Dark (Data) Clouds on the Horizon


Dark Cloud

There have been many definitions of “Dark Data” over the last couple of years including: unstructured, unclassified, untagged, unmanaged and unknown electronic data that is resident within an organization’s enterprise. Most of these definitions center on unstructured data residing in an enterprise. But with the advent of BYOD and employees use of personal clouds, this definition should be expanded to include any corporate owned data, no matter where it resides.

Dark data, especially dark data stored outside of the company’s infrastructure (and awareness that it even exists) is an obvious liability for eDiscovery response, regulatory compliance, and corporate IP security.

Is BYOC a good idea?

Much has been written on the dangers of “Bring Your Own Device” (BYOD) but little has been written on the dangers of “Bring Your Own Cloud” (BYOC) otherwise known as personal clouds. Employees now have access to free cloud storage from many vendors that give them access to their content no matter where they are. These same personal clouds also provide automatic syncing of desktop folders and the ability to share specific documents or even entire folders. These personal clouds offer a fantastic use model for individuals to upload their personal content for backup, sharing and remote availability. In the absence of any real guidance from employers, employees have also begun to use these personal clouds for both personal and work purposes.

The problem arises when corporate-owned data is moved up to personal clouds without the organization’s approval or awareness. Besides the obvious problem of potential theft of corporate IP, effective eDiscovery and regulatory compliance become impossible. Corporate data residing in personal clouds become “Dark Clouds” to the organization; corporate data residing in repositories outside the organizations infrastructure, management or knowledge.

Dark Clouds and eDiscovery

Organizations have been trying to figure out what to do with huge amounts of dark data within their infrastructure, particularly when anticipating or responding to litigation. Almost everything is potentially discoverable in litigation if it pertains to the case, and searching for and reviewing GBs or TBs of dark data residing in the enterprise can push the cost of eDiscovery up substantially. But imagine the GBs of corporate dark data residing in employee personal clouds that the organization has zero awareness of… Is the organization still responsible to search for it, secure it and produce it? Depending on who you ask, the answer is Yes, No, and “it depends”.

In reality, the correct answer is “it depends”. It will depend on what the organization did to try and stop employee dark clouds from existing. Was a policy prohibiting employee use of personal clouds with corporate data in place; were employees alerted to the policy; did the organization try to audit and enforce the policy; did the organization utilize technology to stop access to personal clouds from within the enterprise, and did the organization use technology to stop the movement of corporate data to personal clouds (content control)?

If the organization can show intent and actions to ensure dark clouds were not available to employees, then the expectation of dark cloud eDiscovery search may not exist. But if dark cloud due diligence was not done and/or documented, all bets are off.

Regulatory Compliance and Dark Clouds

Employee personal clouds can also end up becoming the repository of sensitive data subject to regulatory security and privacy requirements. Personally identifiable information (PII) and personal health information (PHI) under the control of an organization are subject to numerous security and privacy regulations and requirements that if not followed, can trigger costly penalties. But inadvertent exposure can occur as employees move daily work product up to their personal clouds to continue work at home or while traveling. A problem is many employees are not trained on recognizing and handling sensitive information; what is it, what constitutes sensitive information, how should it be secured, and the liabilities to the organization if sensitive information is leaked. The lack of understanding around the lack of security of personal clouds and the devices used to access them are a related problem. Take, for example, a situation where an employee accesses their personal cloud while in a coffee shop on an unsecured Wi-Fi connection. A hacker can simply gain access to your laptop via the unsecured Wi-Fi connection, access your personal cloud folder, and browse your personal cloud through your connection (a password would not be required because most users opt to auto-sign in to their cloud accounts as they connect on-line).

As with the previous eDiscovery discussion, if the organization had taken the required steps to ensure sensitive data could not be leaked (even inadvertently by the employee), they leave themselves open for regulatory fines and more.

Reducing the Risk of Dark Clouds

The only way to stop the risk associated with dark clouds is to stop corporate data from leaving the security of the enterprise in the first place. This outcome is almost impossible to guarantee without adopting draconian measures that most business cultures would rebel against but there are several measures that an organization can employ to at least reduce the risk:

  • First, create a use policy to address what is acceptable and not acceptable behavior when using organization equipment, infrastructure and data.
  • Document all policies and update them regularly.
  • Train employees on all policies – on a regular basis.
  • Regularly audit employee adherence to all policies, and document the audits.
  • Enforce all breaches of the policy.
  • Employee systematic security measures across the enterprise:
    • Don’t allow employee personal devices access to the infrastructure – BYOD
    • Stop employee access to personal clouds – in many cases this can be done systematically via cutting specific port access
    • Employ systematic enterprise access controls
    • Employ enterprise content controls – these are software applications that control access to individual content based on the actual content and the user’s security profile.

Employee dark clouds are a huge liability for organizations and will become more so as attorney’s become more educated on how employees create, use, store and share information. Now days,

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Law Firms, HIPAA and the “Minimum Necessary Standard” Rule


TMI blogThe HIPAA Omnibus Rule became effective on March 26, 2013. Covered entities and Business Associates had until September 23, 2013 to become compliant with the entirety of the law including the security rule, the privacy rule and the breach notification rule. Law firms that do business with a HIPAA regulated organization and receive protected health information (PHI) are considered a Business Associate (BA) and subject to all regulations including the security, privacy and breach notification rules. These rules are very prescriptive in nature and can impose additional procedures and additional cost to a law firm.

Under the HIPAA, there is a specific rule covering the use of PHI by both covered entities and Business Associates called the “Minimum Necessary Stand” rule or 45 CFR 164.502(b), 164.514(d). The HIPAA Privacy rule and minimum necessary standard are enforced by the U.S. Department of Health and Human Services Office for Civil Rights (OCR). Under this rule, law firms must develop policies and procedures which limit PHI uses, disclosures and requests to those necessary to carry out the organization’s work including:

  • Identification of persons or classes of persons in the workforce who need access to PHI to carry out their duties;
  • For each of those, specification of the category or categories of PHI to which access is needed and any conditions appropriate to such access; and
  • Reasonable efforts to limit access accordingly.

The minimum necessary standard is based on the theory that PHI should not be used or disclosed when it’s not necessary to satisfy a particular job. The minimum necessary standard generally requires law firms to take reasonable steps to limit the use or disclosure of, PHI to the minimum necessary to represent the healthcare client. The Privacy Rule’s requirements for minimum necessary are designed to be flexible enough to accommodate the various circumstances of any covered entity.

The first thing firms should understand is that, as Business Associates subject to HIPAA through their access and use of client data, firms are subject to the Minimum Necessary Standard, which requires that when a HIPAA-covered entity or a business associate (law firm) of a covered entity uses or discloses PHI or when it requests PHI from another covered entity or business associate, the covered entity or business associate must make “reasonable efforts to limit protected health information to the minimum necessary to accomplish the intended purpose of the use, disclosure, or request.”

Law firm information governance professionals need to be aware of this rule and build it into their healthcare client related on-boarding processes.