Australia: Cyber security and the risk of inside jobs in the healthcare sector

Services: Corporate & Commercial, Dispute Resolution & Litigation, Intellectual Property & Technology, People & Workplace
Industry Focus: Life Sciences & Healthcare

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.

Key takeaways

  • 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.

This article is intended to provide commentary and general information. It should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this article. Authors listed may not be admitted in all states and territories

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Mei-Lim Smith
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions