The MassachusettsData Privacy Rules

Stephen E. Meltzer, Esquire, CIPP

The [New] MassachusettsData Security Rules

Agenda

• Introduction• Scope of Rules• Comprehensive Written Information Security

Program (cWISP)• [Computer System Security Requirements]• Breach Reporting Requirements• What To Do Now• Questions and Answers

The MassachusettsData Security Rules

New Mandate:

PI = PIPersonal Information = Privacy Infrastructure

What Prompted the Rules?

High-profile data breach casesBreach notification alone insufficientReflection of states’ interest in protecting

personal informationData in transit or on portable devices most

at risk

Who Cares?Consequences for non-compliance:

AT LEAST:

Increased risk of government enforcement or private litigation

93H § 6 incorporates 93A, § 493A, § 4

• $5,000 per occurrence• Attorneys fees• Cost of Investigation/Enforcement

AT WORST:

Enforcement PLUS Bad PR then Compliance and oversight

Enforcement

• Litigation and enforcement by the Massachusetts Attorney General

• Massachusetts law requires notice to Attorney General of any breach, in addition to affected consumers

• Attorney General likely to investigate based on breach reports

• No explicit private right of action or penalties

Looking Ahead

Massachusetts is one of the first, but is likely not the last

Federal Legislation:HITECH (ARRA)Red FlagsH.2221 (prospect of preemption)

Scope of Rules

Scope of Rules

• Covers ALL PERSONS that own or license personal information about a Massachusetts resident

• Need not have operations in Massachusetts

• Financial institutions, health care and other regulated entities not exempt

Scope of Rules“Personal information”Resident’s first and last name or first initial and last name in combination with• SSN• Driver’s license or State ID, or • Financial account number or credit/debit

card that would permit access to a financial account

Three Requirements1.Develop, implement, maintain and maintain a

comprehensive, written information security program that meets very specific requirements (cWISP)

2.Heightened information security meeting specific computer information security requirements

3.Vendor Compliance

(Phase-in)

Evaluating Compliance(not Evaluating Applicability)

• Appropriate– Size of business– Scope of business– Type of business– Resources available– Amount of data stored– Need for security and confidentiality

• Consumer and employee information

Evaluating Compliance(not Evaluating Applicability)

“The safeguards contained in such program must be consistent with the safeguards for protection of personal information and information of a similar character set forth in any state or federal regulations by which the person who owns or licenses such information may be regulated.”

Comprehensive WrittenInformation SecurityProgram

201 CMR 17.03

Information SecurityProgram

“[D]evelop, implement, and maintain a comprehensive information security

program that is written in one or more readily accessible parts and contains administrative, technical, and physical

safeguards”

Comprehensive Information Security Program 201 CMR 17.03 (2)(a) through (j)

a. Designate

b. Identify

c. Develop

d. Impose

e. Prevent

f. Oversee

g. Restrict

h. Monitor

i. Review

j. Document

Comprehensive Information Security Program(a) Designate an employee to maintain the WISP.

(b) Identify and assess reasonably foreseeable risks (Internal and external).

(c) Develop security policies for keeping, accessing and transporting records.

(d) Impose disciplinary measures for violations of the program.

(e) Prevent access by terminated employees.

(f) Oversee service providers and contractually ensure compliance.

(g) Restrict physical access to records.

(h) Monitor security practices to ensure effectiveness and make changes if warranted.

(i) Review the program at least annually.

(j) Document responsive actions to breaches.

Comprehensive Information Security ProgramThird Party Compliance

1. Taking reasonable steps to select and retain third-party service providers that are capable of maintaining appropriate security measures to protect such personal information consistent with these regulations and any applicable federal regulations; and

2. Requiring such third-party service providers by contract to implement and maintain such appropriate security measures for personal information

Comprehensive Information Security ProgramThird Party Compliance

Contracts entered “no later than” March 1, 2010:

Two – year phase-in.

Contracts entered into “later than” March 1, 2010:

Immediate compliance.

Comprehensive Information Security Program

“INDUSTRY STANDARDS”

Breach Reporting

G.L. c. 93H § 3

Breach Reporting

Breach of security –

“the unauthorized acquisition or unauthorized use of unencrypted data or, encrypted electronic data and the confidential process or key that is capable of compromising the security, confidentiality, or integrity of personal information, maintained by a person or agency that creates a substantial risk of identity theft or fraud against a resident of the commonwealth. A good faith but unauthorized acquisition of personal information by a person or agency, or employee or agent thereof, for the lawful purposes of such person or agency, is not a breach of security unless the personal information is used in an unauthorized manner or subject to further unauthorized disclosure.”

Breach Reporting

• Possessor must give notice of– Breach of Security– Unauthorized Use or Acquisition

• To Owner/Licensor of Information

• Owner/Licensor must give notice of – Breach of Security– Unauthorized Use or Acquisition

• To – – Attorney General– Office of Consumer Affairs– Resident

Breach Reporting

“The notice to the Attorney General and the Director of Consumer Affairs and Business Regulation shall include, but not be limited to:

(1) the nature of the breach of security or the unauthorized acquisition or use;

(2) the number of Massachusetts residents affected by such incident at the time of notification; and

(3) any steps the person or agency has taken or plans to take relating to the incident.”

Sample Breach Notification Letter

• http://www.mass.gov/Cago/docs/Consumer/93h_sampleletter_ago.pdf

Breach Reporting

• Stop

• Be afraid

• Call for help

Computer System SecurityRequirements

201 CMR 17.04

Electronic Requirements201 CMR 17.04• Use

authentication protocols

• Secure access controls

• Encryption of transmittable records

• Mentoring systems

• Laptop and mobile device encryption

• Security patches and firewalls

• System security agents

• IT Security user awareness

User Authentication Protocols

• Control of user IDs• Secure password

selection• Secure or

encrypted password files

• User accounts blocked for unusual logon attempts

Examples:

Passwords should be at least 9 characters, alpha numeric with special characters

After 3 attempts to login users are blocked access

Secure Access Control Measures

• Permit “access” on a need to know basis

• Password protect account and login to determine level of access

Example:

Network Access Control Software/Hardware

Consentry

Sophos

Audit control who is accessing what and when?

Encryption of Transmitted Records

• Encryption of personal information accessed over a public network– Tunneling options

(VPN)– Faxes, VOIP, phone

calls• Encryption of PI on

wireless– Bluetooth, WEP, Wifi

• Encryption definition if very broad

Examples:

PGP and Utimaco are encryption technologies

Monitoring of Systems

• Require systems to detect unauthorized use of, access to personal information

• Some existing user account based on systems will already comply

Examples:

Again, Network Access Control

Audit controls

Laptop and Mobile Device Encryption

• Encryption of PI stored on laptops– Applies regardless

of laptop location• Encryption of PI

stored on “mobile” devices– Does incoming

email become a problem?

This applies only if you have data in motion of personal information.

Email is clear text. So anyone can read any ones email on the internet.

Security Patches and Firewalls

• “Reasonably up-to-date firewall protection and operating systems patches” for Internet connected computers

• Date on operating systems

All organizations should have a firewall in place (not a router a firewall)

Can hire an organization to update and manage the security infrastructure:

Firewall

Anti-virus

Patches…

Systems Security Agent Software

• Anti-malware technology required– Are certain

products better?

– What about MACs or Linux?

• Set to receive auto-updates

Malware is what is infecting most enviroments. HTTP and HTTPS traffic.

Your users are your worst enemy

Products to look at for Malware

TrendMicro

Websense

Webwasher

Employee Education and IT Security Training

• Proper training on all IT security policies

• User awareness– Importance of PI

security– Proper use of the

computer– Everyone is

involved

Your employees are your weakest link to any IT security program.

They need to know the rules.

Suggestions:

Stand up training

News Letters

Programs

Online training

The Approach• Inventory type of personal

information is being kept– Assess risk

• Plan information security strategy– Data

• Security, Confidentially, Integrity• IT infrastructure and information

change processes• Implement, plan and policies

– Technology deployment– Policy implementation – User awareness– Continual review

Security is all about vigilance…

Compliance is knowing what you need to protect and building a fortress around it and testing it on a frequent basis!

Data Destruction

G.L. c. 93I

Data Destruction (93I)

Paper documents/ electronic Media:

Redact, Burn, Pulverize, Shred

So that Personal Information cannot be read or reconstructed

Data Destruction (93I)

– Violations:

• Attorney General: Unfair and Deceptive Practices remedies - 93H

• Civil Fine-$100/data subject not to exceed $50,000/instance – 93I

What To Do Now

Compliance DeadlinesMarch 1, 2010

• Implement internal policies and practices

• Encrypt company laptops

• Amend contracts with service providers to incorporate the data security requirements

• Take all reasonable steps to ensure vendors apply protections as stringent as these (written certification not necessary)

• Encrypt other (nonlaptop) portable devices

Tasks

Tasks• Form a team

– Include necessary Management, IT, HR, Legal and Compliance personnel

• Review existing policies– Do your current data security policies and procedures create barriers to compliance.

• Map data flows that include personal information– Consider limiting collection of personal information and restrict access to those with a need to know

Tasks

• Identify internal and external risks and effectiveness of current safeguards

• Draft comprehensive written information security program

• Negotiate amendments to vendor agreements and audit for vendor compliance

• Encrypt laptops, portable devices and data in transit

Tasks

• Restrict access to personal information• Train employees• Institute monitoring and self-auditing

procedures• Update systems including firewall

protection and malware and virus protection

Sample WISP Please

Sample WISP Please

Information Security Program Manual

1. Introduction2. Scope3. Documentation4. PLAN-DO-CHECK-ACT 5. Risk Management Framework6. Security policy7. Organization of information security8. Asset management9. Human resources security10.Physical and environmental security11.Communications and operations management12.Access control13.Information systems acquisition, development and maintenance14.Information security incident management15.Business continuity management16.Compliance17.Change history

Sample WISP PleaseInformation Security Program

Table of ContentsInformation Security Program Overview6

 

Information Security Policy11

 

Definitions13

 

Security Risks Considered15

 

Security Risks17

 

Internet Policy33

 

Email Policy34

 

Privacy Policy38

 

Record Retention & Destruction Policy40

 

Acceptable Use Policy43

 

Data Loss Response47

 

 

Forms

Appendices

Action Plan

Compliance Engagement Plan

In-house IT/HR/Legal

Outsourced IT/HR/Legal

Combination

Resources• Statute (M.G.L. c. 93H)• Rules (201 CMR 17.00)• OCABR Guidance

– Compliance Checklist– Small Business Guide– Frequently Asked Question Regarding 201

CMR 17.00 • http://privacyregulation.com

Thank You