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"Embedding Privacy in Federal Information Systems"

"Embedding Privacy in Federal Information Systems". Professor Peter P. Swire Ohio State University Consultant, Morrison & Foerster LLP MITRE Corp. Workshop March 27, 2003. Overview. Agency privacy before 2001 E-Government Act of 2002 Beyond E-Gov Total Information Awareness

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"Embedding Privacy in Federal Information Systems"

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  1. "Embedding Privacy in Federal Information Systems" Professor Peter P. Swire Ohio State University Consultant, Morrison & Foerster LLP MITRE Corp. Workshop March 27, 2003

  2. Overview • Agency privacy before 2001 • E-Government Act of 2002 • Beyond E-Gov • Total Information Awareness • Conclusions on security and privacy

  3. I. Government Systems Thru 2000 • Privacy Act of 1974 • “System of Records” • Notice, consent, access, reasonable administrative and technical measures • OMB Guidance

  4. Limits of the Privacy Act • Only applies to “systems of records” • Not, e.g., to queries of commercial databases • Large “routine uses” • Uneven compliance

  5. 1999 Web Policies • OMB Directive from Jack Lew June, 1999 • June 2, 1999, OMB M-99-18 • Available at www.privacy2000.org, under “Presidential Privacy Archives” • Guidance and model language for federal sites

  6. 1999 OMB Policy • Principal agency web sites • “Known, major entry points” • “Substantial collection of personal information”

  7. 2000 OMB Cookies Policy • Issued June 22, 2000, OMB M-00-13 • Reaction to cookies set for the National Office of Drug Control Policy • Cookies need • Clear and conspicuous notice • Compelling need to gather the data • Publicly disclosed safeguards • Personal approval by the agency head

  8. 2000 OMB Guidance • Agencies should comply with requirements of Children’s Online Privacy Protection Act • Description of privacy practices and steps for compliance on cookies incorporated into annual submission to OMB for IT budgets • OMB/OIRA has sent out guidance for annual budget submissions

  9. II. E-Government Act of 2002 • Spotlight on Privacy Impact Assessments • PIAs before the Act • IRS PIA adopted as best practice by Federal CIO Council • CIO Council encouraged wider use • Only moderate adoption in the agencies • CIO Council subcommittee on privacy did not continue after January, 2001

  10. PIAs under the E-Gov Act • PIA required where “developing or procuring IT that collects, maintains, or disseminates information that is in identifiable form” • Also “new collection of information” that includes information collected from federal reporting requirements affecting 10+ people (Paperwork Reduction Act extension)

  11. PIAs • Review by agency CIO or equivalent official • “If practicable”, after completion of the review, publish the PIA • That can be waived “for security reasons, or to protect classified, sensitive, or private information” • Copy to OMB

  12. Contents of the PIA • OMB to issue guidance • Perhaps this April or May • PIAs to be commensurate with • size of IT system • sensitivity of information • risk of harm from unauthorized release

  13. Contents of PIA • PIA should include • what information is to be collected • why information is to be collected • intended use of the information • with whom the information is shared • notice or consent for individuals • how information is secured • whether it is a system of records

  14. Other E-Gov Provisions • Statutory version of OMB 1999 guidance for privacy policies on agency web pages • More detail on notice, choice, access, security • Privacy policies in machine-readable formats • OMB guidance • P3P the likely current use • “Identifiable” permits the identity “to be reasonably inferred”, directly or indirectly

  15. III. Beyond E-Gov • HIPAA and federal agencies • Privacy rule this April 14 • Transaction rule this October • Security rule in 2 years, and also by April 14 • What agencies? • VA, DOD, other federal/state health providers • Research on human subjects • Federal/state health insurance • Business associates -- receive data from others

  16. Court Records and Privacy • OMB/DOJ/Treasury study in Jan. 2001 on bankruptcy records and privacy • SEARCH and criminal records • PACER and court records as a current major debate

  17. IV. Total Information Awareness • Surveillance after September 11 • Wiretap/surveillance changes in USA-PATRIOT Act • Philosophy of “information sharing” • Among agencies • Between federal and state/local

  18. TIA • Does not look like “embedding privacy in federal information systems” • Contrasting trends • Embedding privacy • Increasing surveillance (data gathering) and data sharing

  19. Conclusion • Will need to build federal systems better for security and privacy • They work together on the level of good data practices • They can work against each other with surveillance and data sharing proposals • Not clear how the cross-currents will change practices in coming years

  20. Contact information • Professor Peter Swire • www.peterswire.net • peter@peterswire.net • (240) 994-4142

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