Data Security Followup Letter

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The Honorable Joe Barton
Chairman


The Honorable John D. Dingell
Ranking Member


House Energy and Commerce Committee
2125 Rayburn House Office Building
Washington, DC 20515


Dear Chairman Barton and Ranking Member Dingell:


     As Chair of the U.S. Public Policy Committee of the Association for Computing
Machinery (USACM), I write to provide some comments on the proposed amendment
you recently released that you may bring before the House Energy and Commerce
Committee as early as this week. Earlier this year USACM wrote to you and other
Members of Congress urging Congress to consider Fair Information Practice (FIP)
principles as the basis for legislation to protect consumers’ electronic information.1 In
many respects this amendment is a welcome step forward in embracing three of the FIP
principles by requiring information brokers to verify the accuracy of personal
information, allowing consumers access to personal information, and introducing
additional accountability through mandatory audit logs. We also wish to offer comments
on the so-called “safe harbor” provision for notification to consumers and the provisions
concerning obsolete records.


Accuracy and Access


     We applaud the addition of language requiring information brokers to verify the accuracy
of the data they collect, assemble or maintain. Databases are only as good as the
accuracy of the information they contain. Ensuring that companies follow verification
procedures for that data is an important part of the FIP principles.
     Likewise, we welcome the reinsertion of the proposal granting consumers the right to
view the information that information brokers hold about them. As we stated in our
earlier letter, consumers should have access to the personal information held about them
by data brokers and other commercial entities, and they should have the right to dispute
and/or correct erroneous information. Respecting consumers' rights to access their own
information is a key principle within the FIPs, and providing access also can lead to
improvements in other areas (e.g., accuracy).


Accountability


     We also are pleased to see the addition of the audit log requirement for information
brokers. The ability to retrace each and every access to, change in, or transmission of
such data will support greater accountability (also one of the FIPs’ principles we
discussed earlier) and overall security.


Safe Harbor


     Any legislation intended to make personal information held by businesses more secure
should protect consumer privacy while embracing technology neutral methods to do so.
We are generally concerned that a risk-based standard for whether companies have to
notify consumers upon a breach may not improve security practices. Notification is often
an effective method for ensuring that companies continually improve their security
practices. Clearly if there is a breach, regardless of the risk to consumers, a company’s
security system should be hardened to deal with the vulnerabilities. If there are multiple
breaches, then notification should be required. Beyond this, we are concerned with the
technology-based presumptions that would automatically enable the safe harbor from
notification.
     We view it as a positive step to include additional methods or technologies alongside
encryption as a way to mitigate risk after a breach. We are concerned, however, that
specifying technologies to mitigate risk without ensuring that these tools are part of a
comprehensive system is problematic. If the goal is to prevent exposed data being used
for identity theft, then the standard should address both the robustness of the technology
used in the system and how it is implemented. Encryption or other techniques for
obfuscating data are valuable security tools; however, without comprehensive security
practices in place they are, by themselves, incomplete protection.
     For example, reliance on encryption, particularly if it is not properly used, can create a
false sense of security. Often this will lead to so-called “brittle” protections, where whole
systems fail as a consequence of simple component failures. A company may use an
Encrypting File System to store all its customers’ personal information. If an
unauthorized user gained access to the system but not to the encryption keys, all of this
information would be encoded and useless. However, if someone was able to
compromise the account or accounts of authorized users on the system, the mere presence
of encryption does not reduce the threat of identity theft. All the personal information on
that server would now be available to the thief through his or her compromise of a
password, which might equivalently compromise the decryption key.
     We recommend that rather than relying on specific technologies, the test for a safe harbor
should be whether personally identifiable information might be extracted or inferred from
the data that is disclosed. We also recommend that Congress should urge the FTC, as it
develops its rulemaking or guidance, to draw upon existing, widely accepted, voluntary
consensus technical standards. For example, ISO 17799 on information security
management and ISO 18033 on data encryption are comprehensive and detailed security
standards that have been adopted by the international community. Considering
international standards may be particularly important given that consumers’ information
may be easily sent offshore to different countries that provide information technology
support to U.S. companies.


Obsolete Data


     Another important addition to the underlying legislation is the new provision regarding
the destruction of obsolete paper records. This provision mirrors the underlying bill’s
existing text related to the secure disposal of electronic records. However, while the
underlying bill clearly states that electronic data should be disposed of to make personal
information “permanently unreadable or undecipherable,” the new provision for paper
records does not have the same emphasis on secure disposal. We would recommend
making the new provision more explicit and requiring that non-electronic data containing
personal information be disposed of in a “secure” manner. Secure disposal techniques
would ensure that any personal information contained in the disposed data is
irrecoverable.
     Again, we appreciate the opportunity to offer additional comments on the bill. We at
USACM—part of a nonprofit professional society comprising computer scientists,
researchers, information technology (IT) consultants, attorneys with IT expertise,
educators, and more—are acutely aware of the risks to individuals posed by unprotected
or poorly protected personal information, and we are encouraged by Congress’ attention
to this important issue. Please feel free to call on USACM (through ACM’s Policy
Office at 202-659-9712) should you have any questions or need further technical
expertise on this matter.


Sincerely,
Eugene H. Spafford, Ph.D.
Chair, ACM U.S. Public Policy Committee (USACM)




___________

1 Our previous letter is available at http://www.acm.org/usacm/weblog/index.php?p=345

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