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Don't expect a letter from Monster or Heartland Payment Systems letting you know they've lost your data. The breaches at Monster.com and Heartland Payment Systems are raising questions about the efficacy of data-loss disclosure laws enacted in at least 45 states. Back in 2007 we wrote about how the financial services industry lobbied hard to block proposed federal rules requiring organizations to notify individuals whose data they lose, and to permit consumers to freeze their credit histories. States such as California and Massachusetts have passed laws giving consumers these rights. But the Monster and Heartland capers have brought weaknesses in the legislation to center stage. I asked Lisa Sotto, head of privacy and information management at law firm Hunton & Williams, about this: Q: Heartland and Monster told me they intend to comply with all state laws. That said, they have not announced plans to notify individual victims. Is that OK? A: In the state breach notification laws, it is permissible to delay notification if a law enforcement agency determines that notification would impede a criminal investigation. If such a delay is requested by law enforcement, notification must be made after the law enforcement agency determines that notice would not compromise the investigation. I do not know if these companies received a delay request from a law enforcement agency. Q: Monster says it chose not to email individual victims because the bad guys could then replicate that message and use it as a phishing template. That makes sense. But is that allowed by state consumer protection laws? A: There are now 45-plus state laws and they are not uniform. Typically, notice is provided via first class mail, but there are provisions in the state laws allowing for electronic notice as well. Q: The only official notices from Heartland and Monster so far has been one-page disclosures posted on a web site. Does that cover them? A: There are provisions in the state laws al

An insurance company seeking to challenge the authority of Canada's privacy legislation and the privacy commissioner in an auto injury case will have to go to the Federal Court to make its case, the New Brunswick Court of Appeal has ruled. In State Farm Mutual Automobile Insurance Company v. Privacy Commissioner of Canada and Attorney General Canada, State Farm argued that Canada's privacy regime does not apply to surveillance tapes the insurer commissioned following a motor vehicle accident in 2005. In March 2005, Jennifer Vetter, insured by State Farm, was involved in a motor vehicle collision with Gerald Gaudet. State Farm subsequently hired a lawyer in anticipation of litigation by Gaudet against Vetter. The insurer also hired private investigators that conducted video surveillance on Gaudet. Gaudet filed a request under Canada's privacy legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA), that State Farm turn over to him the personal information it had compiled, including copies of the surveillance reports and tapes. State Farm went to the New Brunswick Court of Queen's Bench asking for "declaratory" relief on several issues. Among other things, the insurer asked for a court order declaring that PIPEDA did not apply to information obtained in a bodily injury damages claim. It also asked the court for an order confirming that the privacy commissioner had no right or authority to compel State Farm to turn over the documents. The privacy commissioner asked for a stay of proceedings in the New Brunswick court, arguing that the authority of the privacy commissioner was a matter for the Federal Court (which has jurisdiction over federal legislation such as the PIPEDA). The New Brunswick Appeal Court noted both the provincial and federal courts have jurisdiction to hear cases about the constitutionality of federal legislation. But only the Federal Court could determine the outcome of a direct challenge to the authority of the p

"The United States House of Representatives took a major step this week toward enacting a national data breach notification law. H.R. 2221, the Data Accountability and Trust Act (DATA), cleared the House with a voice vote. In its current form, DATA requires businesses to notify customers and the Federal Trade Commission (FTC) if sensitive information has been exposed to a security breach. If the U.S. Senate can reconcile its own approach to data breach notification legislation with DATA, a new federal standard will emerge. If signed into law by President Barack Obama, a federal data breach ¬law would pre-empt the jumbled mass of dozens of state laws. "You'd be better served by federal legislation if the federal legislation has teeth and doesn't pre-empt the state's law," said California state senator Joe Simitian, speaking to executive editor Scot Petersen in September. "If there was a meaningful standard at the national level, I think many states would be happy to accept it." Aside from the data breach notification required by the HITECH Act, DATA would put into place the first national law of its kind. H.R. 2221 was sponsored by House Subcommittee Chair Rep. Bobby L. Rush of Illinois. The bill specifically states that: "Any person engaged in interstate commerce that owns or possesses data in electronic form containing personal information shall, following the discovery of a breach of security of the system maintained by such person that contains such data -- 1. notify each individual who is a citizen or resident of the United States whose personal information was acquired by an unauthorized person as a result of such a breach of security; and 2. notify the Federal Trade Commission."

The US government has now adopted a policy of fostering the adoption of electronic medical records (EMR). The policy is intended to increase the efficiency of the US healthcare system, thereby lowering costs and reducing the incidence of preventable errors. At the same time, through its The Health Insurance Portability and Accountability Act (HIPAA) privacy rules, the government has set minimum standards for the security of those records. These two goals-privacy and security of these records, along with their free interchange among medical providers-can easily wind up at odds with each other. A recent study that looked at the role of state privacy laws in EMR adoption suggests that the problem is very real, as state privacy laws seem to inhibit the use of EMR by hospitals located there. The authors, based at MIT and the University of Virginia, line up a variety of data that validate their suggestion that privacy and the use of EMR may require a careful balance. So, for example, they cite some highly publicized lapses when it comes to the maintenance of patient privacy: someone once offered the records of 200,000 patients for sale on Craigslist, while hospitals have seen their own employees attempt to get at the electronic files of famous patients. Perhaps more significantly, the authors suggest that the public, as represented by their legislators, has concerns about the privacy of EMR. They found that states that have passed their own privacy laws to supplement the HIPAA rules tend to have a higher percentage of their populace signed up for the Do Not Call Registry, indicating a corresponding individual-level interest in maintaining privacy. So, they looked at whether these laws had any impact on the adoption of EMR by hospitals located in each state.

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New Jersey lawmakers are considering new legislation that would require Facebook, MySpace and others to police social networking sites for offensive posts or else face potential consumer fraud lawsuits. But some lawyers say that even if the measure is enacted, it's not likely to have much impact on social networking sites because the federal Communications Decency Act immunizes such sites from lawsuits based on material posted by users. The bill is part of state Attorney General Anne Milgram's Internet safety initiative. "The social networking site safety act is intended to deter cyber-bullying and the misuse of social networking Web sites," the Office of Attorney General said in a statement about the measure. "The bill empowers users of social networking sites to take steps to stop harassment or exploitation." Last year, Milgram garnered headlines by launching a fraud investigation of gossip site JuicyCampus.com -- where users frequently posted insults about college students -- but no legal action resulted. (That site folded last month for financial reasons.) Attempts to rein in cyberbullying might be politically popular, but this type of state effort to regulate global Web sites is also likely to prove useless, say cyber lawyers. "We need to recognize that legislating on the Internet can't be done on a state-by-state basis," said Parry Aftab, an expert on Web safety and cyber-abuse. "We can't have a different law in each state."

Should individual states mandate that businesses comply with the Payment Card Industry's Data Security Standard (PCI DSS)? The answer is "yes," according to Nevada, which has passed a new law that, as of next year, requires businesses to comply with PCI when collecting or transmitting payment card information. Nevada is the first state to mandate full PCI compliance for businesses. Minnesota in 2007 incorporated only a portion of PCI in its Plastic Card Security Law. According to Nevada's new law, if a data collector doing business in that state accepts a payment card in connection with a sale of goods or services, the data collector shall comply with the current version of PCI DSS, as adopted by the PCI Security Standards Council or its successor organization, with respect to those transactions, not later than the date for compliance set forth in the Payment Card Industry (PCI) Data Security Standard or by the PCI Security Standards Council or its successor organization. Is it a Game-Changer? As states rush to adopt or strengthen privacy legislation, Nevada's move is seen by some observers as a potential "game-changer." But they question whether states should be in the business of mandating compliance with an industry standard.

New Englanders have a reputation for being taciturn, but when it comes to data Massachusetts takes the cake. No state loves its privacy more than the Bay State, which last year passed the nation's most exacting data privacy law, requiring companies to check off a honey-do list of steps designed to protect personal data belonging to commonwealth residents. Connecticut and Rhode Island preceded Massachusetts in joining the minority of states that have enacted proactive data privacy laws, requiring businesses to protect information like Social Security and credit card numbers. Maine, Vermont and New Hampshire, like nearly all states, have only reactive data laws, requiring companies to take certain steps - like reporting a breach to authorities - after data has been compromised. Rhode Island's law, passed in 2006, requires businesses that own or license Rhode Islanders' personal information to "provide reasonable security" for that data. Connecticut's law, passed shortly before Massachusetts enacted data privacy legislation last summer, requires businesses to create and publicly display a data protection policy, but does not specify what that policy should entail. The Connecticut and Rhode Island laws stop far short of the controversial requirements in Massachusetts, where new regulations are scheduled to take effect by January 2010. "They're not technically one-liners, but they're very general," Goodwin Procter LLP partner David Goldstone said of the Connecticut and Rhode Island statutes, which are similar to laws passed in Texas and California. "Essentially they say companies have to have reasonable protections in place."

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"A federal law designed to prevent employers and health insurers from discriminating against an individual based on their genetic predisposition to disease took effect late last month, signaling a new era where intermingling genetic advances and privacy concerns create new challenges in health care. But left out of the federal Genetic Information Nondiscrimination Act, commonly known as GINA, were privacy protections for individuals seeking long-term care, disability and life insurance coverage. Each of those areas was left up to the individual states. At least 10 states regulate the use of genetic information in long-term care insurance. But in California, privacy protections were left to expire by lawmakers in January 2008. Mark Billingsley, spokesman for state insurance commissioner Steve Poizner, said in an e-mail that there "appears to be a giant loophole" in California's insurance code regarding long-term care insurance and genetic privacy protections. He said he couldn't identify a single provision in the state code that would preclude a private insurer from requesting such a test for underwriting purposes. "

Bits readers have a serious case of broadband envy. I've been writing about the debate about how the government might encourage more high-speed Internet use and you've complained loudly that people in other countries have faster, cheaper, more widely available broadband service. Even customer-service representatives of Internet service providers overseas are nicer too. I don't know about manners, but it's easy to find examples that American's broadband is second-rate: In Japan, broadband service running at 150 megabits per second (Mbps) costs $60 a month. The fastest service available now in the United States is 50 Mbps at a price of $90 to $150 a month. In London, $9 a month buys 8 Mbps service. In New York, broadband starts at $20 per month, for 1 Mbps. In Iceland, 83 percent of the households are connected to broadband. In the United States, the adoption rate is 59 percent. There's more than just envy at stake here. President Obama campaigned on a promise of fast broadband service for all. On the White House Web site, he writes "America should lead the world in broadband penetration and Internet access." And the recent stimulus bill requires the Federal Communications Commission to create a national broadband plan in order to make high-speed Internet service both more available and more affordable. I've spent the last week trolling through reports and talking to people who study broadband deployment around the world to see what explains the faster and cheaper service in many countries. We'll start with where the United States isn't doing quite so badly: the basic speed of broadband service. If you take out the countries that have made significant investment in fiber optic networks - Japan, Korea and Sweden - the United States is in the middle of the pack when it comes to network speed.

Data Privacy Trends: Randy Sabett, Information Security Attorney March 26, 2009 Activity at the State Level Points Toward a Federal Data Breach Notification Law Data privacy legislation -- the trend started in California and is being discussed heatedly in Massachusetts today. Data breach notification and privacy laws have now been enacted in 40 separate states, and government observers think we're close to seeing federal legislation proposed. In an exclusive interview, Randy Sabett, a noted privacy/information security attorney, discusses: Trends in state data privacy legislation; What these laws mean to businesses; The Obama Administration's approach to data privacy; Trends to keep an eye on throughout 2009. Randy V. Sabett, CISSP, is a partner in the Washington, D.C. office of Sonnenschein Nath & Rosenthal LLP, where he is a member of the Internet, Communications & Data Protection Practice. He counsels clients on information security, privacy, IT licensing, and patents, dealing with such issues as Public Key Infrastructure (PKI), digital and electronic signatures, federated identity, HIPAA, Gramm-Leach-Bliley, Sarbanes-Oxley, state and federal information security and privacy laws, identity theft and security breaches. He served as a Commissioner for the Commission on Cyber Security for the 44th Presidency.

In a 4-to-3 ruling, the New York State Court of Appeals ruled on Tuesday that the State Police violated a criminal suspect's rights under the State Constitution when it placed a GPS tracking device inside the bumper of his van without obtaining a warrant. The police had used the device to monitor the movements of the suspect, Scott C. Weaver, for more than two months. But the court ordered the evidence gathered from the device suppressed and ordered a new trial for Mr. Weaver. In three written opinions, the judges on the court debated the constitutional issues raised by the growing use of global positioning system technology as a tool of surveillance. The case could set an important precedent for state and local police agencies.

The D.C. agency that handles college financial aid requests said yesterday that it had accidentally e-mailed personal information from 2,400 student applicants to more than 1,000 of those applicants. The Office of the State Superintendent of Education (OSSE) said it has notified all students of the breach, which occurred when an employee of the agency's Higher Education Financial Services Program inadvertently attached an Excel spreadsheet to an e-mail. The information included student names, e-mail and home addresses, phone and Social Security numbers and dates of birth. The disclosure involved the "DC OneApp," an online application that allows D.C. students to apply for a series of grant programs. They include DCTAG, which provides awards of up to $10,000 toward the difference between in-state and out-of-state tuition at public four-year-colleges in the 50 states. The accidental disclosure went to about 1,250 DCTAG applicants, officials said. OSSE never publicly announced the breach, which occurred Wednesday. It did express regret for the incident in an e-mail sent to students and parents the next day. A parent made the e-mail available to The Washington Post over the weekend.

The FBI and Virginia State Police are searching for hackers who demanded that the state pay them a $10 million ransom by Thursday for the return of millions of personal pharmaceutical records they say they stole from the state's prescription drug database. The hackers claim to have accessed 8 million patient records and 35 million prescriptions collected by the Prescription Monitoring Program. "This was an intentional criminal act against the commonwealth by somebody who was trying to harm others," Gov. Timothy M. Kaine (D) said. "There are breaches that happen by accident or glitches that you try to work out. It's difficult to foil every criminal that may want to do something against you." Although the hackers had threatened to sell the data if they did not receive payment by Thursday, the deadline passed with no immediate sign that they followed through. ad_icon State officials say it is unclear whether the hackers were able to view the patient records, as they have claimed. If the theft is real, it would be the most serious cybercrime the state has faced in recent history.

"In a sign that state attorneys general may be flexing the HIPAA enforcement muscle granted by the HITECH Act provisions in the Recovery Act, the Connecticut and Arizona attorneys general are investigating health plans that recently experienced data breaches that they failed to disclose for several months. Typically, state attorneys general prosecute only violations of state laws, but they now have authority to investigate and levy fines for violations of HIPAA and the HITECH Act, which requires mandatory notifications within two months of knowledge of a breach. Connecticut Attorney General Richard Blumenthal (D) has emerged as possibly the first AG to take on a HIPAA investigation, and Arizona's AG may also be pursuing a similar course. The larger of the two breaches that have come to the AGs' attention was experienced by Health Net, Inc., which lost a portable external hard drive containing seven years of data for 446,000 Connecticut residents. The lost data came from 1.5 million individuals in total, who also hailed from New Jersey and New York. Health Net reported the loss to the Connecticut AG on Nov. 19, and on the same day Blumenthal issued a scathing statement demanding answers and promising action. He specifically said he was investigating whether Health Net may have violated "federal laws," as well as his state's own data protection laws."

Legislation aimed at protecting the privacy rights of car owners is drawing objections from auto manufacturers and Progressive Insurance, which hopes to introduce a program in Washington state that charges drivers based partly on how and when they drive.\n\nThe American Civil Liberties Union of Washington is pushing for the legislation, which would require automakers and other companies to inform car owners of the presence of devices that record information about their driving habits.\n\nThat includes event data recorders, or black boxes, installed on most newer cars, as well as electronic equipment such as GPS devices and OnStar, the wireless subscription service from General Motors.\n\nIn addition to requiring notification, a bill sponsored by state Sen. Claudia Kauffman, D-Kent, would clarify that vehicle owners are the owners of the data. With a few exceptions, a court order or the owner's permission would be required in order for a third party to obtain it.\n\nCarrie Tellefson, a lobbyist for Progressive Insurance, testified last week at a House Transportation Committee hearing that Substitute Senate Bill 5574 would prevent the insurance company from introducing its pioneering MyRate insurance program into Washington.\n\nProgressive Insurance first tested the idea of usage-based insurance in 1999. The company introduced the current plan, called MyRate, in 2004 and now offers it in nine states, including Oregon.\n\nCustomers who agree to opt into the program plug a device into their car's onboard diagnostic system, usually somewhere under the dashboard near the steering column. The device records information about how, when, and how much the car is driven, and wirelessly transmits the data back to Progressive's servers.\n\nCustomers are either rewarded with a discount or penalized with a higher rate depending on the information collected.\n\nThe discount can be as much as 30 percent, and the surcharge up to 9 percent.\n\nCustomers can go online and look at perso

The loss of personally identifiable information, such as an individual's Social Security number, name, and date of birth can result in serious harm, including identity theft. Identity theft is a serious crime that impacts millions of individuals each year. Identity theft occurs when such information is used without authorization to commit fraud or other crimes. While progress has been made protecting personally identifiable information in the public and private sectors, challenges remain. GAO was asked to testify on how the loss of personally identifiable information contributes to identity theft. This testimony summarizes (1) the problem of identity theft; (2) steps taken at the federal, state, and local level to prevent potential identity theft; and (3) vulnerabilities that remain to protecting personally identifiable information, including in federal information systems. For this testimony, GAO relied primarily on information from prior reports and testimonies that address public and private sector use of personally identifiable information, as well as federal, state, and local efforts to protect the security of such information. GAO and agency inspectors general have made numerous recommendations to agencies to resolve prior significant information control deficiencies and information security program shortfalls. The effective implementation of these recommendations will continue to strengthen the security posture at these agencies. Identity theft is a serious problem because, among other things, it can take a long period of time before a victim becomes aware that the crime has taken place and thus can cause substantial harm to the victim's credit rating. Moreover, while some identity theft victims can resolve their problems quickly, others face substantial costs and inconvenience repairing damage to their credit records. Some individuals have lost job opportunities, been refused loans, or even been arrested for crimes they did not commit as a result of identit

The loss of personally identifiable information, such as an individual's Social Security number, name, and date of birth can result in serious harm, including identity theft. Identity theft is a serious crime that impacts millions of individuals each year. Identity theft occurs when such information is used without authorization to commit fraud or other crimes. While progress has been made protecting personally identifiable information in the public and private sectors, challenges remain. GAO was asked to testify on how the loss of personally identifiable information contributes to identity theft. This testimony summarizes (1) the problem of identity theft; (2) steps taken at the federal, state, and local level to prevent potential identity theft; and (3) vulnerabilities that remain to protecting personally identifiable information, including in federal information systems. For this testimony, GAO relied primarily on information from prior reports and testimonies that address public and private sector use of personally identifiable information, as well as federal, state, and local efforts to protect the security of such information. GAO and agency inspectors general have made numerous recommendations to agencies to resolve prior significant information control deficiencies and information security program shortfalls. The effective implementation of these recommendations will continue to strengthen the security posture at these agencies. Identity theft is a serious problem because, among other things, it can take a long period of time before a victim becomes aware that the crime has taken place and thus can cause substantial harm to the victim's credit rating. Moreover, while some identity theft victims can resolve their problems quickly, others face substantial costs and inconvenience repairing damage to their credit records. Some individuals have lost job opportunities, been refused loans, or even been arrested for crimes they did not commit as a result of identit

"SACRAMENTO, Calif.-The state Assembly passed a bill Monday that would allow video recorders to be installed on vehicles' dashboards, raising concern about drivers' privacy. Currently, state law prohibits dashboard devices that may obstruct a driver's view. The bill is supported by companies that hire teams of drivers. They want to ensure their employees are driving safely and use the cameras to help determine fault in an accident. The bill's author, Assemblyman Nathan Fletcher, R-San Diego, says companies that use the recorders in other states have reduced their accident claims by 80 percent."

Will your car have to testify against you in court?

In a study that is unlikely to find favor among privacy advocates, researchers from two academic institutions warned that increased efforts to protect the privacy of health data will hamper the adoption of electronic medical records systems. The study, conducted by researchers at MIT and the University of Virginia, said EMR adoption is often slowest in states with strong regulations for safeguarding the privacy of medical records. On average, the number of hospitals deploying EMR systems was up to 30% lower in states where health care providers are forced to comply with strong privacy laws than it was in states with less stringent privacy requirements. That's because privacy rules often made it harder and more expensive for hospitals to exchange and transfer patient information, thereby reducing the value of an EMR system, the study found.

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The California State Senate approved today SB 20, legislation by State Senator Joe Simitian (D-Palo Alto), which aims to strengthen existing privacy protection laws for California consumers. The new law builds on legislation authored by Simitian in 2002 that requires a business or government agency that incurs a data breach to provide notice to the individual(s) whose information was compromised. More than 40 states have adopted similar legislation since that time, largely based on the California measure. "No one likes to get the news that information about them has been stolen," said Simitian, "but when it happens, people are entitled to get a notice they can understand, and that helps them decide what to do next." "The premise is simple," added Simitian. "What you don´t know can hurt you. Ignorance is not bliss. And you can´t protect yourself if you don´t know you´re at risk." Simitian said his latest proposal (SB 20), "is designed to make a good law even better." California´s current security breach notification law (AB 700, Simitian -2002) requires notice to consumers when their information has been compromised, but does not require data holders to provide any standard set of information about the nature of the breach. SB 20 will enhance consumer knowledge about security breaches by requiring that the notification contain specified information, including the type of personal information breached and the date of the breach.

The Oklahoma Department of Human Services (DHS) is notifying more than one million state residents that their personal data was stored on an unencrypted laptop that was stolen from an agency employee. The computer file contained the names, Social Security numbers, birth dates and home addresses of Oklahoma's Human Services' clients receiving benefits from programs such as Medicaid, child care assistance, nutrition aid and disability benefits, the agency announced Thursday. The computer, which was stolen when a thief broke into the car April 3 after the employee stopped on her way home from work, was password protected, and officials do not believe the burglar realized what he or she was stealing. Therefore, the risk of the data being accessed is minimal, according to the agency. "We feel this was not a situation where someone was targeting the agency or that information," DHS spokeswoman Mary Leaver told SCMagazineUS.com on Friday. "We feel it was random." Leaver said the state Office of Inspector General is conducting an investigation, out of which likely will come a mandatory review of information security policies. However, it is not believed the employee violated existing policy when the incident occurred, she said. News of the theft comes one day after the Ponemon Institute, in conjunction with Intel, released a study that found the average value of a lost laptop is $49,246. About 80 percent of the cost is related to the chance that a breach could occur, the study showed.