Confidentiality Statements by obm18412

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									  Creating Confidentiality
Agreements that Protect Data
       and Privacy:
The Challenge of Keeping up With
  Changes in State and Federal

            Elaine S. Reber
   California Institute of Technology
• Speaker’s Qualifications
• Background
• Focus/Goal
• Access to Data
• Noteworthy Federal and State Laws
• Policies versus Confidentiality Statements
• What do we need to protect data?
• Summary
• Questions and Answers

   Speaker’s Qualifications
• Associate Director of Infrastructure for
  Administrative Applications for Caltech

• Oversees the areas of System
  Administration, Database Administration,
  Operations, Applications Security, and

• Caltech’s Mission: To expand human knowledge and
  benefit society by developing creative scientists and
• Students: 900 undergraduates and 1200 graduates
• Faculty: 300 Full Time and 700 post-doctoral fellows
• Staff: 2,000
• Research Funding: Over $200 million
• Total Budget: ~ $500 million
• Caltech administers the JPL (Jet Propulsion Laboratory)
  budget for NASA.

    Background (continued)
• July 1999 – Caltech upgraded its network and
  replaced of its legacy administrative systems with new
  applications, including:
   – Oracle HRMS and Financials on 10.7 Network Computing
     Architecture (NCA)
   – Exeter Student System
   – Famis Job Costing System
   – CEI Purchasing Card System

• Since 1999, Caltech has upgraded all of its
  administrative applications multiple times and has
  added several 3rd party applications and tools.

• Understand the challenges of protecting
  personal data, student information, and
  financial and business records that we
  maintain for our community (students,
  faculty, staff, etc.)

        Focus/Goal – continued

• Be aware of the laws and regulations that protect
  the privacy of data

• Recognize that security and privacy are different,
  but security is essential to privacy1

• Make recommendations to create more robust
  data security environments on our campuses
1. Dr. Michael Zastrocky, “Higher Education and IT: What’s in the Future,

Who gets access to protected data?

 • Internally:
   – Human Resources   – Administrative Staff
   – Finance           – Software Developers
   – Student Affairs   – Database
   – Development         Administrators
     Offices           – Application Security
   – Faculty             Staff
   – Health Care       – Business Analysts
     Providers         – Internal Auditors
                       – Others

Who gets access to protected data?
 • Externally:
   – External Auditors
   – 3rd Party Vendors
   – Gov’t Offices
   – Law Enforcement Officials
   – Schools Requesting Transcripts
   – Organizations Conducting Certain Types of
   – Others

What is the Process for Internal Staff
       to get Access to Data?
   – Identify Data Needs
   – Identify Appropriate Responsibilities / Privileges
   – Submit Access Request Form/s
   – Obtain Approvals
   – May receive Training
   – May sign Confidentiality / Non-disclosure
     Agreement or Implied Consent
   – Receive Logon Credentials from
     Application Security Office

Is that protocol for getting data
access sufficient to protect the
privacy, security, and integrity
of our Institutions’ data?

…in a perfect world, YES!
 But in this world, we face:
    •   Hackers
    •   Viruses
    •   Cyber takeovers
    •   S/W with security holes
    •   H/W with security holes
    •   Stolen laptops
    •   Opportunists
    •   Etc.

Perhaps, the laws
surrounding privacy of data
will fill in the gaps

Noteworthy Federal and State Laws
   1974 – Family Education Right To Privacy Act (FERPA)
   1996 – Health Insurance Portability and Accountability Act
   1999 – Financial Services Modernization Act
           (Gramm-Leach Bliley Act)
   2002 – Sarbanes-Oxley (SOX)
   1977 – California Information Practices Act

Family Educational Rights And Privacy Act
            of 1974 - FERPA
                                              (20 U.S.C § 1232g)
• FERPA, also known as the Buckley Amendment, is a federal
  law that protects the privacy of student education records. It is
  administered by the Family Policy Compliance Office (FPCO) at
  the U.S. Education Department.1
• The Act went into law on 19 November 1974 and has been
  amended several times since its enactment. It applies to all
  educational agencies and institutions that are the recipients of
  federal funding.2

• Schools are required to notify parents and eligible students
  annually of their rights under FERPA.3

3. Ibid.

                                 FERPA - continued
                                                  (20 U.S.C § 1232g)

• Schools may not furnish or release identifiable
  personal information without written consent specifying
  the records to be released, the reasons for release, and
  parties to whom they are being released.1 The same
  rules apply to third parties acting on behalf of the

• The act also provides the “eligible student” (18 years or
  older or attending post-secondary school) and parents
  the right to inspect and review education records, to
  seek to amend those records, and to limit disclosure of
  information from those records.3


                           FERPA - continued
                                     (20 U.S.C § 1232g)

• Any data collected by authorized officials must be
  protected from unauthorized access. It is the
  requester’s responsibility to destroy the data after it is
  no longer needed.1

• Each school is required to keep a record of every
  request for student education information. Only the
  parents, the “eligible student”, and school officials
  responsible for the custody of records and auditing the
  system may see this information.2


                           FERPA - continued
                                        (20 U.S.C § 1232g)

• Growing demands for institutional accountability,
  greater transparency, and national security have
  increased the challenge of protecting student data.1

• Various State Freedom-of-Information Acts, The 2001
  USA Patriot Act, and the 2001 No Child Left Behind
  Act also require schools to provide student information
  under certain circumstances.


                             FERPA - continued
                                        (20 U.S.C § 1232g)

• The National Center for Education Statistics (NCES) is studying the
  feasibility of requiring colleges to provide “unit record (individually
  identifiable)” data rather than “aggregate” data for reporting.1

• Officials at the Department of Education claim that “unit record” data
  would make it easier to measure a college’s retention and graduation
  rates and the net cost of tuition after financial aid is taken into

• FERPA would need to be amended to allow the release of student
  records without permission from the parents or student.3

1. CLHE, The Campus Privacy Letter, Volume 1, No.1, December 2004;
2. Ibid.

              Health Insurance
     Portability and Accountability Act
•      HIPAA was implemented in 1996. The final HIPAA
       Security Rule establishing health data security
       standards was published in 2003.

•      The main goals of HIPAA are to:

          1.        Make the health care system more efficient, especially
                    through increased use of electronic resources, and

          2.        Make health insurance more portable (“portability”)
                    when persons change employers. 1,


                       HIPAA (continued)
• HIPAA protects private health information. Health
  plans, health care clearinghouses, health providers,
  and other organizations that process, transmit,
  and/or store Protected Health Information (PHI) in
  electronic form are covered by the Act.1
• PHI is any individually identifiable health information.
• HIPAA is administered by the federal Department of
  Health and Human Services.
1. Marne Gordon, HIPAA Security Standards Cybertrust Implementation and Strategy and Management,

                       HIPAA (continued)
• In general, covered entities are required to:
      – Ensure the confidentiality, integrity, and
        availability of all electronic PHI they create,
        receive, maintain, or transmit
      – Protect against threats or hazards to the
        security and integrity of the PHI
      – Protect against unauthorized disclosures of PHI

      – Ensure compliance by employees of the
        covered organization1
1. Marne Gordon, HIPAA Security Standards Cybertrust Implementation and Strategy and Management,

     HIPAA, FERPA, and State Laws

•       The definition of protected health information (PHI) under the
        Health Insurance Portability and Accountability Act (HIPAA),
        specifically excludes identifiable health information in
        "education records" subject to the Family Education
        Rights and Privacy Act (FERPA, 20 USC 1232g).1
•       FERPA provides privacy protections for student health
        records held by federally funded educational institutions.2

•       If State laws are more stringent than HIPAA, then HIPAA
        gives way to State law.3

2. Ibid.

Financial Services Modernization Act of 1999 –
        Gramm-Leach Bliley Act (GLB)
• The GLB establishes federal requirements for safeguarding non-
  public personal information collected by financial institutions.
  There are three principal parts to the GLB privacy requirements:

        • The Financial Privacy Rule governs the collection and
          disclosure of customers’ personal financial information.
        • The Safeguards Rule requires all financial institutions to
          design, implement and maintain safeguards to protect customer

        • The Pretexting Provision of the GLB Act protects consumers
          from individuals and companies that obtain their personal
          financial information under false pretenses, a practice known as


          Gramm-Leach Bliley Act (GLB) -
• The GLB requires financial institutions to establish
  an information security program that will:

      • Insure the security and confidentiality of customer

      • Protect against any anticipated threats or hazards to the
        security or integrity of such information; and

      • Protect against unauthorized access to or use of such
        information that could result in substantial harm or
        inconvenience to any customer.1

1. Federal Register / Vol. 67, No. 100 / Thursday, May 23, 2002 / Rules and Regulations

         Gramm-Leach Bliley Act (GLB) -

     •      The GLB preempts only “inconsistent”
            state laws. It sets a minimum standard
            beyond which states may pass stricter


Sarbanes-Oxley Act of 2002 (SOX)
 •       SOX sets new financial accountability standards for
         publicly held companies and their audit firms.

 •       SOX does not apply to nonprofits, but companies that rate
         bonds for universities advise them to follow its guidelines.
         Investors are asking for “more disclosure and transparency
         of information.”1

 •       Officials in several States (California, Maryland, and New
         York) have proposed legislation to require nonprofits to
         follow the same rules as publicly traded companies.2


                          SOX - continued
•       Some universities have already adopted
        reforms in response to SOX, such as:
          –       Clarifying procedures for preparation and certification
                  of financial statements
          –       Establishing policies for disclosure of transactions not
                  usually included in main budget reports
          –       Creating standards for audit committees of governing
          –       Modifying code of ethics for senior financial officers
          –       Increasing protection for whistle-blowers1


           Privacy Coverage Compared1
              FERPA                                    GLB                                HIPAA
 Protects personally                    Protects personally                       Protects personally
 identifiable educational               identifiable financial                    identifiable health
 records such as:                       information in any format                 information including:
   –   Individual Grades                                                            – Medical records
   –   GPA                                 – Financial aid applications             – Lab reports
   –   SSN                                 – Credit data                            – Provider notes
   –   Date of Birth                       – Tax returns of parents                 – Billing and Payment
   –   Gender                              – Student loan information                 records
   –   Class Schedule                      – Student financial                      – Immunization
   –   Hours earned                          information on athletic                  Records
   –   Work Study records
                                             compliance forms                       – Mental health notes
                                           – Etc.                                   – Etc.
   –   Etc.


     Security Requirements Compared1
              FERPA                                     GLB                               HIPAA

 •   No set, specific                      • Develop                              • Administrative
     requirements                            comprehensive                          Safeguards:
                                             security program:                       – Processes,
 •   No clear consensus in                      –Risk Assessment                       procedures, training
     higher ed on what is                       –Risk Mitigation                     – Risk Analysis
     needed                                     –Assess employee
                                                 training needs                   • Physical
 •   No court decisions on                                                          Safeguards:
     third party breach                    • Require affiliates to                   – Facility,
                                             share responsibility                      workstations, etc.
                                             for protecting
                                             information                          • Technical
                                                                                     – Access, audit
                                                                                       control, data
                                                                                       integrity, etc.

    California Information Practices Act
                  (California Civil Code §§1798)

•      Applies to California state agencies, including
       state-funded educational institutions.

•      Does not apply to student records, but does apply
       to records of potential students before enrollment,
       i.e., records of applicants for admission.1

•      Establishes requirements for the collection,
       maintenance, and dissemination of any information
       that identifies or describes an individual.2

2. Ibid.

    California Information Practices Act
                  (California Civil Code §§1798) - continued

•         Any information that identifies or describes an
          individual, the disclosure of which would constitute
          an unwarranted invasion of personal privacy, is
          considered personal information. Common types of
          personal information are:
      –       Birth date
      –       Citizenship
      –       Social Security Number
      –       Income Tax Withholding Information
      –       Performance evaluations
      –       Letter of corrective actions
      –       Names of spouse or other relatives1

  California Information Practices Act
                     (California Civil Code §§1798) - continued

• In recent years, the Act has been amended to require:
      – Notification of security breaches involving personal
      – Greater protection of Social Security Numbers (SSNs) by:
            •     Reducing collection of SSNs
            •     Explaining the purpose of the collection, the intended use,
                  whether it is mandatory, and consequences of refusing to
                  provide SSN
            •     Eliminating public display of SSNs
            •     Controlling access to SSNs
            •     Improving security safeguards
            •     Making the organization accountable for protecting SSNs2

Are the laws really sufficient to
protect the privacy, security,
and integrity of our Institutions’

…in a perfect world, YES!
 But in this world, we face:
    •   Hackers
    •   Viruses
    •   Cyber takeovers
    •   S/W with security holes
    •   H/W with security holes
    •   Opportunists
    •   Legislation is not enough

Maybe policies and
confidentiality agreements
will fill in the gaps.

                       What is a Policy?

A policy is “a definite course or method of
action selected from among alternatives
and in light of given conditions to guide
and determine present and future

1. Webster’s Ninth New Collegiate Dictionary

What is a Confidentiality Agreement?
A Confidentiality Agreement (or Non-disclosure
Agreement) is a document that, when signed,
will allow one party to discuss their confidential
information (including their work and ideas) with
other interested parties.
It legally binds those parties to keep the
information confidential and not to disclose it to
third parties.

1. King’s College of London: Technology Transfer Group

What is a Confidentiality Agreement?
  A Confidentiality Agreement should give the
  purpose for the disclosure and also state that
  the receiving party shall not be permitted to
  use the confidential information for any
  purpose except the one defined in the
  agreement (e.g., to evaluate their interest in
  collaborating/investing in the ideas/work).1

  1. King’s College of London: Technology Transfer Group

Will policies and confidentiality
statements increase the likelihood that
we can protect the privacy, security, and
integrity of our Institutions’ data?

 Not really…. Then, what do we
• Commitment from the University
• IT security group/CSO
• Resources
• Institute Privacy Policies

 Not really…. Then, what do we
          Need? (cont)

• Institute Policies for the Acceptable Use of
  Electronic Information Resources
• Confidentiality/ Non-Disclosure Agreements or
  Implied Consent
• Active User Awareness Training
• Periodic Risk Assessments
• Firewalls

    Not really…. Then, what do we
             Need? (cont)

•   Strong Authentication / Single Sign On
•   Authorization
•   Anti Virus Software
•   Vigilant Network Monitoring
•   Incident Reporting
•   Enforcement

    Peer Survey - Data Privacy Policies
               Electronic    Require users with access to           Refusal to sign a        Require training before         Password
Organization   Information   confidential information to sign       confidentiality          providing access to             reset how
               Policy?       confidentiality agreements?            agreement?               administrative systems?         often?

               Have                                                                          Yes: apps-specific as needed;
               Acceptable                                                                    no mandatory security           Every
School 1       Use Policy    No                                     N/A                      awareness training              semester

                                                                    Waiting for guidance
                                                                    from General
School 2       Yes           Yes/Implied Consent                    Counsel                  Yes: apps-specific as needed    90 days

                                                                                                                             60 days for
               Have                                                                                                          none for
               Acceptable    No - Considered part of contract for                                                            admin
School 3       Use Policy    employment                             N/A                      Yes: apps-specific as needed    systems

                                                                    Refusal results in
                                                                    forfeiture of right to   Yes - apps-specific;
School 4       Yes           Yes                                    access system            security training optional

                             Yes - After approval, a Password       Noted on the Non-
                             Token card is used for 2-factor        disclosure
                             authentication. Cards are issued by    Agreement; doc filed     Yes: apps-specific as needed;
School 5       Yes           the central IT group.                  in emp's department      training on token done by IT

                             Implied consent - part of login and
                             password change scripts. Individual
School 6       Yes           departments may have requirements.     N/A                      Yes: apps-specific as needed    90 days

School 7       Yes           No                                     N/A                      Yes: apps-specific as needed    Annually

• To protect the privacy of our data; we need
       Legislation
       Institute commitment
       Institute policy statements
       Confidentiality statements
       User awareness training programs
       Develop Best Practices
       Pro-Active Network Monitoring
       Antivirus Protection

• Authentication/Authorization
• Utilize the experts
       Legal Department
       Risk Management
       Human Resources
       Security Department
       Local Law Enforcement
       Peer Institutions

• Enforcement
Questions and Answers

     Thank you!


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