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Enterprises Should Beware the Pitfalls of Compliance with the Massachusetts Information Security Regulations

02 March 2010

The Standards for the Protection of Personal Information of Residents of the Commonwealth of Massachusetts, 201 CMR 17.00 (“Massachusetts Standards”), include a broad range of administrative, physical, and technical obligations.  Nevertheless, there are certain common business processes that may pose unique and substantial compliance challenges.  Accordingly, organizations subject to these regulations should give very careful consideration to their practices in the following high risk areas. 

Email

First, the obligation to encrypt all sensitive personal information transmitted over public networks will have a substantial impact on the use of email to collect and transmit such data.  While there is generally accepted technology available to encrypt email and/or or files attached to emails, implementing such tools and properly training the workforce to use them may require significant expense.  (It should also be noted that this would apply to webpage forms that populate and transmit emails, as well as the use of Instant Messaging, Text Messaging, or similar technologies to transmit personal information.)

Organizations that exchange personal information directly with consumers may find the transition particularly difficult.  Many consumers may be ill-equipped to deal with encrypted messages and attachments.  Moreover, the encryption/decryption process may create negative user experiences that undermine customer goodwill.  While decrypting messages and attachments may be quite straightforward for the technology savvy consumer, it is likely to be confusing or frustrating for many others.  Similar complications may arise when dealing with small to mid-sized third party service providers that have limited technological sophistication.

In light of the foregoing, many organizations may consider alternative communications protocols, such as shifting email-dependent business processes to web browser-based processes that can be secured in a more efficient and centralized manner. Web pages served over secure HTTP or secure FTP could replace most present-day email communications involving personal information. 

Portable Devices

The Massachusetts Standards require the encryption of sensitive personal information stored on portable devices.  By the Massachusetts government’s own admission, there are no generally accepted encryption tools for use on many commonly-used portable devices, such as smartphones and PDAs.  As a result, enterprises subject to the Massachusetts Standards should carefully consider when it is necessary and appropriate, if ever, to store sensitive personal information on portable devices.  Alternatives, such as truncation of sensitive data (e.g., SSNs and financial account numbers) and use of secure online protocols (e.g., secure HTTP or secure FTP) for transmitting data to third parties, should be thoroughly contemplated.  In those instances when such storage is both necessary and appropriate, procedures, including workforce training, should be developed to ensure that the data remains secure during storage.

There is a certain level of overlap with the email concerns discussed above because a likely source of personal information on smartphones is the email messages that may accessed through the devices.  Since encryption of these messages may not be practicable, organizations may have further incentive to suspend the exchange of personal information via email in favor of browser-based protocols.  

Third Party Relationships

The Massachusetts Standards require enterprises to “select and retain” third party service providers that will provide safeguards consistent with the other requirements of the regulations, as well as contractually obligate third party service providers to maintain such safeguards.  The “select and retain” provision is fairly vague, affording the Massachusetts government (and courts) the opportunity to interpret it in ways that could introduce substantial obligations.  This provision appears to impose obligations to engage in pre-contract evaluation and post-execution monitoring of the security practices of third parties. 

Prior iterations of the Massachusetts Standards included an explicit requirement to obtain written certification of compliance from third party service providers.  Since that language has been removed, the regulations no longer provide concrete guidance on what steps should be taken to “select and retain” appropriate third party service providers.  The resulting ambiguity is a problem for both data owners and their prospective service providers.  Service providers are reluctant to reveal detailed information about their security policies and procedures because such information may be misused at significant cost to the service provider.  On the other hand, data owners are limited in their ability to rely upon imprecise representations of robust security measures from service providers because such representations appear to be self-serving. 

Accordingly, it is important for enterprises in both positions (as data owners and/or service providers) to thoroughly analyze the most effective and appropriate way to ensure that their contractual relationships satisfy the Massachusetts Standards.  Among the potential alternatives is the retention of reputable independent auditors to analyze service provider security practices and generate compliance reports for distribution to business partners (as is common for third parties that provide services subject to the Sarbanes Oxley Act). 

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