Privacy Maverick

I read this blog last week titled “Privacy is not Security” and it got me thinking about the relationship between the two fields.  As the author states “Privacy is a whole lot more than security.”  I would like to clarify that statement by saying that security is a necessary but not sufficient component of privacy.  Again, security is required if you are to have privacy but really it’s insufficient to guarantee privacy.  Really, what’s required is a different mindset.

Toll roads have recently come up twice in my reading: first in researching Privacy by Design I came across a description of how to travel anonymously on Canada’s 407 and secondly in a recent article about a lawsuit commenced when the the local toll roads in Florida started asking for all this invasive information to combat counterfeiting of cash in addition to the existing privacy invasive electronic toll system.

The Florida toll system may (and I stress may) have all manner of security precautions on who has access to the data, how it’s stored, when to destroy it, etc. but the fact remains they have a culure that is inherently privacy invasive.  They haven’t even considered how to design their system in a way that is innately protective of privacy. 

I’ll be attending the IAPP KnowledgeNet in Miami next Tuesday.  This KnowledgeNet event will focus on a few topics:

Key points from the FTC Privacy Report issued in December 2010
Understanding the changes in the PCI DSS v2.0
Best practices when performing a privacy assessment
Incorporating MA 201 CMR provisions into your third party due diligence process

I’m really insterested to learn the best practics for privacy assesments, since that’s probably most pertinent to me at the moment.  It’ll also be nice to get my first continuning education credits towards my CIPP.  The good and the bad thing about being a Certified Information Privacy Professional is that they require you to keep abreast of changes in the law to keep the certification active.  Its good because potential employers know that you’re knowledge is not stale. The flip side of the coin, for an idependent privacy professional such as myself, is the expense involved.

I’ll certainly report back any interesting items I learn. 

I just read a blog post about the case of the Maryland Department of Corrections requiring potential employees to turn over their FB username and passwords so the Department could look for possible illegal activity.  The blog didn’t allow comments, so I’m posting my comments on my blog.


The post did make a couple valid points.  The ACLU argument was weak and didn’t really have any justification in the law.  Oh, a quick summary for those too lazy to go read the full post.  As mentioned above the Maryland DOC is pseudo requiring applicants to provide their FB information.  It’s not a definitive requirement for employment, they say, but realistically you’ll probably get passed over if you don’t provide it.  The ACLU made the argument that since applicants did not have a choice, any access made by the department was unauthorized and therefore a violation of the federal Stored Communications Act.


As the post points out, the argument is weak because the applicant can walk away, they have no right to the job and the interaction is entirely voluntary.  The case is distinguishable from the one cited by the ACLU which concerned an existing employment relationship that was in jeopardy if the employee didn’t reveal her username and password. The argument there was the employer did violated the SCA because the threat of losing a job was sufficient to make the employee’s revelation of the username and password unauthorized.  I’m not sure I wholly agree, given the voluntary nature of employment, but there is some principle in employment law (and this may only be state employment) which given employees an expectation of continued employment without due process.


Now this issue has similarly come up recently in my mind when the Florida Board of Bar Examiners considered rules for requiring applicants to the Florida Bar to provide access to their accounts.  Its unclear if that means giving up a username and password, providing authorization to require Facebook to provide the information or just “friending” the Florida Bar with all privacy settings turned off.


Even without regards to the law, the practice seems particularly troublesome in light of a couple of considerations.


1)  Assume for a moment that your Social Media account (I don’t want to pick on Facebook though they are the elephant in the room), is locked down so tight that essentially all you use it for is private messaging friends.  What is the difference between requesting access to those private messages on the social networking site and requesting access to your private email account?
2) If the employer is not prepared to go that route and says it only wants “public information” you’ve posted, how do you distinguish between what’s public and private?  If I only allow 100 friends to read my wall post is that public or private?  10 friends? 1 friend?
3) The FBBE request is seemingly generic.  What if they ask you to list ALL your personal websites?  Are you supposed to give them access to your match.com account?  What if you’ve misstated your height and weight or other information as most people do on dating sites, are they obliged to deny your admission for being less than honest?  Are you supposed to reveal even more, potentially embarrassing, but also irrelevant websites that you’re a member of?
4) Finally what if providing such access is a violation of the site’s Terms of Service?  From Facebook’s ” 4.8 You will not share your password, (or in the case of developers, your secret key), let anyone else access your account, or do anything else that might jeopardize the security of your account.” 




I think employers, or state licensing boards, head down an extremely slippery slope if they start accessing for non-public access to our digital lives.  I’m certainly not suggesting their ought to be a law, we already have too many of those.  I am suggesting that as employees, a line needs to be drawn in the sand.

Well apparently my phone interview didn’t go as well as I thought and they determined my technical skills didn’t match the position.  Onward and upward!  I still think my proposed solution to their password resetting problem was at least mildly innovative.  I certainly haven’t seen any other social networking type sites utilizing a similar system, basically getting your friends to authenticate you.  Granted, it has little application outside social networking sites (though I am brainstorming on a similar implementation for my current employer dealing with initial passwords). 

Finding a job in Privacy is certainly proving more difficult than I expected.  I guess my job constraints are really limiting the market for me.  That’s why I was hopeful about the Border Stylo job because at least in terms of job responsibilities the mix was complementary with my skills. Note to self: next time study up on the standard interview questions. 

It’s interesting that the IAPP report, A Call for Agility: the next-generation privacy professional, seems to reiterate the fact that a combination of legal and technical skills are crucial, that the generation privacy professional is a privacy engineer, utilizing privacy by design to influence organizations across functional lines. 

While there is little debate as to whether privacy professionals ought to have a basic grasp of legal and technical concepts around data privacy and security, experts’ opinions diverged on whether tomorrow’s privacy professional would by necessity need a legal or technical degree. The central role of regulatory and IT drivers shaping the privacy profession almost ensures an ongoing need for privacy professionals to be conversant in not one, but both of these disciplines . . .
Quite simply, if people do embed these types of innovations into their daily lives, a new role may materialize: the privacy engineer. Companies that hope to market their innovations to a public more informed about their privacy risks will need to hire engineers who are also privacy experts. Their task will be to “bake in” privacy to their product designs.

 It does not appear this privacy engineer position has gained much traction.  The vast majority of open privacy  positions I’ve encountered are more geared toward assuring compliance rather than proactive use of privacy as a differentiator.  I’m sure, as the IAPP report suggest, that the role of Privacy Engineer will be more prevalent over the next decade, but it sure isn’t the status quo yet.

Morrison & Foerster recently released this summary of the legal issues surrounding Privacy in the Cloud. 

The summary suggest, as I always encourage, that organizations should encrypt their data before uploading it the cloud.  (See my post on doing this with RackSpace file hosting).  Of course, this may not always be possible when utlizing SaaS (Software as a Service) because the software may need raw access to your data to perform necessary functions.  My primary word of advise is don’t take companies word on what they can deliver in terms of data protection and security: test, test and retest. 

H/T: Next Practices

I had an interview with an interesting company yesterday, Border Stylo. They have two products currently, both social networking applications: Write on Glass and Retrollect (a mobile app).  During the interview (for their Privacy Architect position) the question arose of how to secure password retrieval.  In a subsequent letter to their VP of Engineering, I proposed a solution which I include below.

The criteria are as follow:

• The company doesn’t store the password in plaintext and therefore can’t retrieve it directly.  
• The company doesn’t want to collect extraneous information (such as a person’s elementary school), choosing instead to minimize information collected to the absolute minimum.  This policy precludes a series of “security” questions which are often present those needing to reset passwords. [The security risk in this approach is that an attacker with access to details about a person could emulate that person’s response].
• The company doesn’t want to send an email with a link to reset the password.  [This common method also runs the risk of a compromised email account being used to compromise the users account on this system].

I’m in the process of implementing a fax solution for a customer that involves storing the faxes in a cloud based solution.  Its fairly simple but here is basically what I’m doing (using ColdFusion).

A fax is received at the customer’s eFax #.  eFax converts the facsimile to a PDF and parses out any information encoded as a barcode in the fax (a handy way of automating which faxes go to which queues in their application).  eFax then post fax via an ssl xml post to the customer’s web server.

The web server parses the XML and extracts the relevant meta information (phone number, bar code data, etc).  It then makes an entry of this information into a database for later retrieval.  The unique key that the database generates is concatenated with a hard-coded password to encrypt the actual file contents (the raw PDF).

Those file contents are, in turn, uploaded to a cloud file hosting with Rack Space Cloud.  The file name is the unique identifier associated with the eFax the customer received.  In other words, someone must have access to our database table with the eFax unique id and our primary key in order to find a file related to a particular customer and decrypt that file (they also have to have our hard-coded password).

Now granted, this isn’t rocket science and anybody (namely us) who has access to the code and the database could decrypt all the files but the files aren’t a high security risk.  They most sensitive data is credit card information on some of the faxes which are order forms but those are meant to be viewed by us (to process the orders).

Some of the confusion surrounding the term privacy lies in the definition of private.  Private and public an antonyms.  Whereas private mean secure, unreleased, secret, and hidden, public means shared, open, visible, and available.

By contrast, privacy is, as has been discussed in the previous two posts, about the decision making process, the understanding of parties and their expectation as to whether information should remain private or be shared, open and publicy.  Privacy is information about the transformation of the state of information from private to public. 

Alan Westin’s definition of privacy, as outlined in my last post, is that “Privacy is the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.”


That claim can come from multiple sources: a legal regime, a contract, a written privacy statement, a standard industry practice, a custom or a social norm.  It is the last of the sources, unwritten customs or social norms, that lay the foundation for the “expectation” of privacy.  While a written law, contract or statement will clarify the roles and responsibilities of the subject and possessor of the information, the expectation lies in the subject’s belief that a certain social norm governs the actions of the possessor. 


[NOTE: I often use the term subject to refer to the individual or group about whom the information relates and possessor refers to the holder of the information who is contemplating transferring information to a third party.  Possessor can loosely be used, also, to a potential possessor who is contemplating coming into possession of the information in question.]


“Expectation of privacy” is synonymous, in the US, with the 4th Amendment, where one is guaranteed a right to be free from unwarranted invasion of ones “person, houses, papers and effects.”  The purposefully vague language had lead courts to adopt the “reasonable expectation of privacy” standard deferring essentially to ones’ expectation that the government adhere to custom or social norm.   Clearly, tensions arise when there are no customs or social norms or those social norms are in flux or when courts have to analogize to established norms.  See Warshak v. US 6th Circuit 12-14-2010 (stating that there is a reasonable expectation of privacy in email because of its similarity to postal mail and telephonic conversations).  

I’d like to start this blog with a little primer on the term privacy.  Most people conflate privacy with the notion of hiding something or secrecy.  However, Alan Westin is his seminal work  Privacy and Freedom (1967) said it succinctly “Privacy is the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.” In other words, privacy is about autonomous decision making.  Respecting privacy is about respecting and complying with the decisions individuals make about the information about them without regard to the nature of the information.


Understanding this distinction is paramount to understanding privacy.  No matter how insignificant, no matter how negligible the consequences, the fact that one ignores or acts contrary to the wishes of the subject of the information is the violation.  It is the defiant act itself, not the consequences of shame, embarrassment, identity theft, etc. that define a violation of privacy.

Perhaps an example is in order.  Consider a lady at a dinner party who whispers, in confidence, her birthday.  The recipient then announces to the party that Ms. X was born in 1950. Clearly most are aghast at the revelation of such personal information. What if the recipient had merely announced that Ms. X was born in August?  No longer is there social stigmatization attached to the information, as there is with revealing a lady’s age.  The lady, the subject of the information, may not be as ashamed of the revelation but just as great a violation has occurred.  The recipient of the information violated her trust as well as the unwritten agreement they had.  Now, there may be other social norms or agreements at play between the giver and the receiver of the information but in the simple scenario, no matter what information is released, the further release of information by the recipient failed to adhere to the complete understanding of the parties.