Wednesday, November 12, 2014

Data Privacy Act: My personal view on its adequacy

Week 14: Legal and Regulatory Issues in eHealth



Driving Question:
Is the Data Privacy Act adequate to protect confidential health information?

The healthcare system is slowly shifting its data warehousing practice to electronic. Most countries, from the first world to third word status are finding means of keeping their patient records/ information safer through the use of IT solutions. The advancement of technology (fast development of gadgets and World Wide Web) provides the avenue to these ideas. The ultimate goal is to lighten the workload and make everyone’s life easier. 

On the other hand, every PRO’s will have its CON’s. Amidst the wonderful things the new technology has to offer, comes a handful of issues and concerns that may greatly affect its processes and growth. Data loss and contamination, data hacking, unauthorized access and wrongful data use are just some of the colossal problems that could damage not only the companies but more importantly the data subjects.  Every pathway, whether it is on healthcare, freight, BPO, HMO, etc, the netizens and even the owners and processors of these data consolidating companies seek a guiding light that may walk them through these identified issues. In these cases, policies and standards play a significant role.

In the Philippines, the demands of keeping the quality and safety of every individual was answered by the two acts which were signed back to back in a month’s time by the President. These are the cybercrime law and the data privacy act of 2012. The cybercrime law protects internet users from abuse and all the sorts while the data privacy act protects subjects’ critical data (such as medical records, demographics, etc.). Certain speculations and reactions were expressed by the citizens not only in the Philippines but from overseas.

On the backend, it is to increase BPO return of investment since our country is one of the leading venues for these kinds of companies. On an article written by Alec Christie, he stated, “In the Philippines it is hoped that the Act will allay concerns over the security of personal information handled by employees of BPO companies based in the Philippines, which in turn will attract more investors in the information technology and BPO industry in the Philippines. The Philippines Business Processing Association believes that the Act will facilitate the IT – BPO industry expanding from call centers to areas that involve handling sensitive personal data such as in the health care and human resources areas, with projections of revenue in the industry increasing from USD 9 billion in 2011 to USD 25 billion by 2016.” Others say that this is necessary for us to comply with ASEAN harmonization. Well for me, if they are true, it will decrease the unemployment rate and will support the growth of ICT dependent businesses which are marking its trend to the local and global scene. But the main thing that will surely have an impact is the data confidentiality and privacy. However, is it adequate enough to protect us subjects from harm?  Let us deduce the act further:    

Let us first meet the actors: (excluding the authorities involved)

Data subject- refers to an individual whose personal information is processed.
Personal information controller- refers to a person or organization that controls the collection, holding, processing or use of personal information, including a person or organization who instructs another person or organization to collect, hold, process, use, transfer or disclose personal information on his or her behalf.
Personal information processor- refers to any natural or juridical person qualified to act as such under this Act to whom a personal information controller may outsource the processing of personal data pertaining to a data subject.

Customer centered Act

Let me start with the definition of Privacy and Confidentiality:
Privacy (from Latin: privatus) is the ability of an individual or group to seclude themselves, or information about themselves, and thereby express themselves selectively. The boundaries and content of what is considered private differ among cultures and individuals, but share common themes. When something is private to a person, it usually means there is something to them inherently special or sensitive. The domain of privacy partially overlaps security, including for instance the concepts of appropriate use, as well as protection of information. (Source: http://en.wikipedia.org/wiki/Privacy)

Confidentiality on the other hand, is a set of rules or a promise that limits access or places restrictions on certain types of information. (Source: http://whatis.techtarget.com/definition/confidentiality)

These two main definitions give us the overview that personal information should be protected and secured. The use and sharing of these data should be treated with responsibility and should be done in caution. Information disclosed to your trusted recipient or even a third party are vested with trust, meaning that the submitter is confident enough that the recipient person will not do anything to the information (including divulgement or use) without his proper consent.  In the data privacy act, these are fully addressed in the “sensitive personal information” part. The data subjects have full control on this type of information. Certain penalties are applicable to violators such as the Controllers and Processors in case these are divulged without the subject’s knowledge. The subjects have also the ability to change or nullify damaged information which resulted from contamination or mistaken entry. Additional penalties will incur for the part of the processor and controller in the extent.

The highlight of the act revolves around the data subjects. The focus is to empower the customers/patients by giving them the key to entrust their personal information to their selected processors. It is very much subject- centered. Notifications which are connected to the subjects’ rights, are required be presented by the controllers or processors. These are:
a. A description of the personal information to be collected/entered into the system
b. The purposes of the processing (ie uses of the information)
c. Scope and method of the processing
d. Possible recipients or classes of recipients to whom the personal information may be disclosed
e. Methods by which the personal information may be accessed automatically
f. Identity and contact details of the Controller, and
g. The Data Subject's rights to access and correct their personal information, as well as his/her
right to make complaints to the NPC.

The heavily burdened controller

Still on privacy and confidentiality, the controller or processor should have a secured means of protecting the patient information in the case of data transferring or contracting another third party for another round of processing. 



Another thing, the controllers will be penalized for having a porous or weak database security in case of unauthorized access (breaches and hacking). In accordance to the act, it is the responsibility of the controller and a requirement of the vested authority to:

a. Safeguard to protect its computer network against accidental, unlawful or unauthorized usage or interference with or hindering of their functioning or availability; 
b. Have a security policy with respect to the processing of personal information;
c. Have a process for identifying and accessing reasonably foreseeable vulnerabilities in its computer networks, and for taking preventive, corrective and mitigating action against security incidents that can lead to a security breach; and
d. Have a regular monitoring for security breaches and a process for taking preventive, corrective and mitigating action against security incidents that can lead to a security breach.

Penalties for non-compliance

The Philippines imposed very high penalties for the violation of the specified regulations in the act ranging from Php 500,000 to Php 4,000,000 for individual breaches and may reach up to 5 million people in case of multiple breaches. So let say, a certain account was breached and 200 personal files were compromised. That is an automatic maximum penalty. What if 10 accounts were breached with the same number of compromised data? Not to mention, the controller could be imprisoned up to 5 years. Though for some multi-national companies, these are just pennies.     

Therefore, all the burden of keeping all the information intact and safe is given to the controller and partly on the processor. These domains are not as easy as it looks. Given the high revenue/ return of investment, it is just proper to give these companies the full responsibility since we give them the full trust in keeping our records safe.

Suggestions
For me, the act is somewhat adequate enough to protect people’s personal health information. It just needs further polishing. The act is data-subject centered, but what provision will protect the controllers from data subjects with malicious intent or money driven? The act should also provide companies a security blanket for these kinds of attack.

Also,(in the contrary) increase the penalties to higher amounts for all to respect the Act. The 5 million maximum penalties is not a problem for some rich companies. This will also increase the probability of compliance.         

Lastly, the Act should be well explained to the general public. The provisions appear to be vague for some. Although they are relatable, the cybercrime law and data privacy act differs in a sense that they regulate two different aspects. According to Atty. Jose Jesus Disini in an article Cybercrime, Data Privacy Acts a double blow on netizens, “The Data Privacy Act is “more encompassing” in how it regulates the flow of information. While the law was meant to protect personal medical information being handled by business process outsourcing companies, the law was worded so vaguely that it could apply to almost anything online.”  He cited an example, “For example, if I said on Facebook that Noemi has a cold, so I identified her, and I even retweeted it, I already processed sensitive personal information,” he said. “Since there was no expressed consent (from the subject), I violated the Data Protection and the Cybercrime Acts.”

Proper dissemination should always be a top priority of the government whenever they release a certain law or policy. Yes, ignorance of the law excuses no one. But ignorance starts when you don’t understand the law and in the long run leaves you unaware.



References:








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