Mere Compliance With Privacy Requirements By Corporations may no Longer be Enough
The Office of the Privacy Commissioner of Canada (‘‘OPC’’) recently published a research paper entitled ‘‘Privacy and Cyber Security: Emphasizing privacy protection in cyber security activities’’ in which are outlined the common interests and tensions between privacy and cyber security. The report sets out key policy indications with a view to generating dialogue on cyber security as an important element of online protection, while acknowledging that cyberspace governance is a global issue.
The OPC bases its report on the following factual premises. As technologies facilitating access to the Internet have become increasingly entrenched in everyday life, we increasingly depend on the cyberspace for a whole range of critical social and economic interactions. This ever-increasing reliance on cyberspace creates new and significant vulnerabilities which have in turn set the stage for increasingly sophisticated and targeted threats. This risk is magnified, in part, by the storing and processing of electronic data on a massive scale.
Privacy protection and cyber security should be thought of as interconnected
The report explains that as the volume of personal data stored online increases, privacy protection increasingly relies on effective cyber security implementation by organizations to ensure data protection. However, certain cyber security efforts may also threaten and even violate privacy – for example, real-time monitoring of activities on a network could involve the capture and analysis of massive amounts of confidential and personal information. This is referred to as the ‘‘big data paradox’’ which begs the question: ‘‘is big data a greater risk to privacy or a solution to prevent cyber security breaches and thus a solution to protect personal and confidential data ?’’. Obviously, proponents of massive data storage believe that the insights derived from big data analysis will provide a solution to most problems, while others raise concerns about the security vulnerabilities inherent to stocking so much information (a veritable ‘‘commercial asset’’ coveted by cyber attackers). An additional concern is that ‘‘big data begets big data’’ – as the capabilities to collect data increase, so does the temptation to do so. Big Data will give birth to ever Bigger Data.
The private sector’s responsibility
The report submits that recent studies have indicated that ‘‘a large number of businesses are unprepared for, and indifferent to, cyber threats, and lack proper contingency plans’’. This leads us to the question of ‘‘compliance vs. risk-management’’. While organization are required to comply with laws and regulations across varying jurisdictions, it has become clear that a mechanical approach consisting of ‘‘blindly pursuing compliance’’ does not necessarily mean than the organization is secure. In fact, blind compliance might lead to a false sense of security. The challenge for the private sector, which carries significant responsibility for cyber security as the depositary of much of the data stored in cyberspace, is ‘‘to understand that security is not simply a matter of meeting minimal compliance standards, but rather, a question of engaging in effective risk management and dynamic implementation of security’’. Effective compliance does not mean that an organisation has implemented the reasonable measures or industry standards with respect to cybersecurity risk management.
Cyber security policy developments
Seemingly divergent views of cyber security have emerged: the ‘‘open commons approach’’ favours a harmonized approach to governance which protects openness, privacy and interoperability across regions while the ‘‘gated community approach’’ advocates stronger governmental control and regulatory landscape.
With regards to governmental policies on cyber security, a chief concern expressed in the report is that national security and public safety preoccupations have historically overridden privacy protection imperatives. The OPC adopts the view that cyber security should not expand surveillance to the detriment of individuals’ privacy, civil liberties or other democratically held rights and values. The alternative approach, the ‘‘broader stewardship model’’ recognises that cyber security is a shared responsibility because of the way all of the involved parties (from government and corporations to the average user) are interconnected and interdependent. The report concludes that a complementary approach may be best as both views have their merits.
Cyberspace governance and security must also be treated as a global issue because the information flowing through cyberspace is not constrained by national borders. The Action Plan 2010-2015 for Canada’s Cyber Security (published by Public Safety Canada) called on the Department of Foreign Affairs, Trade and Development Canada to align its foreign cyber policy with broader foreign policy, international trade and security objectives. For their part, international groups (such as the G8 and the OECD) are developing principles in support of the right to cyberspace access, openness, freedom of expression and user privacy; principles which are sometimes at odds with domestic national security objectives.
As cyber policy directions develop, privacy and data protection authorities, such as the OPC, have to play a role in reinforcing privacy rights and values and ensuring that privacy rights as well as confidential personal information protection are respected.
The OPC aptly notes, ‘‘as individuals grow more dependent on and connected to the cyberspace, they will become more reliant on organizations’ effective implementation of cyber security and sensitivity to privacy’’. In conclusion, the report outlines key areas in which an increased emphasis on privacy protection could help advance cyber security activities. First, it is essential for privacy values be built into cyber security policy directions. A balance must be struck between the monitoring and analysis of confidential and personal information and actual cyber security requirements, as ‘‘violating people’s privacy in the interest of ensuring cyber security would defeat the very purpose of cyber security’’. Second, for legislative approaches to be effective, they must incentivize security preparedness. Unquestionably, the private sector will bear significant responsibility and be faced with complex challenges in protecting the cyberspace in a legal landscape where accountability for personal information protection will be paramount. Generating dialogue with the private sector on the vital components of cyber security implementation will undoubtedly be part of an effective strategy.
The report concludes that the complexities of cyberspace and the mounting sophistication of threats require that organizations do more about privacy protection – it is no longer enough to simply be compliant with privacy requirements or technical standards to the minimum extent possible. Maximum effect will need to be given to major privacy principles such as: accountability, transparency, data minimization, ensuring appropriate use and disclosure, implementing effective access controls, and abiding by reasonable retention periods and safe destruction methods. The onus is on all stakeholders, on a global scale, to shape cyberspace and its security following a stewardship approach and on a foundation of enduring trust.
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cyber security Office of the Privacy Commissioner of Canada OPC privacy privacy protection