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“Privacy and Cybersecurity Law in India and the U.S. ”. Professor Peter Swire Ohio State University National Law University, Dwarka March 31, 2011. Overview. Theme – the rules about information are important in the information age Information privacy Constitutional law - PowerPoint PPT Presentation
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“Privacy and Cybersecurity Law in India and the U.S.”
Professor Peter Swire
Ohio State University
National Law University, Dwarka
March 31, 2011
Overview Theme – the rules about information are important in the information
age Information privacy
Constitutional law Statutory and self-regulatory law, with Indian proposal under development
• Google Buzz settlement this week
Cybersecurity Risk-adjusted efforts for security, Indian proposal under development
Encryption Current controversy on RIM/Blackberry, Skype, etc. Reasons why the US decided to support strong crypto after intense debate in the
1990s
Disclaimer – I am not an expert on Indian law, but have been working on specific issues related to encryption and will have research paper this year on that
Swire Background
Law professor since 1990 First Internet law writing 1992 Chief Counselor for Privacy to President Clinton, 1999-2001
Big growth of Internet, and first U.S. national laws on medical privacy, financial privacy, Internet privacy
Wiretaps and other surveillance law for Internet (not just phones) Encryption, big U.S. legal shift in 1999
Special Assistant to President Obama, 2009-2010 Issues included broadband, spectrum, privacy, cybersecurity
Theme: blend law, technology, business, government
U.S. Constitution
4th Amendment to Constitution (in effect 1789) Protects a “reasonable expectation of privacy” against
government search Usually require warrant signed by judge to do “ search or
seizure”, such as entry to a home or business Wiretaps for law enforcement generally require a warrant Very complex case law
U.S. Constitution
1st Amendment to Constitution (in effect 1789) Strong rules against state limits on free speech or free press Important in case law about personal privacy
Common law protections for individual privacy Public revelation of private facts, or “false light” about a person Intrusion on seclusion Protect a celebrity or other person’s “right of publicity” – rule is
that other person can’t make money off of the celebrity’s name (no advertisement suggesting Tandulkar supports your product without his permission)
But 1st Amendment guarantees free speech Newspaper can make money with Tandulkar’s name in headline Many revelations of your personal life are protected speech
Statutes for Private Sector Data
In U.S. (and, I understand, India) no similar constitutional/human right to limit processing of personal information by private sector
European Convention on Human Rights, implemented in E.U. Data Protection Directive, does treat this as a human right
U.S. Congress has passed statutes for some “sensitive” types of information
HIPAA for medical privacy Gramm-Leach-Bliley for financial services Telecom Act of 1996 for data held by phone companies Children’s Online Privacy Protection Act for information collected
from under-13s Video Privacy Protection Act for movie rentals (Judge Bork)
Statutory Protections & Fair Information Practices
For HIPAA, European laws, and other possible private-sector laws, have “FIPS”
On Internet, often done by “self-regulation” – promises like statutes Notice – how the personal data will be used Choice – “We have business partners who may have offers. Do
you want your data shared?• Opt in: don’t use data unless affirmative consent; aps for FB• Opt out: use data unless customer says no (tick box already
checked but you can uncheck it) Access – see your medical or other records Data security -- doesn’t help to have privacy rules if the 12 year
old can hack in Accountability – consequences if don’t follow the rules
Accountability HIPAA enforced by U.S. Department of Health and Human Services
Patient complaints Opportunity for hospital, etc., to fix problem Consent decrees & penalties
• $1 million penalty last month for hospital Federal Trade Commission enforces against “unfair and deceptive
trade practices”, notably including broken privacy promises This week, consent decree for Google Buzz
• New service, log in, “Sweet, send me to Buzz!”• G signed Gmail users up for this new social network, saying
unless you ticked “Nah, send me to my inbox” Claim Google broke its privacy policy and violated the U.S.-E.U.
Safe Harbor Google promises now “comprehensive privacy program,” with 20
years of outside privacy audits
Beyond FIPS: Legal Conflicts
Often have intersection of a privacy rule (don’t share data) and some other public policy purpose (need to share data)
An example from HIPAA: doctor or hospital, and someone arrives who did/might have broken the law. Should the doctor report to the police?
Perspective of the doctor? Hippocratic Oath? Why have that? Perspective of the police? Knife wound? IV drug user? History of this in HIPAA This question raised to me this week in India by a national
security official When is disclosure required/permitted/forbidden?
Hi Kenesa:I’ll be talking about encryption on April 11.Also,
Cybersecurity Protections
Already saw that security is an element of privacy FIPS Don’t steal from my bank account Don’t reveal my medical or surfing records
Government agencies and don’t reveal secret government information
Basic idea of many cybersecurity laws: Must have risk-adjusted security provisions HIPAA, GLB, U.S. government (FISMA) Online policies promise “reasonable security”, so FTC
enforcement Some common elements
Responsible officials Policies, training Identify areas of greatest risk, e.g., bank accounts vs. marketing
materials Good idea to specify technology? 40-bit? Have a firewall? No.
Summary Thus Far
Constitutional provisions, especially about government intrusion into personal space
Statutes – privacy FIPs, risk-weighted cybersecurity Beyond statutes to “self regulation”, but have enforcement Interesting legal issues where conflicts between reasons to share
data and to limit data flows Goal of an overall regime where important things are protected and
important data uses also succeed Next – current controversy about encryption
Idea of encryption: Alice sends to Bob; she wraps her text in code, and only he can decode it
Current statute in India from 1998 – encryption “bit length” maximum 40 bits
Current banking regulators – encryption “bit length” minimum 128 bits
RIM/Blackberry and should messages be available to a government in the clear, in real time?
Hi Kenesa:I’ll be talking about encryption on April 11.Also,
Hi Kenesa:I’ll be talking about encryption on April 11.Also,
Local switch
Local switch
Wiretap on Copper Lines
Phone call
Phone call
Telecom Company
WIRETAP AT A’S HOUSE OR LOCAL SWITCH
Alice
Bob
Local switch
Local switch
Wiretap on Fiber Optic
Phone call
Phone call
Telecom Company
WIRETAP ONLY AT LOCAL SWITCH
Alice
Bob
VOICE, NOT DATAMOBILE & LAND
HQ gets downloads
CALEA in U.S.WIRETAP READY
Bob ISP
Alice ISP
%!#&*YJ#$&#
^@%
%!#&*YJ#$&#
^@%
From Voice to Internet
Hi Bob!
Hi Bob!
Internet: Many Nodes between ISPs
Nodes: many, unknown, potentially maliciousWEAK ENCRYPTION = MANY INTERCEPTS
Alice
Bob
%!#&*YJ#$&#
^@%
%!#&*YJ#$&#
^@%
%!#&*YJ#$&#
^@%
%!#&*YJ#$&#
^@%
%!#&*YJ#$&#
^@%
%!#&*YJ#$&#
^@%
%!#&*YJ#$&#
^@%
%!#&*YJ#$&#
^@%
Problems with Weak Encryption
Nodes between A and B can see and copy whatever passes through
“Brute force attacks” became more effective due to “Moore’s Law”; today, 40 bits very easy to break by many
From a few telcos to many millions of nodes on the Internet Hackers Criminals Foreign governments Amateurs
Strong encryption as feasible and correct answer Scaled well as Internet users went over one billion
U.S. Experience 1990’s
Initial inter-agency victory for law enforcement (FBI) and national security (NSA), early-mid 90’s
Fear of loss of ability to wiretap Strong crypto within US Exports were controlled, on idea that crypto = munition Political system supports law enforcement and national security
Sept. 1999, shift in U.S. policy to allow strong crypto for export I chaired WH working group on encryption 1999 Part of WH announcement 1999 of shift to strong crypto exports
Why the change to position contrary to view of law enforcement and security agencies?
Crumbling of Weak Crypto Position Futility of weak crypto rules
Meeting with Senator or Congressman Start the clock, how long to search for “encryption download”?
• Get PGP or other strong crypto in less than one minute In world of weak crypto rules, effect on good guys and bad guys
Bad guys – download PGP, stop the wiretap Good guys – follow the rules, legitimate actors get their secrets
revealed• Banking, medical records, retail sales• The military’s communications on the Internet, government
agencies, critical infrastructure
Objection – We Want the Keys
The failure of the Clipper Chip Idea was that all users of strong crypto would “escrow” their
keys with law enforcement• Advocates for it had various safeguards, e.g., two people in
the government had to agree for the key to be revealed Very strong technical arguments against this
• Some people didn’t trust the government• If do this for 200 nations worldwide, more people don’t trust
all the governments• Single point of failure – if the databank of keys is ever
revealed, most/all communications can be read Personal communications Corporate secrets Government communications over the Internet
Objection – We Want the Keys
Even apart from key escrow, is useful to walk briefly through how public key encryption works, to show limits of requests for “we want the keys”
Basic approach of public key encryption RSA a well-known instance of this approach
Alice and Bob each have a “public” key that anyone can wrap plaintext with
They each have a “private” key that is the only way to unwrap the encrypted text (unless someone tries brute force or other attack)
“Wrapping” like multiplication (multiply two huge prime numbers); “unwrap” is like division (find the two primes); cryptosystem is “one-way function”
Encrypt
Encrypted message –
Where are the KEYS?
Hi Bob!
The KEYS are with the INDIVIDUALS
1
AliceBob's public
key
Bob's private key
– Alice's local ISP
%!#&YJ@$
%!#&YJ@$
Decrypt Hi Bob!
%!#&YJ@$
%!#&YJ@$
– Bob's local ISP
– Backbone provider
Bob
Encrypt
Encrypted message –
Where are the KEYS?Hi Fred!
The KEYS are with the CORPORATIONS
2
Jill at Corporation A, Tata
Public key of Corporation B –
Reliance
Private key of Corporation B,
Reliance
– Corporation A's ISP
%!#&YJ@$
%!#&YJ@$
Decrypt Hi Fred!
%!#&YJ@$
%!#&YJ@$
– Corporation B's ISP
– Backbone provider
Fred at Corporation B
Reliance.
Lawful process:(1) Ask Tata before
encryption(2) Ask Reliance after
decryption
Limits to Getting the Keys
In many instances, the keys are held by Alice and Bob No one else has the keys
• That can include the software maker or service provider• Can be encryption at rest – your laptop
Keep a backup, or else computer “brickifies”• Can be encryption in communication
You may be only one with access to the private key, in some systems select it yourself or it is created by a one-way function where the originator has no access
Technical experts prefer/insist on this
Objection – Isn’t There a Back Door?
As with Clipper Chip, law enforcement would love to have a back door
Back door = designed security flaw in the system May be that law enforcement only can read (Clipper Chip) May be that software/service provider can read (they promise
security but keep a secret way in) Goal of back door:
All the good guys can get in (and know they can ask for it) No one else, including bad guys, get in:
• Criminals and their hackers• Foreign governments and spy services• Ph.D. computer experts• White hat hackers – people who detect flaws and tell CERTs
and others about them
The Likelihood of Back Doors? Let’s think through the likelihood that widely-used strong encryption
actually has back doors for some law enforcement/national security agencies
My view – much less likely than many people think Swire writings on when secrecy helps/hurts security Key point is that secrecy not likely to be successful when there
are many attackers, who can attack repeatedly, and can report successful attacks
A simpler way to say this: Wikileaks What likelihood that the FBI has been pervasively using a
backdoor, with knowledge of software/services companies, and it hasn’t leaked since 1999 approval of strong crypto?
What likelihood that none of the smart Ph.Ds and white hat hackers have ever found an example of this?
What brand effect on Microsoft (Bit Locker) and other global brands if they promised security and secretly broke it? What penalties for fraud?
Why We Don’t Want Weak Cybersecurity
Key point so far on encryption – weak crypto is weak cybersecurity A world full of attackers can and will read data sent over the
Internet unless there is strong crypto Indian and all other governments have spoken strongly about the
need for strong cybersecurity Numerous quotes about the need for strong cybersecurity “Cyber warfare and threats to cyber security are fast becoming
the next generation of threats. We need to make our cyber systems as secure and as non-porous as possible.” Indian Defense Minister, Shri A.K. Antony, May 2010
Critical infrastructure open to attack Financial system Medical records and other sensitive personal information
• Including records used in cross-border provision of services
Lack of Strong Crypto as Legal Violation Strong crypto increasingly becoming legal requirement
State of Massachusetts computer security law now in effect• Strict penalties for loss of laptop or other loss of data unless
strong encryption in place U.S. funding of $19 billion for electronic health records
• Rules for reimbursement • Strong encryption is expected to qualify for funding
More generally, numerous laws worldwide require cost-effective security measures, on pain of penalties• What is “adequate” protection under E.U. law?• For instance, Gramm-Leach-Bliley safeguards rule for U.S.
financial services• With strong crypto low-cost and pervasive, its absence
violates many laws
Conclusion Privacy and cybersecurity are key information law issues for the
information age New generation of lawyers will become expert on these topics International Association of Privacy Professionals, from 140
people in 2001 to over 2000 people at the conference this year, over 7000 members (CIPP certification)
Intellectually interesting – law to match cutting-edge technology, trying to govern global data flows
For lawyers who understand the needs of technology, business, and government, the chance to build a better Information Society
Come aboard for this interesting ride