The National Institute of Standards and Technology (“NIST”)1 has released the fourth revision of its standard-setting computer security guide, Special Publication 800-53 titled Security and Privacy Controls for Federal Information Systems and Organizations2 (“SP 800-53 Revision 4”), and this marks a very important release in the world of data privacy controls and standards. First published in 2005, SP 800-53 is the catalog of security controls used by federal agencies and federal contractors in their cybersecurity and information risk management programs. Developed by NIST, the Department of Defense, the Intelligence Community, the Committee on National Security Systems as part of the Joint Task Force Transformation Initiative Interagency Working Group3 over a period of several years with input collected from industry, Revision 4 “is the most comprehensive update to the security controls catalog since the document’s inception in 2005.”4
Taking “a more holistic approach to information security and risk management,5” the new revision of SP 800-53 also includes, for the first time, a catalog of privacy controls (the “Privacy Controls”) and offers guidance in the selection, implementation, assessment, and ongoing monitoring of the privacy controls for federal information systems, programs, and organizations (the “Privacy Appendix”).6 The Privacy Controls are a structured set of standardized administrative, technical, and physical safeguards, based on best practices, for the protection of the privacy of personally identifiable information (“PII”)7 in both paper and electronic form during the entire life cycle8 of the PII, in accordance with federal privacy legislation, policies, directives, regulations, guidelines, and best practices.9 The Privacy Controls can also be used by organizations that do not collect and use PII, but otherwise engage in activities that raise privacy risk, to analyze and, if necessary, mitigate such risk.
Description of the Eight Families of Privacy Controls
The Privacy Appendix catalogs eight privacy control families, based on the widely accepted Fair Information Practice Principles (FIPPs)10 embodied in the Privacy Act of 1974, Section 208 of the E-Government Act of 2002, and policies of the Office of Management and Budget (OMB). Each of the following eight privacy control families aligns with one of the eight FIPPs:
- Authority and Purpose. This family of controls ensures that an organization (i) identifies the legal authority for its collection of PII or for engaging in other activities that impact privacy, and (ii) describes the purpose of PII collection in its privacy notice(s).
- Data Quality and Integrity. This family of controls ensures that an organization takes reasonable steps to validate that the PII collected and maintained by the organization is accurate, relevant, timely, and complete.
- Data Minimization and Retention. This family of controls addresses (i) the implementation of data minimization requirements to collect, use, and retain only PII that is relevant and necessary for the original, legally authorized purpose of collection, and (ii) the implementation of data retention and disposal requirements.
- Individual Participation and Redress. This family of controls addresses implementation of processes (i) to obtain consent from individuals for the collection of their PII, (ii) to provide such individuals with access to the PII, (iii) to correct or amend collected PII, as appropriate, and (iv) to manage complaints from individuals.
- Security. This family of controls supplements the security controls in Appendix F and are implemented in coordinating with information security personnel to ensure that the appropriate administrative, technical, and physical safeguards are in place to (i) protect the confidentiality, integrity, and availability of PII, and (ii) to ensure compliance with applicable federal policies and guidance.
- Transparency. This family of controls ensures that organizations (i) provide clear and comprehensive notices to the public and to individuals regarding their information practices and activities that impact privacy, and (ii) generally keep the public informed of their privacy practices.
- Use Limitation. This family of controls addresses the implementation of mechanisms that ensure that an organization’s scope of use of PII is limited to the scope specified in their privacy notice or as otherwise permitted by law.
Some of the Privacy Controls, such as Data Quality and Integrity, Data Minimization and Retention, Individual Participation and Redress, and Transparency also contain control enhancements, and while these enhancements reflect best practices which organizations should strive to achieve, they are not mandatory.11 The Office of Management and Budget (“OMB”), tasked with enforcement of the Privacy Controls, expects all federal agencies and third-party contractors to implement the mandatory Privacy Controls by April 30, 2014.
The privacy families must be analyzed and selected based on the specific operational needs and privacy requirements of each organization and can be implemented at various operational levels (e.g., organization level, mission/business process level, and/or information system level12). The Privacy Controls and the roadmap provided in the Privacy Appendix will be primarily used by Chief Privacy Officers (“CPO”) or Senior Agency Officials for Privacy (“SAOP”) to develop enterprise-wide privacy programs or to improve an existing privacy programs in order to meet an organization’s privacy requirements and demonstrate compliance with such requirements. The Privacy Controls supplement and complement the security control families set forth in Appendix F (Security Control Catalog) and Appendix G (Information Security Programs) and together these controls can be used by an organization’s privacy, information security, and other risk management offices to develop and maintain a robust and effective enterprise-wide program for management of information security and privacy risk.
What You Need to Know
The Privacy Appendix is based upon best practices developed under current law, regulations, policies, and guidance applicable to federal information systems, programs, and organizations, and by implication, to their third-party contractors. If you provide services to the federal government, work on government contracts, or are the recipient of certain grants that may require compliance with federal information system security practices, you should already be sitting up and paying attention. This revision puts privacy up front with security.
Like other NIST publications, this revision will be looked at as an industry standard for best practices, even for commercial entities that are not doing business with the federal government. In fact, over the last few years, we have seen increasing references to compliance with NIST 800-53 as setting a contractual baseline for security. We expect that this will continue, and now will include both the Security Controls and the Privacy Controls. As such, general counsel, business executives and IT professionals should become familiar with and conversant in the Privacy Controls set forth in the new revision to SP 800-53. At a minimum, businesses should undertake a gap analysis of the privacy controls at their organization against these Privacy Controls to determine if they are up to par or if they have to enhance their current privacy programs. And, if NIST 800-53 appears in contract language as the “minimum standard” to which your company’s policies and procedures must comply, the gap analysis will at least inform you of what needs to be done to bring both your privacy and security programs up to speed.