Coverage by Diana Bartz of Reuter’s from today’s Senate subcommittee hearing on protecting health information privacy in a digital world:
[…]
“We know from the statistics on breaches that have occurred since the notification provisions went into effect in 2009 that the healthcare industry appears to be rarely encrypting data,” according to written testimony by Deven McGraw, of the Center for Democracy and Technology.
“Doesn’t that cry out for data breach protections?” asked Senator Richard Blumenthal at the hearing of Senate Judiciary Committee’s panel on privacy, technology and the law.
In addition to information about illnesses, electronic medical records contain patients’ dates of birth and Social Security numbers and other data that are gold to identity thieves.
Senator Tom Coburn, himself a physician, urged caution in the wholesale adoption of electronic records, saying he feared hackers could break into a records database.
“Maybe we ought to rethink some of what we’re doing,” he said.
Senator Al Franken, chair of the panel, said he was contemplating legislation to encourage encryption, as well as extending privacy protection requirements beyond healthcare providers, perhaps to online medical record providers.
“The bottom line is that people have a right to privacy and to know that their data is safe and secure, and right now that right is not a reality,” Franken said after the hearing.
The prepared statements of the witnesses are available on the hearing information page, linked from the right column, “Witness Testimony.”
I’m not sure we can conclude that because there have been a lot of reported breaches involving unencrypted data that we know that the health care industry is rarely encrypting data. That might be the case, but I don’t think we can conclude that based on what we do know. After all, we’re not hearing about all the entities and devices that do not have reportable breaches precisely because they do use NIST-grade encryption. I think all we can really say is that there are still a lot of breaches involving unencrypted data. Maybe when OCR starts collecting data from its audits, we will get a better estimate of what percent of entities are using NIST-grade encryption.
This is a bad idea. I am not saying that encryption of PHI is not necessary, but a broad statement that encryption is encouraged already exists in HIPAA Security Rule. The normal pathway for an EHR does protect the data. I suspect that healthcare providing organizations have done some ‘reasonable’ effort to meet HIPAA Security through doing a risk assessment, creation of policies, and enabling technology where they can. When I look at the HHS site for breach notifications, the majority look like petty theft, followed closely by individuals that should know better deciding that they are above their organizations rules so they can export large numbers of patient records onto an unprotected device. These people, no matter how valuable to the hospital, need to be publicly punished. The HHS breach notification site is punishing the organizations, the organizations need to punish their people that are violating their organizations policies. I suspect that the HHS Breach notification site is one of the reasons why Security is getting more funding. So, things are getting better, and a regulation like Senator Franken suggests is not going to make it happen faster.
Well, we don’t know what he would suggest to “encourage” encryption. Suppose he offered other inducements such as immunizing them litigation/class-action lawsuits? Would you still think it’s a bad idea then?
Perfect encryption can protect data at rest and data in transit. No known technology will protect data against dumb behavior, nothing is foolproof.
Nature continues to create better fools.