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What you need to know
- Cyber security is becoming an increasingly large concern for businesses of all types, but particularly for those in the healthcare sector since health information is sensitive.
- The proportion of data breaches that result from 'inside jobs' is troublingly high, reinforcing the need for businesses in the healthcare sector to ensure they protect health information from both the inside and out.
- We outline some of the steps that businesses can take to guard against inside jobs, and briefly discuss the transition we will soon see in Australia towards a mandatory notification regime for breaches that do occur.
Data breach. It is a term that has lately been dominating headlines, and an issue that both government and business minds have been examining with sharper-than-ever focus.
Senior managers and legal counsel within any business would rightly shudder at the thought of a data breach happening under their guard. The stakes are especially high for businesses in the healthcare sector, as health information is sensitive personal information that must be managed in accordance with an especially strict privacy regime.
The proportion of 'inside job' security breaches is surprisingly high, highlighting the need for those in the healthcare sector to ensure they are taking appropriate steps to protect sensitive information from both external and internal threats. We explore some of the measures that can be implemented to protect health information and guard against 'inside jobs', and explain the changes we will soon see to the process that must be followed if and when a breach does occur.
Understanding the appeal of health information
Medical records contain a wealth of information that can be used for identity theft and fraud, and carry a higher value on the black market than credit card information. It is therefore not surprising that those records are often the subject of targeted attacks or leaks.
In the US, 100 million health records were accessed by hackers in 2015. In the case of health insurance company Anthem, a breach of its database resulted in the exposure of sensitive information (including names, social security numbers and dates of birth) of over 78 million people who had been enrolled in its insurance plans since 2004. Investigators believe that the hackers had been operating within the company's network for months, gaining access by use of phishing emails sent to employees and disguised to look like internal messages. Anthem is now facing a class action in which it is alleged that (amongst other things) the company failed to implement systems to monitor data usage and extractions, and allowed employees to access personal information beyond the scope of their job requirements.
The take out message from the Anthem scenario is clear. Interconnectivity of data in healthcare holds huge promise for improving health outcomes, but can also create significant risks to the security of health information through factors such as the adoption of digital patient records through the eHealth system, the ease of distributing health information electronically (through emails, USBs and the like) and the increasing sophistication of cyberattacks. Ensuring proper protection of health information is a critical concern for the business of healthcare providers.
What do businesses have to do to protect health information?
Comply with Australian Privacy Principles
The Privacy Act 1988 (Cth), and in particular Australian Privacy Principle (APP) 11, requires entities to take reasonable steps to secure personal information they hold from misuse, interference and loss, and from unauthorised access, modification or disclosure.
The Australian Information Commissioner (OAIC) has issued a 'Guide to securing personal information' which considers steps and strategies for protecting personal information, covering areas including:
- governance culture and training
- internal practices, procedures and systems
- ICT, access and physical security
- third party providers
- destruction and de-identification and standards.
The steps and strategies canvassed in the OAIC's guide are not exhaustive or prescriptive. Healthcare providers should carefully and continually review their security measures, and adapt and modify their strategies to suit their particular circumstances especially during times of change for the business.
Proactively guard against 'inside jobs'
While cyberattacks by outsiders pose a significant threat to the security of health data, data breaches are often inside jobs. Despite the term 'inside job' being one that suggests there is some degree of intent or malice involved, this is often not the case. Inside jobs can arise from accidental or inadvertent conduct such as:
- leaving an unencrypted USB in a taxi
- opening a suspicious email from an unknown source
- opening a seemingly harmless email from a colleague that is in fact a phishing email in disguise (as was the case for Anthem)
- downloading confidential data over an unsecured network while working off-site.
Healthcare providers should adopt a holistic cyber security strategy which not only manages the risk of an external attack, but also aims to prevent internal data breaches arising from the negligent or malicious acts of staff.
In particular, healthcare providers should take the following steps.
1. Establish clear cyber security guidelines and provide regular training to employees
Ensuring employees have a high level of cyber security awareness both in the office and when working off-site is critical. In particular, employees should be trained on how to identify and respond to incidents which could comprise the integrity of the network or the security of the data they have access to. Importantly, policies should place a positive obligation on employees to report suspected data breaches and clearly outline the consequences for failing to report an incident which caused or could have caused a breach.
2. Recognise that portable and BYO devices are part of the broader network
With the increasing reliance on mobile devices and the growth of remote work, security controls need to shift from a focus on the traditional network to the device itself. Employees should be required to encrypt all portable devices used for work, including USBs, laptops and mobile phones, and immediately report lost or stolen devices. As employees increasingly use their own personal devices for work, policies should be in place to allow the employer to remotely wipe the data on an employee's personal device in the event of loss or theft.
3. Conduct ongoing surveillance
Healthcare providers should regularly monitor employee behaviour on the broader network, in accordance with any applicable workplace surveillance laws, to detect suspicious or unusual behaviour which may warrant further investigation or a disciplinary response.
4. Manage the risk of deliberate breaches by departing or disgruntled employees
A recent case involving a BlueScope Steel employee who allegedly downloaded 40 gigabytes of sensitive company data a few hours before she was made redundant highlights the need for healthcare providers to adopt more stringent measures to monitor and place controls over an employee's access to the IT system when the employment relationship is strained or drawing to an end. In most cases it will be appropriate to immediately revoke an employee's access to the network once notice of termination is given. In all other cases, such as when an employee's termination is imminent or they are working through their notice period, management should determine the best way to stagger the revocation of access over the employee's remaining days of employment in light of the sensitivity of the information to which they have access.
What if the security of health information is breached?
Currently, mandatory data breach notification is only required in the event of unauthorised access to eHealth information in the My Health Records (formerly Personal Controlled Electronic Health Records, or PCEHR) system.
Otherwise, organisations are not required to make any notification after a data breach, though the OAIC administers a voluntary data breach notification scheme.
This situation is about to change.
The Federal Government recently released a discussion paper and an exposure draft of the Privacy Amendment (Notification of Serious Data Breaches) Bill 2015 for public consultation. Submissions in response closed on 4 March 2016. The Government will now consider the submissions in preparing a final draft Bill to present before Parliament.
The proposed Bill will amend the Privacy Act to require entities bound by the Privacy Act to notify the Australian Information Commissioner and affected individuals of serious data breaches. Importantly:
- the notification requirement applies where there are 'reasonable grounds' to believe that a 'serious data breach' has occurred
- a breach is 'serious' if it gives rise to a 'real risk of serious harm' to the affected individual
- 'harm' includes physical, psychological, emotional, reputational, economic and financial harm, as well as harm to reputation.
In the event of a failure to notify a serious data breach, the OAIC will be entitled to exercise its enforcement powers, including imposing civil penalties of up to $1.8 million.
Importantly for health services providers, the Bill also provides that the Government may prescribe specific categories of data that automatically trigger the notification requirement even if the threshold of a real risk of harm is not reached. The Explanatory Memorandum contemplates that this power might be used to protect "particularly sensitive information such as health records". It is likely that in the near future healthcare providers will be required to report compromises to the security of health information to the OAIC and affected individuals.
- Taking proactive steps to guard against 'inside jobs' is critical, and every person with the potential to play a role in a breach (whether accidental or intentional) should be made well aware of their full obligations and responsibilities with respect to cyber security.
- Businesses should ensure they are entitled and empowered to take whatever steps necessary to prevent and deal with inside jobs, which might include wiping data from personal devices that have been misplaced.
- Those businesses required to comply with the Privacy Act should keep a close eye on developments relating to the introduction of a mandatory data breach notification regime, to ensure they are adequately prepared when the foreshadowed changes take effect.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.