Any agreement between two parties begins with the rosy optimism that the good times will last forever. In the world of technology licensing and development, however, we know this is rarely the case. While this blog has previously considered data security oversight by the board of directors of the company, it is also important for a company’s legal and procurement teams to establish a plan for the security, use, and transition of its data throughout the contracting process. These issues are particularly important in highly regulated industries such as healthcare and financial services. Continue Reading After the Love Has Gone: Anticipating Data Issues in Your Contract Process
More and more frequently the following question arises: “What do we do about personal, sensitive, and business information owned by or residing with a financially troubled company?” Information is an intangible asset and often has significant value. Information increasingly resides with a party other than the owner and may need to be transferred in unexpected ways. Unfortunately, the thinking about this question often arises after financial distress is readily apparent, such as after a bankruptcy filing. Planning should occur much earlier, whether for the business in distress or in dealing with a business that could suffer financial distress (hint 1 – the latter is every business). Continue Reading Information in Distress – Part 1
Anytime we conduct a training, we can’t help but turn blue in the face repeating over and over again the importance of conducting an accurate and thorough risk analysis of electronic PHI (ePHI). In the event of a breach or an audit, one of the first items the Office of Civil Rights (OCR) will ask for is the risk analysis. The OCR has obviously lost its patience for entities that choose or fail to perform an adequate risk analysis. Earlier this month, Advocate Health Care Center (Advocate Health) agreed to pay a massive $5.55 million to settle multiple violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). This settlement is the largest to-date against a single entity. Continue Reading HIPAA punches a serious blow: Advocate Health enters into $5.5-million settlement for violations
In this series on defining your company’s information security classifications, we’ve already looked at Protected Information under state PII breach notification statutes, and PHI under HIPAA. What’s next? Customer information that must be safeguarded under the Gramm-Leach-Bliley Act (GLBA), a concern for any “financial institution” under GLBA.
GLBA begins with an elegant, concise statement of congressional policy: “each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers’ nonpublic personal information.” Sounds straightforward, doesn’t it? Things get complicated, though, for three reasons: (1) the broad scope of what constitutes a “financial institution” subject to GLBA; (2) the byzantine structure of regulators authorized under GLBA to issue rules and security standards and to enforce them; and (3) the amorphous definition of nonpublic customer information. Continue Reading Adding yet more class to Information Governance (Part 3)
In this series on establishing security classifications for your company’s information, last week’s post looked at one aspect – the widely varying definitions of Protected Information under state PII breach notification statutes. But if your organization is a covered entity or business associate under the Health Insurance Portability and Accountability Act (HIPAA), the definition of Protected Health information (PHI) is also a key puzzle piece for your classification scheme.
HIPAA establishes national standards for the use and disclosure of PHI, and also for the safeguarding of individuals’ electronic PHI, by covered entities and business associates. Merely having information commonly thought of as “protected health information” does not mean that HIPAA applies. And there are some surprises in which organizations are – and are not – covered by HIPAA. So, that’s the first question to answer – is your company a HIPAA covered entity or business associate?
When governing information, it works well to identify and bundle rules (for legal compliance, risk, and value), identify and bundle information (by content and context), and then attach the rule bundles to the information bundles. Classification is a great means to that end, by both framing the questions and supplying the answers. With a classification scheme, we have an upstream “if-then” (if it’s this kind of information, then it has this classification), followed by a downstream “if-then” (if it’s information with this classification, then we treat it this way). A classification scheme is simply a logical paradigm, and frankly, the simpler, the better. For day-to-day efficiency, once the rules and classifications are set, we automate as much and as broadly as possible, thereby avoiding laborious individual decisions that reinvent the wheel.
Easy so far, right? One of the early challenges is to identify and bundle the rules, which can be complicated. For example, take security rules. Defining what information fits in a protected classification for security controls can be daunting, given the various overlapping legal regimes in the United States for PII, PHI, financial institution customer information, and the like. So, let’s take a look, over several posts, at legal definitions for protected information, starting with PII under state statutes. Continue Reading Adding some class to Information Governance (Part 1)
I’m here at RabbitHole, Inc., talking with the company’s Manager of Money in his office, which is buried in the Facilities Department, down in the building’s basement. I’m interviewing him to get a better sense of how RabbitHole manages money as a corporate asset.
Pardon my asking, but how much money does RabbitHole have?
“Frankly, no one knows – we don’t really keep track of that. We have boxes of paper currency stored off-site, but as for ‘active’ money, our employees keep that pretty much wherever they choose – in the network money systems, in their individual offices, in mobile wallets, and probably some stashed at home.”
But isn’t that your job? I mean, your title is “Manager of Money,” right? Continue Reading What if companies treated their money like their information?
2015 was quite a year for Information Governance, and it’s now time for a year-end post. I’ve neither the prescience nor patience for making predictions, and after briefly flirting with a Star Wars/Holiday mash-up, I remembered that’s been done before, with tragic results. So, all that’s left is a single question, which may be the only question that matters – over a tumultuous year for privacy, data security, information management, and e-discovery, what did we learn about governing information? Continue Reading Information Governance in 2015 – did we learn anything?
As the NFL playoffs approach, we’re reminded of just how crucial are instant replays – recordings of what happened on the field, to confirm (or second-guess) the referee’s call. Imagine how controversial instant replays would be if the recordings were made not by an impartial source, but instead by the opposing team, on a biased, selective basis? That’s exactly how many employers feel about employees surreptitiously recording what happens in the workplace. Emerging technologies such as wearables, smartphones, and Google Glass make it easier than ever for employees to record workplace interactions without anyone else knowing. Captured conversations could include exchanges with supervisors, coworkers, or customers; disciplinary meetings; workplace investigation interviews; or even employment terminations.
Employers certainly can regulate employee workplace conduct. But employers that decide to ban employee recordings in the workplace should do so carefully, respecting employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”), whistleblower statutes, and nondiscrimination laws. Continue Reading Instant Replay: banning employee recordings in the workplace
While advising the board of directors of a company to pay close attention to data security issues is akin to your dentist telling you to floss, the stakes are too high for a board to ignore. The board of any company must constantly monitor and assess its company’s data security procedures and potential risks. Although there is no strategy to prevent a security breach, each member of a board must exercise its fiduciary duty to consider the risks to a company. To the credit of many companies in the last several years, the assessment of data security risks has achieved a more pronounced position. Continue Reading Board to Tears: Director oversight of data security issues