1. The MassachusettsData Privacy Rules Stephen E. Meltzer, Esquire, CIPP

2. The [New] MassachusettsData Security Rules

3. Agenda Introduction Scope of Rules Comprehensive Written Information Security Program (cWISP) [Computer System Security Requirements] Breach Reporting Requirements What To Do Now Questions and Answers

4. The MassachusettsData Security Rules New Mandate: PI = PI Personal Information = Privacy Infrastructure

7. Breach notification alone insufficient

8. Reflection of states’ interest in protecting personal information

10. Enforcement Litigation and enforcement by the Massachusetts Attorney General Massachusetts law requires notice to Attorney General of any breach, in addition to affected consumers Attorney General likely to investigate based on breach reports No explicit private right of action or penalties

12. Federal Legislation:

13. HITECH (ARRA)

14. Red Flags

16. Scope of Rules Covers ALL PERSONS that own or license personal information about a Massachusetts resident Need not have operations in Massachusetts Financial institutions, health care and other regulated entities not exempt

17. Scope of Rules “Personal information” Resident’s first and last name or first initial and last name in combination with SSN Driver’s license or State ID, or Financial account number or credit/debit card that would permit access to a financial account

18. Three Requirements 1.Develop, implement, maintain and maintain a comprehensive, written information security program that meets very specific requirements (cWISP) 2.Heightened information security meeting specific computer information security requirements 3.Vendor Compliance (Phase-in)

19. Evaluating Compliance(not Evaluating Applicability) Appropriate Size of business Scope of business Type of business Resources available Amount of data stored Need for security and confidentiality Consumer and employee information

20. Evaluating Compliance(not Evaluating Applicability) “The safeguards contained in such program must be consistent with the safeguards for protection of personal information and information of a similar character set forth in any state or federal regulations by which the person who owns or licenses such information may be regulated.”

21. Comprehensive WrittenInformation SecurityProgram 201 CMR 17.03

22. Information SecurityProgram “[D]evelop, implement, and maintain a comprehensive information security program that is written in one or more readily accessible parts and contains administrative, technical, and physical safeguards”

23. Comprehensive Information Security Program201 CMR 17.03 (2)(a) through (j) a. Designate b. Identify c. Develop d. Impose e. Prevent Oversee Restrict Monitor Review Document

24. Comprehensive Information Security Program (a) Designate an employee to maintain the WISP. (b) Identify and assess reasonably foreseeable risks (Internal and external). (c) Develop security policies for keeping, accessing and transporting records. (d) Impose disciplinary measures for violations of the program. (e) Prevent access by terminated employees. (f) Oversee service providers and contractually ensure compliance. (g) Restrict physical access to records. (h) Monitor security practices to ensure effectiveness and make changes if warranted. (i) Review the program at least annually. (j) Document responsive actions to breaches.

25. Comprehensive Information Security Program Third Party Compliance 1. Taking reasonable steps to select and retain third-party service providers that are capable of maintaining appropriate security measures to protect such personal information consistent with these regulations and any applicable federal regulations; and 2. Requiring such third-party service providers by contract to implement and maintain such appropriate security measures for personal information

26. Comprehensive Information Security Program Third Party Compliance Contracts entered “no later than” March 1, 2010: Two – year phase-in. Contracts entered into “later than” March 1, 2010: Immediate compliance.

27. Comprehensive Information Security Program “INDUSTRY STANDARDS”

28. Breach Reporting G.L. c. 93H § 3

29. Breach Reporting Breach of security – “the unauthorized acquisition or unauthorized use of unencrypted data or, encrypted electronic data and the confidential process or key that is capable of compromising the security, confidentiality, or integrity of personal information, maintained by a person or agency that creates a substantial risk of identity theft or fraud against a resident of the commonwealth. A good faith but unauthorized acquisition of personal information by a person or agency, or employee or agent thereof, for the lawful purposes of such person or agency, is not a breach of security unless the personal information is used in an unauthorized manner or subject to further unauthorized disclosure.”

30. Breach Reporting Possessor must give notice of Breach of Security Unauthorized Use or Acquisition To Owner/Licensor of Information Owner/Licensor must give notice of Breach of Security Unauthorized Use or Acquisition To – Attorney General Office of Consumer Affairs Resident

31. Breach Reporting “The notice to the Attorney General and the Director of Consumer Affairs and Business Regulation shall include, but not be limited to: the nature of the breach of security or the unauthorized acquisition or use; the number of Massachusetts residents affected by such incident at the time of notification; and any steps the person or agency has taken or plans to take relating to the incident.”

32. Sample Breach Notification Letter http://www.mass.gov/Cago/docs/Consumer/93h_sampleletter_ago.pdf

33. Breach Reporting Stop Be afraid Call for help

34. Computer System SecurityRequirements 201 CMR 17.04

36. Security patches and firewalls

37. System security agents

38. IT Security user awarenessUse authentication protocols Secure access controls Encryption of transmittable records Mentoring systems

39. User Authentication Protocols Control of user IDs Secure password selection Secure or encrypted password files User accounts blocked for unusual logon attempts Examples: Passwords should be at least 9 characters, alpha numeric with special characters After 3 attempts to login users are blocked access

40. Secure Access Control Measures Permit “access” on a need to know basis Password protect account and login to determine level of access Example: Network Access Control Software/Hardware Consentry Sophos Audit control who is accessing what and when?

41. Encryption of Transmitted Records Encryption of personal information accessed over a public network Tunneling options (VPN) Faxes, VOIP, phone calls Encryption of PI on wireless Bluetooth, WEP, Wifi Encryption definition if very broad Examples: PGP and Utimaco are encryption technologies

42. Monitoring of Systems Require systems to detect unauthorized use of, access to personal information Some existing user account based on systems will already comply Examples: Again, Network Access Control Audit controls

43. Laptop and Mobile Device Encryption Encryption of PI stored on laptops Applies regardless of laptop location Encryption of PI stored on “mobile” devices Does incoming email become a problem? This applies only if you have data in motion of personal information. Email is clear text. So anyone can read any ones email on the internet.

44. Security Patches and Firewalls “Reasonably up-to-date firewall protection and operating systems patches” for Internet connected computers Date on operating systems All organizations should have a firewall in place (not a router a firewall) Can hire an organization to update and manage the security infrastructure: Firewall Anti-virus Patches…

45. Systems Security Agent Software Malware is what is infecting most enviroments. HTTP and HTTPS traffic. Your users are your worst enemy Products to look at for Malware TrendMicro Websense Webwasher Anti-malware technology required Are certain products better? What about MACs or Linux? Set to receive auto-updates

46. Employee Education and IT Security Training Proper training on all IT security policies User awareness Importance of PI security Proper use of the computer Everyone is involved Your employees are your weakest link to any IT security program. They need to know the rules. Suggestions: Stand up training News Letters Programs Online training

47. The Approach Inventory type of personal information is being kept Assess risk Plan information security strategy Data Security, Confidentially, Integrity IT infrastructure and information change processes Implement, plan and policies Technology deployment Policy implementation User awareness Continual review Security is all about vigilance… Compliance is knowing what you need to protect and building a fortress around it and testing it on a frequent basis!

48. Data Destruction G.L. c. 93I

49. Data Destruction (93I) Paper documents/ electronic Media: Redact, Burn, Pulverize, Shred So that Personal Information cannot be read or reconstructed

50. Data Destruction (93I) Violations: Attorney General: Unfair and Deceptive Practices remedies - 93H Civil Fine-$100/data subject not to exceed $50,000/instance – 93I

51. What To Do Now

52. Compliance DeadlinesMarch 1, 2010 Take all reasonable steps to ensure vendors apply protections as stringent as these (written certification not necessary) Encrypt other (nonlaptop) portable devices Implement internal policies and practices Encrypt company laptops Amend contracts with service providers to incorporate the data security requirements

53. Tasks

54. Tasks Form a team – Include necessary Management, IT, HR, Legal and Compliance personnel Review existing policies – Do your current data security policies and procedures create barriers to compliance. Map data flows that include personal information – Consider limiting collection of personal information and restrict access to those with a need to know

55. Tasks Identify internal and external risks and effectiveness of current safeguards Draft comprehensive written information security program Negotiate amendments to vendor agreements and audit for vendor compliance Encrypt laptops, portable devices and data in transit

56. Tasks Restrict access to personal information Train employees Institute monitoring and self-auditing procedures Update systems including firewall protection and malware and virus protection

57. Sample WISP Please

58. Sample WISP Please Information Security Program Manual Introduction Scope Documentation PLAN-DO-CHECK-ACT Risk Management Framework Security policy Organization of information security Asset management Human resources security Physical and environmental security Communications and operations management Access control Information systems acquisition, development and maintenance Information security incident management Business continuity management Compliance Change history

59. Sample WISP Please Information Security ProgramTable of Contents Information Security Program Overview 6 Information Security Policy 11 Definitions 13 Security Risks Considered 15 Security Risks 17 Internet Policy 33 Email Policy 34 Privacy Policy 38 Record Retention & Destruction Policy 40 Acceptable Use Policy 43 Data Loss Response 47 Forms Appendices

61. Outsourced IT/HR/Legal

63. Thank You