6 Openness Principle: The principle of openness is intended to ensure that the practices and policies that cover personal data are accessible and that the existence of personal data, what data is collected and stored, and what it is used for should all be disclosed. Openness also requires that the data controller's identity and operating location or residence is openly disclosed.
7 Individual Participation Principle: This includes an individual's right to know if their data has been collected and stored and what that data is within a reasonable time and in a reasonable way. In addition, this principle allows the subject to request that the data be corrected, deleted, or otherwise modified as needed. An important element of this principle is the requirement that data controllers must also explain why any denials of these rights are made.
8 Accountability Principle: The final principle makes the data controller accountable for meeting these principles.
The OECD Privacy Guidelines can be found at www.oecd.org/internet/ieconomy/privacy-guidelines.htm.
In developing the guidelines, the OECD recognized the need to balance commerce and other legitimate activities with privacy safeguards. Further, the OECD recognizes the tremendous change in the privacy landscape with the adoption of data breach laws, increased corporate accountability, and the development of regional or multilateral privacy frameworks.
Asia-Pacific Economic Cooperation Privacy Framework
The Asia-Pacific Economic Cooperation (APEC) Privacy Framework establishes a set of common data privacy principles for the protection of personally identifiable information as it is transferred across borders. The framework leverages much from the OECD Privacy Guidelines but places greater emphasis on the role of electronic commerce and the importance of organizational accountability. In this framework, once an organization collects personal information, the organization remains accountable for the protection of that data regardless of the location of the data or whether the data was transferred to another party.
The APEC Framework also introduces the concept of proportionality to data breach—that the penalties for inappropriate disclosure should be consistent with the demonstrable harm caused by the disclosure. To facilitate enforcement, the APEC Cross-border Privacy Enforcement Arrangement (CPEA) provides mechanisms for information sharing among APEC members and authorities outside APEC.
It's beyond the scope of this book to go into much depth about any of these particular frameworks, legal systems, or regulatory systems. Regardless, it's important that as an SSCP you become aware of the expectations in law and practice, for the communities that your business serves, in regard to protecting the confidentiality of data you hold about individuals you deal with.
PII and NPI
Many information security professionals are too well aware of personally identifiable information (PII) and the needs in ethics and law to protect its privacy. If you've not worked in the financial services sector, you may not be aware of the much broader category of nonpublished personal information (NPI). The distinction between these two seems simple enough:
PII is that information that is used to identify, locate, or contact a specific person.
NPI is all information regarding that person that has not been made public and is not required to be made public.
However, as identity and credential attacks have grown in sophistication, many businesses and government services providers have been forced to expand their use of NPI as part of their additional authentication challenges, when a person tries to initiate a session with them. Your bank, for example, might ask you to confirm or describe some recent transactions against one of your accounts, before they will let a telephone banking consultation session continue. Businesses may issue similar authentication challenges to someone calling in, claiming to be an account representative from a supplier or customer organization.
Three important points about NPI and PII need to be kept in mind:
Legal definitions are imprecise and subject to continuous change. Many different laws, in many jurisdictions, may directly specify what types of information are considered as PII or NPI. Other laws may make broad categorical statements about what is or is not PII or NPI. These laws are updated often and subject to review by the courts in many nations.
Doing business in a jurisdiction does not require physical presence there. If your organization has one customer or supplier in a jurisdiction – possibly even a single prospective such relationship – that government may consider its laws and regulations now apply to you. Ignoring this is a frequent and costly mistake that many businesses make.
Persons include companies and organizations as well as natural people. Businesses and organizations share significant quantities and types of information with each other, much of which they do not wish to have made public. Privacy considerations and the need for information security protections apply here, as well as they do to data about individual people.
It may be safest to treat all data you have about any person you deal with as if it is NPI, unless you can show where it has been made public. You may then need to identify subsets of that NPI, such as health care, education, or PII, as defined by specific laws and regulations, that may need additional protections or may be covered by audit requirements.
Private and Public Places
Part of the concept of privacy is connected to the reasonable expectation that other people can see and hear what you are doing, where you are (or are going), and who might be with you. It's easy to see this in examples: Walking along a sidewalk, you have every reason to think that other people can see you, whether they are out on the sidewalk as well, looking out the windows of their homes, offices, or passing vehicles. The converse is that when out on that public sidewalk, out in the open spaces of the town or city, you have no reason to believe that you are not visible to others. This helps differentiate between public places and private places.
Public places are areas or spaces in which anyone and everyone can see, hear, or notice the presence of other people and observe what they are doing, intentionally or unintentionally. There is little to no degree of control as to who can be in a public place. A city park is a public place.
Private places are areas or spaces in which, by contrast, you as owner (or person responsible for that space) have every reason to believe that you can control who can enter, participate in activities with you (or just be a bystander), observe what you are doing, or hear what you are saying. You choose to share what you do in a private space with the people you choose to allow into that space with you. In law, this is your reasonable expectation of privacy, because it is “your” space; and the people you allow to share that space with you share in that reasonable expectation of privacy.
Your home or residence is perhaps the prime example of what we assume is a private place. Typically, business locations can be considered private in that the owners or managing directors of the business set policies as to whom they will allow into their place of business. Customers might be allowed into the sales floor of a retail establishment but not into the warehouse or service areas, for example. In a business location, however, it is the business owner (or its managing directors) who have the most compelling reasonable expectation of privacy, in law and in practice. Employees, clients, or visitors cannot expect that what they say or do in that business location (or on its IT systems) is private to them and not “in plain sight” to the business. As an employee, you can reasonably expect that your pockets or lunch bag are private to you, but the emails you write or the phone calls you make while on company premises are not necessarily private to you. This is not clear-cut in law or practice, however; courts and legislatures are still working to clarify this.
The pervasive use of the Internet and the web