Avoid a Legal 500 Error. Debug your privacy policy.

Legal Programming

By Aaron Titus

I’m an awesome programmer. The only thing keeping me from Python, PHP, or Ruby coding awesomeness is knowledge… and skill… and training… and, um practice. OK, I may not be a Ruby all-star, but I could be if I wanted to. Likewise, you can do anything for yourself that an attorney can do for you, including writing legal documents. Lawyers just happen to have knowledge, skill, and training. And if I wanted an iPhone app, I’d talk to a programmer. If I wanted legal documents, I’d talk to a lawyer.

In fact, lawyers are programmers. Writing legal documents—like privacy policies—is just like writing code.

Imagine that your boss tells you, “I need a widget. I’m sure other people in the open source community have done similar things. Just go grab some code and slap it together by the end of the day.” Of course, that’s crazy. You can’t just slap code together. In what language is the code written? Will it play well with existing code? How complete is the API? What are the requirements? What about security? What about debugging?

Yet this is exactly how we treat privacy policies. We go grab some “open source” or “boilerplate” privacy policy, slap it together with a boilerplate Terms of Service, and think we’re good to go. But unlike poorly-written code which will cause an error as soon as it is compiled, you won’t know whether you’ve created a Legal 500 error for months or years—long after it’s too late to fix.

Privacy Policy Principles

The purposes of a privacy policy are to: 1. Help inform and train your employees about your privacy practices, 2. Inform your customers about your privacy practices, and 3. Avoid liability and FTC action. As I explained previously, adhering to the following principles will allow you to accomplish all three goals:

• Be Honest. Your mamma was right: Honesty is the best (privacy) policy.
  • Don’t Over-Promise. Statements like “privacy is our top priority” may be enforced by the FTC as a privacy promise. Don’t box yourself into a corner.
  • Don’t Under-Promise. Under-promising can violate regulations and more importantly, scare off customers.
  • Tell the Whole Truth. Failure to talk about less-desirable privacy practices may be a misleading business practice.
• Be Complete and Conspicuous.
• Adapt to Changing Business Practices. A privacy policy which was accurate six months ago may not be today.
• Get it Right the First Time. Allowing yourself room to change will save headaches long-term, as material changes to privacy policies require additional consent.
• If you Say it, Do it. Generally no magic words are required in privacy policies. The best approach to avoid liability is to stick to your policy.
• It’s Your Business. As an executive, it’s your responsibility to make sure that your privacy policy is accurate and complete.

Custom Programming Your Privacy Policy

Nobody, especially the legislature, has solved your problems for you. If you create an innovative product or service, then it will raise new questions of law, ethics, and privacy which have never been asked or answered. You can’t expect that somebody else’s recycled privacy policy will meet your needs, any more than you can expect that recycling old code will yield innovation. Imagine for a moment that you have just developed an iPhone app. The app communicates with a smart scale using Bluetooth technology, then interfaces with the Google Health API to transfer a user’s weight history to the Weight Watchers website, then optionally posts the summarized results of the user’s weight loss to his Facebook page and Twitter account. Which of the following is true:

1. You can adopt HIPPA as your privacy policy. HIPPA privacy rules apply.
2. The FTC is interested in your privacy policy and practices.
3. You can later use the weight & contact information to market your next iPhone app, “Smart Dieter.”

The answers may surprise you:

1. False on both accounts: 1. HIPPA is not a privacy policy. Nobody, especially Congress has written your privacy policy for you. 2. Your customers are not protected by HIPPA regulations, because they probably don’t apply to you.
2. True. The FTC is always interested in your privacy policies and practices, and even passing assurances of privacy like “Privacy is our Number 1 Priority” may be enforced as a privacy promise.
3. Probably Not. Unless you have written a clear privacy policy that puts your customers on notice, you may be prohibited from reusing their personal information for any reason, even if they would have consented to such a use.

Your privacy policy must reflect your unique business processes, your unique business model, and your unique user needs. If you think that Congress (or anybody, for that matter) have answered the new questions of privacy raised by your iPhone app, then I have a bridge in Brooklyn I’d like to sell you. Even if HIPPA privacy regulations applied (which they don’t), I can guarantee that they were not written with your app in mind. Likewise, if you are doing anything truly innovative, any canned privacy will fail to meet your needs.

Boilerplate legal documents can get people and companies in trouble. Although sometimes there are magic words from a statute or regulation that should be quoted to order to protect your rights, most boilerplate is not magic—it’s lazy. Lawyers do a lot of legal debugging, because improper boilerplate language can be downright harmful. Unless you do your own legal programming to meet your individual needs, you are sure to accidentally waive a right, break the law, incur the ire of the FTC, or create a contradiction and cause a “Legal 500 Error.”

A Living Document

Because technology, business needs, and information demands constantly change, you must consistently update your privacy policy to reflect those changes. Fortunately, privacy policies are extremely flexible documents, with very few formal legal language or “magic words” requirements, so updating them is easy… if you remember to do it. CEOs often find that adapting a business plan to changing market conditions is time-consuming, and privacy policies can fall by the way side.

Before you update your privacy policy, though, keep in mind that there may be consequences to making material changes. When you revise a policy, information collected under the former policy must still be treated according to the terms of the original Privacy Policy, unless you get some sort of assent from your customers, or face the potential ire of the FTC. It is always better to get it right the first time.

Take Charge

As an executive, do these three things:

1. Read Your Privacy Policy. First, do you understand what the policy means? Second, how does the privacy policy translate to concrete business practices in each of your departments? Third, does the policy match actual practice? Fourth, what is missing from your privacy policy that a reasonable customer would want to know about? Fifth, what changes must you make to your business practices (or the privacy policy) to make them the same?
2. Regularly Update Your Privacy Policy. Many companies have internal processes to regularly review and update business plans, department objectives, security, and compliance. Make sure that your privacy policy is on your list of documents to review.
3. Do a Privacy Policy Legal Review. Avoid a “Legal 500 Error” by making sure that your privacy policy is complete and compliant.

Is Cloud Computing right for your business?

Cloud Computing.

Is it right for you? Sure.

Is it right for your business? <crickets>

By now, many have adopted a “cloud”-based service for personal use (sometimes without even realizing it). The definition of “cloud” can be a bit fuzzy at times, but to keep it simple: it’s a service provided over the Internet (“the big cloud”). This cloud includes services (from “smaller clouds”) from providers that offer hosted email, backups, document editing, picture sharing, and even password storage.

By linking all of the “clouds” together via fancy software (running on our desktop or elsewhere), our computing experience is much more fulfilling (and certainly more complex).

Given the vagueness of the definition, we can all rest assured that we are on the cutting edge by using “clouds” for our personal productivity.

But, when will “the cloud” be adopted and considered mainstream by the small, medium, and enterprise businesses of the world?

Three reasons businesses choose the cloud

The business reasons cited for using “the cloud” are likely one or more of the following:

1. Lack of time or expertise (including security) to build and maintain an in-house solution.

2. Seeking the advantage/speed of new features that are released quickly.

3. It’s cheap (either free, or subscription fees).

Beyond simple points, consider the depth and complexity of each.

Software technology can be complex to learn, install (correctly), and run (correctly). It only takes one mistake to reinforce the fact that essential tasks — such as patching, backup and restore, and monitoring — are expensive and time consuming.

With a finite amount of time and resources, many chose to focus on the business and leave the technical challenges to someone else (the cloud provider).

At the end of the day, this boils down to ensuring the service is running with the right features to drive a fulfilling and non-frustrating computing experience.

Can the cloud be more secure?

Many security breaches are due to improper configuration and lax administration and maintenance.

These issues can be pushed into the providers hands, who can manage “low level infrastructure issues” in a cost-efficient way through economies of scale. When a security defect is discovered, it’s likely the provider can quickly patch all of the instances of the software, and centrally determine if the defect had any consequence (i.e. it was used to compromise data).

If additional security is desired, additional security controls can be applied – matched to the value of the information. For example, organizations concerned about protecting the privacy of their data may choose to encrypt it before backing it up into a cloud-based solution.  The encryption will cost some additional CPU time, and add a bit more complexity to the restoration process.  However, it’s a cost that that can be readily accepted.

The Cloud – Personal

At a personal level, “the cloud” allows a consumer to do more with less, and allocate valuable time and money in other ways.

Individuals sitting on the sidelines — who don’t trust the cloud — will dwindle over time as reasonable mitigations are developed to alleviate concerns. For example, many online backup providers offer the ability to encrypt data with keys that are unknown to them (thus partially alleviating the concern that the provider’s employees can view data stored by its customers. I say partially because you still need to trust that the software is doing what they say!).

New services (such as Lastpass) are emerging to protect the most secret of our secret information (passwords).  A few years ago, I couldn’t imagine that such a service would be widely adopted.  However, now, it seems to be trickling into the “essential software” list of well-respected technologists.

The Cloud – Business

It’s a bit different at the business level.

Many businesses today are sitting on the cloud sidelines. This is because using the cloud for business purposes isn’t quite mainstream. From an architectural perspective, there are questions pertaining to the performance and manageability of cloud-based resources, and if the focus should be on “private clouds” (locally hosted resources that use similar patterns and practices related to cloud computing) rather then “public clouds.”

IT shops, who for the last 10 years have been fighting patch management, auditing, and other security issues, need time to understand if the cloud can meet the dizzying array of requirements that have emerged from the “post-9/11 security boom.”

Is the cloud right for business?

So, is “the cloud” right for your business? This is a serious decision – one that could cost a business its reputation. Thus, it has to be answered with clear conviction rather than the typical illusion associated with security.

Here’s a start: ask these three questions and discuss the answers with your team – including your security pros – to start to find out:

1 – What regulations is the business subject to? What operational principles and policies does the business have?  Can the cloud provider provide an adequate level of support? If not, can deficiencies be mitigated?

2 – Does the cloud provider offer security controls that allow an adequate level of protection?  If not, can deficiencies be mitigated?

3 – Does the cloud provider offer a level of operational transparency, so appropriate metrics and logs can be used for monitoring and reporting?

About Craig Nelson

Craig Nelson works at Microsoft, and is the host of the Cloud404 Blog (http://blog.cloud404.com).  His expertise and education is in incident response, computer forensics, and security architecture.

Privacy Policies and Practices are like Ying and Yang. Image under license from stock.xchange.

Writing a privacy policy is a careful balance: Being realistic about what you can perform, protecting and instilling confidence in your customers, facilitating business growth and adaptation, complying with law, and above all, being honest.

Your privacy policy and security practices are the subject of federal, state and international laws, as well as FTC regulation. The FTC regulates unfair and deceptive consumer practices, and has a history of privacy policy enforcement actions. In fact, it is currently hosting a series of “Privacy Roundtable” discussions, focusing on behavioral advertising, social networking, mobile marketing, data aggregation and correlation, data brokering, cloud computing, and other now-common practices.

With increasing scrutiny on privacy policies and practices, here are six things every CEO should know about their company’s privacy policy.

Be Honest

Your mamma was right: Honesty is the best (privacy) policy. Be up front about what you do (or may do in the future) with your customer’s personal information. Many privacy policies make one of three “honesty” mistakes: 1. Over-Promising, 2. Under-Promising, 3. Omission. Each carries liability, so it is better to avoid any of the three.

Don’t over-promise. Your company may be held responsible for the representations in your privacy policy. Look out for phrases like “state-of-the-art,” “everything in our power,” or “our highest priority.” If your company really does use “state-of-the-art” technology to protect privacy, good for you. But you probably don’t, so be honest about it. While you may think that such phrases are just feel-good fluff, the FTC has brought actions against companies who fail to provide the state-of-the-art consumer protections they promised, even though they used otherwise reasonable practices.

Don’t under-promise. FTC guidelines and many state laws require that your company takes reasonable and appropriate measures on a case-by-case basis. It may be tempting to try and disclaim all duties to protect your customers, especially if you’ve had a breach. But this approach has pitfalls. First, it is impossible to disclaim all duties to your customers’ privacy. Second, you may scare away potential customers, or invite scrutiny (as Facebook well knows). Third, FTC actions have indicated that businesses cannot take a “wait-and-see” approach to consumer privacy. Instead, companies have a duty to act reasonably and detect problems before they cause loss, particularly if the they have made privacy promises to their employees or customers.

Tell the whole truth. Another temptation is to remain conveniently silent on a privacy issue you’d rather not talk about. This is also a risky strategy, because state laws (such as California, Texas, and soon-to-be Massachusetts, to name a few) impose specific disclosure requirements. Whether or not required by law, failure to disclose important privacy practices can spark FTC enforcement action as a deceptive consumer practice.

Be Complete & Conspicuous

Aside from potential FTC action, California law requires any company which holds personal information about a Californian to identify the types of information it collects about customers, explain how the consumer may change or update the personal information, and identify an effective date. The law also imposes an affirmative duty to disclose whether information will be disclosed to third parties for marketing purposes. California law also requires that a link to your company’s privacy policy be conspicuous. Most of the time, a link from the home page or in the footer will be sufficient.

A privacy policy is legally compliant when it addresses all of the various legal and regulatory requirements, but it is only complete when it addresses the full range of your unique business practices. For some organizations, that may be broader than you think. For example, a typical University engages in educational, financial, healthcare, network provider, non-profit, and goods and services activities on behalf of their students. That’s why there can be no such thing as a “boilerplate” privacy policy.

Privacy Policy Must Reflect (Changing) Practices

Like Ying and Yang, privacy Policy and Practice are complementary and inseparable. One consistent pattern of FTC actions is that updated information security practices are necessary to protect consumers’ privacy. As FTC guidelines indicate, “Good security is an ongoing process of assessing risks and vulnerabilities… Your business practices and privacy policy must be consistently updated to reflect current best practices and available technology.”

Get it Right the First Time

Even though your privacy policy must adapt to changing business needs, privacy policies cannot be retroactively modified. This issue is important in the following scenario: Suppose that your company decides it wants to sell customer personal information to marketers, but your privacy policy states that personal information “will not be shared with third parties without [customers'] explicit consent.” Changing the policy to allow you to sell personal information may apply prospectively, but new policy provisions will not apply to existing customers, without their consent. This can even apply to a transfer of personal information in a bankruptcy proceeding.

That’s why it’s important to get it right the first time. Your company’s privacy policy must allow you enough wiggle-room to adapt to future conditions, be complete, and still protect your customers. If you need to materially change your policy, make sure that you have the infrastructure to determine which version of your policy applies to which customer. It matters.

If You Say it, Do it

We’re all familiar with the Miranda phrase, “anything you say can and will be used against you …” by the FTC. If you make a representation in your privacy or security policy, you’d better be able to live up to it. FTC enforcement actions demonstrate that website owners must adhere to any statements of privacy or security, whether the statement is made online or offline.

Each representation about privacy or security is treated as a “privacy promise.” Feel-good marketing fluff does not belong in a privacy policy, because even “fluff” can create duties or liability, even if the duty is not required by law. Explicit security-related promises (such as a promise to use “state-of-the-art technology”) requires that the company take affirmative and ongoing steps to ensure that sufficient security is provided.

For example, in 2004 Gateway Learning Corp found itself the target of an FTC Deceptive Practice enforcement action for renting its customer list to marketers, even though their privacy policy said they wouldn’t. In recent years the FTC has taken similar action against Eli Lilly & Co., Microsoft, Guess, Inc., Tower Records, and Petco.com to name a few.

If your privacy policy says it, then do it.

It’s Your Business

As a soon-to-be attorney, I can say * that you should have a lawyer review your privacy policy. Lawyers help the privacy policy comply with legal and regulatory requirements, but it’s your responsibility to make sure that the policy is complete. In fact, I would go so far as to say that 30% of a privacy policy is compliance, and the other 70% is completeness.

If those numbers are any indication, they mean that your privacy policy should have 70% of its input from the Customer Service Department, the Accounting Department, Sales, Marketing, and perhaps even R&D. Without their feedback it will be impossible to document your important privacy practices and create a complete privacy policy. Privacy policies are not legalese and magic words. They are a blueprint of vital business processes. There is one sure way to get in trouble: Relegate your privacy policy to the legal department, and fail to get cross-departmental participation in its drafting. Banishing your privacy policy just to the lawyers may get you in trouble because the end result may be compliant, but incomplete And ironically, an incomplete privacy policy is a non-compliant policy.

Take Charge

As a CEO, COO, or Managing Director, you should do three things:

1. First, read your privacy and security policy. If it confuses you, it will confuse your customers. If it confuses your customers, it might be interpreted as deceptive by the FTC.
2. Second, make sure you can live up to your privacy policy. Watch out for buzzwords like “state-of-the-art,” “everything within our power,” “always,” and “never.” Make sure that you haven’t painted yourself, your customers, or your employees into a corner.
3. Third, update your privacy policy to reflect your business practices, or update your business practices to match your policy. Being honest and complete about your business practices is tough work, but will pay dividends long-term.

* No bias, and a healthy dose of sarcasm. In this case the author wishes to think of his opinion on the lawyers as an expert opinion rather than a biased one. In the author’s experience, there is occasionally little difference between “expert” and “biased” opinions.

Background:
A few months ago, Microsoft released (and silently installed through Windows Update) a .NET Framework Assistant add-on for the Firefox web browser. Microsoft installed this add-on to Firefox without warning the user that the add-on would be installed as part of the .NET Framework 3.5 Service Pack 1. Security professionals, bloggers, users in general all over the Internet were in an uproar over Microsoft’s activities. Propel forward a few months, and Mozilla proactively disables two Microsoft-installed add-ons; one of them is the infamous .NET FA add-on. Following some discussions with Microsoft, Mozilla later selected to unblock the .NET FA, but continued to block the .NET Windows Presentation Foundation add-on.

Situation:
The browser is rapidly becoming the “new” OS, and add-ons are the “new” applications. This is the new computer model. The momentum is moving toward SaaS, IaaS, PaaS and other cloud computing acronyms. The impact this is having is such that our browsers are acting more and more like Operating Systems.

If we look back and remember how networking has evolved over the years, we will notice a pattern.  Many years ago, networking emerged from thin clients, then it advanced to thick clients and now we are going back to thin clients. The browser is the new thin client. It’s essentially the new OS. It isn’t a coincidence that Google’s new OS is called Chrome OS. Or is it? Can anyone say: “Firefox patch Tuesday”? I think we may have witnessed the first Firefox patch push.

When Mozilla decided to proactively block two Microsoft add-ons, the result of this action was effectively the same as patching a vulnerability (automatic updates). The reason these two distinct actions are similar is because the results are the same; they both prevent, fix, or block a vulnerability from an exploit. The block imposed by Mozilla impacted every instance of Firefox automatically, without user interaction.

What’s even more disturbing with this model is its ability to completely bypass many perimeter defences. This cloaking behaviour is a huge blow for the security of our networks. It’s giving a transporter to our adversaries to infiltrate our networks. Once inside our browsers, this enemy fundamentally becomes a virtual insider on our networks. It turns our users into allies and uses tactics that are very effective and easy to deploy: Tricks like social engineering, spear phishing, SPAM and emails with various types of specially-crafted attachments, etc.

We must protect and educate our greatest asset, which is coincidentally also our weakest link: The user. Vulnerabilities such as XSS, XSF, drive-by downloads, etc. are almost always triggered by trusted, authenticated and authorized users on the network.

Conclusion:
I just touched on this subject, but I believe a general awareness strategy will have to play an important role in the future. The bad guys will keep winning as long as they are the only ones reaching out to our users. We must positively reach out to users or they will keep getting tricked into doing things against us (and themselves).

“Unconferences” (hat tip to identitywoman) are great opportunities to network, gather and share information.  They attract bleeding-edge leaders on emerging problems and technologies. My most recent unconference was Congress Camp 2009, organized by the Open Forum Foundation. The gathering focused (broadly) on social networking tools and Web 2.0 for government. It was well attended by advocates who want to reach Congress, and over-worked hill staffers who use IE6 and must cope with information overload. We also got a preview of GovLuv.org. If you have an interest in social networking and government, I highly recommend looking at some of the blog articles.

Here’s my report: Don’t hold your breath for Congress to go Social-Web crazy in the immediate future.

I hosted a discussion on developing a Privacy Commons framework for government. In short, Privacy Commons will be a series of Privacy Policy Frameworks: A list of required, optional, and prohibited subject matter for privacy policies. Each framework will be tailored to particular industries (i.e., medical, financial, goods and services, social media, government, etc.). Adoption of a Privacy Commons Framework will require that your Privacy Policy address all subject matter in the framework, and make certain high-level disclosures in the form of iconography (i.e., a “$” symbol to indicate that you sell personal information to third parties).

I already knew that a government Privacy Commons policy would have to include disclosures about how personal information may be transmitted to other federal agencies, for example. But I was surprised to hear from staffers that Congressional privacy policies should also disclose how personal anecdotes may be used. Many constituents e-mail their elected representatives with poignant personal stories that often support draft legislation. Staffers must decide whether they can or should use the stories in a press release, on the House or Senate floor, or whether they can use the story and change the names.

A government Privacy Commons framework will also need to address the different rules that elected officials and their campaigns must follow. Elected officials must follow strict rules governing sharing personal and contact information. In contrast, campaigns (which may run full-time, even after an official is elected) can do almost anything with personal information. The distinction between “Congressman Jones” and “Congressman Jones’ Campaign” may be lost on the average constituent; but the effects on privacy might be substantial.

As I make the transition to full-time attorney (after I pass the bar… wish me luck), I’ll be able to continue developing Privacy Commons. In fact, at Congress Camp I hooked up with the ECitizen Foundation, which might help host Privacy Commons working groups. Stay tuned.

Image based on Three Poppies by Federico Ferrari.

by Aaron Titus

In late June, 2009 I attended the Privacy Bar Camp DC (Twitter: @PrivacyCampDC) organized by Shaun Dakin with support from the Center for Democracy and Technology, and conducted at the Center for American Progress. I confess that I attended primarily to aid my job search (psst… that was a shameless, self-promoting plug), but ended up having a great time. Bar camps have an ingenious format which promotes a high degree of participation, interaction, and brainstorming. They have nothing to do with a state legal bar, nor camping. And the genius is, they don’t have an agenda.

About 50 people showed up Saturday morning, and after a brief round of introductions, everyone interested in leading a discussion pitched their ideas to the group. Then each discussion was placed on a grid schedule with four rooms, each with four sessions. The “camp” ran all day, and each attendee chose which combination of the 16 sessions they wanted to attend. Each session was highly interactive, spontaneous, and collaborative.  The topics ranged from Government and Web 2.0 to “Empowering Big Brother,” to Open ID, to lock-picking (my personal favorite). Thomas “cmdln” Gideon and I hosted a session on “Personal Information as Property and the Platform for Privacy Preferences (P3P).” During the discussion, the concept of “Privacy Commons” came up, and several of the session participants agreed to work on the idea.

Privacy Commons

We soon had a group interested in developing the idea, and have been working on it since. Modeled in the spirit of Creative Commons, Privacy Commons (PC) aims to help individuals and organizations clarify privacy expectations, practices, rights, and mutual responsibilities by providing a series of comprehensive model privacy policies.

I admire what the Creative Commons movement has done for copyright. With its easy-to-understand concepts and clear iconography, Creative Commons is successful because it embodies commonly held cultural notions of intellectual property and copyright, which are otherwise absent from the law itself. Creative Commons fills the gap between what the law is, and what many think the law should be. Likewise, Privacy Commons will be successful only when it can identify, articulate, and empower under-served cultural expectations of privacy with easy-to-understand concepts and clear messages.

The Need for Complete, Informative, and Enforceable Privacy Policies

Privacy policies in the United States suffer from several deficiencies. First, they are often unsophisticated and incomplete. They often fail to protect an appropriate scope of information or individuals. Second, many privacy policies waive, rather than confer, privacy rights. But most importantly, courts have consistently interpreted privacy policies as unbinding notices, rather than contracts. In other words, privacy policies are unenforceable, and a victim of a privacy policy breach usually has no enforceable rights. As a result, privacy policies can have the unfair effect of creating an expectation of confidentiality, privacy, special technological protections, or even fiduciary responsibility even where there is none.

Protecting Personal Information via Contract vs. Intellectual Property

Intellectual property (IP) law is not an appropriate legal framework to protect personal information because nobody owns personal information. Personal information are facts, which are not copyrightable. Unless a person is famous, a name or SSN can’t be trademarked. An address probably does not qualify for trade secret protection, and a date of birth is certainly not patentable. Even if some sort of property right accrued to personal information, it would most logically belong to the originators of the information. For example, parents would logically “own” a child’s name and date of birth, since they created them. The government creates social security numbers, and the credit card companies create credit card numbers. The post office creates addresses, and the phone company creates phone numbers. Even third parties create gossip (beneficial or harmful), and it would be difficult to draw a line distinguishing a person’s ownership interest in gossip or other third-party-created personal information.

In contrast to Creative Commons (which operates under IP licensing law), Privacy Commons is structured around principles of contract, where two parties can bind themselves to mutual obligations through offer and acceptance. Each model privacy policy would exist between a Data Steward (Steward), and a Data Subject (Subject). A PC Policy may be converted into a contract when the Steward and Subject formalize the policy through contract principles of offer, acceptance, and consideration.

What do you think?

There is an ad-hoc working group and a Privacy Commons Wiki, which is starting work on the project, and has already published a few articles on mission, scope, and approach. The wiki is closed (to prevent spam), but logins are liberally granted with a simple e-mail. I, for one, find the project pretty exciting.

I have been using Privoxy for many, many years. It was actually called the Internet Junkbuster when I was first introduced to it. In early 2000 when I started getting into security and privacy, it was one of the first tools I began using to disguise my user-agent string.

Modifying a user-agent string is a simple way to avoid malware infections from websites that use the user-agent string as a method to determine the browser type and version in order to infect or hijack a browser (most common with IE). I modify the user-agent string to this day. However, what I do now is pretty subtle. I add or remove a single dot somewhere within the string. This way, if someone quickly glances at logs, my new customized user-agent string doesn’t stick out like a sore thumb.

Another reason I like using Privoxy is to block banner adds. Especially today, with all the XSS vulnerabilities going around, this is quick and simple way to eliminate this threat. I also believe in cookie management. Privoxy can be used to manage your browser cookies and how they interact with websites. You can block them altogether or modify them to force a particular behavior, such as whether they are session cookies or permanent cookies. I know this is possible from within the browser, but Privoxy offers many more options and more flexibility for cookie management. It’s really cool stuff once you get into cookies and the how and why they work.

Privoxy is an effective tool for controlling tracking web bugs. Web bugs are tiny 1×1 images used to report back to a company (website) whether you have opened or visited a certain page. Once this 1×1 image is rendered by the browser, various statistics are sent back to the requesting server such as the IP address, date and time, browser version and type, etc. This information is usually sent directly to a third party which usually is an advertising company. But there are other uses for this technology such as by some services that will advise you when an email (including webmail) has been read.

Lastly, I like Privoxy because I can also control the referrer. When a connection is made to a website, the browser will let the web server know which URL it came from. This is called the referrer. With Privoxy it’s possible to modify or block the referrer string that is sent to a web server when a new connection is made. This way web servers think you browsed directly to the url instead of having clicked from a link (being referred by).

Privoxy is a proxy. It runs in the background. I install it locally on every computer I have. I have it run locally on the loopback interface, which is the default. The browser will need to be configured to use the local proxy for it to perform the necessary scrubbing. For myself, Privoxy is simply another tool or software like antivirus, antispyware, etc. It doesn’t matter whether I’m on Windows, Mac or Linux, I install and use Privoxy when possible.

by Aaron Titus

If you have nothing to hide, why do you need privacy? This question, famously attributed to the McCarthy era, has gained currency again in this era of terrorism and national security. The question implies that privacy is a form of dishonesty, that the things people want to hide are the very things others should know about.

I admit that I bristle every time I hear someone say, “You have nothing to worry about if you have nothing to hide.” Baloney. I have everything to hide! When someone says, “I have nothing to hide,” it’s simply not true. What he really means is, “I have nothing to be ashamed of,” which may be true. But shame is only one, limited reason for confidentiality. Confidentiality is not an admission of guilt.

I have much to hide, for one simple reason. I cannot trust people to act reasonably or responsibly when they are in possession of certain facts about me, even if I am not ashamed of those facts. For example, I keep my social security number private from a would-be criminal, because I can’t trust that he’ll act responsibly with the information. I’m certainly not ashamed of my SSN. Studies have shown that cancer patients loose their jobs at five times the rate of other employees, and employers tend to overestimate cancer patients’ fatigue. Cancer patients need privacy to avoid unreasonable and irresponsible employment decisions. Cancer patients aren’t ashamed of their medical status—they just need to keep their jobs.

A person may share intimate secrets with an ecclesiastical leader that they would keep private from parents, because they fear the parents may not act reasonably or rationally when presented with the same information. During World War II, the government acted unreasonably and irresponsibly with Census data about the location of Japanese-American citizens. Privacy from government entities is paramount.

In addition, can you imagine how much damage you would impose on innocent people if you spoke every thought that came into your head? Or if doctors, lawyers, and accountants disclosed everything they knew about you?

The need for privacy is the recognition that most individuals, organizations, or institutions cannot be trusted to act reasonably, responsibly, in the best interest of the person, or in the best interests of society, when in possession of certain types personal information. Humans are biased. We have limited cognitive and analytical abilities, and never know all of the facts. We are infamously poor judges of character. We change our minds, and come to conflicting conclusions. So, the next time someone asks whether you have something to hide, do not hesitate to say, “Yes, of course I do.”

by Carl Anctil

The perceptions and concerns we have about disclosing to much personal information have a direct link between the sharing and the openness of collaboration. When peering is added to the equation, we end up with what we have today, which is often referred to as Web 2.0.

The debut of dynamic content and open source software such as the LAMP stack, have contributed and provided an affordable platform for people to create and share with others. Without this basic foundation, we would still find it difficult to collaborate with every day people. This brought on a new requirement, how could we justify or to approve the work that people are creating and sharing with other peers. The easiest and most affordable method to legitimize the work created by a large pool of unknown people is to be open about the content, how it is built and where it comes from. The easiest way to accomplish this is simply by using your real name and identifying the purpose of your collaboration. (blog, wiki, social media, etc.)

Social media websites such as Facebook, Myspace, Linkedin, etc. are common these days and they make it easy to collaborate and share with family, friends and anyone else really. Through these new collaboration means, our personal information is much more exposed than it was before. If convenience is counter to security, then exposure must be counter to collaboration. In security, when something is convenient it usually means it is less secure. With collaboration, the more we collaborate, the more exposure (risk) we put on our private information. Just look at the social media websites mentioned above as examples. They contain a lot of private personal information, and people must learn how to balance the kind of detail they share with others through this new digital medium.

We all know (should know) that increased exposure normally also means more risk or at least greater risk. How do we mitigate this risk? By helping people protect their personal information. People have to learn how to collaborate online. The key is to learn to manage which personal information to give out and how to control it.

I believe that using a real name for collaboration doesn’t necessarily increase the risk of exposure as long as the other personal information included is also common knowledge or otherwise publicly known or easily obtainable. For example, I can manage the combination of my real name plus my work history. I control what I expose, so I can manage that information about me. Other private personal information such as date of birth, social insurance numbers, addresses, etc. should and need to be kept private and tightly controlled. Besides, private personal information should not and is not required in general collaboration. So why take the risk?

Join Michael Santarcangelo as he reveals essentials for businesses to protect their information. Michael was a featured guest at the Microsoft Small Business Summit to share strategies from his book, Into the Breach: Protect Your Business by Managing People, Information and Risk. In this segment, Michael discusses the impact of security breaches, the hidden damages and explains his personal experience in how these events can happen to anyone. The segment ends with Michael outlining 5 steps every business must take to protect information.

In the last week, I have read some (painful), written and updated one (interesting) and started to consider how they drive (or not) actions around how people protect information. I think we need to reconsider our privacy policies…

Sometimes a confluence of events presents themselves to shape thinking in new and important ways:

1. Last week I updated the privacy policy for the Security Salon. In the process, I reviewed a lot of policies, checked out the “privacy policy generators” and tried to craft a policy that was fair, made sense and was technically accurate — as well as captured the essence of my intentions. To be fair, I felt the “generators” were confusing and limiting. In the end, I generated a policy and then modified it by hand. No doubt, it’ll evolve.

2. On Friday, an article on a local company (High Peaks invests $500K in software developer Apprenda) stood out to me for two reasons:

a. This is a Software as a Service (Saas) company. They represent a growing trend that holds some important lessons and opportunities for changing the way people protect information.

b. They are a startup, and they actually have a dedicated security resource onsite as a founder – and his title is “Vice President of Security and Infrastructure.” This suggests security is top of mind.

3. This weekend, it was reported that 13 people were fired and another dozen or so — including doctors! — have been disciplined for access to Britney Spears medical records. Sadly, this activity is not new in the realm of medical records, and the reaction is not surprising.

So I wrote a privacy policy, learned about a company handling information that was founded with security engaged from the beginning and read about the results of people violating the privacy of a medical patient. They all stayed with me — and then last night, I learned why.

Last night, I approved a comment to a post I wrote over two years ago. Normally, this is a sure sign of spam. In this case, it was not spam – and better. It was the catalyst that pulled my thinking together (yes, catalysts rely on other catalysts – now you know).

The comments were focused on the privacy policy of Plaxo. Keep in mind, the post is old and the privacy policy has probably evolved. Stacy Martin has moved on and the new Plaxo Privacy Officer is Redgee Capili. All of that withstanding, here is an excerpt from the recent comment that got me thinking:

…you did NOT say that Plaxo will not read the data of their customers… It would be nice to see a policy shuch [sic] as “Plaxo will not read the data of its customers unless 1) explicit permission is granted from the customer or 2) a law enforcement agency with appropriate juristiction demands to see the data.”

This is a subtle point and an interesting question – if someone provides a service, beyond protecting the information, should they have access to the data they hold? If so, for what purposes? I even question what it means to “read” – machine or human? Is there a difference?

Same time – fascinating post popped up yesterday in the Security Catalyst Community, asking the ‘right’ way to handle ‘discovered’ PII: Handling Discovered PII. Great question!

We face a human problem. We need a new approach. Where to start? When it comes to privacy policies – I think we need to start with some active and transparent conversations about responsibility. What do you think?

One of the principle missions of the Federal Trade Commission is to protect American consumers against activities such as false advertising and unfair business practices. Yet today, instead of confronting meat-packing and railroad industries, the FTC is going to have to monitor technology giants in order to protect American’s online experience and not stifle internet growth.

The FTC held a two-day forum earlier this month regarding online advertising and privacy. The meeting concerned the tactics of behavioral targeting, which is used by online publishers and advertisers to deliver ads based on user’s web-browsing behavior. Advertisers believe that this information helps them deliver better information to consumers and increases the effectiveness of their campaigns. Opponents and civil liberty advocates warn against the erosion of privacy and lack of consent by consumers. They argue that data collected through behavioral targeting could be used by government to monitor users without their consent and could potentially lead to racial profiling and discrimination.

Online privacy has become a major concern, especially in light of the news earlier this year that Google was purchasing internet advertising giant DoubleClick. While Google collects the history of its users through its search engine, DoubleClick tracks what websites people visit. In order to do this, DoubleClick creates profiles for users based on their IP address, domain, browser, local time and date, operating system, and page viewed. The ability for one company with the power to collect data on millions of individuals without any government oversight is disconcerting, to say the least.

The potential harm to consumer privacy that might occur out of the DoubleClick-Google purchase appears not to have stopped others from continuing down the path of online advertising. Social-networking sites are also trying to earn profits by allowing large advertising firms mine to mine for information on their subscriber pages to determine members’ interests and what specialized advertisements would be delivered to them. There has even been recent controversy as to whether this type of targeted advertising is even legal or not.

Past attempts to stop behavioral targeting have been unsuccessful. In 2001, a class action lawsuit was brought against DoubleClick for keeping cookies stored on internet user’s computers without their consent. The court ruled against the plaintiffs citing that there was no violation of the Electronic Communications Privacy Act or the Computer Fraud and Abuse Act because DoubleClick only gathers information concerning a user’s activities on a DoubleClick affiliated web site. The court held that since the user consents to Double Click’s access by visiting the website affiliated with the advertisement, there was no law being violated.

As a result of these legal and business developments, the FTC has to take a more active involvement in slowing down the pace of behavioral targeting. Privacy organizations are calling on the FTC to establish, among other things, an opt-out policy similar to the one applied to telemarketers. They would like to see fines for non-compliance and disclosure of all data-collection practices clearly visible on websites that engage in behavioral targeting.

Yet while these recommendations are a step in the right direction, the government should not try to develop a one-size-fits all model that would stifle the economics on which internet innovation relies upon. The most successful internet companies rely heavily on advertising dollars to sustain their growth and need this capital to generate new technologies. The concerns for consumer privacy should also be taken in tandem with the economic model that continues to fuel new technological advancements.

The Google-DoubleClick acquisition has put online privacy at the forefront of government concern. Congress and the EU have scheduled hearings on the impact that these two companies will have on consumer’s online experience. Proposals for government intervention will surely be considered in order to control how information is used and stored. The debate as to whether there should even be state intervention in this country appears to have begun.

Previously, we explored whether you should be issuing and relying on email disclaimers. This week, we look deeper into email communication to find out if your emails are considered private communications or not.

When speaking with audiences, this is a topic that generates a lot of questions, opinions and sometimes controversy. While everyone is entitled to his or her opinion on the topic, we wanted to take a look at any legal grounding to form a more complete answer.

In the business world, the answer is pretty clear: if you are using the resources of your company, then you have no expectation of privacy. However, what about when you’re using your personal email account, on non-company resources? Do you have a reasonable expectation of privacy for those messages?

The crux of the argument here is one of the fourth amendment. Basically, does the government need to rise to the level of requiring a subpoena in order to require your ISP to provide them a copy of your email records, and in the process, notify you that they have done so.

Think about that for a second.

This has implications for both you personally, and for your organization. What standard is the government required to produce in order to obtain your email records? As a company, what standard is the government required to produce in order to compel you to provide email records – especially if you are an ISP or other email provider.

Based on a landmark ruling this past summer, it appeared the easy answer was “yes.” In the ruling, the United States Court of Appeals for the 6th Circuit held that computer users had a “reasonable expectation of privacy” in their e-mail communications.

No so fast
Yet what was hailed as a victory for privacy advocates was short-lived. Just days ago, on October 9th, 2007, the 6th Circuit granted a rehearing en banc, thereby vacating their earlier decision. This is significant, as an en banc hearing means that instead of the usual three-judge panel decision, all sixteen active judges of the Court will hear this case.

The humble beginning
The decision of the 6th Circuit arose out the government’s investigation into Steven Warshak and his company, Berkeley Premium Nutraceuticals, Inc. Warshak was being investigated due to allegation of mail and wire fraud, money laundering, and related federal offenses. The government obtained a court order directing ISP Yahoo! and NuVox Communications to turn over information pertaining to Warshak’s e-mail account. The order was issued under the Stored Communications Act (SCA) of the Electronic Communications Privacy Act. The SCA requires the government to show that there be “reasonable grounds to believe that the contents of a wire or electronic communication…are relevant and material to an ongoing criminal investigation.”

The government argued that the court order issued under the SCA to the ISPs were not searches but rather compelled disclosures, akin to subpoenas. As a result, the higher burden of probable cause required under the 4th Amendment for a search and seizure was inapplicable. The 6th Circuit disagreed, ruling that “a seizure of e-mails from an ISP, without either a warrant supported by probable cause, notice to the account holder to render the intrusion the functional equivalent of a subpoena, or a showing that the user maintained no expectation of privacy in the e-mail, amounts to a” a 4th Amendment violation.

Why is email different?
Most Internet users believe that they have a reasonable expectation of privacy in their electronic communications and would be shocked if government agents could snoop around their e-mail box. Americans naively assume that e-mails a private and require that the government seek a warrant supported by probable cause to access. Whereas telephone calls due have this judicial standard, e-mails today are not afforded the same level of protection due their technological differences.

The seminal case that enshrined our privacy laws was Katz v. United States
. The Supreme Court held that that the 4th Amendment protects individuals against unreasonable searches and seizes if an individual can justifiable expect that is communications would remain private. Justice Steward wrote that “no less than an individual in a business office, in a friend’s apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the 4th Amendment.”

The government argued that e-mails are not analogous to telephone communications because they require an intermediary. E-mail works by breaking the contents into individual packets that are routed to the senders ISP. The ISP then stores and copies the e-mail on their server before transmitting it to the recipient. The government’s theory runs along the lines that since the ISP stores and copies the e-mail, the information was voluntarily turned over. As a result, the sender has forfeited any expectation that the ISP would keep the information private and the government should be able to access the content stored by the ISP without a showing of probable cause.

Yet while the government is correct in arguing that e-mail is not akin to the telephone, their argument would eradicate any expectation of privacy for any type of communication which requires an intermediary. The fact that an ISP must store and copy the message does not mean that people expect their messages to be turned over to the government by their ISP.

Fallout of the Decision
So what does this mean for you and me? The Court will hear the case again and determine whether the government’s action were in violation of federal law. While it is always difficult to predict the outcomes of such a case, the issues raised by Warshak should be of concern to all Americans. The decision of the court will be one of the most important decisions involving fundamental Constitutional protections. Due to the prevalent use of new technologies, Americans are not being adequately protected by federal statutes. The need for the courts like the 6th Circuit to establish clearer guidelines to the government and Americans is critically needed to prevent confusion and abuse in the digital age.

In the meantime – remember that email works on a store-and-forward system, and if you are not willing to read what you wrote in the newspaper, you may not want to send it.

There are roughly 40 states that have some sort of “data-breach” law or bill being considered that force notification of a company’s security breach (or suspected breach) to their consumers. These laws were enacted as a way to force companies to disclose the possibility that individuals personal information was compromised and that they could potentially become victims of identity theft.

Over the coming months, we’ll spend some time exploring how the different states are handling these statutes. When you peel the layers back a bit, and consider them from different angles, we can learn some interesting elements – useful to us from individual and organizational perspectives.

Even with these new laws in effect, it seems that there is little a person can due to hold a company liable for a data-breach based on their weak security standards. Recently, state governments have begun to change this by imposing liability on the retail business and others, thereby opening the door for consumers to sue companies that do not adequately protect the personal information that they collect.

This is a serious issue that has implications for everyone involved – and ultimately requires clear definitions, mutual understanding and will take years to sort through. In the meantime, we’re going to ignite our series of articles exploring these laws and developments by analyzing some recent events.

Minnesota PCI Legislation
Effective August 1st 2007, Minnesota became the first state to require that all companies handling credit and debit card data comply with the Payment Card Industry (PCI) data security standard (in a future article or podcast, we’ll explore and debate the value of tying the PCI standard to the legislation – Michael).

The state’s new Plastic Card Security Act would prohibit a company from retaining a credit card’s security code data, the PIN verification code number, or the full contents of any track of magnetic strip data. The new legislation is intended to target retailers who continue to store data in violation of PCI standards. The bill also makes it a violation for retailers to a credit card holder’s PIN number longer than 48 hours after authorization of their transaction. Similar bills are pending in Texas, Illinois, Connecticut, and Massachusetts.

The significant of this legislation is important in light of recent ruling by courts that have dismissed class action suits against companies following data-breaches. On August 23, 2007, the US Court of Appeals for the 7th Circuit held that identity-theft monitoring costs paid for by the plaintiffs were not compensable damages under Indian’s security breach notification statute. In Pisciotta v. Old Nat’l Bancorp, the court held that there was no state statute supporting the compensation of incurred costs because “had the Indiana legislature intended that a cause of action should be available against a database owners for failing to protect adequately personal information, we believe it would have made some more definite statement of that intent.” So for the time being, unless you have an actual showing of harm as a victim of identity theft, potential harm will not suffice.

Consequences for the Courts
As more states begin to enact legislation that requires companies to comply with PCI, courts may begin to allow litigants to be compensated as a result of a security break. The argument that courts have made in cases like Pisciotta will clearly be much weaker as states legislatures conspicuously demonstrate their intent to punish companies by enacting specific statutes targeting the security of personal information.

Federal and state courts will feel much more comfortable in their decision to expand their legal theories of liability when supported by statutes that explicitly creates private actions for security breaches. In this context, it is much more likely that Courts will not follow the ruling in Pisciotta until after states pass legislation similar to Minnesota. In other addition, plaintiffs might also receive some relief if a recent bipartisan bill in the U.S. Senate gets passed. The bill, known as the Identity Theft Enforcement and Restitution Act of 2007, was introduced on October 16, 2007 and would give victims the ability to seek restitution for the loss of time and money as a result of identity theft. Such federal legislation could prove to be effective in jurisdictions with no state identity-theft laws.

Consequences for Businesses
Meanwhile, the retail lobby continues to argue against laws that would hold them liable by arguing that these laws would be too costly and burdensome, especially for small businesses. This apparently was the argument that convinced Governor Schwarnenegger to veto a California law that would have mandated the retail industry comply with PCI requirements. While this may be true, legislation in Minnesota limits this burden by exempting businesses with few than 20,000 transactions from their statute. Clearly, there is a way for the legislature of any state to write a statute that can pressure companies to improve their data security standards without crippling small business owners.

While the retail industry will continue to resist such legislation, there is strong support from banks and credit unions, since in the eyes of consumers they often blamed for such breaches. TJX is currently being sued by several banks
who seek compensation for having to re-issue credit cards and credit monitoring to thousands of their customers as a result of a massive security breach earlier this year. Depending on how the case turns out, the burdens and cost of breaches will shift away from consumers, banks, and credit unions but will perhaps be shared by the retailers and others (of course, the consumer pays in the end).

Preparing for the change
As a consequence of new state and federal legislation, the landscape of data security will continue to evolve, sometimes in seemingly dramatic fashion. Individuals and businesses will most likely be able to get their day in court for incurred damages a result of security breaches by a third-party. Industries that have for now been able to get away with having minimum security standards will begin to take notice of their potential liability and hopefully, will improve the way they guard information. While the process is slow, it appears to be inevitable.

This isn’t doom and gloom.

Many of us have already begun to prepare for these changes by improving and writing security policies that make sense and can be understood, improving the process of protecting information and working to involve users in solution through training and awareness. Focus on the fundamentals of information protection and you’ll be less likely to be the test case.

If you’re like me, you routinely ignore the email disclaimers that many messages seem to have attached to them these days. For the most part, disclaimers have been added by the company, automatic and out of the hands of the users. Some users include their own, both serious and sometimes to be funny. I’d more or less accepted that some used them, while others didn’t – but paid little mind to the question – do email disclaimers matter?

During a breakfast a few weeks ago, a friend of mine shared a situation in which a business email sent to an individual was later posted to a website (by the recipient). In this case, it wasn’t really a big deal, but then he asked me if he needed to start using an email disclaimer.

It’s been a while since someone asked me if they needed a disclaimer, and my instinct was that it simply wasn’t necessary. Rather than give him a wrong answer, I promised that I’d look into it. With the help of Patrick Romero, this is what we found:

Some Background on Disclaimers
Turns out these disclaimers can be used for a whole list of things – from breach of confidentiality to transmission of viruses to employer’s liability. However, the most common type of disclaimers are those that guarantee the privacy and confidentiality of documents. They usually look something like this:

This email and any files transmitted with it are confidential and intended solely for the use of the individual or entity to whom they are addressed. If you have received this email in error please notify the system manager. This message contains confidential information and is intended only for the individual named. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-mail from your system. If you are not the intended recipient you are notified that disclosing, copying, distributing or taking any action in reliance on the contents of this information is strictly prohibited.

With the prevalence of e-mail communication, statements like these have become more and more ubiquitous among private and public companies – the majority are automatically generated whenever a user sends out any information regardless of the content of the message.

So now that we have examined the basis for email disclaimers, let’s dig deeper and explore if they provide any value or serve any purpose.

Can e-mail disclaimers guarantee the privacy and confidentiality of documents?

Generally speaking, e-mail disclaimers are not legally enforceable.

The misconception that they are stems from a lack of knowledge that surrounds the interception of electronic communication. The relevant statute that supports this belief comes from the language of the Electronic Communications Privacy Act of 1986 (ECPA) which includes language that criminalizes the interception of electronic communications. However, ECPA defines “intercept” as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” A narrow reading of the statute would insinuate that only information that has been acquired illegally can be found to be intercepted.

One of the many courts that have defined “intercept” this way is the 8th Circuit. The Court held that electronic communications that have reached their destination are ineligible for interception and, therefore, are outside the protections of the ECPA. As a result, unless an e-mail has been intercepted in transit, the ECPA will not provide legal authority for individuals seeking to prevent disclosure of a misdirected e-mail.

If you are concerned about the privacy and confidentiality of your email, we offer three basic considerations:
1. Use encryption
2. Use the “envelope within an envelope” approach
3. Write carefully, review and think before pressing send

1. Can encryption provide privacy and confidentiality email?
I have spent a lot of time reminding people recently that “solutions follow requirements” – and I’m always hesitant to recommend a solution without understanding the requirements. However, if you are concerned about the privacy and confidentiality of your email communications, you probably need to investigate the use of encryption.

I have always enjoyed learning about and teaching encryption – and while it can be a double-edged sword, it offers the safest means of ensuring privacy of email communications. In general usage, the message is encrypted (and signed in most current applications) before being sent. In a properly constructed and managed solution, only the designated recipient has the ability to decrypt and verify the message – ensuring the confidentiality of the transmission (this is an overly simplified explanation – if you’re thinking about using email encryption, give me a call and we can talk about specific details).

Encryption solutions are available for commercial and personal use. If you’re looking at this for corporate use – please start with your requirements and then select your solution.

2. It’s all about positioning
If you’re convinced that you need to continue to use a disclaimer, then you might consider where you place it. Arguments have been posed that by placing the disclaimer at the bottom of the e-mail, the user is undermining the enforceability of the disclaimer.

Think about it – how can you comply with a disclaimer after having read the content of the e-mail? As a result, there are some who advocate (albeit annoying for those who rely on email) that the disclaimer appear at the top of the e-mail. This option is known as the “envelope within an envelope” approach. The confidential information is sent as an attachment and the text of the e-mail only contains the actual language of the disclaimer.

While this does not guarantee that the recipient will not open the attachment, it could provide some greater standing in litigation if disclosure does occur. Such evidence would be relevant into providing proof that the sender took reasonable measures to ensure the confidentiality of documents.

3. Stop. Think before you press send.
One of the best methods for protecting information (note: information protection doesn’t always mean encryption) is to establish and effectively communicate expectations for proper use of email (if you need some help learning how to communicate policies more effectively – pick up the phone and call, it’s what we do).

Every organization should put in place a company policy with regards to sending confidential information through e-mail. This could range from a “no forwarding” policy to restrictions on what information can and cannot be sent. Clear guidelines within an organization can provide directions for individuals to understand the proper use of e-mail and decrease disclosure of sensitive information.

In the end, some do, some don’t and you get to chose

Currently, there is little case law or statutory interpretation that discusses the legal rights of senders vis-à-vis e-mail disclaimers. With the prevalence of internet use, it is understandable that individuals would attempt to ensure some level of privacy when sending e-mails. Unfortunately, the law today does not provide protection for the misuse of confidential information sent over the internet regardless of a written disclaimer. Companies and individuals need to determine, on their own, the risk of disclosure and how to best protect their privacy.