.
By Daniel J. Solove
Next year, there will be a milestone birthday for the Electronic Communications Privacy Act (ECPA) – the primary federal law that regulates how the government and private parties can monitor people’s Internet use, wiretap their communications, peruse their email, gain access to their files, and much more.
This is no ordinary birthday for ECPA. In 2016, ECPA turns 30. Little did anyone think that in 1986, when ECPA was passed, that it would still remain largely unchanged for 30 years. In 1986, the Cloud was just something in the sky. The Web was what a spider made.
By Daniel J. Solove
At my annual event, the Privacy+Security Forum, which was held last month, one of the sessions involved privacy and security in fiction. The panelists had some terrific readings suggestions, and I thought I’d share with you the write-up that they generated for their session. The speakers were:
Peter Winn, Assistant U.S. Attorney, U.S. DOJ and Lecturer, University of Washington School of Law
Heather West, Senior Policy Manager & Americas Principal, Mozilla
Kevin Bankston, Director, Open Technology Institute and Co-Director, Cybersecurity Initiative, New America
Joseph Jerome, Policy Counsel at Future of Privacy Forum
By Daniel J. Solove
The US regulates privacy with a sectoral approach, with laws that are directed only to specific industries. In contrast, the EU and many other countries have an omnibus approach — one overarching law that regulates privacy consistently across all industries. The US is an outlier from the way most countries regulate privacy.
About 15 years ago, the sectoral approach was hailed by many US organizations as vastly preferable to an omnibus approach. Each industry wanted to be regulated differently, in a more nuanced way focused on its particular needs. Industries could lobby and exert their influence much more on laws focused on their industry. Additionally, some organizations liked the sectoral approach because they fell into one of the big gaps in regulation.
But today, ironically, the sectoral approach is not doing many organizations any favors. There are still gaps in protection under the US approach, but these have narrowed. In fact, many organizations do not fall into gaps in protection — they are regulated by many overlapping laws. The result is a ton of complexity, inconsistency, and uncertainty in the law.
I am pleased to announce that Alan Westin’s classic work, Privacy and Freedom, is now back in print. Originally published in 1967, Privacy and Freedom had an enormous influence in shaping the discourse on privacy in the 1970s and beyond, when the Fair Information Practice Principles (FIPPs) were developed.
The book contains a short introduction by me. I am truly honored to be introducing such a great and important work. When I began researching and writing about privacy in the late 1990s, I kept coming across citations to Westin’s book, and I was surprised that it was no longer in print. I tracked down a used copy, which wasn’t as easy to do as today. What impressed me most about the book was that it explored the meaning and value of privacy in a rich and interdisciplinary way.
A very brief excerpt from my intro:
At the core of the book is one of the most enduring discussions of the definition and value of privacy. Privacy is a very complex concept, and scholars and others have struggled for centuries to define it and articulate its value. Privacy and Freedom contains one of the most sophisticated, interdisciplinary, and insightful discussions of privacy ever written. Westin weaves together philosophy, sociology, psychology, and other disciplines to explain what privacy is and why we should protect it.
I was fortunate to get to know Alan Westin, as I began my teaching career at Seton Hall Law School in Newark, New Jersey, and Alan lived and worked nearby. I had several lunches with him, and we continued our friendship when I left to teach at George Washington University Law School. Alan was kind, generous, and very thoughtful. He was passionate about ideas. I miss him greatly.
So it is a true joy to see his book live on in print once again.
Here’s the blurb from the publisher:
I’m very excited that the 1st annual Privacy + Security Forum (Oct. 21-23 in Washington, DC) is finally beginning!
We have about 190 speakers and 60+ sessions.
Session Descriptions: Session Descriptions Guide
Readings: Readings for each session are on our schedule page
Session Times and Location: Session Times and Location Chart.
Below is a chart with session titles, speakers, times, and room assignments. I designed this chart to be easy to access online.
By Daniel J. Solove
In a profound ruling with enormous implications,the European Court of Justice (ECJ) has declared the Safe Harbor Arrangement to be invalid.
[Press Release] [Opinion]
The Safe Harbor Arrangement
The Safe Harbor Arrangement has been in place since 2000, and it is a central means by which data about EU citizens can be transferred to companies in the US. Under the EU Data Protection Directive, data can only be transferred to countries with an “adequate level of protection” of personal data. The EU has not deemed the US to provide an adequate level of protection, so Safe Harbor was created as a work around.
My new annual event, the Privacy + Security Forum (Oct. 21-23 in Washington, DC), is just a week away. I’m very excited about it. The goals of the event are to better unite privacy and security and to have sessions that are substantive and interactive
A popular way some organizations are raising awareness about phishing is by engaging in simulated phishing exercises of their workforce. Such simulated phishing can be beneficial, but there are some potential pitfalls and also important things to do to ensure that it is effective.
1. Be careful about data collection and discipline
Think about the data that you gather about employee performance on simulated phishing. It can be easy to overlook the implications of maintaining and using this data. I look at it through the lens of its privacy risks. This is personal data that can be quite embarrassing to people — and potentially have reputational and career consequences. How long will the data be kept? What will be done with it? How securely will it be kept? What if it were compromised and publicized online?
By Daniel Solove
I previously shared 5 of my favorite novels about privacy and security, and I’d now like to share 6 of my favorite films about these topics — because I just couldn’t whittle the list down to 5.
I was thinking about my favorite films because I’ve been putting together a session at my Privacy+Security Forum event next month — the “Privacy and Security Film and TV Club” — where a group of experts will share their favorite films and TV series that have privacy and security themes.
Without further ado, here are my film choices:
Recently, oral arguments were heard in a very important case in the U.S. Court of Appeals for the Second Circuit. The case is officially titled In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation, but it is being referred to as Microsoft v. United States for short.
The Payment Card Industry (PCI) Security Standards Council recently released a helpful short guide to preventing phishing attacks. Merchants and any other organization that accepts payment cards most follow the PCI Data Security Standard (PCI DSS). One of the requirements of the PCI DSS is to train the workforce about how to properly collect, handle, and protect PCI data.
A major threat to PCI data is phishing, with almost a third targeted at stealing financial data.
According to a stat in the PCI Guide, Defending Against Social Engineering and Phishing Attacks,: “Every day 80,000 people fall victim to a phishing scam, 156 million phishing emails are sent globally, 16 million make it through spam filters, 8 million are opened.”
Recently, the FTC issued a short guide to what organizations can do to protect data security. It is called Start with Security (HTML) — a PDF version is here. This document provides a very clear and straightforward discussion of 10 good information security measures. It uses examples from FTC cases.
By Daniel J. Solove
Whenever I go to a doctor and am asked what I do for a living, I say that I focus on information privacy law.
“HIPAA?” the doctors will ask.
“Yes, HIPAA,” I confess.
And then the doctor’s face turns grim. At first, it looks like the face of a doctor about to tell you that you’ve got a fatal disease. Then, the doctor’s face crinkles up slightly with disgust. This face is so distinctive and so common that I think it should be called “HIPAA face.” It’s about as bad as “stink eye.”
Over at Fierce IT Security, Professor Woodrow Hartzog and I have a new essay, 5 Things the FTC Should Do to Improve Data Security in the Wake of Wyndham. The piece discusses some enforcement strategies we believe the FTC should use to maximize its effectiveness in improving data security. Our suggestions include:
- Do more proactive enforcement
- Take on more data security cases
- Push companies toward improved authentication – moving beyond mere passwords
- Restrict the use of Social Security numbers for authentication purposes
- Develop a theory of data stewardship for third parties
Please check out our essay for our explanation of the above agenda and a lot more detail.
I am pleased to announce the launch of our new training program, Social Engineering: Spies and Sabotage. This course is a short module (~7 minutes long) that provides a general introduction to social engineering.
After discussing several types of social engineering (phishing, baiting, pretexting, and tailgaiting), the course provides advice for avoiding these tricks and scams. Key points are applied and reinforced with 4 scenario quiz questions.
A study recently revealed that nearly 25% of data breaches involve phishing, and it is the second most frequent data security threat companies face. Phishing is an enormous problem, and it is getting worse.
In a staggering statistic, on average, a company with 10,000 employees will spend $3.7 million per year handling phishing attacks.
I recently received my copy of Social Dimensions of Privacy, edited by Beate Roessler & Dorota Mokrosinska. The book was published by Cambridge University Press this summer.
I’m delighted as I look over this book. The book has a wonderful selection of short philosophical essays on privacy, and I’m honored to be included among the terrific group of chapter authors, who include Anita Allen, Paul Schwartz, Helen Nissenbaum, Judith Wagner DeCew, Kirsty Hughes, Colin Bennett, Adam Moore, and Priscilla Regan, among many others. Each chapter is succinct and well-chosen.
From the book blurb: “Written by a select international group of leading privacy scholars, Social Dimensions of Privacy endorses and develops an innovative approach to privacy. By debating topical privacy cases in their specific research areas, the contributors explore the new privacy-sensitive areas: legal scholars and political theorists discuss the European and American approaches to privacy regulation; sociologists explore new forms of surveillance and privacy on social network sites; and philosophers revisit feminist critiques of privacy, discuss markets in personal data, issues of privacy in health care and democratic politics. The broad interdisciplinary character of the volume will be of interest to readers from a variety of scientific disciplines who are concerned with privacy and data protection issues.”
My chapter is entitled “The Meaning and Value of Privacy.”
Here’s a full table of contents:
by Daniel J. Solove
The U.S. Court of Appeals for the 3rd Circuit just affirmed the district court decision in FTC v. Wyndham Worldwide Corp., No. 14-3514 (3rd. Cir. Aug. 24, 2015). The case involves a challenge by Wyndham to an Federal Trade Commission (FTC) enforcement action emerging out of data breaches at the Wyndham.
Since the mid-1990s, the FTC has been enforcing Section 5 of the FTC Act, 15 U.S.C. § 45, in instances involving privacy and data security. Section 5 prohibits “unfair or deceptive acts or practices in or affecting commerce.” Deception and unfairness are two independent bases for FTC enforcement. During the past 15-20 years, the FTC has brought about 180 enforcement actions, the vast majority of which have settled. Wyndham was one of the exceptions; instead of settling, it challenged the FTC’s authority to enforce to protect data security as an unfair trade practice.
Among the arguments made by Wyndham, three are most worth focusing on:
(1) Because Congress enacted data security laws to regulate specific industries, Congress didn’t intend for the FTC to be able to regulate data security under the FTC Act.
(2) The FTC is not providing fair notice about the security practices it deems as “unfair” because it is enforcing on a case-by-case basis rather than promulgating a set of specific practices it deems as unfair.
(3) The FTC failed to establish “substantial injury to consumers” as required to enforce for unfairness.
The district court rejected all three of these arguments, and so did the 3rd Circuit Court of Appeals. Here is a very brief overview of the 3rd Circuit’s reasoning.
Co-authored by Professor Woodrow Hartzog.
Authentication presents one of the greatest security challenges organizations face. How do we accurately ensure that people seeking access to accounts or data are actually whom they say they are? People need to be able to access accounts and data conveniently, and access must often be provided remotely, without being able to see or hear the person seeking access.
by Daniel J. Solove
One of the most well-known classic privacy books is George Orwell’s 1984, and it has been published in countless editions around the world. I enjoy collecting things, and I’ve gathered up more than 50 book covers of various editions of the novel. I find it interesting how various artists and designers try to capture the novel’s themes. I thought I’d share the covers with you.
Orwell’s 1984 chronicles a harrowing totalitarian society, one that engages in massive surveillance of its citizenry. Everywhere are posters that say “
NSA Big Brother Is Watching You.” From the novel:
by Daniel J. Solove
Recently, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) publicized its resolution agreement in its HIPAA enforcement action against St. Elizabeth’s Medical Center (SEMC). SEMC agreed to pay $218,000.
The case began with a complaint filed with OCR back in 2012 that employees were sharing PHI of nearly 500 patients via an online sharing application without a risk analysis on such activities being undertaken. OCR investigation found that the medical center “failed to timely identify and respond to the known security incident, mitigate the harmful effects of the security incident and document the security incident and its outcome.”
by Daniel J. Solove
I recently held a webinar about the Federal Trade Commission (FTC) for TRUSTe called Understanding the FTC on Privacy and Security. The webinar is free and is archived at TRUSTe’s site.
Here is a brief synopsis of the webinar:
For the past nearly two decades, the FTC has risen to become the leading federal agency that regulates privacy and data security. In this webinar, Professor Daniel J. Solove will discuss how the Federal Trade Commission (FTC) is enforcing privacy and data security. What are the standards that the FTC is developing for privacy and data security? What sources does the FTC use for the standards it develops?
A common misconception is that the FTC’s jurisprudence has been rather thin, merely focuses on enforcing promises made in privacy policies. To the contrary, a deeper look the FTC’s jurisprudence demonstrates that it is quite thick and has extended far beyond policing promises. The FTC has codified certain norms and best practices and has developed some baseline privacy and security protections. The FTC has laid the foundation for an even more robust law of privacy and data security. Professor Solove will discuss some of the potential ways this body of regulation could develop in the future.
My webinar was written up at the Wall Street Journal. If you’re interested in seeing it, it’s free and available here. Below is some background about the FTC as well as some of my writings about the FTC that may be of interest if you want a deeper dive.
by Daniel J. Solove
Recently, I wrote about the challenges in accessing health information about family members. In this post, I will explore patients’ access to their own medical records.
HIPAA doesn’t handle patient access to medical records very well. There are many misunderstandings about patient access under HIPAA that make it quite difficult for patients to obtain their medical information quickly and conveniently.
Getting records is currently like a scavenger hunt. Patients have to call and call again, wait seemingly forever to get records, and receive them via ancient means like mail and fax. I often scratch my head at why fax is still used today — it’s one step more advanced than carrier pigeon.
by Daniel J. Solove
Suppose your elderly mother is being treated at the hospital for a heart condition. Your mother tells her doctor that you can have access to her health information. The doctor, however, doesn’t disclose the information to you.
The doctor thinks that you can only have the information with a signed written authorization. Is this correct?
No. HIPAA doesn’t require a signed or even a written authorization. If a patient tells a doctor that protected health information (PHI) can be shared with family or friends, then that’s all that is needed. The doctor can disclose it to you.
So has the doctor violated HIPAA by refusing to disclose the PHI?