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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

Déjà Vu – Canada’s Breach Reporting and Notification Requirements

On September 2, 2017, the Ministry of Innovation, Science and Economic Development Canada (ISED) published draft Breach of Security Safeguards Regulations. The draft Regulations will be open for comment for 30 days. If the Regulations are not further amended by ISED, they may be registered and republished. ISED has stated that there will be a delay between finalizing the Regulations and their coming into force to permit organizations time to implement any necessary organizational changes.

ISED has drafted Regulations that hew close to similar regulations under Alberta’s Personal Information Protection Act. Far from being unsettling, this sense of  déjà vu will be welcome for organizations concerned about coping with divergent requirements.

However, there are still some important differences to note:

1.  Reporting to the regulator can focus on the cause of the breach rather than speculate about the harm

The content of the report to the Office of the Privacy Commissioner of Canada (OPC) tracks fairly close to the content required under Alberta’s law. Perhaps as a matter of clarification more than a substantive difference, the federal Regulations specify that the report should include the “cause” of the breach if known. However, one significant difference is that organizations are not required to engage in speculation about the potential harm to individuals. This will be highly appreciated by organizations who have had to deal with Alberta’s law.

2.  Organizations must make it easy on individuals to get information or to complain

The content of the notices to individuals of a breach are also similar to those in Alberta. However, ISED has included some consumer-friendly requirements. First, individuals should have a toll-free number to contact someone who can answer questions on behalf of the organization (or an email address). Second, individuals must be informed about the organization’s internal complaint process. Finally, individuals must be advised of their right to complain to the OPC about the breach.

3.  There is flexibility with respect to the manner of reporting

The federal Regulations specifically provide that notices to individuals can be provided:

  • by email or other secure forms of communication (to which the individual has consented)
  • by letter
  • by telephone
  • in person

Moreover, organizations can opt for indirect notification (without having to pre-clear this with the OPC) if direct notification would cause harm to the individual, the cost of direct notification would be prohibitive to the organization, or the organization does not have current contact information.  Indirect notification can be made by conspicuous posting of the notice on the organization’s website for 90 days (or more) or by means of an advertisement that is likely to reach the affected individuals.

4. Record-keeping is much less onerous than feared

One difference between the Alberta law and the federal Personal Information Protection and Electronic Documents Act (PIPEDA), is that PIPEDA requires an organization to maintain a record of every breach of security safeguards even if that breach does not result in a real risk of significant harm to an individual.

The ISED has heard the concerns raised by organizations about this provision. Organizations only need to maintain records for 2 years. The form and content of the records are up to the organization provided that they contain enough information to allow the OPC to assess whether the organization was making any required reports to the OPC and required notifications to affected individuals. Since a report to the OPC containing the prescribed elements would be sufficient as a record, this appears to mean that the type of information that must be kept does not include a written assessment of the risk of harm.

Read the draft Regulations here.

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Déjà Vu – Canada’s Breach Reporting and Notification Requirements

HHS Issues Quick Response Cyber Attack Checklist

Last month, after the WannaCry ransomware attack infected 230,000 computers in 150 countries, the US Department of Health and Human Services (HHS) Office for Civil Rights (OCR) issued a “Quick-Response Checklist” for HIPPA covered entities and business associates to follow when responding to a ransomware attack or other “cyber-related security incident,” as that phrase is defined under the HIPAA Security Rule. 45 C.F.R. 164.304.

Checklist Recommendations

The checklist provides four recommendations:

  1. Execute the response and mitigation procedures and contingency plans. Entities should immediately fix any technical or other problems to stop the incident and take steps to mitigate any impermissible disclosure of protected health information (either done by the entity’s own information technology staff, or by an outside entity brought in to help).
  2. Report the crime to other law enforcement agencies. This includes state or local law enforcement, the FBI, or the Secret Service. The OCR makes clear that any such report should not include protected health information (unless otherwise permitted by the HIPPA Privacy Rule).
  3. Report all cyber threat indicators to federal and information-sharing and analysis organizations (ISAOs). A cyber threat indicator is defined under federal law as information that is necessary to identify malicious cyber activity. The US Department of Homeland Security, the HHS Assistant Secretary for Preparedness and Response, and private-sector cyber-threat ISAOs are all identified as acceptable information-sharing organizations under the new checklist. The OCR, however, makes clear that it does not receive reports from its federal or HHS partners.
  4. Report the breach to OCR as soon as possible, “but no later than 60 days after the discovery of a breach affecting 500 or more individuals.” Entities should notify “affected individuals and the media unless a law enforcement official has requested a delay in the reporting.” The OCR also presumes that all cyber-related security incidents where protected health information was accessed, acquired, used, or disclosed are reportable breaches unless the information was encrypted by the entity at the time of the incident or the entity determines, through a written risk assessment, that there was a low probability that the information was compromised during the breach. An entity that discovers a breach affecting fewer than 500 individuals has an obligation to notify individuals without unreasonable delay, but no later than 60 days after discovery. And the OCR must be notified within 60 days after the end of the calendar year in which the breach was discovered.

In the end, the OCR states that it considers “all mitigation efforts taken by the entity during any particular breach investigation,” including the voluntary sharing of breach-related information with law enforcement agencies and other federal and analysis organizations, as outlined in the checklist.

Takeaways

The OCR’s checklist makes clear that preparing for, and responding quickly to any potential breach should be a priority for HIPPA covered entities and their business associates. This includes preparing or updating enterprise wide incident response plans, training leadership, implementing effective governance programs, and having the ability to rapidly mobilize a response to malicious activity. Dentons’ global Privacy and Cybersecurity Group, in conjunction with Dentons’ leading healthcare practice, has extensive experience helping entities prepare and execute such plans and dealing with the rapidly changing legal and regulatory landscape that emerges in the aftermath of a security incident.

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 Network. Dentons’ global Privacy and Cybersecurity Group operates at the intersection of technology and law, and was recently singled out as one of the law firms best at cybersecurity by corporate counsel, according to BTI Consulting Group.  

HHS Issues Quick Response Cyber Attack Checklist

DHS and FBI – Hackers Are Targeting US Nuclear, Energy, and Manufacturing Facilities

According to a new joint report issued by the US Department of Homeland Security (DHS) and Federal Bureau of Investigation (FBI), hackers have been penetrating the computer networks of companies that operate nuclear power stations, energy facilities, and manufacturing plants in the US since May 2017. The joint report carried an urgent amber warning, which is the second-highest rating for the sensitivity of a threat. The report was publicized by the New York Times last week.

According to the report, an “advanced persistent threat” actor was responsible for the attacks, which has included thus far:

  • Hackers writing targeted email messages containing fake resumes for control engineering jobs and then sending them to senior industrial control engineers who have access to critical industrial control systems. The resumes were Microsoft Word documents that contained malicious code. Once the recipient clicks on the document, the attackers copy the recipient’s credentials and access the network.
  • Hackers compromising websites they know their victims visit (watering hole attack).
  • Hackers redirecting the victims’ internet traffic through their own machines (man-in-the-middle attack).

The report does not say whether the cyber intrusions are an attempt at espionage, or part of a plan to cause physical damage. Nor is there any indication as to how many facilities were compromised. The report does state, however, that the hackers appear to be mapping out computer networks for future attacks.

In a joint statement issued by the DHS and FBI, a spokesperson for the DHS said “There is no indication of a threat to public safety, as any potential impact appears to be limited to administrative and business networks.” John Keeley, a spokesperson for the Nuclear Energy Institute (which works with the 99 utilities that operate nuclear plans in the US), said nuclear facilities are required to report cyber attacks that relate to their safety, security and operations. None have reported any cyber attacks thus far.

On May 11, as the attacks were ongoing, President Trump signed an executive order to strengthen the cybersecurity of federal networks and critical infrastructure.

If you or your enterprise is engaged in the energy or manufacturing sectors, cyber threat preparation and monitoring is your first line of defense against bad actors. Dentons’ team of cybersecurity experts can assist you in establishing and implementing an effective and compliant incident response plan and set of programs to monitor internal and external threats, including threat intelligence and access control and vulnerability assessments.

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 Network. Dentons’ global Privacy and Cybersecurity Group operates at the intersection of technology and law, and was recently singled out as one of the law firms best at cybersecurity by corporate counsel, according to BTI Consulting Group.  

DHS and FBI – Hackers Are Targeting US Nuclear, Energy, and Manufacturing Facilities

President Trump’s Budget Requests $1.5B For Homeland Security Cyber Unit

President Trump’s new budget includes a request to increase cybersecurity personnel and funding across several federal departments, including $1.5 billion for the Department of Homeland Security’s (DHS) National Protection and Programs Directorate (NPPD). The NPPD is a DHS unit responsible for protecting US infrastructure from cyber threats. The DHS is responsible for protecting critical infrastructure and federal networks from cyber intrusions.

The budget document, released by the Office of Management and Budget earlier this morning, states: “The Budget supports the President’s focus on cybersecurity to ensure strong programs and technology to defend the Federal networks that serve the American people, and continues efforts to share information, standards, and best practices with critical infrastructure and American businesses to keep them secure[.]” The budget document also proposes to increase law enforcement and cyber personnel at DHS, the FBI and Department of Defense.

The President’s budget comes on the heels of his recent Executive Order aimed at strengthening cybersecurity across federal networks, critical infrastructure, and the nation writ large. It also comes in the wake of federal departments and agencies, such as DHS, Health and Human Services, and the Securities and Exchange Commission, focusing their efforts on cybersecurity in medical devicesmobile devices, financial services, and the Internet of Things (IoT).

 

President Trump’s Budget Requests $1.5B For Homeland Security Cyber Unit