Privacy + Security News by Professor Daniel J. Solove

Establishing a Robust Law School Educational Program for Privacy Law

@daniel-solove.bsky.social

Founder of TeachPrivacy

September 24, 2019

Recently, the International Association of Privacy Professionals (IAPP) released a ranking of law schools based on their educational programs in privacy law. Although I applaud the effort to focus more attention on the issue of teaching privacy law in law schools, there are many aspects of the project that I would do differently. In this post, I will discuss the elements of what I believe would constitute a robust privacy law educational program at law schools.

First, a bit of background about IAPP’s rankings. IAPP ranks schools into three tiers. Tier 1 is for schools offering a “certification or formal concentration in privacy law.” Tier 2 is for schools that “offer at least one three-credit course in privacy annually.” Tier 3 is for schools that “have a privacy offering, such as a one-credit seminar” rather than a three-credit offering or that have offered privacy courses but not on a “consistent basis.”

Unfortunately, the data that IAPP has assembled thus far is incomplete and needs quite a number of corrections. For example, many schools listed in Tier 3 have a 3-credit annual offering.

Additionally, I don’t agree with the set of criteria used to rank the schools. Having a certificate doesn’t put a school’s program in the top tier. There are many other factors to consider. Presenting the data in a rankings format is counterproductive because the data needs a lot of correcting plus the criteria are incomplete and not properly weighted. I think a more useful endeavor would be to improve the data, gather data on some other criteria, and just present the data rather than try to rank. IAPP’s project is just a starting point, and I hope that my suggestions here are constructive and will help shape the project.

First OCR Enforcement of HIPAA’s Right of Access

Daniel Solove

@daniel-solove.bsky.social

Founder of TeachPrivacy

September 16, 2019

Days after my recent blog post on the HIPAA Right of Access, the OCR released details of their first enforcement action for violation of the Right of Access.

The complaint, received in August 2018, involved a mother who waited over 9 months to receive prenatal records from Bayfront Health in St. Petersburg. She requested the records of her unborn child in October 2017 and after receiving incomplete records in March 2018, she did not receive the complete records until August 2018 (via her lawyers). It was not until after the OCR’s investigation in February 2019 that she received the complete records directly. HIPAA requires medical records to be provided within 30 days of the request.

The OCR concluded that Bayfront violated 45 C.F.R. § 164.524 by failing to provide access to PHI. Bayfront has paid $85,000 and agreed to a corrective action plan. The corrective actions include written policies and procedures around access rights, increased training and incident reporting among others.

I applaud the OCR bringing this case, but it is quite shocking that this is the first enforcement action with a fine for a violation of the right to access in HIPAA’s history. More than 15 years went by before this single action. A lot more enforcement must start happening.

The Failure of HIPAA’s Right of Access

Daniel Solove

@daniel-solove.bsky.social

Founder of TeachPrivacy

September 8, 2019

One of the biggest sore spots in HIPAA compliance has been providing individuals with their right to access their medical records. In addition to the countless anecdotal accounts about the painful process of getting medical records, a recent study demonstrated just how far there is to go for providers to be in compliance. More than half of medical providers included in the recent medRxiv study did not meet the basic requirements in HIPAA for providing medical records. A further 20% of the providers would not provide records until requests were escalated to supervisors. Which means that more than 70% of the subjects studied would not have been in compliance had the supervisors not been involved.

HIPAA provides that “an individual has a right of access to inspect and obtain a copy of protected health information about the individual in a designated record set, for as long as the protected health information is maintained in the designated record set.” 45 CFR §164.524

I have written on numerous occasions about patient control of their own records and reforms needed to support this right. Getting access to medical records doesn’t seem to have improved very much. Despite HIPAA’s right of access, it doesn’t seem to be taken very seriously by providers.

HIPAA Cartoon: HIPAA as an Excuse

Daniel Solove

@daniel-solove.bsky.social

Founder of TeachPrivacy

August 11, 2019

This cartoon depicts something that happens far too often with HIPAA — HIPAA is used as an excuse not to do something (such as make disclosures or provide access to records in ways that patients request) even though HIPAA doesn’t have such a restriction. This is often done out of a lack of knowledge about HIPAA. Healthcare providers frequently have mistaken notions of HIPAA being far more restrictive than it actually is. For example, last year, I wrote a post about how numerous healthcare providers wrongly use HIPAA as an excuse to refuse to email medical records to patients. Ironically, instead of forbidding it, HIPAA actually requires that medical records be emailed to patients if patients so request.

The FTC Can Rise to the Privacy Challenge, but Not Without Help From Congress

Daniel Solove

@daniel-solove.bsky.social

Founder of TeachPrivacy

August 11, 2019

Over at Lawfare, I have an essay co-authored by Chris Hoofnagle and Woodrow Hartzog called The FTC Can Rise to the Privacy Challenge, but Not Without Help From Congress. This piece is also posted at the Brooking Institution’s TechTank. The essay begins:

Facebook’s recent settlement with the Federal Trade Commission (FTC) has reignited debate over whether the agency is up to the task of protecting privacy. Many people, including some skeptics of the FTC’s ability to rein in Silicon Valley, lauded the settlement, or at least parts of it.

Others, however, saw the five-billion-dollar fine, oversight reforms, and compliance certification measures as a drop in the bucket compared to Facebook’s profits. Two dissenting FTC commissioners and other critics pointed out that the FTC did not change Facebook’s fundamental business model nor hold Mark Zuckerberg personally liable, despite hints that the company fell out of compliance with its original 2010 FTC consent order soon after that agreement was inked. Some privacy advocates and lawmakers even argued that the limits of the settlement are evidence that the FTC, the leading privacy regulator in the U.S. since the late 1990s, is no longer the right agency to protect our personal information from Big Tech. They support creating a new, consumer privacy-focused federal agency.

We think the FTC is still the right agency to lead the US privacy regulatory effort. In this essay, we explain the FTC’s structural and cultural strengths for this task, and then turn to reforms that could help the FTC rise to modern information privacy challenges. Fundamentally, the FTC has the structure and the legal powers necessary to enforce reasonable privacy rules. But it does need to evolve to meet the challenge of regulating modern information platforms.

You can read the rest of the essay over at Lawfare.

Cartoon on Data Breach

Daniel Solove

@daniel-solove.bsky.social

Founder of TeachPrivacy

August 5, 2019

This cartoon is about evolution of data breaches, which began to grab headlines back in 2005, thanks in large part to California’s data breach notification law — the first of such laws. Since that time, every state has passed breach notification laws, and there are breach notification laws sprouting up around the world. Every day, we hear of more and more data breaches . . . and they are getting larger and larger.

Profiling and the GDPR: An interview with Mark Singer and Raf Sanchez

Daniel Solove

@daniel-solove.bsky.social

Founder of TeachPrivacy

June 12, 2019

I had the opportunity to interview Mark Singer and Raf Sanchez, both at Beazley, about the issue of profiling and the GDPR. Mark Singer is a member of the Cyber & Executive Risk Group at Beazley. Mark handles insurance coverage issues arising out of cybersecurity, technology errors and omissions, data privacy, intellectual property, media and advertising liabilities. Raf Sanchez leads the international Beazley Breach Response Services team at Beazley and is responsible for incident response in all territories outside the US and Canada.

Cartoon: Data Subject Access Requests Under the CCPA and GDPR

Daniel Solove

@daniel-solove.bsky.social

Founder of TeachPrivacy

June 11, 2019

This cartoon is about data subject access requests (DSARs) — sometimes called “subject access requests” (SARs). The GDPR Article 15 provides for DSARs. The new California Consumer Privacy Act (CCPA) provides individuals with a right to learn about the personal data collected and shared about them over the past 12 months.

For more background about DSARs, see this great guide to DSARs by WireWheel.

ALI Principles of Law, Data Privacy

Daniel Solove

@daniel-solove.bsky.social

Founder of TeachPrivacy

May 23, 2019

I’m thrilled that, the American Law Institute (ALI) has approved the Principles of the Law, Data Privacy. Professor Paul Schwartz and I were co-reporters on the project. According to the ALI press release: “The Principles seek to provide a set of best practices for entities that collect and control data concerning individuals and guidance for a variety of parties at the federal, state, and local levels, including legislators, attorneys general, and administrative agency officials.”

The project involves our attempt to create a comprehensive approach to data privacy for the U.S. that bridges the divide with the EU. For example, there are many provisions in the General Data Protection Regulation (GDPR) that are not as incompatible with U.S. law as one might think. We bring U.S. law most of the way there, but we preserve core commitments in U.S. law that cannot readily be made consistent with the EU approach. We also have some new approaches to certain issues that haven’t yet been tried in quite the same ways in other laws before, such as our approach to transparency and notice, as well as our approach to handling the identifiability of personal data. The Principles of the Law, Data Privacy is not an attempt to write our ideal privacy law as if drafting on a blank slate. Nor is it an attempt to restate existing law. Instead, it is something in between. We build on foundations in existing law, look for ways the law can be advanced progressively without clashing with core commitments or introducing concepts that are without precedent.

Thus, our goal has been to produce a balanced compromise, an approach to advance U.S. privacy law significantly without being radical. I am certain industry and advocates will find things they like and things that they wish were different. This isn’t the law I’d write if I were writing on a blank slate. But it is, I hope, a big step forward.

We hope this project is useful to legislatures working on privacy legislation, to other policymakers, and to everyone who is thinking about privacy law.

We want to thank our advisory group and the ALI members who contributed greatly to this project. The ALI process is a wonderful one — a thoughtful constructive discussion about how to craft meaningful regulation between practitioners, judges, and academics, among others.

The final draft will be released very soon. Paul and I will be posting the blackletter portion of the project. The entire document, which consists of our commentary, notes, and illustrations — including the support for and rationales behind the provisions — will be available from the ALI. Please stay tuned.

As a teaser, below is the table of contents

A Major Move to Weaken HIPAA

Daniel Solove

@daniel-solove.bsky.social

Founder of TeachPrivacy

May 12, 2019

Quietly, at the end of April, HIPAA was significantly weakened. HHS published what sounds like an innocuous notification in the Federal Register: Notification of Enforcement Discretion Regarding HIPAA Civil Money Penalties. This notification is actually an enormous change to the HIPAA penalty structure, a drastic reduction in HIPAA fines.

The existing penalty structure under HIPAA is based on the HITECH Act of 2009, which increased HIPAA’s fines in an attempt to give teeth to HIPAA enforcement. Since HIPAA began being enforced in 2003 until the HITECH Act, fines had barely been issued despite an enormous amount of HIPAA violations. HITECH was Congress’s rebuff to this weak enforcement approach. After HITECH’s more potent penalty structure, HHS finally began issuing fines. The chart below is how HHS has been interpreting the HITECH penalty framework since the HITECH Act:

There were some ambiguities under the HITECH Act as to these penalty tiers, but HHS had long interpreted these tiers according to the above chart. But now, HHS has suddenly changed its mind and adopted a very different interpretation. Under this new interpretation, the penalty tier limits are now as follows:

Notice the new annual limits. There are severe reductions in the annual limits for nearly every category except for uncorrected willful neglect. This change yanks many of the teeth out of HIPAA enforcement.

PRIVACY + SECURITY BLOG

News, Developments, and Insights

Establishing a Robust Law School Educational Program for Privacy Law

First OCR Enforcement of HIPAA’s Right of Access

The Failure of HIPAA’s Right of Access

HIPAA Cartoon: HIPAA as an Excuse

The FTC Can Rise to the Privacy Challenge, but Not Without Help From Congress

Cartoon on Data Breach

ALI Principles of Law, Data Privacy

A Major Move to Weaken HIPAA