Preliminary analysis of new Specter-Leahy data security bill: opinions? [priv]

[Declan McCullagh <declan () well com>]

It's worth taking a close look at the new Specter-Leahy security breach 
bill -- introduced Wednesday -- because it's the most comprehensive so 
far and the leading candidate to be enacted into law this year. It's 
even, at least in theory, going to be voted on in the Senate Judiciary 
committee on Thursday:
http://judiciary.senate.gov/meeting_notice.cfm?id=1555

The sections dealing with government use of databases seem generally 
useful (though some loopholes exist, like the requirement that a 
database is "primarily" of Americans before its use is covered -- look 
for the FBI to start inserting random Mexican names to get around the 
"primarily" requirement). So let's look at the private sector components.

Bear with me as we get a little technical here...

Title III of the bill erects a complex regulatory scheme around any 
"data broker." That's defined as a "business entity" that it's in the 
regular business of "collecting, transmitting, or otherwise providing 
personally identifiable information" of 5,000 or more people that are 
not "customers" or "employees." Business entity is defined as any 
organization, including a sole proprietorship, that's in the business of 
making money, or a non-profit group that isn't.

Well, Politech is a sole proprietorship -- I have some Google text ads 
on politechbot.com that make a princely $10-$15 or so a month. If they 
made more I wouldn't complain. And I'm pleased to say that the list 
includes over 5,000 subscribers.

Do I "collect[]" personal information? 18 USC 1028(d)(7) defines that as 
"any name or number that may be used, alone or in conjunction with any 
other information, to identify a specific individual." Mailman gives 
subscribers the option of typing in their name, and obviously I have 
everyone's email addresses. 18 USC 1028(d)(7)(C) explicitly includes any 
"unique electronic identification number, address, or routing code" so 
that seems to cover e-mail.

So that makes me a highly-regulated "data broker" unless I can skate on 
some other technicality. Again, I'm arguably in the business of 
regularly "collecting" information from people are aren't "customers" -- 
you don't buy anything frome me. Let's assume I can't escape the rule 
and continue this walk-through.

If I am indeed a data broker, what must I do?

* "Clearly and accurately" disclose all relevant "personal electronic 
records" (maintained for disclosure to third parties) about an 
individual if he or she asks me.
* "Develop and publish" a set of "procedures for correcting inaccurate 
information."
* Offer to "investigate" "free of charge" any discrepancies.
* Provide an opportunity to insert a "100 word" notice of any dispute.

If I don't, I can be sued and fined $1,000-$2,000 per violation per day.

Title IV of the bill is far more exhausting. Any "business entity" (that 
term again) including a sole proprietorship that collects, accesses, 
transmits, stores, or disposes of personal info in digital form on over 
10,000 U.S. persons must create a "data privacy and security program."

Well, there are over 10,000 Politech subscribers, and that's an even 
broader definition (no requirement that it be limited to non-customers 
or that the involvement be regular). So I'm likely covered. If that 
happens, I must:

* "Implement a comprehensive personal data privacy and security program"
* Create a "risk assessment" to "identify reasonably foreseeable" 
vulnerabilities
* "Assess the likelihood" of security breaches
* "Assess the sufficiency" of my policies to protect against them
* Protect information by encrypting it
* Publish the "terms of such program"
* Do "regular testing of key controls" to test security
* Select only superior "service providers" after doing "due diligence"
* Regularly "monitor, evaluate, and adjust" my security policies

If I don't, I can be fined up to $10,000 a day per violation.

Oh, and there's Title IV Subtitle B. It's pretty much the same 
definition, and requires me to:

* In the case of a security breach of the Politech subscriber list, I 
must notify the U.S. Secret Service and the state attorney general.
* And I must notify individual subscribers
* And I must notify consumer reporting agencies
* For individual subscribers, I must notify via physical mail to home 
address, or if I can't, via telephone call to your home. There's no 
provision for e-mail contact. But if I don't follow that procedures I 
violate the law.
* I also must post this notice publicly on the Web and notify "major 
media outlets"

If I don't follow those rules, I can be fined up to $10,000 a day per 
violation -- and if I "willfully" conceal the security breach, I can be 
fined something like $250,000 and be imprisoned for up to five years.

I recognize that senators Specter and Leahy are trying to target 
ChoicePoint and Acxiom and so on. But their bill, as written, does not 
appear to be written to include just those data warehouses. And given 
that they've had months and (presumbly) very bright people drafting it, 
that makes me worried.

In fact, the definitions could cover, for instance, news organizations 
(many news sites arguably provide personal information on thousands of 
people, and People magazine's Web site certainly does). How about 
popular blogs that have thousands of registered users? Search engines? 
Google's phone number finding service? Libraries? Email service 
providers? Alumni organizations for schools? Charities, like Golden Gate 
National Parks Association? What about universities, especially in terms 
of all the applications they get? Sweepstakes companies? I wonder if 
probable supporters of this bill -- like the ACLU and EPIC -- would 
enjoy having to follow all these complicated procedures (with the 
penalty of fines or prison terms if they don't).

I admit this is just my preliminary reading, but my sense is that these 
requirements will end up being another version of Sarbanes-Oxley, with 
the same destructive, wealth-eroding implications:
http://www.politechbot.com/2005/06/16/richard-rahn-on/

Perhaps I'm wrong. I'd welcome responses (and "don't worry, trust 
prosecutors' discretion" is not a useful one). If I'm right, how much 
harm will be done in the name of "protecting privacy?"

-Declan

---

News article:
http://news.com.com/2100-7348_3-5769156.html

Text of legislation (Leahy's floor statement is below):
http://i.i.com.com/cnwk.1d/pdf/ne/2005/Specter-Leahy.pdf

Additional background material:
http://www.politechbot.com/docs/leahy.floor.statement.062905.txt
http://www.politechbot.com/docs/specter.leahy.sections.062905.doc
http://www.politechbot.com/docs/specter.leahy.summary.062905.doc
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