Tag Archives: personally identifiable information

Cyber-Security: The Vulnerability of Medical Institutions to Cyber-Attacks

McAfee researchers were able to modify the vital sign data in real time providing false information to medical personnel by switching the heartbeat records from 80 beats a second to zero within five seconds. You would have woken up to news that Medstar patient records database was subject to ransom ware cyber-attack and was asked to pay bitcoins. Unfortunately, the hospital did not have backup of medical records and in some cases, they had to turn away the patients. These incidents, unfortunately, are not stray incidents.

There are various technologies converging and a rapid increase in machine to machine communications.

It is predicted that by 2025, most hospitals will have the ability to network connect more than 90% of their devices.

However, many hospitals are yet to make their data security systems extremely robust. Data privacy and data security are the two important pillars that needs urgent consideration. Just as financial data is loved by the cybercriminals, so is health data becoming a gold-mine with the cyber offenders. Specially so when the hospitals are run on legacy systems or no dedicated framework or surveillance on its own data.

Personally identifiable data is an indicator of an individual, such as  name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;[i]

A number of cyber-attacks on medical institutions are initiated to extract the electronic health records (EHRs). These EHRs may contain personal health information of the patients, their medical history, diagnosis codes, billing information, etc. which can be exploited by the cyber offenders in various manners, for instance to get ransom from the medical institutions or to create fake IDs to buy medical equipment(s) or medication which can be resold or only sold on prescription.

Take this example. On 12 May 2017 a global ransomware attack, known as WannaCry, affected more than 200,000 computers in at least 100 countries. The ransomware attack also affected 80 out of 236 trusts (medical institutions under NHS) further 603 primary care and other National Health Service (“NHS”) organisations were infected with the ransomware virus including 595 general practitioners. The trusts which were affected with WannaCry ransomware faced issues like patient appointments being cancelled, computer being locked out, diversion of patients from accidents and emergency departments etc.

As reported in the investigation report on the WannaCry ransomware attack on NHS, published by the National Audit Office (“NAO”, an independent parliamentary body in the United Kingdom), all NHS organisations infected with the WannaCry virus had unpatched or unsupported Windows operating systems. NHS Digital (a national provider of information, data and IT systems for commissioners, analysts and clinicians in health and social care in England) informed the NAO that the ransomware spread via the internet, including through the N3 network (the broadband network connecting all NHS sites in England), though there were no instances of the ransomware spreading via NHS mail (the NHS email system).

In India, as reported by multiple news agencies, last year in the month of June Mahatma Gandhi Memorial (a trust run hospital) hospital, Mumbai (MGM Hospital) was affected by a similar cyber-attack where the hospital administrators found their systems locked, and noticed an encrypted message by the attackers demanding ransom in Bitcoins to unlock it. It was reported that the MGM Hospital had lost 15 days’ data related to billing and patients’ history, though the hospital didn’t face any financial loss.

Once these cyber offenders have access to the EHRs, they hold the systems of the medical institutions hostage for ransom, by encrypting all the systems completely inaccessible and unusable for the victimised medical institutions. The vulnerability to such cyber-attacks arises due to many reasons, outdated digital infrastructure or medical personnel not being aware or not trained about cyber-attacks. Cyber offenders may gain access to medical institutions’ systems through various ways and sometimes as simple as (a) using a USB drive; (b) exploiting vulnerable or expired software, (c) stealing medical personnel’s mobile devices, (d) hacking emails, or (e) phishing etc. It is time that our healthcare providers upgrade their technologies, networks, understanding on this subject.

Regulatory bodies across the world have suggested / adopted guidelines and standards to ensure necessary cybersecurity processes and controls which helps medical institutions to mitigate cyber risks and vulnerabilities. For the purpose of this article we will be primarily focusing on various safeguards and standards put in place by European Union and India to deal with such cyber-attacks.

Position in Europe

As a part of the EU cybersecurity strategy, the European Commission adopted the EU Network and Information Security Directive (“NIS Directive”) on 6 July 2016 and the same came into force in August 2016. As the NIS Directive is an EU directive every member state had to adopt a national legislation which would transpose the NIS Directive by 9 May 2018 and identify operators of essential services under the transposed law by 9 November 2018.

The NIS Directive has three major parts to it (i) national capabilities, (ii) cross-border collaborations and (iii) national supervision of the critical sectors including health.

  • National Capabilities: The NIS Directive mandates every member state of the EU to have certain cybersecurity capabilities, e.g. it is a mandate for every member state to have a national Computer Security Incident Response Team (“CSIRT”).
  • Cross Border collaborations: The NIS Directive encourages collaborations between EU member states like the EU CSIRT network, the NIS cooperation group, ENISA etc.
  • National Supervision of critical sectors: As per the NIS Directive every member state shall supervise the cybersecurity of critical market sectors in their respective country including health sector.

Further, as a part of the NIS Directive the NIS cooperation group through ENISA has developed guidelines regarding (i) identification criteria of cyber-attacks, (ii) incident notification, (iii) security requirements for Digital Signal Processors (DSPs), (iii)  mapping of operators of essential services (OES) security requirements for specific sectors including health and (iv) audit and self-assessment frameworks for OESs and DSPs.

With a view to prescribe certain standards of safety and quality, three recognised EU standards organisations namely (a) the European Committee for Standardisation (CEN), (b) the European Committee for Electro-technical Standardization (CENELEC) and, (c) the European Telecommunications Standards Institute (ETSI) were set up. By setting common standards across EU, CEN. ETSI and CENELEC ensures protection of consumers, facilitates cross-border trade, ensures interoperability of goods/products, encourages innovation and technological development, and includes environmental protection and enables businesses to grow.[ii]

The General Data Protection Regulations (“GDPR”)[iii] specifically defines ‘data concerning health’, ‘genetic data’ and ‘bio metric data’ and regards them as ‘special category of data’, this means that parties who are processing special category of data shall comply with additional higher safeguards and process it legitimately. Recital 53 of the GDPR states that special categories of personal data which merit higher protection should be processed for health-related purposes only.

Position in India

Personal medical/health information in India is regarded as sensitive personal information as per the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal data or Information) Rules, 2011 (“Rules”).

The Indian legislature took an important step for addressing issues relating to cyber security when it amended the Information Technology Act, 2000 in 2008, through which they established an Indian Computer Emergency Response Team (CERT), a national agency for incident response. CERT is primarily responsible for handling cyber security incidents occurring in India and analysing information related to cyber-crimes, but among other things CERT is also indulged in issuing guidelines, advisories, vulnerability notes and white papers relating to information security practices, procedures, prevention, response and reporting of cyber incident[iv].

CERT-India has been entrusted with performing the following main functions (a) collecting, analysing and disseminating of information on cyber incidents, (b) forecasting and giving alerts on cyber security incidents, (c) laying down emergency measures for handling cyber security incidents, (d) coordinating cyber incident response activities, (e) issuing guidelines, advisories, vulnerability notes and whitepapers relating to information security practices, procedures, prevention, response and reporting of cyber incidents, and (f) performing any other functions relating to cyber security as may be prescribed[v].

CERT-India in the last five years or so has focused on making various institutions who are highly dependent on cyber/digital networks ‘cyber resilient’. Being cyber resilient allows these institutions which is nothing but a process of effectively anticipating the various threats and the mechanism of dealing with the cyber-attacks. Anticipate, withstand, contain and recover are the 4 main contours of being cyber resilient[vi]:

  • Anticipate: Maintain a state of informed preparedness in order to forestall compromises of mission/ business functions from adversary attacks
  • Withstand: Continue essential mission/business functions despite successful execution of an attack by an adversary
  • Contain: Localize containment of crisis and isolate trusted systems from untrusted systems to continue essential business operations in the event of cyber attacks
  • Recover: Restore mission/business functions to the maximum extent possible subsequent to successful execution of an attack by an adversary
  • Evolve: To change missions/business functions and/or the supporting cyber capabilities, so as to minimize adverse impacts from actual or predicted adversary attacks

To strengthen the framework and to ensure that reasonable security practices and procedures are followed, the Department of Information Technology introduced certain Rules. The Rules requires each and every body corporate including medical institutions who are collecting such sensitive personal information to have security measures as documented in their security policy/programme which is considered to be a reasonable security practice keeping in mind the nature of their business and considering the fact that they are collecting sensitive personal information. One such international standard as recommended under the Rules is the IS/ISO/IEC 27001.

Taking a step further, the Ministry of Health and Welfare has introduced a draft bill for Digital Information Security in Healthcare Act (“DISHA”). One of the key purposes of DISHA is to ensure reliability, data privacy, confidentiality and security of digital health data. DISHA prescribes that the storage of digital health data so collected would be held in trust for the owner and the holder of such data would be considered as the custodian of data thereby making such holder responsible to protect privacy, confidentiality and security of data.

To bring it all together:

Majority of the cyber-attacks reported worldwide are caused due to reasons which sometimes are trivial and perhaps ignored more often, such as out-dated Windows operating system patch, lack of proper anti-virus or reasons such as phishing, lack of awareness among the people about cyber security etc.

EU, through GDPR has made data security an integral part of law and India is taking strong steps have a robust data protection and data security law. Various regulations, programmes, codes, standards etc. discussed in this article are some indicate steps that can be implemented.

Law is just one part to solve the issue. The real question is who is responsible for safety of our personal data, commercial data, data assets etc.? We secure our houses with a lock, burglar alarms, video cams because the house owner wants to protect it. Similarly, individuals, organizations, healthcare personnel, hospitals and other institutions who collect health data for multiple reasons should be aware of various cyber-threats and has to take steps to safeguard its networks and systems from such threats.

References:

[i] Article 4.1 General Data Protection Regulations (GDPR).

[ii]CENELEC, Marketing Standards for Europe, available at: https://www.cencenelec.eu/aboutus/Pages/default.aspx

[iii] GDPR (2016/679) is a regulation in EU law on data protection and privacy for all individuals within the European Union and the European Economic Area

[iv] Section 70B (4) of the Information Technology Act, 2000

[v] Supra footnote 1

[vi] CERT- In, Cyber Crisis Management Plan for Countering Cyber Attacks and Cyber Terrorism

 

This article was first published at Innohealth Magazine, Volume IV Issue II

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INDIA’S DATA PRIVACY LAWS – CURRENT SCENARIO

The recent Supreme Court judgement of JUSTICE K S PUTTASWAMY (RETD.) versus UNION OF INDIA (the “Judgement”) has established that the right to privacy is a fundamental right guaranteed to every citizen of India, under the Constitution. In analysing the issue, the bench delves into the various facets of an Indian citizen’ life, attempting to understand how privacy can be protected in each of them. One such facet is the digital world, wherein each citizen is spending more time on the internet, providing and exchanging information with one another and with service providers. This in turn has resulted in the Internet becoming a repository of personal information, with a large amount of personally identifiable information (the “PII”) of the various users being inputted, generated and stored on the Internet. Protecting every citizen’s privacy thus involves protecting the PII available on the internet against unauthorised access and/or use.

However, the above requirement was recognised by the Government in 2011. At this time, the Government released the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (hereinafter the “RSP Rules”), under the Information Technology Act, 2000. These Rules defined the meaning and scope of sensitive personal information, regulated how such information can be collected and used by service providers/intermediaries, imposed limits of confidentiality on the holders of such data, and required the service providers/intermediaries to take the permission of its users/customers before collecting such information. Simultaneously with the Rules, the Government has been working on a more detailed and elaborate Data Privacy Law, with the most recent iteration of this proposed law being the Data (Privacy and Protection) Bill, 2017 (the “Bill”).

Thus, there currently exist 3 different sources of data privacy law in India – a legally binding 9-bench Supreme Court judgement, the existing Rules, and the proposed Bill. In such a situation, it is pertinent to analyse each of them to understand the requirements of each, and to determine if there is any interplay and/or overlap between these various sources.

The RSP Rules

The RSP Rules have wide applicability, affecting any kind of entity dealing in electronic information (whether for commercial purposes or not). The RSP Rules have their genesis in S. 43A of the IT Act. This section places explicit importance on data security and protection, by imposing a fine of up to INR 5,00,00,000/- (Rupees Five Crores only) on any entity that handles or stores sensitive personal information, but fails to implement reasonable security practices to protect that information. The RSP Rules lend clarity to the section, by detailing what sensitive personal information consists, and elaborating on the security practices and procedures to be followed by the holders of the PII.

Under the RSP Rules, sensitive personal information is any information that is personally identifiable, and may consist of data such as the person’s password, financial information, sexual orientation and medical history, among others. With respect to the security practices and procedures to be followed, the RSP Rules law down multiple guidelines and policies that form the basis of most of the Privacy Policies and Term of Use that we see on websites and applications in India today. This is to ensure that the customers and information providers are fully aware of every activity that the holders of the information carry out. As per the RSP Rules, the information holders are required to publish the exact details regarding what specific PII is being collected, why it is being collected, how the PII is going to be used, how long it is going to be held for, and which third parties are going to be given access to the PII. The information holders are also required to give the customers the option to opt out of the information sharing at any point, pursuant to which they must destroy the PII.

The RSP Rules also mandate the presence of a “Grievance Officer”, to address the discrepancies and grievances of the customers with respect to any PII that they have provided. The details of this Grievance Officer are required to be uploaded and available on the website/application, and the Grievance Officer is required to resolve disputes within one month from the date of receipt, ensuring quick redressal. However, no mechanism for escalating the matter further or appealing the decision of the Grievance Officer has been provided. This is strange considering the nature and importance of the information being dealt with, and that the Grievance Officer is often an employee of the company (and not an independent third party).

Finally, the RSP Rules require the information holder to document and implement detailed security practices and procedures in line with the International Standard IS/ISO/IEC 27001. These practices are geared towards maintaining the security and integrity of the information/data storage system against third party hacks or threats, and for informing the customers about the information holder’s reaction in the event of a security breach.

The Judgement

The Judgement deals with digital information and data privacy under Part S. While discussing the proliferation of digital data and the internet, the judges recognise the need for protecting every citizen’s right to privacy in this sphere as well. Since fundamental rights are inalienable rights available to citizens against the State, the initial discussion revolves around protecting citizens against unjust and undue State surveillance on digital platforms, which allows the State to access PII and keep track of every citizen’s digital footprint. In this context, the judges note that while protecting the right to privacy as a fundamental right is of paramount importance, like every other fundamental right, it too is subject to reasonable restrictions imposed by the State. Each such reasonable restriction is required to fulfil three criteria:

i. A law must permit such restriction, and prescribe the procedure to be followed by the State for imposing the same;

ii.A just cause – this can range from national security (cyber-terrorism) to ensuring the fulfilment of social welfare schemes; and

iii. The measures prescribed for achieving the cause must be proportionate.

After the above, the Judgement moves to discussing the protection of citizen’s privacy on digital platforms, against other citizens/third-parties. It is well-documented that the threats from hacks and/or viruses can be severe, and third-parties can use hacks to break into computer systems and steal the PII of other individuals. To add to the problem, hackers can enter and exit systems undetected, leaving the owner of the PII without any knowledge of the fact that his/her information has been stolen. Thus, in order to ensure the general security of digital platforms, and to ensure that PII is treated in a responsible manner, the judgement lays down nine principles/standards to be followed by every data controller/holder of third-party’s PII:

  1. Clear and complete notice regarding information practices, to be given to the customer;
  2. Opt-in and opt-out options for every customer, exercisable at any time;
  3. The PII should be collected only to the extent required to fulfil the purposes specified in the notice;
  4. The PII should be used, processed, disseminated etc. only in accordance with the purposes specified in the notice;
  5. Customers should be able to access, modify, and/or delete their PII at any time;
  6. Disclosure of PII to third-parties, will be only as provided in the notice, and after consent for the same has been received from the customers;
  7. Implementation of reasonable security safeguards against loss, unauthorised access, destruction, use, processing, storage, modification, deanonymization, unauthorized disclosure or other risks;
  8. Maintaining complete openness and transparency in implementing the above requirements/practices;
  9. Accountability for adherence to the above will be with the data controller;

On a comparison of the above principles with the requirements laid down under the RSP Rules, it is clear that there are no differences. The RSP Rules already cover each of these stipulations in detail, and the judgement does not seem to be adding anything new to the digital data privacy and protection regime in India.

The Bill

The Bill aims to create a separate Data protection and privacy law in India. It aims to define and protect the right to digital privacy in India, by providing for protective measures and penalties/legal recourse for non-compliance, in a manner that is more detailed than that already captured in the RSP Rules. The Bill applies to the whole of India, and like the IT Act, contains a specific provision for bringing offences committed outside India (but against a computer system located in India) under the jurisdiction of the Bill. This is an important requirement, as it takes into account the possibility of a hacker being present outside while performing any breaches under the Bill. Additionally, it is explicitly stated that the Bill shall apply to both State/Government and private agencies when it comes to dealing with personal information.

In general, the requirements regarding data collection from users, notice to users, usage of the data, transfer of data, necessity of consent, and the power of the users to request the deletion of any data, are the same as captured in the RSP Rules and the Judgement. The Bill also puts the responsibility and liability of adhering to the standards in a transparent manner, on the data controller/collector. Where the Bill differs from existing law, is in the creation of a Data Privacy Authority (“DPA”), and the stringent penalties and liabilities that may be imposed on any non-compliant individual and/or organisation. The DPA gets jurisdiction over any complaints made by users or data controllers with respect to any contravention under the Bill, if such complaint has not been addressed satisfactorily by the internal Data Protection Officer of the data controlling entity. The DPA can also initiate suo-motu investigations against any data controllers/processors, and all appeals against decisions of the DPA are to be referred to the Telecom Disputes Settlement Appellate Tribunal.

With respect to penalties and offences, the Bill stipulates that any person/organization handling PII, but not in compliance with the requirements of the Bill, will be punishable with imprisonment (up to 5 years) and fine (extendable up to INR 50,000/-). In cases of unauthorised disclosure, sharing and/or transfer of PII (in contravention to the notice provided to the users), the imprisonment is extendable up to 10 years, and the fine extendable up to INR 1,00,000/-. Additionally, if any customers have been subject to profiling or harassment of any kind, on the basis of the PII collected by them, then the data controllers will be required to compensate them for the financial and mental loss suffered in such a situation as well.

The Bill provides for one more stipulation, not present in any existing law. The Bill legally authorizes the Central Government to carry out surveillance activities and/or investigations by accesing and/or using the PII of internet users in India. Specific authorised officers are required to carry out the surveillance, and on discovering any information that may constitute a threat to the sovereignty or security of the nation, are required to forward the same to intelligence agencies in the Government. The time period of any such surveillance, along with the necessity of the same, and the kind of information that may be collected, are all required to be specified. Finally, such information cannot be stored for a period of one year from the date of collection, unless an extension is granted by the Central Government.

Conclusion

While the data privacy and protection law in India currently stands at that already stipulated under the RSP Rules, the passing of the Bill (or any updated version of the same) could bring significant changes to the same. The Bill is far more detailed and provides greater protection and privacy by way of its requirements for the creation of the DPA and the imposition of stringent penalties. Having a formal grievance redressal mechanism in place, along with the disincentive of imprisonment and hefty fines, will certainly add more teeth to a legislation that is growing in importance. What remains to be seen, is how long the parliament actually takes to enact and formalise this law.

Author: Madhav Rangrass is an Associate with NovoJuris Legal