Information Governance

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Deleting DataThis series explores how recent changes in U.S. privacy and data security laws are elevating retention schedules and data disposal from merely prudent practices to compliance requirements.

Last week’s post was a whirlwind history tour of U.S. data privacy law, honing in on the privacy principles of data minimization and storage limitation.  The punchline was that unlike most foreign data privacy regimes, and with but few exceptions, U.S. data privacy laws have focused primarily on notice and consent and have avoided requiring businesses (1) to manage data under a retention schedule and (2) to dispose of personal data once no longer necessary for legal compliance or business need.

This began to change in state laws focused on a small niche of privacy – biometric data privacy.  Data security for biometric data is becoming a staple of state-level breach notification statutes (to date, in 17 states and the District of Columbia) and in some states’ laws that affirmatively require reasonable data security programs for protected personal information.  But state-level data privacy laws for biometric data have been more of an outlier.

Illinois’ Biometric Information Privacy Act (BIPA) became effective in 2008.  BIPA has been blogged about endlessly, largely because, after a bit of a sleepy start, its provisions allowing private-party class actions for statutory damages (thereby bypassing the standing impediment vexing many privacy and data security claimants) thrust BIPA to center stage in headline-grabbing litigation.

Our focus here is on a particular provision in BIPA:
Continue Reading Less data is more than ever: state biometric data privacy laws

Digital DataThis series explores how recent changes in U.S. privacy and data security laws are elevating retention schedules and data disposal from merely prudent practices to compliance requirements.  

Forgive me, but to fully appreciate the impact of state data privacy laws on managing records retention and disposing of unnecessary data, a bit of history is needed (if you’re allergic to history, skip this post).  Our focus is through the narrow lens of two key elements of data privacy regimes: data minimization (only collecting the minimum of personal data needed for the collection purposes) and storage limitation (only keeping personal data for as long as needed for these purposes).

United States data privacy law is a global outlier.  That’s ironic, given that the building blocks of modern data privacy law, the Fair Information Privacy Practices (FIPPs), were first expressed in a 1973 report by the U.S. Department of Health, Education, and Welfare, Records, Computers, and the Rights of Citizens.  As originally framed, the FIPPs (Transparency, Access, Choice, Correction, and Quality/Protection) did not speak directly to data minimization or storage limitation.  At least at the outset, the FIPPs did not expressly call for minimizing collection of personal data or deleting personal data once its collection purpose was satisfied.

If data privacy were a religion, and the FIPPs its original Word, what came next was inevitable – inspiration spread globally and resulted in various denominations, each restating and taking the core beliefs in different directions, as influenced by cultural factors and, with data privacy law, governing philosophies:
Continue Reading Less data is more than ever: for context, a ridiculously brief history of U.S. data privacy law

Businesses in the United States have a new imperative to carefully manage records retention and promptly dispose of unnecessary information (and no, it’s not due to GDPR or other global privacy law developments).  Recent changes in U.S. data security and privacy laws, and the trends they portend, are elevating the disposal of unnecessary data from a risk management strategy to a compliance requirement.

Managing data volumes has always been prudent.  Using retention schedules to curb relentless data growth remains an established, sensible way to keep business operations efficient, manage storage expense, mitigate ediscovery costs, and limit data security and privacy exposures.  Perhaps the most trenchant explanation was offered by former U.S. District Court Magistrate Judge John Facciola:  “If your clients don’t have a records management system, they may as well take their money out into the parking lot and set it on fire.”

But as a matter of pure legal compliance, U.S. federal and state laws have historically followed a “mandatory minimum” retention approach, requiring that businesses keep specified records for at least a mandated retention period, but not compelling disposal.  With precious few exceptions, U.S. businesses have not been legally required to (1) manage data with retention schedules and (2) dispose of unnecessary data.  And U.S. privacy and data security laws have generally been silent on retention periods for protected information.  For example, HIPAA and its Privacy and Security Standards impose no retention period on covered entities for protected health information (PHI); the Gramm-Leach-Bliley Act (GLBA) and its federal functional regulators’ privacy regulations and Interagency Security Guidelines do not explicitly require financial institutions to dispose of unnecessary nonpublic customer information (NPI); and the FACTA Disposal Rule only speaks to how, not when, to compliantly dispose of consumer report information.

Well … that was then, and this is a new now, driven by recent changes in U.S. data security and privacy laws.  I’ll dig deeper into these developments in upcoming posts, but here are the high points:
Continue Reading For U.S. businesses, less data is more than ever

SARS-CoV-2 or 2019-ncov coronavirus

In 2019, the Global Health Index evaluated the epidemic preparedness and response capabilities of 195 countries and ranked the United States as number one.  Yet as of today, with nearly four million confirmed Covid cases and over 143 thousand deaths, the United States leads the world in a very different way.

We assessed the risks, both the likelihood and potential severity of a pandemic.  We did extensive planning for the structures, direction, and resources needed for preparedness.  And we repeatedly tested the plans, confirming strengths and identifying weaknesses.

What was missing?  Commitment.  And that’s worth exploring, not as a political blame-game, but as an object lesson for the nuances of how what appears to be carefully planned and solidly on track can go off the rails for lack of commitment, with disastrous results.
Continue Reading Pandemic Lesson 4 for Information Governance – Commitment matters

SARS-CoV-2 or 2019-ncov coronavirusIn early 2018, outbreaks of a novel parainfluenza virus erupted in Frankfurt, Germany and Caracas, Venezuela.  United States soldiers serving abroad contracted the virus, and an exchange student returning to a small New England college campus triggered the initial cases in our country.  The virus spread by coughing and caused severe symptoms in about half of those infected, killing 20% of severely ill patients.  With no vaccination available, the novel virus spread rapidly across the globe.  Within a year, the virus – Clade X – killed 15 million Americans and 150 million people world-wide.

This actually happened two years ago … in a tabletop exercise hosted by Johns Hopkins Center for Health Security in Washington D.C.  Like its predecessors Dark Winter (2001) and Atlantic Storm (2005), the Clade X tabletop exercise featured subject matter experts in the unscripted roles of senior U.S. government officials reacting to a dense, unfolding fact pattern, based upon extensive scientific data and modelling, that realistically captured the likely variables and decision points in response to a national security crisis.  This time the crisis was a global pandemic, and Clade X revealed significant gaps in our pandemic response preparedness.

Clade X was not our most recent pandemic test event.  From January to August, 2019, the U.S. Department of Health and Human Services ran the Crimson Contagion planning exercise, with officials from a dozen states, various federal agencies, and non-governmental organizations working through response to a simulated viral pandemic originating in China.  Crimson Contagion’s findings were specific, blunt, and bleak, revealing widespread confusion between federal agencies and also between federal and state actors in coordinating response actions, such as in defining which workers were “essential,” handling school closures, and procuring sufficient personal protective equipment, ventilators, and medications.

Beyond “pre-mortem” exercises, post-mortem reviews identified our strengths and weaknesses in handling actual outbreaks, such as the July 11, 2016 NSC report capturing extensive lessons learned from our response to the 2015 Ebola outbreak.

The Lesson for Information Governance?
Continue Reading Pandemic Lesson 3 for Information Governance: Testing the plan matters

SARS-CoV-2 or 2019-ncov coronavirusEisenhower famously quipped “plans are worthless, but planning is everything.”  His point was that though a plan may not anticipate every contingency, the rigors of the planning process are essential for preparedness.  That’s true for everything from WWII to pandemic response and to managing information risks and opportunities.

So, did the United States have a plan for pandemic response, and what were its key elements?

Yes indeed, the Bush administration developed plans and recommendations for U.S. infectious disease response, and these were built upon by the Obama administration.  Key elements included the following:

Continue Reading Pandemic Lesson 2 for Information Governance: Planning Matters

SARS-CoV-2 or 2019-ncov coronavirus“If anything kills over 10 million people in the next few decades, it’s most likely to be a highly infectious virus, rather than a war.  Not missiles, but microbes.”  That’s from Bill Gates’ 2015 TED Talk, in the midst of the Western African Ebola outbreak.  Gates added “W]e’re not ready for the next epidemic….  With Ebola, the problem was not that we had a system that didn’t work well enough.  The problem was that we didn’t have a system at all.”

Let’s fast-forward to a couple years ago, the 100th anniversary of the 1918 flu pandemic.  What should have been understood in 2018 as the risk, in the near-term, of an epidemic or pandemic with major impact in the United States?

Understanding risk is how we address uncertainty.  Whether you prefer the common definition of risk (the possibility of loss or injury) or the more technical concept under ISO 31000 or COSO’s ERM Integrated Framework (the effect of uncertainty on objectives), understanding risk requires us to evaluate the likelihood and severity of potential outcomes.  Understanding risk also requires us to evaluate our current readiness to mitigate or control the risk, in light of our risk tolerance.

So, in 2018, what did we know about the likelihood and potential severity in the United States of epidemics and pandemics, and what did we know about our readiness to respond?
Continue Reading Pandemic Lesson 1 for Information Governance: Understanding risk matters

People on peak mountain climbing helping team work , travel trekking success Management support is crucial for successful Information Governance initiatives. This is not merely a question of initial project and budget approvals. Most Information Governance initiatives involve behavioral changes in how data is handled, and in many instances, aspects of organizational culture may be impacted. No matter the ultimate benefits, any initiative involving behavioral change will…

People on peak mountain climbing helping team work , travel trekking success

Selecting the right initial project(s), determining outcomes and measures, and preparing the business case are important groundwork for your Information Governance initiative, as discussed in Part 1.  But to secure resilient management support for an ongoing initiative, you’ll also want to tie the individual projects to strategic objectives for Information Governance at your organization.…