Data breach notification - ENISA study released

ENISA - the European Network and Information Security Agency - has just published a study (PDF) on data breach notification. The research was carried out as part of the process of implementing the notification requirement in the revised e-Privacy Directive, and aims to develop consistent guidelines throughout Europe for the technical and procedural issues surrounding breach notification. Some highlights from the summary (text in [brackets] is my own interlineation):

[Views of telecoms operators]

The telecommunications sector recognises that data breach notifications have an important role in the overall framework of data protection and privacy. Nevertheless, operators are seeking support and guidance on an EU and local level over a number of issues, which if clarified, would better enable European service providers to comply effectively with data breach notification requirements. Key concerns raised by telecom operators include the following:

● Risk prioritisation – The seriousness of a breach should determine the level of response. In order to prevent ‘notification fatigue’ for both the operator and the data subjects, breaches should be categorised according to specific risk levels.

● Communication channels – Operators want assurances that notification requirements will not negatively impact their brands. It is important for operators to maintain control of communications with relevant data subjects, as much as possible, to ensure that operators can effectively manage any impact on brand perception brought about by the data breach and subsequent notification.

[If operators want to avoid negative impact on their brands it might be more productive to avoid data breaches in the first place.]

● Support – In preparation for mandatory notification requirements, operators are looking for support in terms of guidance on procedures. In particular, guidance should provide a methodology for categorising types of private data and combinations of private data, as well as how to proceed with notifications based on the level of risk attributed to each breach.

[Views of Data Protection Authorities]

Data protection authorities (DPAs) take varied approaches to enforcing data protection and privacy. Some follow EC Directives closely, while others take on additional responsibilities beyond those outlined in the Directives. Although there are exceptions, the majority of DPAs surveyed in this study support mandatory notifications for telecom operators. Those that did not support mandatory notifications mostly indicated that budgetary limitations were a key factor in influencing their opinion. As notifications are not yet mandatory in most countries, regulatory authorities have little experience in handling notifications. Since regulatory authorities have a number of responsibilities, there are concerns that additional duties must not interfere with pre-existing responsibilities. Notifications are not viewed as a number one priority for most authorities. A smooth transition to mandatory notifications will consequently depend on a resolution to a number of factors, outlined here:

● Resources – Budgetary allocations for regulatory authorities should reflect new regulatory responsibilities. Concern has been raised that resources at some regulatory authorities are already occupied with other priorities. Bandwidth for additional responsibilities is limited.

● Enforcement – DPAs indicated that sanctioning authority enables them to better enforce regulations. Data controllers will be less incentivised to comply with regulations if regulatory authorities do not have sufficient sanctioning powers. Some authorities indicated that financial penalties are seen as the most effective tool for pressuring data controllers to comply, while others indicated that public criticism and black lists could be effective too.

● Relevant authorities – Local legislation will determine who the relevant authority is for regulating data breach notifications in the telecommunications sector, when mandatory notification requirements are transposed into local legislation. Although many data protection authorities indicated they are communicating effectively with other authorities already, it is important for legislation to clearly delineate relevant responsibilities, in order to mitigate or prevent potential conflicts.

● Technical expertise – In some cases, businesses have a high level of technical sophistication, which allows them potentially to conceal valuable information regarding breaches from regulatory authorities, which do not have comparable resources and expertise. Hiring new staff with relevant expertise is important in order for regulatory authorities to remain effective.

● Awareness raising – A high public profile is an important element in demonstrating the influence of regulatory authorities. A common strategy in communicating the importance of data protection to the public could be useful in better educating data subjects about their privacy rights, and the role of notifications in the overall framework of data protection.

[Areas of conflict]

Smooth implementation of data breach notification procedures requires close cooperation between data controllers at the service providers and the relevant regulatory authorities. While most operators and regulatory bodies surveyed recognise the importance of notifications, there are a number of issues where interests of the parties involved might conflict.

● Undue delay – Regulatory authorities want to see a short deadline for reporting breaches to authorities and data subjects, in order to prevent controllers from concealing evidence and also to give data subjects ample time to protect themselves. Service providers, however, want their resources to be focused on identifying if the problem is serious and solving the problem, instead of spending time reporting details, often prematurely, to regulatory authorities.

[This is an important point which is sometimes overlooked. In some breaches - such as those of credit card details - it will be essential that individuals be notified immediately so that they can e.g. cancel cards. Other breaches - such as those of healthcare information - may be just as serious but aren't likely to be as time sensitive. However, the fact that the affected individuals may not need to be notified immediately must not become an excuse for failure to notify the relevant DPA as soon as possible.]

● Traffic monitoring – Private data belonging to employees or customers running over a corporate network remain a challenging issue for both regulatory authorities and operators. Telecom operators are often requested to monitor and analyse traffic data on behalf of their customers, particularly in cases where companies want to monitor the actions of their employees. In this context, regulatory authorities see traffic monitoring as a privacy risk, due to the fact that employers may be exchanging private information on the corporate network, to which the employers would then have access.

● Content of notifications – The content of the notifications can have a direct impact on customer relations and retention. Operators want to make sure that the content of the notifications does not impact negatively on customer relations. Regulatory authorities, however, want to see that the notifications provide the necessary information and guidance in line with the rights of the data subjects.

● Audits – One service provider indicated that it performed its own security audits internally, with the aim of detecting and solving any potential vulnerabilities that could result in data breaches. The operator believed that its internal expertise were sufficient to ensure it was using the latest techniques for securing data and compliance with regulations, suggesting its expertise surpassed that of the national regulatory authorities. Regulatory authorities, however, indicated that their ability to perform audits and spot checks provides the authority necessary to enforce compliance.

[Extension of notification to other sectors]

While the recent telecoms reforms make notifications mandatory for telecom operators, there remains ongoing debate about extending mandatory notifications to other sectors.

● Telecommunications operators: In comparison to other sectors, regulatory authorities indicated that telecommunications operators ranked high in terms of their security measures and ability to limit data breaches.

Telecom operators have at their disposal some of the top networking, communications and security experts. But this is true mostly for the larger operators. Smaller alternative operators and local ISPs do not necessarily have resources comparable to the large international companies and incumbent operators.

● Finance sector: Finance institutions are considered to be at great risk, due to the sensitive nature of the data they possess. Nonetheless, financial institutions are already subject to regulations across Europe, with regulations being enforced by various bodies, including central banks. Consequently, extending data breach requirements to financial institutions would require careful coordination with other responsible authorities, which may already require incidents of data breaches to be reported.

● Healthcare: Data protection authorities regularly pointed to the healthcare sector as an area of high risk. Due to the large amount of very sensitive private data stored on doctors’ and nurses’ laptops, which are often unencrypted, there is high risk for exposure or leaks.

● Small businesses: Small businesses pose a major challenge. Collectively, they have a lot of personal data, but individually they do not have resources or know-how to secure their data. Due to the sheer number of small businesses, regulation would prove challenging. Educating and making businesses aware would require significant efforts and resources. As more and more small businesses develop online strategies, the risk for exposure is increasing.