The world of compliance is a legal and regulatory jungle for information technology and cybersecurity professionals. National, state, and local governments have all passed overlapping laws regulating different components of cybersecurity in a patchwork manner. This leads to an incredibly confusing landscape for security professionals, who must reconcile the laws of multiple jurisdictions. Things become even more complicated for multinational companies, which must navigate the variations between international law as well.
Law enforcement agencies have tackled the issue of cybercrime with gusto in recent years. The legislative branches of governments around the world have at least attempted to address issues of cybercrime. Many law enforcement agencies have full-time, well-trained computer crime investigators with advanced security training. Those who don't usually know where to turn when they require this sort of experience.
In this chapter, we'll cover the various types of laws that deal with computer security issues. We'll examine the legal issues surrounding computer crime, privacy, intellectual property, and a number of other related topics. We'll also cover basic investigative techniques, including the pros and cons of calling in assistance from law enforcement.
Three main categories of laws play a role in the U.S. legal system. Each is used to cover a variety of circumstances, and the penalties for violating laws in the different categories vary widely. In the following sections, you'll learn how criminal law, civil law, and administrative law interact to form the complex web of our justice system.
Criminal law forms the bedrock of the body of laws that preserve the peace and keep our society safe. Many high-profile court cases involve matters of criminal law; these are the laws that the police and other law enforcement agencies concern themselves with. Criminal law contains prohibitions against acts such as murder, assault, robbery, and arson. Penalties for violating criminal statutes fall in a range that includes mandatory hours of community service, monetary penalties in the form of fines (small and large), and deprivation of civil liberties in the form of prison sentences.
A number of criminal laws serve to protect society against computer crime. In later sections of this chapter, you'll learn how some laws, such as the Computer Fraud and Abuse Act, the Electronic Communications Privacy Act, and the Identity Theft and Assumption Deterrence Act (among others), provide criminal penalties for serious cases of computer crime. Technically savvy prosecutors teamed with concerned law enforcement agencies have dealt serious blows to the “hacking underground” by using the court system to slap lengthy prison terms on offenders guilty of what used to be considered harmless pranks.
In the United States, legislative bodies at all levels of government establish criminal laws through elected representatives. At the federal level, both the House of Representatives and the Senate must pass criminal law bills by a majority vote (in most cases) in order for the bill to become law. Once passed, these laws then become federal law and apply in all cases where the federal government has jurisdiction (mainly cases that involve interstate commerce, cases that cross state boundaries, or cases that are offenses against the federal government itself). If federal jurisdiction does not apply, state authorities handle the case using laws passed in a similar manner by state legislators.
All federal and state laws must comply with the ultimate authority that dictates how the U.S. system of government works—the U.S. Constitution. All laws are subject to judicial review by regional courts with the right of appeal all the way to the Supreme Court of the United States. If a court finds that a law is unconstitutional, it has the power to strike it down and render it invalid.
Keep in mind that criminal law is a serious matter. If you find yourself involved—as a witness, defendant, or victim—in a matter where criminal authorities become involved, you'd be well advised to seek advice from an attorney familiar with the criminal justice system and specifically with matters of computer crime. It's not wise to “go it alone” in such a complex system.
Civil laws form the bulk of the U.S. body of laws. They are designed to provide for an orderly society and govern matters that are not crimes but that require an impartial arbiter to settle between individuals and organizations. Examples of the types of matters that may be judged under civil law include contract disputes, real estate transactions, employment matters, and estate/probate procedures. Civil laws also are used to create the framework of government that the executive branch uses to carry out its responsibilities. These laws provide budgets for governmental activities and lay out the authority granted to the executive branch to create administrative laws (see the next section).
Civil laws are enacted in the same manner as criminal laws. They must pass through the legislative process before enactment and are subject to the same constitutional parameters and judicial review procedures. At the federal level, both criminal and civil laws are embodied in the United States Code (USC).
The major difference between civil laws and criminal laws is the way in which they are enforced. Usually, law enforcement authorities do not become involved in matters of civil law beyond taking action necessary to restore order. In a criminal prosecution, the government, through law enforcement investigators and prosecutors, brings action against a person accused of a crime. In civil matters, it is incumbent upon the person who thinks they have been wronged to obtain legal counsel and file a civil lawsuit against the person they think is responsible for their grievance. The government (unless it is the plaintiff or defendant) does not take sides in the dispute or argue one position or the other. The only role of the government in civil matters is to provide the judges, juries, and court facilities used to hear civil cases and to play an administrative role in managing the judicial system in accordance with the law.
As with criminal law, it is best to obtain legal assistance if you think you need to file a civil lawsuit or if someone files a civil lawsuit against you. Although civil law does not impose the threat of imprisonment, the losing party may face severe financial penalties. You don't need to look any further than the daily news for examples—multimillion-dollar cases against tobacco companies, major corporations, and wealthy individuals are filed every day.
The executive branch of the U.S. government charges numerous agencies with wide-ranging responsibilities to ensure that government functions effectively. It is the duty of these agencies to abide by and enforce the criminal and civil laws enacted by the legislative branch. However, as can be easily imagined, criminal and civil law can't possibly lay out rules and procedures that should be followed in every possible situation. Therefore, executive branch agencies have some leeway to enact administrative law, in the form of executive orders, policies, procedures, and regulations that govern the daily operations of the agency. Administrative law covers topics as mundane as the procedures to be used within a federal agency to obtain a desk telephone to more substantial issues such as the immigration policies that will be used to enforce the laws passed by Congress. Administrative law is published in the Code of Federal Regulations (CFR).
Although administrative law does not require an act of the legislative branch to gain the force of law, it must comply with all existing civil and criminal laws. Government agencies may not implement regulations that directly contradict existing laws passed by the legislature. Furthermore, administrative laws (and the actions of government agencies) must also comply with the U.S. Constitution and are subject to judicial review.
To understand compliance requirements and procedures, you must be fully versed in the complexities of the law. From administrative law to civil law to criminal law (and, in some countries, even religious law), navigating the regulatory environment is a daunting task. The CISSP exam focuses on the generalities of law, regulations, investigations, and compliance as they affect organizational security efforts. Specifically, you will need to
However, it is your responsibility to seek out professional help (i.e., an attorney) to guide and support you in your efforts to maintain legal and legally supportable security.
Throughout these sections, we'll examine a number of laws that relate to information technology. We’ll examine several U.S. laws. We'll also look briefly at several high-profile non-U.S. laws, such as the European Union's General Data Protection Regulation (GDPR). Regardless, if you operate in an environment that involves foreign jurisdictions, you should retain local legal counsel to guide you through the system.
The first computer security issues addressed by legislators were those involving computer crime. Early computer crime prosecutions were attempted under traditional criminal law, and many were dismissed because judges thought that applying traditional law to this modern type of crime was too far a stretch. Legislators responded by passing specific statutes that defined computer crime and laid out specific penalties for various crimes. In the following sections, we'll cover several of those statutes.
The Computer Fraud and Abuse Act (CFAA) was the first major piece of cybercrime-specific legislation in the United States. Congress had earlier enacted computer crime law as part of the Comprehensive Crime Control Act (CCCA) of 1984, but the CFAA was carefully written to exclusively cover computer crimes that crossed state boundaries to avoid infringing on states' rights and treading on thin constitutional ice. The major provisions of the original CCCA made it a crime to perform the following:
When Congress passed the CFAA, it raised the threshold of damage from $1,000 to $5,000 but also dramatically altered the scope of the regulation. Instead of merely covering federal computers that processed sensitive information, the act was changed to cover all “federal interest” computers. This widened the coverage of the act to include the following:
In 1994, Congress recognized that the face of computer security had drastically changed since the CFAA was last amended in 1986 and made a number of sweeping changes to the act. Collectively, these changes are referred to as the Computer Abuse Amendments Act of 1994 and included the following provisions:
Since the initial CFAA amendments in 1994, Congress passed additional amendments in 1996, 2001, 2002, and 2008 as part of other cybercrime legislation. We'll discuss those as they come up in this chapter.
Although the CFAA may be used to prosecute a variety of computer crimes, it is also criticized by many in the security and privacy community as an overbroad law. Under some interpretations, the CFAA criminalizes the violation of a website's terms of service. This law was used to prosecute Aaron Swartz for downloading a large number of academic research papers from a database accessible on the MIT network. Swartz committed suicide in 2013 and inspired the drafting of a CFAA amendment that would have excluded the violation of website terms of service from the CFAA. That bill, dubbed Aaron's Law, never reached a vote on the floor of Congress.
Ongoing legislative and judicial actions may affect the broad interpretations of the CFAA in the United States. For example, in the 2020 case Sandvig v. Barr, a federal court ruled that the CFAA did not apply to the violations of the terms of use of a website because that would effectively allow website operators to define the boundaries of criminal activity. As this book went to press, the U.S. Supreme Court was considering a similar case, Van Buren v. United States, with the possibility of creating a definitive precedent in this area.
In 1996, the U.S. Congress passed yet another set of amendments to the Computer Fraud and Abuse Act designed to further extend the protection it provides. The National Information Infrastructure Protection Act included the following main new areas of coverage:
The Federal Sentencing Guidelines released in 1991 provided punishment guidelines to help federal judges interpret computer crime laws. Three major provisions of these guidelines have had a lasting impact on the information security community:
The Federal Information Security Management Act (FISMA), passed in 2002, requires that federal agencies implement an information security program that covers the agency's operations. FISMA also requires that government agencies include the activities of contractors in their security management programs. FISMA repealed and replaced two earlier laws: the Computer Security Act of 1987 and the Government Information Security Reform Act of 2000.
The National Institute of Standards and Technology (NIST), responsible for developing the FISMA implementation guidelines, outlines the following elements of an effective information security program:
FISMA places a significant burden on federal agencies and government contractors, who must develop and maintain substantial documentation of their FISMA compliance activities.
In 2014, President Barack Obama signed a series of bills into law that modernized the federal government's approach to cybersecurity issues.
The first of these was the confusingly named Federal Information Systems Modernization Act (also bearing the acronym FISMA). The 2014 FISMA modified the rules of the 2002 FISMA by centralizing federal cybersecurity responsibility with the Department of Homeland Security. There are two exceptions to this centralization: defense-related cybersecurity issues remain the responsibility of the secretary of defense, and the director of national intelligence bears responsibility for intelligence-related issues.
Second, Congress passed the Cybersecurity Enhancement Act, which charges NIST with responsibility for coordinating nationwide work on voluntary cybersecurity standards. NIST produces the 800 series of Special Publications related to computer security in the federal government. These are useful for all security practitioners and are available for free online at csrc.nist.gov/publications/sp800.
The following are commonly used NIST standards:
The third law from this wave of new requirements was the National Cybersecurity Protection Act. This law charged the Department of Homeland Security with establishing a national cybersecurity and communications integration center. The role of this center is to serve as the interface between federal agencies and civilian organizations for sharing cybersecurity risks, incidents, analysis, and warnings.
America's role in the global economy is shifting away from a manufacturer of goods and toward a provider of services. This trend also shows itself in many of the world's large industrialized nations. With this shift toward providing services, intellectual property (IP) takes on an increasingly important role in many firms. Indeed, it is arguable that the most valuable assets of many large multinational companies are simply the brand names that we've all come to recognize. Company names such as Dell, Procter & Gamble, and Merck bring instant credibility to any product. Publishing companies, movie producers, and artists depend on their creative output to earn their livelihood. Many products depend on secret recipes or production techniques—take the legendary secret formula for Coca-Cola or KFC's secret blend of herbs and spices, for example.
These intangible assets are collectively referred to as intellectual property (IP), and a whole host of laws exist to protect the rights of their owners. After all, it simply wouldn't be fair if a bookstore bought only one copy of each author's book and made copies for all of its customers—that would deprive the author of the benefits of their labor. In the following sections, we'll explore the laws surrounding the four major types of intellectual property—copyrights, trademarks, patents, and trade secrets. We'll also discuss how these concepts specifically concern information security professionals. Many countries protect (or fail to protect) these rights in different ways, but the basic concepts ring true throughout the world.
Copyright law guarantees the creators of “original works of authorship” protection against the unauthorized duplication of their work. Eight broad categories of works qualify for copyright protection:
There is precedent for copyrighting computer software—it's done under the scope of literary works. However, it's important to note that copyright law protects only the expression inherent in computer software—that is, the actual source code. It does not protect the ideas or process behind the software. There has also been some question over whether copyrights can be extended to cover the “look and feel” of a software package's graphical user interface. Court decisions have gone in both directions on this matter; if you will be involved in this type of issue, you should consult a qualified intellectual property attorney to determine the current state of legislation and case law.
There is a formal procedure to obtain a copyright that involves sending copies of the protected work along with an appropriate registration fee to the U.S. Copyright Office. For more information on this process, visit the office's website at www.copyright.gov. However, officially registering a copyright is not a prerequisite for copyright enforcement. Indeed, the law states that the creator of a work has an automatic copyright from the instant the work is created. If you can prove in court that you were the creator of a work (perhaps by publishing it), you will be protected under copyright law. Official registration merely provides the government's acknowledgment that they received your work on a specific date.
Copyright ownership always defaults to the creator of a work. The exceptions to this policy are works for hire. A work is considered “for hire” when it is made for an employer during the normal course of an employee's workday. For example, when an employee in a company's public relations department writes a press release, the press release is considered a work for hire. A work may also be considered a work for hire when it is made as part of a written contract declaring it as such.
Current copyright law provides for a lengthy period of protection. Works by one or more authors are protected until 70 years after the death of the last surviving author. Works for hire and anonymous works are provided protection for 95 years from the date of first publication or 120 years from the date of creation, whichever is shorter.
In 1998, Congress recognized the rapidly changing digital landscape that was stretching the reach of existing copyright law. To help meet this challenge, it enacted the hotly debated Digital Millennium Copyright Act (DMCA). The DMCA also serves to bring U.S. copyright law into compliance with terms of two World Intellectual Property Organization (WIPO) treaties.
The first major provision of the DMCA is the prohibition of attempts to circumvent copyright protection mechanisms placed on a protected work by the copyright holder. This clause was designed to protect copy-prevention mechanisms placed on digital media such as compact discs (CDs) and digital video discs (DVDs). The DMCA provides for penalties of up to $1 million and 10 years in prison for repeat offenders. Nonprofit institutions such as libraries and schools are exempted from this provision.
The DMCA also limits the liability of internet service providers (ISPs) when their circuits are used by criminals violating the copyright law. The DMCA recognizes that ISPs have a legal status similar to the “common carrier” status of telephone companies and does not hold them liable for the “transitory activities” of their users. To qualify for this exemption, the service provider's activities must meet the following requirements (quoted directly from the Digital Millennium Copyright Act of 1998, U.S. Copyright Office Summary, December 1998):
The DMCA also exempts activities of service providers related to system caching, search engines, and the storage of information on a network by individual users. However, in those cases, the service provider must take prompt action to remove copyrighted materials upon notification of the infringement.
Congress also included provisions in the DMCA that allow the creation of backup copies of computer software and any maintenance, testing, or routine usage activities that require software duplication. These provisions apply only if the software is licensed for use on a particular computer, the usage is in compliance with the license agreement, and any such copies are immediately deleted when no longer required for a permitted activity.
Finally, the DMCA spells out the application of copyright law principles to the streaming of audio and/or video content over the internet. The DMCA states that these uses are to be treated as “eligible nonsubscription transmissions.”
Copyright laws are used to protect creative works; there is also protection for trademarks, which are words, slogans, and logos used to identify a company and its products or services. For example, a business might obtain a copyright on its sales brochure to ensure that competitors can't duplicate its sales materials. That same business might also seek to obtain trademark protection for its company name and the names of specific products and services that it offers to its clients.
The main objective of trademark protection is to avoid confusion in the marketplace while protecting the intellectual property rights of people and organizations. As with copyright protection, trademarks do not need to be officially registered to gain protection under the law. If you use a trademark in the course of your public activities, you are automatically protected under any relevant trademark law and can use the ™ symbol to show that you intend to protect words or slogans as trademarks. If you want official recognition of your trademark, you can register it with the United States Patent and Trademark Office (USPTO). This process generally requires an attorney to perform a due diligence comprehensive search for existing trademarks that might preclude your registration. The entire registration process can take more than a year from start to finish. Once you've received your registration certificate from the USPTO, you can denote your mark as a registered trademark with the ® symbol.
One major advantage of trademark registration is that you may register a trademark that you intend to use but are not necessarily already using. This type of application is called an intent to use application and conveys trademark protection as of the date of filing provided that you actually use the trademark in commerce within a certain time period. If you opt not to register your trademark with the PTO, your protection begins only when you first use the trademark.
The acceptance of a trademark application in the United States depends on these two main requirements:
In the United States, trademarks are granted for an initial period of 10 years and can be renewed for unlimited successive 10-year periods.
Utility patents protect the intellectual property rights of inventors. They provide a period of 20 years from the time of the invention (from the date of initial application) during which the inventor is granted exclusive rights to use the invention (whether directly or via licensing agreements). At the end of the patent exclusivity period, the invention is in the public domain available for anyone to use.
Patents have three main requirements:
In the technology field, patents have long been used to protect hardware devices and manufacturing processes. There is plenty of precedent on the side of inventors in those areas. Recent patents have also been issued covering software programs and similar mechanisms, but these patents have become somewhat controversial because many of them are viewed by the technical community as overly broad. The issuance of these broad patents led to the evolution of businesses that exist solely as patent holding companies that derive their revenue by engaging in legal action against companies that they feel infringe upon the patents held in their portfolio. These companies are known by many in the technology community under the derogatory name “patent trolls.”
Many companies have intellectual property that is absolutely critical to their business, and significant damage would result if it were disclosed to competitors and/or the public—in other words, trade secrets. We previously mentioned two examples of this type of information from popular culture—the secret formula for Coca-Cola and KFC's “secret blend of herbs and spices.” Other examples are plentiful; a manufacturing company may want to keep secret a certain manufacturing process that only a few key employees fully understand, or a statistical analysis company might want to safeguard an advanced model developed for in-house use.
Two of the previously discussed intellectual property tools—copyrights and patents—could be used to protect this type of information, but with these two major disadvantages:
There actually is an official process regarding trade secrets. By their nature you don't register them with anyone; you keep them to yourself. To preserve trade secret status, you must implement adequate controls within your organization to ensure that only authorized personnel with a need to know the secrets have access to them. You must also ensure that anyone who does have this type of access is bound by a nondisclosure agreement (NDA) that prohibits them from sharing the information with others and provides penalties for violating the agreement. Consult an attorney to ensure that the agreement lasts for the maximum period permitted by law. In addition, you must take steps to demonstrate that you value and protect your intellectual property. Failure to do so may result in the loss of trade secret protection.
Trade secret protection is one of the best ways to protect computer software. As discussed in the previous section, patent law does not provide adequate protection for computer software products. Copyright law protects only the actual text of the source code and doesn't prohibit others from rewriting your code in a different form and accomplishing the same objective. If you treat your source code as a trade secret, it keeps it out of the hands of your competitors in the first place. This is the technique used by large software development companies such as Microsoft to protect their core base of intellectual property.
Security professionals should also be familiar with the legal issues surrounding software licensing agreements. Four common types of license agreements are in use today:
The federal government recognizes that the very same computers and encryption technologies that drive the internet and ecommerce can be extremely powerful tools in the hands of a military force. For this reason, during the Cold War, the government developed a complex set of regulations governing the export of sensitive hardware and software products to other nations. The regulations include the management of transborder data flow of new technologies, intellectual property, and personally identifying information.
Until recently, it was difficult to export high-powered computers outside the United States, except to a select handful of allied nations. The controls on exporting encryption software were even more severe, rendering it virtually impossible to export any encryption technology outside the country. Recent changes in federal policy have relaxed these restrictions and provided for more open commerce.
Two sets of federal regulations governing imports and exports are of particular interest to cybersecurity professionals:
Currently, U.S. firms can export high-performance computing systems to virtually any country without receiving prior approval from the government. There are exceptions to this rule for countries designated by the Department of Commerce's Bureau of Industry and Security (BIS) as countries of concern based on the fact that they pose a threat of nuclear proliferation, they are classified as state sponsors of terrorism, or other concerns. These countries include North Korea, Sudan, and Syria.
The Department of Commerce's Bureau of Industry and Security (BIS) sets forth regulations on the export of encryption products outside the United States. Under previous regulations, it was virtually impossible to export even relatively low-grade encryption technology outside the United States. This placed U.S. software manufacturers at a great competitive disadvantage to foreign firms that faced no similar regulations. After a lengthy lobbying campaign by the software industry, the president directed the Commerce Department to revise its regulations to foster the growth of the American security software industry.
Current regulations now designate the categories of retail and mass market security software. The rules now permit firms to submit these products for review by the Commerce Department, but the review is supposed take no longer than 30 days. After successful completion of this review, companies may freely export these products. However, government agencies often exceed legislated deadlines and companies must either wait until the review is complete or take the matter to court in an attempt to force a decision.
The right to privacy has for years been a hotly contested issue in the United States. The main source of this contention is that the Constitution's Bill of Rights does not explicitly provide for a right to privacy. However, this right has been upheld by numerous courts and is vigorously pursued by organizations such as the American Civil Liberties Union (ACLU).
Europeans have also long been concerned with their privacy. Indeed, countries such as Switzerland are world renowned for their ability to keep financial secrets. Later in this chapter, we'll examine how the European Union (EU) data privacy laws impact companies and internet users.
Although there is no explicit constitutional guarantee of privacy, a myriad of federal laws (many enacted in recent years) are designed to protect the private information the government maintains about citizens as well as key portions of the private sector such as financial, educational, and healthcare institutions. In the following sections, we'll examine a number of these federal laws.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The direct interpretation of this amendment prohibits government agents from searching private property without a warrant and probable cause. The courts have expanded their interpretation of the Fourth Amendment to include protections against wiretapping and other invasions of privacy.
The Privacy Act of 1974 is perhaps the most significant piece of privacy legislation restricting the way the federal government may deal with private information about individual citizens. It severely limits the ability of federal government agencies to disclose private information to other people or agencies without the prior written consent of the affected individuals. It does provide for exceptions involving the census, law enforcement, the National Archives, health and safety, and court orders.
One of the most notable provisions of the ECPA is that it makes it illegal to monitor mobile telephone conversations. In fact, such monitoring is punishable by a fine of up to $500 and a prison term of up to five years.
HIPAA also clearly defines the rights of individuals who are the subject of medical records and requires organizations that maintain such records to disclose these rights in writing.
One of the changes mandated by the new regulations is a change in the way the law treats business associates, which are organizations that handle protected health information (PHI) on behalf of a HIPAA-covered entity. Any relationship between a covered entity and a business associate must be governed by a written contract known as a business associate agreement (BAA). Under the new regulation, business associates are directly subject to HIPAA and HIPAA enforcement actions in the same manner as a covered entity.
HITECH also introduced new data breach notification requirements. Under the HITECH Breach Notification Rule, HIPAA-covered entities that experience a data breach must notify affected individuals of the breach and must also notify both the secretary of health and human services and the media when the breach affects more than 500 individuals.
One of the major changes prompted by the PATRIOT Act revolves around the way government agencies obtain wiretapping authorizations. Previously, police could obtain warrants for only one circuit at a time, after proving that the circuit was used by someone subject to monitoring. Provisions of the PATRIOT Act allow authorities to obtain a blanket authorization for a person and then monitor all communications to or from that person under the single warrant.
Another major change is in the way the government deals with internet service providers (ISPs). Under the terms of the PATRIOT Act, ISPs may voluntarily provide the government with a large range of information. The PATRIOT Act also allows the government to obtain detailed information on user activity through the use of a subpoena (as opposed to a wiretap).
Finally, the USA PATRIOT Act amends the Computer Fraud and Abuse Act (yes, another set of amendments!) to provide more severe penalties for criminal acts. The PATRIOT Act provides for jail terms of up to 20 years and once again expands the coverage of the CFAA.
The PATRIOT Act has a complex legislative history. Many of the key provisions of the PATRIOT Act expired in 2015 when Congress failed to pass a renewal bill. However, Congress later passed the USA Freedom Act in June 2015, which restored key provisions of the PATRIOT Act. The provisions expired again in March 2020 and, as of the time this book went to press, had not yet been renewed. The future status of PATRIOT Act surveillance is now in doubt.
The European Union (EU) has served as a leading force in the world of information privacy, passing a series of regulations designed to protect individual privacy rights. These laws function in a comprehensive manner, applying to almost all individually identifiable information, unlike U.S. privacy laws, which generally apply to specific industries or categories of information.
On October 24, 1995, the European Parliament passed a sweeping Data Protection Directive (DPD) outlining privacy measures that must be in place for protecting personal data processed by information systems. The directive went into effect three years later in October 1998, serving as the first broad-based privacy law in the world. The DPD required that all processing of personal data meet one of the following criteria:
The directive also outlined key rights of individuals about whom data is held and/or processed:
The passing of the DPD forced organizations around the world, even those based outside Europe, to consider their privacy obligations due to transborder data flow requirements. In cases where personal information about European Union citizens left the EU, those sending the data were required to ensure that it remained protected.
The European Union passed a new, comprehensive law covering the protection of personal information in 2016. The General Data Protection Regulation (GDPR) went into effect in 2018 and replaced the DPD on that date. The main purpose of this law is to provide a single, harmonized law that covers data throughout the European Union, bolstering the personal privacy protections originally provided by the DPD.
A major difference between the GDPR and the data protection directive is the widened scope of the regulation. The new law applies to all organizations that collect data from EU residents or process that information on behalf of someone who collects it. Importantly, the law even applies to organizations that are not based in the EU, if they collect information about EU residents. Depending on how this is interpreted by the courts, it may have the effect of becoming an international law because of its wide scope. The ability of the EU to enforce this law globally remains an open question.
The key provisions of the GDPR include the following:
GDPR is of particular concern when transferring information across international borders. Organizations needing to conduct transfers between their subsidiaries have two options available for complying with EU regulations:
In the past the European Union and the United States operated a safe harbor agreement called Privacy Shield. Organizations were able to certify their compliance with privacy practices through independent assessors and, if awarded the privacy shield, were permitted to transfer information.
However, a 2020 ruling by the European Court of Justice in a case called Schrems II declared the EU/US Privacy Shield invalid. Currently, companies may not rely on the Privacy Shield and must use either standard contractual clauses or binding corporate rules. This may change in the future if the Privacy Shield is modified to meet EU requirements.
In some cases, conflicts arise between laws of different nations. For example, electronic discovery rules in the United States might require the production of evidence that is protected under GDPR. In those cases, privacy professionals should consult with attorneys to identify an appropriate course of action.
Canadian law affects the processing of personal information related to Canadian residents. Chief among these, the Personal Information Protection and Electronic Documents Act (PIPEDA) is a national-level law that restricts how commercial businesses may collect, use, and disclose personal information.
Generally speaking, PIPEDA covers information about an individual that is identifiable to that individual. The Canadian government provides the following examples of information covered by PIPEDA:
The law excludes information that does not fit the definition of personal information, including the following examples provided by the Information Commissioner of Canada:
PIPEDA may also be superseded by province-specific laws that are deemed substantially similar to PIPEDA. These laws currently exist in Alberta, British Columbia, and Quebec. PIPEDA generally does not apply to nonprofit organizations, municipalities, universities, schools, and hospitals.
In addition to the federal and international laws affecting the privacy and security of information, organizations must be aware of the laws passed by states, provinces, and other jurisdictions where they do business. As with the data breach notification laws discussed earlier in this chapter, states often lead the way in creating privacy regulations that spread across the country and may eventually serve as the model for federal law.
The California Consumer Privacy Act (CCPA) is an excellent example of this principle in action. California passed this sweeping privacy law in 2018, modeling it after the European Union's GDPR. Provisions of the law went into effect in 2020, providing consumers with the following:
Over the past decade, the regulatory environment governing information security has grown increasingly complex. Organizations may find themselves subject to a wide variety of laws (many of which were outlined earlier in this chapter) and regulations imposed by regulatory agencies or contractual obligations.
Dealing with the many overlapping, and sometimes contradictory, compliance requirements facing an organization requires careful planning. Many organizations employ full-time IT compliance staff responsible for tracking the regulatory environment, monitoring controls to ensure ongoing compliance, facilitating compliance audits, and meeting the organization's compliance reporting obligations.
Organizations may be subject to compliance audits, either by their standard internal and external auditors or by regulators or their agents. For example, an organization's financial auditors may conduct an IT controls audit designed to ensure that the information security controls for an organization's financial systems are sufficient to ensure compliance with the Sarbanes–Oxley Act (SOX). Some regulations, such as PCI DSS, may require the organization to retain approved independent auditors to verify controls and provide a report directly to regulators.
In addition to formal audits, organizations often must report regulatory compliance to a number of internal and external stakeholders. For example, an organization's board of directors (or, more commonly, that board's audit committee) may require periodic reporting on compliance obligations and status. Similarly, PCI DSS requires organizations that are not compelled to conduct a formal third-party audit to complete and submit a self-assessment report outlining their compliance status.
The increased use of cloud services and other external vendors to store, process, and transmit sensitive information leads organizations to a new focus on implementing security reviews and controls in their contracting and procurement processes. Security professionals should conduct reviews of the security controls put in place by vendors, both during the initial vendor selection and evaluation process and as part of ongoing vendor governance reviews.
These are some questions to cover during these vendor governance reviews:
This is just a brief listing of some of the concerns you may have. Tailor the scope of your security review to the specific concerns of your organization, the type of service provided by the vendor, and the information that will be shared with them.
Computer security necessarily entails a high degree of involvement from the legal community. In this chapter, you learned about the laws that govern security issues such as computer crime, intellectual property, data privacy, and software licensing.
Three major categories of law impact information security professionals. Criminal law outlines the rules and sanctions for major violations of the public trust. Civil law provides us with a framework for conducting business. Government agencies use administrative law to promulgate the day-to-day regulations that interpret existing law.
The laws governing information security activities are diverse and cover all three categories. Some, such as the Electronic Communications Privacy Act and the Digital Millennium Copyright Act, are criminal laws where violations may result in criminal fines and/or prison time. Others, such as trademark and patent law, are civil laws that govern business transactions. Finally, many government agencies promulgate administrative law, such as the HIPAA Security Rule, that affects specific industries and data types.
Information security professionals should be aware of the compliance requirements specific to their industry and business activities. Tracking these requirements is a complex task and should be assigned to one or more compliance specialists who monitor changes in the law, changes in the business environment, and the intersection of those two realms.
It's also not sufficient to simply worry about your own security and compliance. With increased adoption of cloud computing, many organizations now share sensitive and personal data with vendors that act as service providers. Security professionals must take steps to ensure that vendors treat data with as much care as the organization itself would and also meet any applicable compliance requirements.
Understand the differences between criminal law, civil law, and administrative law. Criminal law protects society against acts that violate the basic principles we believe in. Violations of criminal law are prosecuted by federal and state governments. Civil law provides the framework for the transaction of business between people and organizations. Violations of civil law are brought to the court and argued by the two affected parties. Administrative law is used by government agencies to effectively carry out their day-to-day business.
Be able to explain the basic provisions of the major laws designed to protect society against computer crime. The Computer Fraud and Abuse Act (as amended) protects computers used by the government or in interstate commerce from a variety of abuses. The Electronic Communications Privacy Act (ECPA) makes it a crime to invade the electronic privacy of an individual.
Know the differences among copyrights, trademarks, patents, and trade secrets. Copyrights protect original works of authorship, such as books, articles, poems, and songs. Trademarks are names, slogans, and logos that identify a company, product, or service. Patents provide protection to the creators of new inventions. Trade secret law protects the operating secrets of a firm.
Be able to explain the basic provisions of the Digital Millennium Copyright Act of 1998. The Digital Millennium Copyright Act prohibits the circumvention of copy protection mechanisms placed in digital media and limits the liability of internet service providers for the activities of their users.
Know the basic provisions of the Economic Espionage Act of 1996. The Economic Espionage Act provides penalties for individuals found guilty of the theft of trade secrets. Harsher penalties apply when the individual knows that the information will benefit a foreign government.
Understand the various types of software license agreements. Contractual license agreements are written agreements between a software vendor and user. Shrink-wrap agreements are written on software packaging and take effect when a user opens the package. Click-through agreements are included in a package but require the user to accept the terms during the software installation process.
Understand the notification requirements placed on organizations that experience a data breach. California's SB 1386 implemented the first statewide requirement to notify individuals of a breach of their personal information. All other states eventually followed suit with similar laws. Currently, federal law only requires the notification of individuals when a HIPAA-covered entity breaches their protected health information.
Understand the major laws that govern privacy of personal information in the United States, the European Union, and Canada. The United States has a number of privacy laws that affect the government's use of information as well as the use of information by specific industries, such as financial services companies and healthcare organizations that handle sensitive information. The EU has a more comprehensive General Data Protection Regulation that governs the use and exchange of personal information. In Canada, the Personal Information Protection and Electronic Documents Act (PIPEDA) governs the use of personal information.
Explain the importance of a well-rounded compliance program. Most organizations are subject to a wide variety of legal and regulatory requirements related to information security. Building a compliance program ensures that you become and remain compliant with these often overlapping requirements.
Know how to incorporate security into the procurement and vendor governance process. The expanded use of cloud services by many organizations requires added attention to conducting reviews of information security controls during the vendor selection process and as part of ongoing vendor governance.
Be able to determine compliance and other requirements for information protection. Cybersecurity professionals must be able to analyze a situation and determine what jurisdictions and laws apply. They must be able to identify relevant contractual, legal, regulatory, and industry standards and interpret them for their given situation.
Know legal and regulatory issues and how they pertain to information security. Understand the concepts of cybercrime and data breaches and be able to apply them in your environment when incidents arise. Understand what licensing and intellectual property protections apply to your organization's data and your obligations when encountering data belonging to other organizations. Understand the privacy and export control issues associated with transferring information across international borders.
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