New Year, New Challenges: Preparing Your Campus for Data Privacy and Security Issues in the Year Ahead

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1 National Association of College and University Attorneys Presents: New Year, New Challenges: Preparing Your Campus for Data Privacy and Security Issues in the Year Ahead Virtual Seminar Presented in Cooperation with the American Council on Education and EDUCAUSE Thursday, December 19, :00 PM 2:00 PM Eastern 11:00 AM 1:00 PM Central 10:00 AM 12:00 PM Mountain 9:00 AM 11:00 AM Pacific Presenters: Christopher Holmes Associate General Counsel Baylor University Michele Norin Chief Information Officer University of Arizona Christopher Wolf Partner & Director of Privacy and Information Management Group Hogan Lovells Copyright 2013 by the National Association of College and University Attorneys 21015

2 Thank you for attending this event. Today s event features an online, post event evaluation form. To send us your feedback, please click on the link below, or type the URL into your web browser s address bar. Your feedback and comments are very important to us. Thank you in advance for taking the time to complete this evaluation!

3 THURSDAY, DECEMBER 19, 2013 VIRTUAL SEMINAR SERIES NEW YEAR, NEW CHALLENGES: PREPARING YOUR CAMPUS FOR DATA PRIVACY AND SECURITY ISSUES IN THE YEAR AHEAD ATTENDANCE RECORD Organization: All participants are asked to sign-in, but if you are an attorney applying for Continuing Legal Education credits (CLEs), you must sign this attendance sheet to verify your attendance at this seminar. After completion, please return this form to NACUA *Total CLE Credits = 120 minutes PRINT Your Name SIGN Your Name Bar Number (If Applying for CLE)

4 THURSDAY, DECEMBER 19, 2013 VIRTUAL SEMINAR SERIES NEW YEAR, NEW CHALLENGES: PREPARING YOUR CAMPUS FOR DATA PRIVACY AND SECURITY ISSUES IN THE YEAR AHEAD CERTIFICATE OF ATTENDANCE Attorneys from Connecticut, Maryland, Massachusetts, Michigan, South Dakota or the District of Columbia: These jurisdictions do not have CLE requirements and therefore require no report of attendance or filing. Attorneys from California, Illinois, New Jersey, New York or Tennessee: Do not return this form to NACUA. Please keep this form for your records to submit directly to your state CLE commission or in case your state bar audits you for CLE compliance. Please also remember to sign the site roster, indicating your attendance, before you leave. Attorneys from all other states: Please complete and return this form no later than TODAY to NACUA Please also remember to sign the site roster, indicating your attendance, before you leave. NACUA certifies that this program has been presumptively approved and conforms to the standards prescribed by the rules and regulations of the State Bars of AZ, AR, CA, CO, DE, HI, MO, NV, NH, NJ, NM, NY, RI, VT, WV and WY. NACUA will apply for CLE credits from the following states: AL, AK, FL, GA, ID, IL, IN, IA, KS, KY, LA, ME, MN, MS, MT, NC, ND, OK, OR, SC, TN, TX, UT, VA, WA and WI) Note: Restrictions vary state by state and not all states will accredit this virtual seminar. Upon receipt of this certificate of attendance and your site roster, NACUA will process the credits through the applicable state if approved. CERTIFICATION By signing below, I certify that I attended the above activity and request 120 minutes of CLE credits. Name Bar Number Address Signature Date Authorized By: Meredith McMillan, CMP NACUA Meetings and Events Planner

5 VIRTUAL SEMINAR SERIES THURSDAY, DECEMBER 19, 2013 NEW YEAR, NEW CHALLENGES: PREPARING YOUR CAMPUS FOR DATA PRIVACY AND SECURITY ISSUES IN THE YEAR AHEAD SPEAKER BIOGRAPHIES Christopher Holmes is an Associate General Counsel at Baylor University, focusing on privacy, technology, student life and corporate governance. Chris joined Baylor's staff in 2002 after serving as General Counsel at Dallas Baptist University. Prior to his work in higher education, Chris was an attorney in the Dallas law firm of Cowles & Thompson for eight years, where he represented clients in commercial litigation matters. He holds a B.A. from Baylor University and a J.D. (with honors) from the University of Texas. Chris received NACUA's First Decade Award in 2011 and currently is Chair of NACUA's Committee on Web Page Legal Resources. Chris is also a member of the incommon Steering Committee. Michele Norin is Chief Information Officer and Executive Director of University Information Technology Services at the University of Arizona. As Chief Information Officer, Ms. Norin is responsible for providing strategic leadership in the development and use of information technology in support of the University's vision for excellence in research, teaching, outreach, and lifelong learning. She advocates for productive interaction among central and departmental information-technology units, as well as effective integration of technology into University teaching, research, and administration. Ms. Norin serves as the spokesperson for IT-related information, policies and strategies; provides oversight for IT-related strategic planning; leads efforts in maximizing IT security through policy, proactive, and enforcement; serves as the lead administrator on the Technology Oversight Committee of ABOR, thus providing linkage of University of Arizona to the Arizona University System; provides leadership oversight in the development of major administrative systems; and is connected statewide and nationally with IT organizations and initiatives. Ms. Norin has a Bachelor's degree in MIS and a Master's degree in Educational Leadership. She has been at the University of Arizona since 1989 and in Tucson since Christopher Wolf leads the global Privacy and Information Management practice at the law firm of Hogan Lovells US LLP. A native Washingtonian, Chris has practiced law for more than three decades in DC, and has focused on Internet and privacy law since the early days of those disciplines. He regularly represents colleges and universities on domestic and international privacy and data security issues. MSNBC has called Chris "a pioneer in Internet law" and the Washingtonian magazine dubbed him a 2013 "Tech Titan." Chris spoke earlier this year at the 35th Annual Conference of Data Protection Authorities and Privacy Commissioners in Warsaw and at the Federal Trade Commission Workshop on the Internet of Things, among many other speaking engagements. Chris founded and co-chairs the Future of Privacy Forum and is a founder of the Coalition for Privacy and Free Trade. Chris is the editor and contributing author of legal treatises and co-author of a recent book on Internet hate speech, Viral Hate: Containing its Spread on the Internet (Macmillan Palgrave 2013) that he

6 co-authored with Abraham H. Foxman, National Director of the Anti-Defamation League. Chris is National Civil Rights Chair at the Anti-Defamation League, and is on the boards of other charitable organizations, including WETA Public Broadcasting, the George Washington University Hospital and Food & Friends, a social services agency. Chris' recent scholarly work includes white papers on law enforcement and national security access to data in the Cloud in comparative jurisdictions, and a forthcoming Washington University (St. Louis) Law Review article on EU- US privacy. Chris is a member of the American Law Institute and the Cosmos Club.

7 New Year, New Challenges: Preparing Your Campus for Data Privacy and Security Issues in the Year Ahead Christopher Holmes Associate General Counsel Baylor University Michele Norin Chief Information Officer University of Arizona Christopher Wolf Partner & Director of Privacy and Information Management Group Hogan Lovells Presented in cooperation with: NACUA December 2013 VIRTUAL SEMINAR Overview of Virtual Seminar Overview of the landscape of privacy and data security laws for colleges and universities What lies ahead: FERPA beyond the registrar s office HIPPA obligations growing Policy and legal considerations in the era of Big Data Social Engineering/Phishing Social Media concerns International data privacy and security issues Data breach preparation and response Conversation style presentation; two Q&A Periods 1

8 Privacy & Security in Higher Ed: An Overview Christopher Holmes Associate General Counsel Baylor University Privacy & Security in Higher Ed. Law in US is sectorial Which law applies will depend on: Location of institution What type of information Who is storing the information Federal and State Federal government reluctant to act States striving to fill the gaps 2

9 Federal Privacy Laws in Higher Ed. FERPA Gramm-Leach-Bliley Clery Computer Fraud and Abuse Act Electronic Communications Privacy Act Communications Decency Act HIPAA Children s Online Privacy Protection Act Communications Assistance for Law Enforcement Act What is Privacy? What is Security? Privacy-the freedom from having information from being disclosed without one s consent Policies and procedures Soft practices Security-the mechanism(s) in place to protect the privacy of information Operational, physical and technical safeguards Hard practices 3

10 What is Privacy? What is Security? Gandalf knows the difference. Privacy Implications in Higher Ed. Information Collection (Surveillance, Interrogation) Information Processing (Aggregation, Identification, Insecurity, Secondary Use, Exclusion) Information Dissemination (Breach, Disclosure, Exposure, Increased Accessibility, Blackmail, Misappropriation, Distortion) Invasions (Intrusions, Decisional Interference) Professor Daniel J. Solove, George Washington Law School, January 10, 2012 Webinar Presentation for Educause 4

11 Difficulties Faced by Higher Ed Decentralized governance and administration Decentralized data collection and storage Ease of use of cloud, web and mobile accessible systems Where is the educational record? Where is the professor s account? Where is the grade book? Where is the class roll? Where is the class work posted? Difficulties Faced by Higher Ed New payment models bypassing administrative and IT review systems entirely instructors are able to anonymize the data.therefore as related to FERPA, we don t collect non-directory student information in an interpretable or traceable way. (emphasis added) 5

12 Data Breaches in Higher Ed Hacking by undergraduate student (650,000) System misconfiguration with incorrect access settings (350,000) Files containing sensitive information stored in accessible manner-file was encrypted (300,000) Stolen laptop which was unencrypted and contained social security numbers (6,300) Average cost running $140 per person in breach Beyond the Registrar s Office: FERPA Arising in New Contexts Christopher Holmes Associate General Counsel Baylor University 6

13 Data Privacy and Security: FERPA FERPA requires institutions keep educational records private with certain exceptions Security was not an issue in 1974, but now? Permits vendors to host educational records provided they agree to FERPA s requirements Data Privacy and Security-FERPA December 08 Final Regulations have comments containing recommended practices for safeguarding privacy and education records p No breach notification requirement Department of Ed encourages the holders of personally identifiable information to consider actions that mitigate the risk and are reasonably calculated to protect [educational records] Introduces cost-benefit analysis: the greater the harm the more protections 7

14 Data Privacy and Security-FERPA Comments to 08 Regulations also recommend steps in event of breach which may include: Report to law enforcement Determine information and individuals impacted Steps to retrieve and prevent Determine cause Determine whether institution policies were breached Risk assessment Inform students about OIG website Technical advisory containing recommended practices for cloud HIPAA Compliance Obligations Growing Christopher Holmes Associate General Counsel Baylor University 8

15 Data Privacy and Security: HIPAA HIPAA began with a Privacy Rule approach which was extended by Security Rule Requires administrative, physical and technical safeguards Administrative Safeguards 45 CFR Physical Safeguards 45 CFR Technical Safeguards 45 CFR Health Care IT (ABA, 2013). HIPAA Administrative Safeguards Policy regarding who has access to ephi and how to prevent others from accessing Create a security awareness and training program Policy on how to address security incidents Policy on how to respond to emergency Require a periodic technical and nontechnical evaluation to changes affecting security of ephi This is not a complete list 9

16 HIPAA Physical Safeguards Policy regarding who has physical access to systems Policy regarding functions to be performed on specific workstation or class of workstations Establish physical safeguards for workstations with access to ephi, to allow access only to authorized users. Policy regarding receipt/movement/removal of hardware and electronic media This is not a complete list HIPAA Technical Safeguards Technical policies that grant ephi only to persons and software programs granted access rights. Install systems that record and examine activity in information systems that contain or use ephi Policies to protect ephi from improper alteration or destruction Establish authentication procedures verifying person accessing is the one claimed Use security measures to protect ephi while in transmission Note: This is not a full list. 10

17 Policy and Legal Considerations in the Era of Big Data Michele Norin CIO University of Arizona What is Big Data? Wikipedia (part of the Big Data phenomenon itself) defines Big Data as follows: Big Data is a collection of data sets so large and complex that it becomes difficult to process using on hand database management tools or traditional data processing applications. The challenges include capture, curation, storage, search, sharing, analysis, and visualization. The TechAmerican Foundation defines Big Data as: Big Data is a term that describes large volumes of high velocity, complex and variable data that require advanced techniques and technologies to enable the capture, storage, distribution, management, and analysis of the information. 11

18 Two Types of Data 12

19 Big Data on Campus Data collected on college campuses: Student: grades, financial, addresses, contact information, behavioral data and more. Research: sensitive information on research participants, outcomes, results, behaviors, etc. Medical: patient health information, medical records, studies, and clinical trials. The power of combining all this data can provide very detailed individual profiles that may have been previously difficult to collect and analyze. Policy and Legal Considerations Current federal privacy laws are proving inadequate Universities must consider these questions as new policies are developed: What information needs to be collected? Why? How will it be used? How will it be protected and who will protect it? What ethical implications arise with the power of knowing? What are the strategies of de identification of personally identifiable information? UA Big Data Project Example: Touches Research, Student, and Operational aspects of Big Data 13

20 Social Engineering and Phishing Michele Norin CIO University of Arizona A Powerful and Effective Combination Phishing where cyber criminals masquerade as a trustworthy person in a seemingly official These s play an individual s emotions to illicit reaction without thinking. According to figures from the U.S. Computer Emergency Readiness Team (US CERT), phishing attacks accounted for 53% of all security incidents in

21 Types of Phishing Spear Phishing (Targeted Phishing) Focuses on a specific audience Goal often to gain access to user credentials or pushing malware Higher likelihood of succeeding Whale Phishing or Whaling Focuses on the top administrators and executives Lure executive to install malware or give away information Phishing Landscape is Evolving IT security is evolving from a device centric to a user centric view A modern security strategy must focus on all the key components enforcement of use policies data encryption secure access to corporate/organizational networks productivity and content filtering vulnerability and patch management course threat and malware protection 15

22 Phishing Landscape is Evolving A new level of sophistication Foreign governments and organized crime rings are a top cybersecurity threat to universities Attackers are extremely organized and some are well funded Recent attacks include: Crime rings stealing vast amounts of credit card numbers Governments of China, Russia, and others trying to infiltrate nuclear research databases Students hacking the registrar s office to change grades Higher education is particularly vulnerable because universities have historically maintained open computer networks Phishing and Big Data Threats to Big Data are elevated Protection, access, and de identification of information important as Big Data evolves Advanced computing and big data may help with monitoring phishing attempts and breaches 16

23 Awareness is Key No organization is immune to the threat of social engineering Secure the Weakest Link: The End User The best defense is education and awareness Enable increased personal responsibility and accountability across the organization rather than impeding creativity by implementing restrictive security controls People centered Security or PCS, according to Gartner Social Media Continues to Grow and Present Data Security Concerns Christopher Wolf Partner & Director of Privacy and Information Management Group Hogan Lovells 17

24 Concerns About Social Media Bad actors may use social media to cheat, harass, defame, stalk, or engage in other bad behavior Social media use may disclose confidential or proprietary information inadvertently reveal sensitive information about employees or students tarnish school s reputation Social Media for Screening or Monitoring Several states restrict employers and educational institutions from having applicants, employees, or students disclose social media access credentials Some states prohibit educational institutions from requiring students to add institutional representatives to networks or contact lists Screening risks certain characteristics being used inappropriately (e.g., race, sexual orientation, age, and political affiliation) Social media information may be inaccurate or incomplete 18

25 Social Media Policies Provide guidance on appropriate use Educate users on social media risks and benefits Alert students and employees to public nature of some social media Employee bloggers and other social media users should make clear that statements represent personal views Social media users should direct press inquiries to PR department when appropriate Limitations on Employee Social Media Policies Should not limit activities protected under federal labor law Griping is generally not protected. Group discussions about work environment may be protected General prohibitions on disclosing confidential information may be unlawful Requiring prior approval for posts may be unlawful Prohibitions on offensive remarks should be narrowly tailored NLRB has provided sample policy 19

26 Unintended Consequences of Social Media Use Public social media posts may create security risks by allowing bad actors to gain information that may facilitate phishing or unauthorized access to systems Technological advances (e.g., facial recognition) may lead to public posts revealing sensitive information For example, membership in groups that indicate political affiliation, religious beliefs, or sexual orientation Questions and Answers Push *1 on your telephone key pad to comment or ask your question OR To submit a question in writing, click on the General Chat tab below, enter your question in the box below the chat area, and press ENTER or click send. 20

27 The Rise of State Regulation of Privacy and Data Security Christopher Wolf Partner & Director of Privacy and Information Management Group Hogan Lovells State Legislation States act while Congress is idle Dozens of state laws in past year Creates a patchwork of compliance obligations Laws tend to cover information about state residents, no matter where it is processed 21

28 State Breach Notification Laws California led the way Now, 46 States plus D.C. Typical triggers are name plus one or more of SS #; state-issued ID #; financial account # plus access code Some states address medical information New California law adds usernames and passwords allowing access to online accounts Notifications sent to affected individuals and sometimes state regulators California Privacy Policy Laws California requires websites that collect certain information from California consumers to post privacy policies online bookstore, athletics, and other shopping sites California s attorney general interprets the law as applying to mobile applications Private nonprofit and for profit postsecondary schools must post social media privacy policies 22

29 State Security Laws Massachusetts has established security standards for businesses that hold information about state residents Data owners must maintain comprehensive, written security programs to protect personal information of MA residents Use reasonable care when selecting service providers Require service providers to implement reasonable security Reasonable retention limits Reasonable access controls State Regulators State attorneys general have established privacy units and are focusing on privacy enforcement Have been looking at health, mobile, and data breach issues State attorneys general may enforce breach notification requirements under Health Insurance Portability and Accountability Act 38 state AGs collaborated on an enforcement action against Google s use of cookies on the Safari browser California AG brokered deal with mobile app platforms to establish developer practices State AG s lobbying Congress to eliminate immunity from prosecutions for state crimes under Communications Decency Act 23

30 International Data Privacy and Security Issues Christopher Wolf Partner & Director of Privacy and Information Management Group Hogan Lovells Development of Global Privacy Laws EU Data Protection Directive took effect in 1998 Comprehensive rules for handling personal data Individual rights to access, correct, and delete personal data Special mechanisms needed for transfers to countries that lack adequate protections for personal data (e.g., United States) Proposed data protection regulation looks to impose more stringent requirements Many countries developing comprehensive data protection laws These are often modeled on the EU framework so that the countries are deemed adequate under EU law 24

31 Likely Impact of EU Regulation Broadened jurisdiction: Will apply to organizations that monitor the behavior of EU data subjects or offer goods and services to EU data subjects Proposed sanctions of up to 5% of global turnover Current transfer mechanisms may be revised Legitimate interests will no longer justify international transfers in the absence of adequacy decisions or appropriate safeguards Breaches will have to be reported without undue delay Presumption that more than 72 hours is undue delay Global Employment Issues Centralizing human resources and conducting investigations may involve transferring data globally Consent may not be sufficient to authorize data transfer because of perceived imbalance between employer and employee Sensitive data is subject to heightened protections and defined differently across the globe. Sensitive data may include: Trade union membership Political opinions Philosophical beliefs Data classification programs must identify source and type of data 25

32 Global Student Data Issues A student s list of classes may reveal data that is sensitive in certain jurisdictions (e.g., political opinions, philosophical beliefs, or religious affiliation) Some jurisdictions (e.g., Romania) grant students with expanded access rights to records Those obligations could apply to online courses When conducting online courses, institutions must ensure that data collection and sharing practices comply with all applicable laws The open forums provided by colleges and universities may attract dissidents. How will schools respond to government requests for student information from various jurisdictions? Preparing for and Responding to Data Breaches Michele Norin Chief Information Officer University of Arizona 26

33 12/18/ Trends We are not immune to the trends that are impacting the rest of the world just because we are higher education. UA Information Security Officer 27

34 Year-By-Year U.S. Higher Ed Data Breach Totals Year # of Breaches Records Breached All Time (Through 2012, since ,856,170 tracking began in ,977, , ,704, ,029, , , ,037, ,899,172 8 Years of Data Breaches In Education Unintended Disclosure, 198 Hacking or Malware, 219 Portable Device, 123 Physical Loss, 52 Payment Card Fraud, 1 Unknown or Other, 12 Insider, 21 Stationary Device, 47 28

35 Security Challenges on Campus Increased complexity and frequency of attacks Student body churn Visiting professors and exchange students regularly access university networks BYOD and managing devices Availability of resources to enforce security policies (funding, staff etc.) Goal: Strike a balance between an open, yet secure, network Be Prepared Most organizations today pay nowhere near enough attention to security incident response. Being prepared for incident response will be one of the most cost effective security measures any organization can take because well planned IR reduces the incident impact and costs and because security incidents are inevitable. 29

36 Guiding Principals for a University Security Strategy Shift from a lock down mentality to rapid detection and response Enable increased personal responsibility and accountability rather than restrictive security controls Embrace the unique aspects of being part of a major research university Prepare for a Breach Before It Occurs Refine information security framework with enhanced policies, governance structures and metrics Continue to improve incident response capability Increase situational awareness Secure adequate staffing and funding Foster a security culture with awareness and training programs for good security practices Involve core set of key stakeholders from campus to guide best practices and respond during an incident 30

37 When Disaster Strikes. Analysis and Forensics What data was exposed and how? Who was affected and how to comply with notification laws? Engage Campus Governance Group Notification and Reporting Report to state and federal agencies Track and issue legal notification letters to victims Coordinate public relations efforts Monitoring and Recovery Cyber, identity and credit monitoring for affected individuals may be paid for by university The methods that will most effectively minimize the ability of intruders to compromise information are comprehensive user training and education. My access to Motorola, Nokia, ATT, Sun depended upon the willingness of people to bypass policies and procedures that were in place for years before I compromised them successfully. Kevin Mitnick, former hacker December 18,

38 Question and Answers Push *1 on your telephone key pad to comment or ask your question OR To submit a question in writing, click on the General Chat tab below, enter your question in the box below the chat area, and press ENTER or click send. Thank you! Additional resources are available at the following NACUA Resource Pages: Cybersecurity: Social Networking by Employees and Students Presented in cooperation with: 32

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