Lawyers define privacy as (Richard & King, 2014):
- Invasions into protecting spaces, relationships or decisions
- Collection of information
- Use of information
- Disclosure of information
Given the body of knowledge of technology and data analytics, data collection and analysis may give off the appearance of a “Big Brother” state (Li, 2010). The Privacy Act of 1974, prevents the U.S. government from collecting its citizen’s data and storing in databases, but it does not expand to companies (Brookshear & Brylow, 2014). Confidentiality does exist for health records via the Health Insurance Portability and Accountability Act (HIPAA) of 1996, and for financial records through the Fair Credit Act, which also allows people to correct erroneous information in the credit (Richard & King, 2014). The Electronic Communication Privacy Act of 1986 limits wiretapping communications by the government, but it does not expand to companies (Brookshear & Brylow, 2014). The Video Privacy Protection Act of 1988 protects people via videotaped records (Richard and King, 2014). Finally, in 2009 the HITECH Act, strengthened the enforcement of HIPAA (Pallardy, 2015). Some people see the risk of the loss of privacy via technology and data analytics, while another embrace it due to the benefits they perceive that they would gain from disclosing this information (Wade, 2012). All of these privacy protection laws are outdated and do not extend to the rampant use, collection, and mining of data based on the technology of the 21st century.
However, Richard and King (2014), describe that a binary notion of data privacy does not exist. Data is never completely private/confidential nor completely divulged, but data lies in-between these two extremes. Privacy laws should focus on the flow of personal information, where an emphasis should be placed on a type of privacy called confidentiality, where data is agreed to flow to a certain individual or group of individuals (Richard & King, 2014). Thus, from a future legal perspective data privacy should focus on creating rules on how data should flow, be used, and the concept of confidentiality between people and groups. Right now the only thing preventing abuse of personal privacy from companies is the negative public outcry that will affect their bottom line (Brookshear & Brylow, 2014).
In the healthcare industry, patients and healthcare providers are concerned about data breaches, where personal confidential information could be accessed, and if a breach did occur 54% of patients were willing of switching from their current provider (Pallardy, 2015).
In healthcare, if data gets migrated into a public cloud rather than a community cloud-specific to healthcare, the data privacy enters into legal limbo. According to Brookshear and Brylow (2014), cloud computing data privacy and security becomes an issue because, in a public cloud, healthcare will not own the infrastructure that houses the data. HIPAA government regulations provide patient privacy standard that the healthcare industry must follow. HIPAA covers a patient’s right to privacy by asking for permission on how to use their personally identifiable information in medical records, personal health, health plans, healthcare clearinghouses, and healthcare transactions (HHS, n.d.b.). The Department of Health & Human Services collects complaints that deal directly with a violation of the HIPAA regulations (HHS, n.d.a.). Brown (2014), outlines the cost of each violation that is based on the type of violation, the willful or willful neglect, and how many identical violations have occurred, where penalty costs can range from $10-50K per incident. Industry best practices on how to avoid HIPAA violations come from (Pallardy, 2015):
- De-identify personal data: Names, Birth dates, death dates, treatment dates, admission dates, discharge dates, telephone numbers, contact information, address, social security numbers, medical record numbers, photographs, finger and voice prints, etc.
- Install technical controls: anti-malware, data loss prevention, two-factor authentication, patch management, disc encryption, and logging and monitoring software
- Install certain security controls: Security and compliance oversight committee, formal security assessment process, security incident response plan, ongoing user awareness and training, information classification system, security policies
- Brookshear, G., & Brylow, D. (2014). Computer Science: An Overview, (12th). Pearson Learning Solutions. VitalBook file.
- Brown, M. (2014) What is the penalty for an HIPAA Violation? TrueVault. Retrieved from https://www.truevault.com/blog/what-is-the-penalty-for-a-hipaa-violation.html
- HHS (n.d.1.) Enforcement Process. S. Department of Health & Human Services. Retrieved from https://www.hhs.gov/hipaa/for-professionals/compliance-enforcement/enforcement-process/index.html
- HHS (n.d.b.) Health Information Privacy. S. Department of Health & Human Services. Retrieved from https://www.hhs.gov/hipaa/for-professionals/privacy/
- Li, C. (2010). Open Leadership: How Social Technology Can Transform the Way You Lead, (1st). Vital book file.
- Richards, N. M., & King, J. H. (2014). Big Data Ethics. Wake Forest Law Review, 49, 393–432.
- Pallardy, C. (2015). 50 things to know about healthcare data security & privacy. Retrieved from http://www.beckershospitalreview.com/healthcare-information-technology/50-things-to-know-about-healthcare-data-security-privacy.html
- Wade, W. (2012). Scenario Planning: A Field Guide to the Future, (1st). Vitalbook file.