Fred Carter Senior Policy & Technology Advisor Information and Privacy Commissioner Ontario, Canada MISA Ontario Cloud Computing Transformation Workshop 26 March 2013 Privacy by Design in the Clouds: You Can’t Outsource Accountability

Commissioner Ann Cavoukian, Ph.D. Appointed by Ontario legislature Independent from government Oversees 3 privacy & access to information laws Longest serving privacy commissioner in the world Mandated to: Investigate privacy complaints Resolve appeals from refusals to provide access to information Ensure organizations comply with the access and privacy provisions of the Acts Educate public about Ontario access & privacy laws Conduct research on access and privacy issues, provide advice and comment on proposed government legislation & programs. Information & Privacy Commissioner Ontario, Canada

IPC Interest in Cloud Computing Oversight: information management practices of provincial / municipal public and health care sectors in Ontario Outsourcing, due diligence and accountability Design and deployment of new ICTs Applying Privacy by Design Foundational Principles to technologies, business processes, and networked infrastructures

The Power and Promise of Cloud Computing Flexibility Better reliability and security Enhanced collaboration Efficiency in deployment Portability Potential cost savings Simpler devices

Cloud Computing Risks Loss of control by customer over technology infrastructure / loss of governance Possible loss of control over location of data Concerns about segregation of data Data retention, destruction and return Rights to data Data security

… but you can’t outsource accountability You can outsource data / services … You always remain accountable

IPC Advice Some things to consider: 1.Exercise due diligence 2.Conduct a Privacy Impact Assessment 3.Use identifying information only when necessary 4.Identify and minimize privacy and security risks 5.Use privacy enhancing technological tools 6.Ensure transparency, notice, education, awareness 7.Develop a privacy breach management plan 8.Create and enforce contractual clauses

Privacy by Design Meets the Cloud: Current and Future Privacy Challenges What is Privacy by Design? Building privacy into technologies, business processes, and networked infrastructures from the ground up. Goal: to establish and achieve highest possible standards of accountability, confidence, and trust in management of PII, beyond compliance Requires: Proactive, capable leadership; Systemic, verifiable methods; Practical, demonstrable results

Privacy by Design: The 7 Foundational Principles 1.Proactive not Reactive: Preventative, not Remedial; 2.Privacy as the Default setting; 3.Privacy Embedded into Design; 4.Full Functionality: Positive-Sum, not Zero-Sum; 5.End-to-End Security: Full Lifecycle Protection; 6.Visibility and Transparency: Keep it Open; 7.Respect for User Privacy: Keep it User-Centric.

Applied Privacy by Design Large Ontario educational institution initiative to upgrade, outsource IT infrastructure to a U.S.-based cloud service provider Evidence of Capable, Proactive Leadership –Open and transparent processes Evidence of Systemic, Verifiable Methods –World class PIA, TRA and metrics Expected Practical, Demonstrable Results

Conclusions Cloud computing has many benefits and risks You can outsource your operations and services but not your accountability Conduct proper due diligence on your cloud provider Ensure you have the appropriate contractual provisions in place Build PbD into the cloud infrastructure Embed privacy as a core functionality: the future of privacy may depend on it!

Contractual Provisions to Consider Description of Services Service Level Commitments Data Ownership and Other IPR issues Confidentiality, privacy and security –Data confidentiality obligations –Obligations of cloud service provider for protecting customer data –Location of data –Audit provisions –Data return and destruction –Data breach notification

Contractual Provisions to Consider Representations and Warranties Insurance Coverage Liabliity and Indemnity Issues Termination / transition provisions Subcontracting by cloud service provider Assignment by either party Governing law and forum for resolution of disputes Dispute resolution

Contractual Provisions to Consider Service provider should not use PI except as necessary in providing services Provider should not improperly disclose PI Provider must employ safeguards to ensure PI is retained, transferred and disposed of securely Provider must notify the organization immediately of any order or other requirement to compel production of PI Provider must notify the organization immediately if PI is stolen, lost, accessed by unauthorized persons Implement oversight and monitoring program, including audits of the provider’s compliance with the terms of the agreement No one on behalf of provider should have access to PI unless that person agrees to comply with restrictions in the agreement.

USA Patriot Act and Cloud Computing BC, NS legislation restricts government’s ability to outsource beyond Canadian border There will always be laws that allow law enforcement to gain access to information in their jurisdictions – the important question is what steps can an organization take to help ensure privacy and security, regardless of jurisdiction Organizations considering outsourcing or cloud computing should ensure accountability through appropriate contractual provisions and a Privacy by Design approach that ensures privacy is built in as an integral part of the proposed technologies and business practices