The Red Flag Rule applies broadly to financial institutions, credit grantors, and some others, including some health care providers. A health care provider comes under the Red Flag rule if the provider: 1) meets the definition of creditor under the Fair Credit Reporting Act (15 U.S.C. 1681a(r)(5)). A health care provider comes under the Address Discrepancy Rule if they: 1) use consumer credit reports.
A health care provider that qualifies as a creditor that offers or maintains covered accounts must develop and implement a written Identity Theft Prevention Program. The purpose of the program is to detect, prevent, and mitigate identity theft in connection with new or existing covered accounts. The Program must be appropriate to the size and complexity of the creditor and the nature and scope of its activities. A large hospital will need a more robust program than a two-doctor office.
The Address Discrepancy rule requires a user of a consumer report (credit report) to develop and implement reasonable policies and procedures to enable the user to deal with an address discrepancy. These requirements are narrower than the Red Flag rule for creditors. However, applicability of the address discrepancy requirement may affect a broader class of health care provider (and health insurers) than the Red Flag rule.
The Red Flag rule represents an important opportunity for the health care sector to protect consumers and patients from the impacts of medical and other forms of identity theft.
Robert Gellman is a privacy and information policy consultant based in Washington, DC. <http://www.bobgellman.com>. Pam Dixon is the executive director of the World Privacy Forum. <https://www.worldprivacyforum.org/aboutus.html>.
Following is a reproduction of the Guidelines and Supplement to the Red Flag and Address Discrepancy Rules. The rulemakings may be found at Federal Trade Commission et al., Identity Theft Red Flags and Address Discrepancies Under the Fair and Accurate Credit Transactions Act of 2003, 72 Fed. Reg. (Nov. 9, 2007), <http://www.ftc.gov/os/fedreg/2007/november/071109redflags.pdf>.
Health data breach rulemaking -- The Federal Trade Commission has issued its final Health Breach Notification Rule for vendors of Personal Health Records and related entities, as required under ARRA, The American Recovery and Reinvestment Act of 2009. The initial proposed Health Breach Notification Rule was generally thoughtful and thorough. The World Privacy Forum submitted extensive comments on the proposed rule both supporting parts of it and making some suggestions for changes. The FTC incorporated several specific WPF suggestions into the final rule. In particular, the FTC incorporated the applicability of the rule to foreign entities with U.S. customers (Final Rule p. 17), and the applicability of the rule to search engines appearing on Personal Health Record web sites (Final Rule p. 34). The new rule will be published in the Federal Register shortly; until then, it is available at the FTC web site. Also available is a form that entities covered under this rule can use to report data breaches to the FTC. The Health Breach Notification Rule will be effective 30 days after publication in the Federal Register, and full compliance with the rule will be required beginning 180 days after publication.
Data broker opt out issue -- The World Privacy Forum sent a letter to the Federal Trade Commission asking it to look into four companies offering online consumers the ability to opt out, then asking those consumers to use a variety of postal-mail-based methods to do so.
The Commission has laid down specific examples of what constitutes unreasonable opt- out procedures, particularly in its Affiliate Marketing Rule, which describes three distinct types of opt-out methods the Commission considers to be unreasonable. Some companies are ignoring the standards the Commission has set, and are requiring consumers whom they have notified online of an opt-out opportunity to then use paper and postal mail processes to accomplish the opt out.
CVS Caremark | FTC proposed consent agreement -- The World Privacy Forum filed comments with the Federal Trade Commission in response to its proposed consent agreement with the CVS Caremark pharmacy chain. The proposed agreement is in resonse to a CVS data breach. The agreement does not impose a monetary penalty on CVS, and does not provide remedies for consumers affected by the data breach.
The World Privacy Forum filed comments with the Federal Trade Commission in response to its proposed consent agreement with the CVS Caremark pharmacy chain. The proposed agreement is in resonse to a CVS data breach. The agreement does not impose a monetary penalty on CVS, and does not provide remedies for consumers affected by the data breach. The World Privacy Forum urged the FTC to reconsider the agreement.
Medical privacy | HIPAA | FTC -- According to a legal complaint, CVS pharmacies -- the largest pharmacy chain in the United States -- did not take appropriate steps to protect its customers' and employees' sensitive information when it improperly disposed of documents, labels, prescription bottles, and other items with clearly identifiable and highly sensitive personal information such as SSNs, prescription information, driver's license numbers, and other information still on those materials. CVS agreed to pay $2.25 million to settle its violations of HIPAA as part of a Resolution Agreement with the Department of Health and Human Services. CVS has also signed a consent agreement with the FTC; the public can comment on this agreement until March 20, 2009. The World Privacy Forum will be filing comments with the FTC on the consent agreement with CVS, which we will post here.
Internet privacy -- The Federal Trade Commission released its self-regulatory principles for behaviorally-targeted advertising today. The World Privacy Forum will be holding a press conference responding to the principles at 12:30 p.m. Eastern.
Internet privacy -- The World Privacy Forum filed a complaint today with the Federal Trade Commission regarding AOL's multiple releases of portions of its users' search query histories. The complaint discusses AOL search query releases from 2004 and 2006. The complaint alleges that the data release was intentional, and due to significant identifiability issues of the data subjects, that the releases are harming some AOL customers, and that AOL customers did not know their search histories would be made available to the public. The World Privacy Forum urges consumers to take precautions when using search engines.
Do Not Call Registry -- In its fourth annual report to Congress on the Do Not Call Registry, the Federal Trade Commission released some interesting new statistics. As of September 2007, there were 145,498,656 telephone numbers in the Do Not Call Registry. The FTC also reported that 6,242 entities paid over $21 million for access to the DNC Registry in 2007. The report also details the FTC's enforcement actions against businesses violating the DNC Registry rules. As of September 30, 2007, the FTC had filed 25 cases regarding DNC Registry violations and had settled 22 of the cases.
Financial privacy -- The World Privacy Forum filed comments with the Federal Trade Commission today about its proposed study of credit -based pricing practices for homeowners insurance. The World Privacy Forum requested that the FTC ask insurers if there are specific procedures in place for detecting, mitigating, and responding to consumers who have been victims of identity theft. The WPF noted its support for the FTC's use of the FTC Act Section 6(b) authority to acquire robust information from the insurance companies.
Health Care Innovations workshop -- The World Privacy Forum will be speaking at an upcoming FTC workshop on the topics of medical identity theft, personal health records, and direct-to-consumer genetic tests and marketing. The workshop is April 24, 2008. Workshop information is available at the FTC web site.
Behaviorally targeted advertising | FTC proposed rules -- The World Privacy Forum filed comments in response to the Federal Trade Commission's proposed self-regulatory guidelines for companies targeting online advertising to consumers based on consumer behaviors. The WPF requested a separate, formal rulemaking process for determining how sensitive medical information should be handled online regarding behaviorally targeted advertisements. The WPF also discussed genetic data and requests for genetic tests, and noted that genetic information should be included in any definition of sensitive medical information. The WPF reiterated that the definition of personally identifiable information should include IP address, and encouraged the FTC to work from a rights-based approach regarding online advertising. The WPF also urged the FTC to include all fair information practices in any self-regulatory regime, and to enforce the regime directly.
The World Privacy Forum filed comments in response to the Federal Trade Commission's proposed self-regulatory guidelines for companies targeting online advertising to consumers based on consumer behaviors. The WPF requested a separate, formal rulemaking process for determining how sensitive medical information should be handled online regarding behaviorally targeted advertisements. The WPF also discussed genetic data and requests for genetic tests, and noted that genetic information should be included in any definition of sensitive medical information. The WPF reiterated that the definition of personally identifiable information should include IP address, and encouraged the FTC to work from a rights-based approach regarding online advertising. The WPF also urged the FTC to include all fair information practices in any self-regulatory regime, and to enforce the regime directly.
Financial privacy / credit reports -- The NCLC, Consumer's Union, and the World Privacy Forum filed extensive joint comments today regarding the proposed rulemaking, Procedures to Enhance the Accuracy and Integrity of Information Furnished to Consumer Reporting Agencies under Section 312 of the Fair and Accurate Credit Transactions Act. The results of the proposed rulemaking will have a significant impact on how the accuracy of credit reports is defined for consumers, and will have a substantive influence over how consumers may handle credit report disputes directly with those who furnish information for the reports.
The NCLC, Consumer's Union, and the World Privacy Forum filed extensive joint comments today regarding the proposed rulemaking, Procedures to Enhance the Accuracy and Integrity of Information Furnished to Consumer Reporting Agencies under Section 312 of the Fair and Accurate Credit Transactions Act. The results of the proposed rulemaking will have a significant impact on how the accuracy of credit reports is defined for consumers, and will have a substantive influence over how consumers may handle credit report disputes directly with those who furnish information for the reports.
Financial privacy | credit reports -- Consumers and organizations have an opportunity to submit public comments about the accuracy and integrity of credit reports. Until February 11, the Federal Reserve Board, the Federal Trade Commission and other banking agencies will be accepting comments on their draft rulemaking regarding how creditors and other furnishers provide information to consumer reporting agencies, and which types of direct disputes they must handle. This proposed rulemaking is a key one; it defines what accuracy and integrity of information provided to consumer reporting agencies means, how disputes may be handled directly with the furnishers, and which types of direct disputes furnishers may ignore. The NCLC, Consumer's Union, and the World Privacy Forum have written a sample letter that may be downloaded and used or modified for the comments. To file your letter, submit your comments to the Board of Governors of the Federal Reserve System by mailing the comments to regs.comments@federalreserve.gov with the subject line "Docket No. R–1300."
Medical identity theft update -- The Federal Trade Commission released its national ID theft survey, which for the first time contains statistics specific to medical identity theft. According to the FTC report (p. 21), 3 percent of all identity theft victims in 2005 were victims of medical identity theft, which means of 8.3 million ID theft victims, approximately 250,000 people were victimized by medical identity theft in that year alone. The purpose of the World Privacy Forum 2006 report was to prove that medical identity theft existed, and was already occurring in large numbers. At the time the report was published, the crime of medical identity theft had not been specifically studied, nor was it understood to exist. The FTC statistics abundantly affirm the thesis and conclusions of the WPF report.
The online tracking and targeting of consumers –– both in its current form and as it may develop in the future –– needs to be limited so that consumers can exercise meaningful, granular preferences based on timely and contextual disclosures that are understandable on whichever devices consumers choose to use. Consumers must be free to act in their own self-interest. Companies engaged in monitoring and tracking must respect consumer privacy by implementing Fair Information Practices,2 and there must be a structure that allows for enforcement of these rights. A right that is selectively enforced, or that is without effective enforcement, is not a meaningful right.
Consensus document | Consumer rights and protections -- Nine privacy and consumer groups, including the World Privacy Forum, unveiled a consensus document outlining key consumer rights and protections in the behavioral advertising sector. The document is directed toward the Federal Trade Commission, and urges the FTC to take proactive steps to adequately protect consumers as online and other forms of behavioral tracking and targeting become more ubiquitous. The consensus document was filed with the Secretary of the FTC and its commissioners. Behavioral advertising is the focus of the FTC's eHavioral Advertising Town Hall meeting taking place November 1-2 in Washington, D.C. The network advertising sector has a self-regulatory plan, the Network Advertising Initiative, in place, and has had this plan in place since 2000. The consensus document addresses the many areas where the NAI plan has failedto protect consumers.