Encryption and Security Awareness – it’s the law!

Several states are jumping on the information security and privacy legislation train, and it is leaving the station at full speed. Similar to the data breach laws that are now in place for 44 states now, we can expect a similar rush by states to initiate similar laws calling for specific security measures to be enacted to protect personal information, and liability for companies that have breaches

Massachusetts for example passed the following legislation, which calls for some very specific controls and measures to be enacted to comply with the state law.

201 CMR 17.00: Standards for The Protection of Personal Information of Residents of the Commonwealth

This regulation is applicable for entities who “own, license, store or maintain personal information about a resident of the Commonwealth of Massachusetts”.

According to the regulation personal information and records are defined as such:

"Personal information," a Massachusetts resident's first name and last name or first initial and last name in combination with any one or more of the following data elements that relate to such resident: (a) Social Security number; (b) driver's license number or state-issued identification card number; or (c) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to a resident’s financial account; provided, however, that “Personal information” shall not include information that is lawfully obtained from publicly available information, or from federal, state or local government records lawfully made available to the general public.

“Record” or “Records,” any material upon which written, drawn, spoken, visual, or electromagnetic information or images are recorded or preserved, regardless of physical form or characteristics.


Two of the more interesting and detailed requirements are:

“The encryption of all personal information stored on laptops or other portable devices, and “to the extent technically feasible, encryption of all transmitted records and files containing personal information that will travel across public networks, and encryption of all data to be transmitted wirelessly”

“Each covered entity must train employees on the proper use of the computer security system and the importance of personal information security.”

Nevada has similar legislation that went into effect on October 1, 2008, which prohibits businesses from transmitting unencrypted personal information on consumers on external networks.

So how can your organization begin to comply with this type of legislation?

• Consult internal and external counsel on these matters and ensure you have someone specialized in privacy & data security law.


• Ensure you have a written information security plan that uses a published industry standard to use as a guideline (ISO, PCI, etc.). Most of the legislation is based on using “reasonable” security measures that cover (and this is the de facto language) administrative, technical, and physical safeguards.


• Once your standard is in place in your program – work to achieve that standard, by performing a risk assessment against the organization so you know where to start, and where to properly spend money and resources.


• Know where your important and confidential data is within the organization, and how people are using it. Get line managers that are responsible for this type of data together and ask them in a very non-accusatory manner how the organization is using and protecting this type of data.


• Exercise control over service providers and require them to contractually protect your data and follow your standards, as well as auditing them to ensure they are doing so.


• Have a plan ready in case none of this work and you have to report a breach.

Obviously, these are all very high-level requirements and are by no means an exhaustive list. Every organization is different and requires different controls and processes. The more you understand the data flows, and the risks to the organization the better you will be when the worst happens.

One quick note - in the definition of person, the commonwealth intentionally left any of their agencies out of this definition so they wouldn't have to abide by this legislation - NICE!

Travelers Privacy Protection Act of 2008

A bill has been introduced into Congress that would finally put protection and requirements in place before the Customs Service could confiscate your laptop, or perform an inspection of the data on the laptop without reasonable cause. The act further defines specific periods the equipment can be maintained and requires a warrant to be issued before a device could be seized. The bill also prohibits profiling and sets privacy requirements while the Customs Officials are looking at your computer or electronic device. I believe this is a step in the right direction, and a small return of our privacy and dignity that travelers lose every time they enter an airport, supposedly in the name of security. Our constitutional rights should not be thrown out the door in this current purgatorial zone of legality that currently exists at every US airport, and the comedic security measures that are taken, like removing your shoes, are doing little if anything to reduce the risk to the country or the particular flight you happen to be on. However, they are visible and easy, and that seems to be the mantra for the TSA – but I digress.

I still don’t believe you can legally be compelled to reveal your password, and the cases that have been tried have had so many other circumstances that had the person simply refused to divulge their password they would have probably prevailed. There is no judicial precedent on this matter, but it seems to be ill conceived on so many levels, not the least of which is the 5th amendment. Laptop computers and other electronic devices contain too much personal or corporate confidential information on them to simply let a government employee have complete access and copies of that data. Strong encryption and just one judicial precedence will hopefully end this matter for most of us law abiding citizens, and I’m sure the law breakers would never think to store this information in e-mail, or some other Internet storage application they can send back and forth across most borders without any checks.

But perhaps that is the government's next priority into our lack of privacy – let’s hope not.