“Privacy and Cybersecurity Law in India and the U.S. ”

“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

Hi Kenesa: I’ll be talking about encryption on April 11. Also, 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?

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.

Hi Kenesa: I’ll be talking about encryption on April 11. Also, Hi Kenesa: I’ll be talking about encryption on April 11. Also, 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?

Wiretap on Copper Lines Phone call Alice Local switch Telecom Company Local switch Phone call WIRETAP AT a’S HOUSE OR LOCAL SWITCH Bob

Wiretap on Fiber Optic CALEA in U.S. Wiretap ready Phone call Alice Local switch Telecom Company Local switch Voice, not data Mobile & Land HQ gets downloads Phone call WIRETAP Only at LOCAL SWITCH Bob

From Voice to Internet Hi Bob! Alice Alice ISP %!#&*YJ#$&#^@% %!#&*YJ#$&#^@% Internet: Many Nodes between ISPs %!#&*YJ#$&#^@% %!#&*YJ#$&#^@% %!#&*YJ#$&#^@% %!#&*YJ#$&#^@% %!#&*YJ#$&#^@% %!#&*YJ#$&#^@% %!#&*YJ#$&#^@% %!#&*YJ#$&#^@% Bob ISP Hi Bob! Nodes: many, unknown, potentially malicious Weak encryption = many intercepts Bob

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”

Where are the KEYS? 1 Hi Bob! Encrypt Bob's public key Alice Encrypted message – %!#&YJ@$ – Alice's local ISP %!#&YJ@$ – Backbone provider %!#&YJ@$ – Bob's local ISP %!#&YJ@$ Hi Bob! Decrypt Bob's private key The KEYS are with the individuals Bob

Where are the KEYS? 2 Encrypt Hi Fred! Jill at Corporation A, Tata Public key of Corporation B – Reliance Encrypted message – %!#&YJ@$ – Corporation A's ISP Lawful process: Ask Tata before encryption Ask Reliance after decryption %!#&YJ@$ – Backbone provider %!#&YJ@$ – Corporation B's ISP %!#&YJ@$ Decrypt Hi Fred! Private key of Corporation B, Reliance The KEYS are with the corporations Fred at Corporation B Reliance.

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

“Privacy and Cybersecurity Law in India and the U.S. ”