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Enforcement Notice: First text message case under CASL

The Canadian Radio-television and Telecommunications Commission (CRTC) has announced the first undertaking and fine involving text message violations under Canada’s Anti-Spam Legislation (CASL). This first, involves Quebec-based 514-BILLETS, a ticket broker for sporting and cultural events.

Between July 2014 and January 2016, the CRTC alleges 514-BILLETS sent text messages to recipients without their consent. The CRTC also alleges the company sent text messages without information that identified who sent the messages as well as failed to provide information to recipients that would allow them to easily contact 514-BILLETS.

514-BILLETS has agreed to pay  a total of $100,000 in compensation, appoint a compliance officer and institute a CASL-compliance program. 514-BILLETS will pay $75,000 in the form of $10 rebate couples to 7,500 clients and $25,000 to the Receiver General of Canada.

The CRTC’s media release can be read here.

Enforcement Notice: First text message case under CASL

Mark your calendars: Mandatory data-breach notification rules come into force November 1

The federal government released an Order in Council, dated March 26, 2018, announcing that the mandatory data-breach notification rules will come into force on November 1, on the recommendation of Navdeep Bains, Minister of Industry, Science and Economic Development.

After nearly three years, sections 10, 11, and 14, subsections 17(1) and (4) and sections 19 and 22 to 25 of the Digital Privacy Act, Chapter 32 will come into effect to amend the Personal Information Protection and Electronic Documents Act (PIPEDA). The federal government released the proposed breach reporting rules in September 2017 and advised at that time that the proposed regulations will be delayed coming into force after their publications, meant to “give regulated organizations time to adjust their policies and procedures accordingly and ensure that systems are in place to track and record all breaches of security safeguards that they experience.”

With the amendment, PIPEDA will contain provisions requiring organizations to notify affected individuals and organizations of breaches of security safeguards that create a real risk of significant harm and to report them to the Privacy Commissioner. It also creates offences in relation to the contravention of certain obligations respecting breaches of security safeguards. Among the changes, the new rules will also give the privacy commissioner the power to enter into a “compliance agreement” with an organization in certain circumstance to ensure the organization’s compliance with PIPEDA.

Stay tuned for further updates.

Mark your calendars: Mandatory data-breach notification rules come into force November 1

DHS And FBI Issue Joint Warning – Hackers Have Targeted Critical Sector Industries Since March 2016

On March 15, 2018, the US Department of Homeland Security (DHS) and Federal Bureau of Investigation (FBI) issued a joint Technical Alert (TA18-074A) warning “network defenders” in critical sector industries that “Russian government cyber actors” have been intentionally targeting U.S. government entities and organizations in the energy, nuclear, commercial facilities, water, aviation, and critical manufacturing sectors since at least March 2016. These threat actors, according to the joint alert, have used this campaign to engage in reconnaissance missions and to obtain operational control of industrial control processes and systems.

The joint alert identifies two targets of the ongoing attack: “staging” and “intended” targets. Staging targets are those “peripheral organizations such as trusted third-party suppliers with less secure networks.” The threat actors use the “staging” targets’ networks as “pivot points and malware repositories when targeting their final intended victims,” the intended targets. Once compromised, the staging targets are used to download source code from intended targets’ websites and to remotely access infrastructure such as corporate web-based email and virtual private network (VPN) connections. The threat actors ultimately seek to gain information from the intended target on “network and organizational design and control system capabilities within organizations.”

The joint alert identifies a variety of tactics used by the threat actors, including spear-phishing campaigns, watering-hole domain attacks, and collecting publicly available information:

  • Spear-Phishing. Through spear-phishing, the threat actors use email attachments to leverage legitimate Microsoft Office functions for retrieving a document from a remote server, which allows the threat actor to gain access to user credentials. With user credentials, and using a password-cracking technique, “the threat actors are able to masquerade as authorized users in environments that use single-factor authentication.”
  • Watering-Hole. Through watering-hole attacks, the threat actors compromise “the infrastructure of trusted organizations to reach intended targets. Approximately half of the known watering holes are trade publications and informational websites related to process control, ICS, or critical infrastructure.” These watering-holes host legitimate content developed by reputable organizations, but the threat actor alters the website to contain and reference malicious content. The threat actors use legitimate credentials to access and directly modify the website content. Once on the website, the victim provides credentials.
  • Public Information. The threat actors review information “posted to company websites, especially information that may appear to be innocuous, [to gain access to] operationally sensitive information.” In one example, the threat actors downloaded a small photo from a publicly accessible human resources page, which when expanded was “a high-resolution photo that displayed control systems equipment models and status information in the background.”

Once threat actors gain access to the network, the DHS and FBI warn they conduct “reconnaissance operations within the network,” including “identifying and browsing file servers within the intended victim’s network.” Perhaps most troubling, the DHS and FBI identified in multiple instances “the threat actors accessed workstations and servers on a corporate network that contained data output from control systems within energy generation facilities.” This access would allow the threat actors to control operations within the organization, including control of certain energy sectors.

Takeaways

The new joint alert highlights the dynamic threat landscape facing organizations. Although the alert provides technical advice concerning the identification and deterrence of the ongoing attacks, it also provides best practices applicable to the campaign. Many of the recommendations apply outside of the critical sector industries, and provide a timely reminder that all organizations should review their cybersecurity practices and policies on an ongoing basis. Some of the recommended best practices include:

  • Reviewing your existing third party contracts to determine cybersecurity vulnerabilities and protections;
  • Monitoring VPN logs for abnormal activity;
  • Deploying web and email filters on the network;
  • Ensuring proper training to inform end users on proper email and web usage;
  • Establishing a complex password policy;
  • Using multi-factor authentication;
  • Assigning appropriate personnel to review logs;
  • Completing “independent security (as opposed to compliance) risk review”; and
  • Preparing a robust incident response plan.

If you or your organization is looking to create new, or update existing cybersecurity policies or practices, or you have any questions about this joint alert and how your organization may be impacted, please reach out to the Dentons cybersecurity team to discuss how our cost effective strategies can help mitigate your risk and provide an assessment of your overall cybersecurity readiness.

Dentons is the world’s largest law firm, a leader on the Acritas Global Elite Brand Index, a BTI Client Service 30 Award winner, and recognized by prominent business and legal publications for its innovations in client service, including founding Nextlaw Labs and the Nextlaw Global Referral NetworkThe Dentons Privacy and Cybersecurity Group operates at the intersection of technology and law, and has been singled out as one of the law firms best at cybersecurity by corporate counsel, according to BTI Consulting Group.  

DHS And FBI Issue Joint Warning – Hackers Have Targeted Critical Sector Industries Since March 2016

NIST Releases Draft Update To Cybersecurity Framework

In 2014, the National Institute of Standards and Technology (NIST) released its first version of the Framework for Improving Critical Infrastructure Cybersecurity (Cyber Framework). The Cyber Framework was originally developed as a voluntary framework to help private organizations and government agencies manage cybersecurity risk in the critical infrastructure space (e.g., bridges, power grid, etc.). Since then, it has been widely adopted across industry as a benchmark standard for measuring an enterprise’s cybersecurity readiness.

Following feedback NIST received in December 2015 from a Request for Information, and comments from attendees at the Cybersecurity Framework Workshop in 2016 held at the NIST campus in Maryland, NIST released a draft update to the Cyber Framework in January 2017 called Version 1.1. Some of the key changes in the draft update included:

  • Adding a new section on cybersecurity measurement to discuss the correlation of business results to cybersecurity risk management metrics and measures;
  • Expanding the use and understanding of cyber supply chain risk management frameworks;
  • Accounting for authentication, authorization, and identity proofing in the access control section of the framework; and
  • Better explaining the relationship between the various implementation tiers and profiles.

Last week, NIST released a second draft of Version 1.1, which is open for public comment through January 20, 2018. The new draft expands on issues such as supply chain security and vulnerability disclosure programs. It also emphasizes the need for companies using the framework to develop metrics to quantify their progress. NIST says it hopes to finalize Version 1.1 in the spring of 2018.

If you are interested in submitting comments on the new draft of Version 1.1, or learning more about its proposed changes that will likely take effect in 2018, the Dentons Privacy and Cybersecurity Group is ready to assist.

Dentons is the world’s largest law firm, a leader on the Acritas Global Elite Brand Index, a BTI Client Service 30 Award winner, and recognized by prominent business and legal publications for its innovations in client service, including founding Nextlaw Labs and the Nextlaw Global Referral NetworkDentons’ Privacy and Cybersecurity Group operates at the intersection of technology and law, and has been singled out as one of the law firms best at cybersecurity by corporate counsel, according to BTI Consulting Group.  

NIST Releases Draft Update To Cybersecurity Framework

Canada’s Privacy Commissioner Pursues a Stronger Consent Framework and More Proactive Enforcement

On September 21st, 2017, Daniel Therrien, Canada’s Federal Privacy Commissioner, tabled his annual report to Canada’s Parliament today. The report to Parliament includes results and recommendations with respect to the OPC’s study on consent. In addition, the Commissioner requests Parliament overhaul Canada’s federal private sector legislation – the Personal Information Protection and Electronic Documents Act (PIPEDA).

Consent and Technology

A key issue for regulators and businesses is how to obtain meaningful and valid consent to collect and use personal information in the digital age. Revisiting and enhancing the consent model under PIPEDA is grounded in the Commissioner’s five year strategic privacy priorities. In 2016, the OPC issued a consultation paper regarding the challenges of obtaining meaningful consent in a continuously evolving technological ecosystem where the traditional “privacy policy” may not always be suitable. The OPC received feedback through roundtables, focus groups, surveys and receipt of 51 submissions from organizations, information technology specialists, academics, advocacy groups and other stakeholders.

Four Key Elements in Privacy Policies: The Commissioner stated that the OPC will be issuing an updated version of its consent guidelines that will require businesses and organizations to highlight in a user friendly way the following four key elements in their privacy notices:

  1. What information is being collected
  2. Who is it being shared with, including an enumeration of third parties
  3. The purposes for collecting, using or sharing including an explanation of purposes that are not integral to the service, and
  4. Identify the risk of harm to individuals, if any.

Risk of Harm: The OPC is amending its guidelines to require organizations to consider the risk of harm to individuals when considering the form of consent used. This consideration will be in addition to the sensitivity of the personal information and the reasonable expectations of the individual. We expect to learn more about this in the updated guidelines.

No-Go Zones: Expect new guidance for businesses and no-go zones where the use of information, even with consent, should be prohibited as inappropriate. The guidance will be aimed to provide clarity on what the OPC considers “inappropriate uses” under subsection 5(1) of PIPEDA.

Alternatives to Consent: The Commissioner outlined three potential solutions for enhancing privacy protection where traditional consent models conflict with advances in technology, including:

  1. De-identification: In some circumstances, like big data, de-identification protocols may be the right solution. The OPC will be issuing guidance on de-identification that will help businesses assess their protocols and reduce risk of re-identification to a low level where the information may be used without consent.
  2. Publicly available information: The Commissioner agrees that the categories of publicly available information in PIPEDA’s regulations are out of date, and should be revisited by Parliament. For now these exceptions remain the same, but we may someday see changes to the regulations.
  3. Call for reform of new exceptions: The Commissioner has requested that PIPEDA be amended to include new exceptions to consent (section 7 of PIPEDA) to address social activities not contemplated when PIPEDA was first drafted. The goal is to help organizations use data for new purposes that would benefit individuals and obtaining consent is not practical. For example, a mobile app wishes to now use information collected for geolocation mapping, and the business can demonstrate that the benefit of the new use of information outweighs the privacy incursion. This option would be considered a last resort and require pre-approval by the OPC.

Overhaul of PIPEDA including new Powers

The Commissioner reported that it is time to revisit how Canada’s federal privacy legislation, enacted in 2000, meets the realities of today’s digital world, including advances technology as well the addition of new enforcement powers already used by the OPC’s counterparts in the U.S. and Europe. The Commissioner proposed to Parliament that this overhaul include a new enforcement model that emphasizes proactive powers that are backed up by order-making authorities, including:

  • involuntary audits
  • issuing binding orders, and
  • impose administrative monetary penalties.

The request for reform of PIPEDA is certainly a hot topic as businesses and organizations await how Canada’s status as an adequate country is, or is not affected as a result of Europe’s General Data Protection Regulations.

Expect a more aggressive OPC

However, do not expect the OPC to wait for new powers. The Commissioner ended his report to Parliament adding that, beginning today, we can expect a more proactive and aggressive OPC with respect to enforcement. The OPC is sending a signal that complaints to the OPC will no longer be the primary tool and the OPC will be shifting itself as a proactive regulator ready to initiate investigations. The Commissioner reported that a complaint-driven model has its limits:

People are unlikely to file a complaint about something they do not know is happening, and in the age of big data and the Internet of Things, it is very difficult to know and understand what is happening to our personal information. My Office, however, is better positioned to examine these often opaque data flows and to make determinations as to their appropriateness under PIPEDA.

This is an important message. The Commissioner is not waiting for legislative reform and has put businesses and organizations on notice to expect a more active OPC, one that will be on the lookout for “specific issues or chronic problems” that must be addressed – possibly resulting in more Commissioner-initiated investigations.

More information

You can read the OPC’s news release here.

You can read the Commissioner’s remarks and full Annual Report to Parliament here.

Canada’s Privacy Commissioner Pursues a Stronger Consent Framework and More Proactive Enforcement