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The Data Protection Directive is old-fashioned and out of date, a report published by the UK's privacy regulator the Information Commissioner's Office (ICO) has said. Commissioner Richard Thomas said that the European Union must change its legislation. The ICO commissioned RAND Europe to investigate whether or not 1995's EU Data Protection Directive was a good basis for Europe-wide data protection law. The research concluded that the law was flawed and needed to be updated. It found that the law must be clearer about what it seeks to achieve, that it should be better at forcing organisations to protect personal data in their charge, that it should encourage a more strategic approach to enforcement and that it does not deal well enough with the export of personal data outside the EU. Thomas said that the Directive, on which the UK's Data Protection Act is based, is outmoded. "The Directive is showing its age. Modern approaches to regulation mean that laws must concentrate on the real risks that people face in the modern world, must avoid unnecessary burdens, and must work well in practice," he said. "Organisations must embed privacy by design and data protection must become a top level corporate governance issue." RAND said that the Directive would be improved by its fundamental approach to ensuring data privacy being changed. It said that the law should focus on the protection of individuals and the security of their data, and not on the processes that lead to that. "The stronger, results oriented approach described in this report aims to protect data subjects against personal harm resulting from the unlawful processing of any data, rather than making personal data the building block of data protection regulations," said the report. "It would move away from a regulatory framework that measures the adequacy of data processing by measuring compliance with certain formalities, towards a framework that instead requires certain fundamental principles to be respected

The European Commission has prepared a set of questions and answers as well as a flowchart to help companies understand when they can and when they cannot send personal data abroad. The European Union's Data Protection Directive protects the personal data of EU citizens from abuse and misuse. Organisations have a duty to protect it, and that means ensuring that it is not sent to countries with poor data protection. The Directive says that data can be sent to another country "only if... the third country in question ensures an adequate level of protection". Only a handful of countries have been deemed acceptable destinations for data by the European Commission. Those are Switzerland, Canada, Argentina, the Bailiwick of Guernsey, the Isle of Man, the Bailiwick of Jersey and the US, when the data's treatment is in the Safe Harbor Privacy Principles of the US Department of Commerce The advice has been prepared by the Data Protection Unit of the Directorate-General for Justice, Freedom and Security at the European Commission. It is designed particularly to help small and medium sized companies to understand the law when it comes to transferring personal data outside of the European Economic Area (EEA). The guidance points out that in order for a transfer to be legal, data has to be properly handled in the first place according to the data protection laws of the country where the processing organisation is established. If the transfer is to a country not listed as having adequate data protections in place, a transfer can still take place, the guidance says, but only if "the data controller offers 'adequate safeguards with respect to the protection of the privacy and fundamental rights and freedoms of individuals and as regards the exercise of the corresponding rights'," says the guidance, quoting the Directive. "These safeguards may result from appropriate contractual clauses, and more particularly from standard contractual clauses issued by the Commission," it sai

On Wednesday, February 11, 2009, the Data Protection Working Party, an independent European advisory body on data protection and privacy, released its Working Document 1-2009 (.pdf) on pre-trial discovery for cross border civil litigation. The Working Document attempts to reconcile the tension between U.S. discovery rules and the European Union's Directive 95/46/EC (.pdf), which outlines the EU's privacy requirements. What follows is a summary of the Working Document and an analysis of how it begins to bridge the gap between U.S. discovery rules and the European privacy framework. The Working Document offers guidance to EU data controllers responding to U.S. discovery requests. As the Working Document explains, those controllers often find themselves in a bind. On the one hand, U.S. law allows for broad discovery, which may require a controller to provide, or "process," personal data of customers or employees. On the other hand, Article 7 of EU Directive 95/46 limits a member state's authority to process such data. Under Article 7, a member state may process personal data only if one of six identified grounds for processing applies. The Working Document considers the Article 7 grounds most likely to supply a legitimate basis for compliance with a discovery request - namely 1) consent, 2) necessary for compliance with a legal obligation, and 3) necessary for the purposes of a legitimate interest, where such interests are not "overridden by the interests for fundamental rights and freedoms of the data subject." Recognizing that the "interests of justice would be served by not unnecessarily limiting the ability of an organisation to act to promote or defend a legal right," the Working Document suggests that the third basis - necessary for the purposes of a legitimate interest - will often provide a ground for processing data in response to a U.S. discovery request.

Last month, the digital advertising industry's use of behaviorally targeted advertising gained a reprieve of sorts when the Federal Trade Commission issued a final report confirming its earlier support of self-regulation. But some commission members remained concerned about ads that are shown to Web users based on their previous online activities, and in particular the possibility of violations of online privacy. Some form of legal restrictions may be imposed on the industry, the FTC indicated, if the online ad industry isn't up to the task of regulating itself. "Privacy is definitely the biggest concern today," said Joe Apprendi, CEO of Collective Media, an online advertising network based in New York. "There has been the concern that through such approaches as deep-packet technology, companies can leverage information through subscriber-based providers to marry anonymous behavioral segment data and identify real people. "The fact is, online advertising is subject to a higher standard that offline direct marketing tactics," Apprendi said. The FTC report, "Self-Regulatory Principles for Online Behavioral Advertising," continues to advocate voluntary industry self-regulation, in keeping with its principles governing online behavioral advertising issued at the end of 2007, despite the urgings of consumer advocacy groups that it impose rules regulating online advertising. The commission's new guidelines are based on four principles: * Transparency and consumer control. The commission advises that Web sites that collect data for behavioral advertising provide "a clear, concise, consumer-friendly and prominent statement" that the data are being collected to provide ads tailored to the user's interests and that the user has an easy and obvious way to choose whether to allow this. * Security for data retention. Companies that collect data for behavioral advertising should provide "reasonable" protection of that information and reta

Until now, lawsuits seeking to recover significant damages based on the loss of, or unauthorized access to, sensitive personal information have not been especially successful for plaintiffs. Most companies suffering data breaches have escaped by offering affected consumers inexpensive credit monitoring services. But two recent cases show plaintiffs a way to expose many previously safe companies to substantial claims for damages. Any company that thinks there are no risks in employing less than best practices for data privacy and security needs a wake up call. The headlines are all too familiar. Some well known consumer services company (or less known wholesale data processor) announces that millions of individual records containing names, Social Security numbers, account numbers and other sensitive information were left in a dumpster, saved to a stolen, unencrypted laptop, or stored on a misplaced USB drive or backup tape. The press is terrible, the company's stock takes a temporary plunge, and sometimes the Federal Trade Commission enters into a consent decree where the company promises to never do it again. But when affected individuals or groups of consumers tried to sue for damages, they seldom recover significant amounts. These cases have not often succeeded because the plaintiffs have been unable to prove actual pecuniary losses resulting from the security breach. Sure, if identify theft occurs the affected individuals can suffer significant emotional trauma, loss of time, etc. But Courts have been unwilling to award damages for anxiety, fear, and other emotional harm that can result from a data breach, for the risk of future identify theft, or for actual identity theft when the plaintiff could not prove that the theft occurred as a direct result of a data breach at a particular source. Most companies facing claims based on data breaches have been able to settle cheaply by offering to provide credit monitoring services, which most consumers do not use, resu

IT practices such as identity management, email and URL filtering, virus scanning and electronic monitoring of employees can get companies that do business globally into a heap of trouble if deployed without an understanding of global data privacy laws. The warning was one of several alarms raised in a presentation on global privacy best practices by Gartner Inc. analysts Arabella Hallawell and Carsten Casper at the recent Gartner Risk Management and Compliance Summit in Chicago. Always a thorny issue, the protection of personally identifiable information (PII) is made more complicated in a world where there is limited agreement on how best to do that. According to the Gartner analysts, the world is divided into three parts when it comes to data privacy laws: countries with strong, moderate or inadequate legislation. The European Union, under the European Union Directive on Data Protection, possesses the strongest privacy regulations, followed by Canada and Argentina; Australia, Japan and South Africa have moderate to strong, recent legislation; laws in China, India and the Philippines are the least effective or laxly enforced. The United States has the dubious distinction of occupying two categories -- the strong column, due to the 45 state breach notification laws on the books, and the weak column, because of the lack of a federal law. Even among the three categories, nuances abound. Under the European Union Directive, member countries enact their own principles into legislation, and some laws (like Italy's) are more stringent than the directive's standards. Russia's very recent law is modeled after the strong EU laws, but how it will be enforced remains questionable. And in the U.S., state breach notification laws vary, with Nevada and Massachusetts proposing the most prescriptive data privacy legislation to date.

A national security panic spread through the Internet yesterday after a report by The Wall Street Journal suggested "terabytes" of classified data on the F-35 Lightning II had been stolen by hackers. Today the Pentagon and Lockheed Martin responded to the allegations saying they are untrue, and I believe them. Defense Department spokesman Bryan Whitman said, "I'm not aware of any specific concerns." That's a key phrase. Lockheed Martin--the F-35 superjet's primary contractor--also commented "We actually believe The Wall Street Journal was incorrect in its representation of successful cyber attacks on the F-35 program." And the company's CFO Bruce Tanner added "I've not heard of that, and to our knowledge there's never been any classified information breach." While it's easy to argue that these responses are merely a smokescreen to save political face, the language is much more direct than a plain old "no comment." Typically, companies protect themselves in this sort of situation by denying the existing or potential hackers any public information on the success or failure of hack attempts, obscuring the level of secrecy of any stolen data. In the F-35 case it looks like the denials are much firmer, and that suggests the developers of the JSF are confident in their security systems. It's an echo of alleged data leaks via F-35 contractor BAE Systems last year, that were later withdrawn due to lack of evidence that leaks had occurred. Government and defense contractor computer networks face a pretty continuous rate of hack attempts. As a result such companies have even more stringent data security protocols in place than normal organizations. They're still not absolutely impervious to hacking, of course, as no such system ever is. So that's why the most highly classified data--critical to the super-secret offensive and defensive capabilities of hardware like the F-35--is typically stored on computers that have an extremely low-tech "air gap firewall". They're not co

Enterprise employees frequently use social networking tools, most notably Web-based applications. It's no surprise more organizations are wondering what happens if social networking data becomes relevant to an e-discovery investigation. How does an enterprise go about discovering and assessing Web 2.0 data? How responsible is an organization, legally speaking, for the information that's out there in the Web 2.0 world? What risks arise from e-discovery as it relates to Web 2.0 data, and how can you mitigate them? In this tip, we will look at e-discovery as it relates to Web 2.0 and consider the strongest options for minimizing risks to the organization. E-discovery basics We begin with a quick look at what e-discovery is and how it can create risk. Essentially, e-discovery is the electronic extension of the legal process of discovery, which Wikipedia defines as "the pre-trial phase in a lawsuit in which each party through the law of civil procedure can request documents and other evidence from other parties or can compel the production of evidence by using a subpoena or through other discovery devices, such as requests for production and depositions." If you're an IT person, not a lawyer, it's important to note that the rules governing the discovery process now require plaintiffs to address all electronically stored information or ESI. In other words, if your organization faces litigation, it will have to deal with the issue of e-discovery, which will entail a whole lot more than turning over some old emails. Depending upon your role in the organization, the first you may hear of this is a "notice of litigation" with perhaps a "litigation hold directive" containing a "preservation directive." Here is a generic e-discovery request below. Apart from a few limiting factors, such as subject matter, named persons and a specified time period, the scope of such a notice is likely to be broad; blame standard procedure, not some high-powered attorney pushing his or her lu

The European Commission has moved to sue Sweden after the Nordic state failed to implement the EU's Data Retention Directive in a timely fashion. The Directive was passed back in 2006 and requires all EU member states to implement some form of data retention legislation, with terms of six month to two years. National laws were to be in place by March of this year, but Sweden still has yet to introduce a bill of its own.

"On October 6, 2009, the Federal Trade Commission ("FTC") announced proposed settlement agreements with six companies over charges that they falsely claimed membership in the U.S. Department of Commerce Safe Harbor program. In six separate complaints, the FTC alleged that ExpatEdge Partners LLC, Onyx Graphics, Inc., Directors Desk LLC, Collectify LLC, and Progressive Gaitways LLC deceived consumers by representing that they maintained current certifications to the Safe Harbor program when such certifications had previously lapsed. The terms of the proposed settlement agreements prohibit the companies from misrepresenting their membership in any privacy, security or other compliance program. The six enforcement actions are significant as they mark a considerable uptick in the FTC's enforcement related to the Safe Harbor program. The FTC recently brought its first enforcement action relevant to the program, which is detailed in our post titled FTC's First Safe Harbor Enforcement Action. The European Union Data Protection Directive requires EU Member States to implement legislation that prohibits the transfer of personal data outside the EU unless the EU has made a determination that the laws of the recipient jurisdiction are substantially equivalent to those of the EU, and thus provide "adequate" protection for personal data. Because the EU has determined that laws of the United States do not meet its adequacy standard, the U.S. Department of Commerce and the EU developed the Safe Harbor Framework, which went into effect in November 2000. The Safe Harbor Program allows participating U.S. companies under the jurisdiction of the FTC or the U.S. Department of Transportation to transfer personal data lawfully from the EU. To join the Safe Harbor, a company must self-certify to the U.S. Department of Commerce that it complies with seven principles that have been deemed to meet the EU's adequacy standard. To maintain its certification to the Safe Harbor

Heartland Payment Systems Inc. said it was experiencing losses this quarter as a direct result of a massive data breach it disclosed in January when investigators discovered a malicious program sniffing credit card data passing through its systems. The company said it took a $2.5 million loss for the quarter as a result of spending more than $12.6 million in legal bills, fines from MasterCard and Visa and administrative costs. The announcement was made during the company's financial earnings call, where Carr said the costs associated with the breach could continue to climb. "Our defense of the claims regarding the processing system intrusion remains ongoing," he said. "Much of the legal work remains to be done and it is difficult to anticipate when these matters will come to a conclusion." Carr also admitted for the first time that since the Princeton, N.J.-based processing giant announced a breach of its systems, some of the payment processor's clients have switched to competitors as a result of the breach. He said some competing processors resorted to scare tactics. "We have had many competitors that have been very supportive and professional, and we certainly don't want to tar all of our competitors with the same brush," Carr said. "We have had some competitors telling merchants falsely that they would be fined $10,000 a day if they stay with Heartland. We think we're through the worst of that." Car said less than $1 million of the breach costs were fines levied by MasterCard and Visa against the company's sponsored banks. The fines are being contested, he said. More than $500,000 relates to a fine assessed by MasterCard against the sponsored banks in which the card company said Heartland failed to take appropriate action upon learning that a breach was suspected. Carr said the fine is in direct violation of both the MasterCard rules and law.

Cable operators will sit in the hot seat Thursday as Congress reviews their plans to roll out targeted advertising amid fears that consumer privacy could be infringed if the companies were to track and record viewing habits. The House subcommittee on Communications, Technology and the Internet will hold a hearing that will look at new uses for digital set-top boxes, the devices that control channels and perform other tasks on the TV screen. Cable TV companies plan to use such boxes to collect data and direct ads more targeted to individual preferences. "We have recently called on Congress and the Federal Trade Commission to investigate cable's new interactive targeted TV ad system on both antitrust and privacy grounds," said Jeff Chester, executive director of the Center for Digital Democracy. He's concerned about Canoe Ventures, a consortium formed by the nation's six largest cable companies to oversee the rollout of targeted and interactive ads nationally. Chester worries that Canoe will track what consumers do in their homes. Currently, cable companies aim their ads based strictly on geography. Now, cable's goal is to take the Internet's success with targeted ads and transfer that to the TV medium. Thus, a household that watches a lot of Nickelodeon and the Disney Channel eventually could be targeted for theme parks promotions. This type of targeting is something broadcast TV can't do. For starters, Canoe plans to offer ads this summer that consider demographic factors such as age and income. Philadelphia-based Comcast Corp. and Cablevision Systems Corp. of Bethpage, N.Y., also have been testing or rolling out targeted ads outside the consortium. But cable operators are wary about being seen as trampling on consumer privacy and reiterate that they don't plan to target based on any personally identifiable information, such as someone's name and address. Canoe said it doesn't have plans this year to use set-top box data for ads. Instead, the first ads it pl

Both panels that advise the national coordinator for health IT plan to focus on privacy and security standards needed to support meaningful use of electronic health records when they meet later this month, according to notices in today's Federal Register. The Health IT Policy Committee, led by Dr. David Blumenthal, the national coordinator for health IT, will direct more of its discussion at its upcoming Sept. 18 meeting on health information privacy and security as it makes progress in defining meaningful use under the stimulus law, according to the notice. Likewise, the companion Health IT Standards Committee, which meets Sept. 15, will concentrate on refining standards recommendations made by its privacy and security work group. At the Standards Committee's previous meeting Aug. 20, its privacy and security workgroup presented standards for authentication, authorization, auditing and secure data transmission of health information in EHR products as well as the infrastructure that hosts them. The work of the panel includes protecting data inside an enterprise as well as data exchange between enterprises, "because security is an end to end process," noted Dr. John Halamka, the committee's chairman in a post on his blog, "Life as a Healthcare CIO."

With the nation's strictest data security law set to take effect Jan. 1 in Massachusetts, mobile phone merchant Dennis Kelly plans to parlay the regulations into a competitive advantage. Kelly will display signs at each point-of-sale device inside 28 Wireless City shops, of which he is co-owner, stating that the company complies with the state's new mandate and that protecting customers' personal information is a company-wide priority. He says that as his business has grown in a few short years, adhering to the new requirements - namely, establishing an official information security policy and deploying more stringent access control solutions - was necessary, regardless of the impending legal obligation. And now he wants to show that investment off. "We can set ourselves apart from competitors by communicating that we take this stuff seriously," he says. "I think we will be somewhat unique in that regard." Kelly's take on the regulations - the first time any state has issued such a comprehensive and prescriptive list of measures that must be taken to protect data - appears to be in direct contrast to most other business owners across the Bay State.

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Two credit-card payment processors are offering to cover merchants' fines and penalties in the event of a data breach. However, the two companies, Heartland Payment Systems and Mercury Payment Systems, have different requirements that must be met before a merchant would qualify for coverage. For Mercury, the retailer would have to prove it was Payment Card Industry Data Security Standard-compliant (PCI DSS) at the time of a breach. "This is an enticement program to get merchants involved in PCI compliance," Jim Mackay, Mercury's vice president of marketing, told SCMagazineUS.com Friday. "Though there are critics who say that PCI does not go far enough, at least it's a step in the right direction."

The Federal Trade Commission, continuing its focus on behavioral advertising practices and online consumer privacy, has hired Harvard researcher Christopher Soghoian as a technical consultant. Soghoian, currently with Harvard's Berkman Center for Internet & Society and a noted researcher and blogger on online privacy, will work with the FTC's Bureau of Consumer Protection, Division of Privacy and Identity Protection. He has been particularly critical about the length of time major Internet service providers and companies keep and use customer data Last month, several marketing and advertising industry associations, including the Direct Marketing Association and the American Association of Advertising Agencies, issued self-regulatory principles to govern the online practices of their members, in an attempt to stave off federal regulation of behaviorally targeted advertising.

NEW YORK With increasing amounts of personal information liable to float around in cyberspace, consumers are deciding whether their data is safe in the hands of some public- and private-sector entities. A BBC World News America/Harris Poll finds a mixed verdict, with social-networking sites faring especially badly. In polling conducted last month, adults were asked to say how much trust they have in various sectors "to handle your personally identified information (such as credit-card information, contact information and so forth) in a properly confidential and secure manner." The poll's best scores went to "health providers, such as doctors and hospitals," with 20 percent of respondents expressing "a great deal of trust" and 55 percent "some trust" in these. Nineteen percent voiced "not much trust" and 7 percent "no trust at all" in this sector. At the bottom of the rankings were "social-networking sites (like Facebook or MySpace)," with 5 percent expressing a great deal of trust and 18 percent some trust in these. Thirty-one percent said they had not much trust and 46 percent no trust at all in these sites to safeguard personal information. (Whether people should direct their distrust to themselves for posting such information there in the first place is a question the survey didn't address.) Respondents were also wary of "search and portal sites (like Google or Yahoo!)" when it comes to keeping personal information secure: Ten percent voiced a great deal of trust, 39 percent some, 29 percent not much and 22 percent no trust at all. Even the federal government fared (slightly) better, with 13 percent expressing a great deal of trust, 41 percent some, 28 percent not much and 18 percent none. The scores were more positive for "banks and brokerage companies": 15 percent a great deal of trust, 43 percent some, 28 percent not much and 13 percent none. That was roughly on a par with the ratings for "my e-mail provider": 14 percent a great deal, 48 percent some, 27 p

Heartland Payment Systems CEO discusses breach, previews speech Not a week had passed after the announcement of what some have described as the largest data breach ever, when the CEO of Heartland Payment Systems, Robert Carr, began calling for better industry cooperation and new efforts directed at preventing future breaches. Recently, Carr announced that trials will begin late this summer on an end end-to-end encryption system Heartland is developing with technology partners. It is expected to be the first system of its kind in the U.S. The company is also pushing for an end-to-end encryption standard. At the upcoming Practical Privacy Series in Silicon Valley, Carr will discuss the Heartland breach and the role industry, including privacy professionals, must play to prevent future breaches. Here's a preview: IAPP: Many companies have experienced breaches. What made yours different? Ours was different because we are a processor and had passed six years of PCI audits with no problems found. Yet, within days of the most recent audit, the damage had begun. IAPP: Did you have a chief privacy office or a privacy professional on staff before your breach? Do you now? Ironically, when we learned of the Hannaford's breach, we hired a Chief Security Officer who started just three weeks before the breach began. IAPP: In the era of mandatory breach reporting, what is the trajectory of consumer reaction? As a processor it is difficult to really know this. Our customers are merchants who accept card payments. IAPP: Do you think consumers will become numb to breach notices? I believe that many are numb to so many intrusion notices. IAPP: Are breach notices good public policy? Do the notices provide an incentive for companies to change or improve practices? I don't think so. Nobody wants to get breached and the damage caused by a breach is sufficient reason for most of us to do everything we can to prevent them. IAPP: What has Heartland done differentl

The discovery of documents with students' personally identifying information stored in an unlocked room has launched protests against the university's chief information security officer. Students at Binghamton University in New York are circulating a petition to remove the university's chief information security officer following the discovery of boxes full of documents listing personal information of students and parents in an unlocked storage room. The existence of the unsecured documents was discovered March 6 by a reporter working for student radio station WHRW and disclosed on March 9. For that investigative work, the student reporter could face criminal charges. Binghamton University has had other recent problems with information security. In the past year, according to an article written by Robert Glass, the WHRW news director, university employees accidentally e-mailed the Social Security numbers of 338 students to another group of 200 students, sent the personal information of exchange students -- passport scans and birth certificates -- to student groups, and disposed of information about more than 70 former graduate students in trash bins atop a pile of shredded documents. Those breaches led the university to create an information security council, with a full-time information security officer, to prevent further incidents, according to Glass. Glass did not immediately respond to a request for comment. A University spokeswoman characterized the hiring of Terry Dylewski as the university's chief information security officer as a reflection of the school's ongoing concern about information security rather than a response to past breaches. Asked about the status of the students' petition to remove Dylewski, as reported by Broome County Fox affiliate WICZ TV, she said that question should be directed to the students. The spokeswoman said the university is treating the incident as a possible crime and that a criminal investigation is ongoing. She sai

Proof that George Bush was actually protecting us by limiting access to government information!

At the National Archives and Records Administration's annual conference Thursday, one keynote speaker asked the crowd of several hundred how many of the archivists in attendance were sold on the use of social media. Only a smattering raised their hands. Clearly, it's a challenge for the government to figure out how to navigate complex archival and e-discovery regulations that require it to capture and store all sorts of new content in the age of social media, cloud computing, and seemingly endless storage. "The federal government is in a constantly evolving records environment," Adrienne Thomas, acting archivist of the United States, said in a luncheon speech to the conference. "These are exciting and challenging times." Obama administration ambitions toward cloud computing and more openness only make that issue more complicated. "Many of us in the federal records administrations have struggled with the implications of this new direction," Paul Wester, director of modern records programs at the National Archives, said in an interview. "We deeply believe in transparency and openness, but we are concerned about FOIA, HIPAA, the Privacy Act, personally identifiable information, and compliance with the Disability Act and Federal Records Act."