Last week I participated in yet another workshop on traffic data retention, in ICRI, with the added twist that now traffic data retention is in ‘European Law’, and shall become actual law in most EU countries very soon. It was a special treat to be talking just after Chief Superindendent Luc Beirens, Head of the Belgian Federal Computer Crime Unit, that tried to sell the idea of retention to a crowd of people from the flagship EU privacy project PRIME.

As usually Beirens assured us that proper judicial oversight exists and will regulate access to traffic data. Yet a different pictured emerged when we got into the details of how cyber-crime investigations are conducted. It turns out that the first thing that the police does, to the suspects but also the victims, of cyber-crime is to take a forensic image of their hard disk. This is a sound precaution: booting up the machine to extract evidence may activate malware on a victim’s machine to erase traces, or an alert system on a suspects computer.

The obvious question becomes: how does this policy of automatic forensic imaging and analysis of a hard disk interacts with traffic data retention? Luc was keen to acknowledge that the investigation procedure would proceed unchanged, and an image of a hard disk that may contain retained data would be taken — and forensic tools used on the totality of the hard disk. To be fair, tools that take a forensic image or only look at parts of the disk according to a set security policy do not exist.

What does this mean? If you are a victim of cyber-crime, or a company you have given your data to is a victim of cyber-crime, all the data will end up with the police. This will be the case irrespective of judicial oversight, or any other safeguards. You may ask yourself what the chance is that the retained data will be kept of a computer that maybe part of an investigation? First do not underestimate the fact that these machines will end up on-line to serve requests, and therefore will be subject to their fair share of attacks. But most importantly this case will obviously occur as part of an investigation on themisuse, unauthorized access, or attempted access to the traffic data retention systems!

This standard procedure may also explain why companies are so reluctant to call in the high tech crime units to help them investigate cyber-crime. Their procedures are simply incompatible with any security policy with a confidentiality component. Would you report some of your documents being stolen from your home or business, if this meant the police taking a copy of every single paper in the building?

Yesterday I gave a talk on confidentiality at the EMIS annual conference. I gained yet more insights into Britain’s disaster-prone health computerisation project. Why, for example, will this cost eleven figures, when EMIS writes the software used by 60% of England’s GPs to manage their practices with an annual development budget of only 25m?

On the consent front, it turns out that patients who exercise even the mildest form of opt-out from the national database (having their addresses stop-noted, which is the equivalent of going ex-directory — designed for celebs and people in witness protection) will not be able to use many of the swish new features we’re promised, such as automatic repeat prescriptions. There are concerns that providing a degraded health service to people who tick the privacy box might undermine the validity of consent to information sharing.

On the confidentiality front, people are starting to wrestle with the implications of allowing patients online access ot their records. Vulnerable patients — for example, under-age girls who have had pregancy terminations without telling their parents — could be at risk if they can access sensitive data online. They may be coerced into accessing it, or their passwords may become known to friends and family. So there’s talk of a two-tier online record — in effect introducing multilevel security into record access. Patients would be asked whether they wanted some, all, or none of their records to be available to them online. I don’t think the Department of Health understands the difficulties of multilevel security. I can’t help wondering whether online patient access is needed at all. Very few patients ever exercise their right to view and get a copy of their records; making all records available online seems more and more like a political gimmick to get people to accept the agenda of central data collection.

We don’t seem to have good ways of deciding what services should be kept offline. There’s been much debate about elections, and here’s an interesting case from healthcare. What else will come up, and are there any general principles we’re missing?