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

1. “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

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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”

9. 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

10. 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

11. 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

12. 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

13. 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.

14. 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

15. 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

16. 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

17. 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

18. “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

19. 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

20. III. Privacy & Security After 9/11 • Privacy vs. security • Privacy and security • How to build them together

21. 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

22. 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

23. 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?

24. 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

25. 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

26. Contact Information • Web: www.peterswire.net • Email: pswire@mofo.com • Phone: (240) 994-4142