Shawn Tuma authored a section for an eBook published by Fortinet Security. You can read Tuma’s section, Cover the Basics, as well as download the complete eBook at this link: Cover the Basics- by Shawn E. Tuma | MightyGuides.com
Customers and the public expect a very quick response to a data breach — within a matter of a few days. That is the new standard. If your business is not prepared ahead of time for such a response, it will be impossible. Your business needs a response plan in place with all of the key players on the team, vetted and tested, well before the breach occurs.
At one popular panel, “A Brave New World: Cybersecurity and Data Protection in the Wake of Recent Corporate Attacks,” lawyers learned that their customers and the public expect a rapid-fire response to cybersecurity attacks.Moderator Miriam Wugmeister, a New York partner at Morrison & Foerster, cited Target Corp.’s notification of 40 million people in four days after its 2013 data breach. Target is a client of the firm. “That’s where the bar has been set,” Wugmeister said.
Guest Post by Debbie Fletcher
There are two possible conversations that could be kicked off by the news of the major data breach at Excellus Blue Cross Blue Shield in which more than 10 million customer accounts were exposed. The first possible conversation is about internet security and what businesses and organizations of all sizes need to be doing in order to better protect the customers that have entrusted them with personal and financial information. The second possible conversation is about whether or not it is technically ironic that Blue Shield failed to prevent an attack.
An employee of East Bay Perinatal Medical Associates in Oakland, CA, retained on his personal laptop, a patient list that he had prepared as part of his job. The list did not contain PHI information but it did contain PII information. The Berkley Police discovered the list during an unrelated investigation and notified EBPMA that it was on the computer. This action — alone — was sufficient to trigger the notification requirement of the California data breach notification law, at great expense and frustration for EBPMA.
Do you still think that your company isn’t at risk for a data breach? If so, go ahead and get familiar with the image below — this is the first page of the template for the notification that EBPMA had to send out!
An employee of Golden State Credit Union viewed member account information, containing Personally Identifiable Information (PII), without having the requisite authority to view such accounts. This action — alone — was sufficient to trigger the notification requirement of the California data breach notification law, at great expense and frustration for the Credit Union, which offered credit monitoring services to those affected.
Do you still think that your company isn’t at risk for a data breach? If so, go ahead and get familiar with the image below — this is the first page of the template for the notification that Golden State had to send out!
Wow, this article seriously just made my day.
I will apologize in advance to my friend and CSO writer and Michael Santarcangelo (@catalyst), but this may very well be my favorite article — anywhere — of all time! And, thank you, Tom Hulsey (@TomHulsey), for sharing it with me! As for you, Ms. Kacy Zurkus (@KSZ714), all I can say is, great job on this article!
Why is it my favorite article?
Well, if the title of the article did not give it away (yes, there’s a reason we attorneys are the 2nd oldest profession … we’re pretty close to the 1st …), then consider these snippets:
“Distinguishing the technical experts from those responsible for legal obligations and risks will help companies develop better breach response plans. Understanding the role of an external cybersecurity firm will only help.” (Have I not been preaching the need for breach response plans??? See Why Your Company Needs a Breach Response Plan: Key Decisions You Must Make Following A Data Breach (Aug. 3, 2015) and More Posts)
“But even with a seemingly impenetrable security system in place, you still need an attorney focused on cybersecurity issues. Sure, internal counsel can help you minimize your company’s legal risks. But partnering with an external firm boasting security expertise can also help the CIO navigate through several unfamiliar legal areas, such as compliance with local, state and national privacy laws and security requirements, civil litigation over data and privacy breaches, and corporate governance.” (ahhh yes, music, sweet music to my ears!)
“’The breadth of industries who need this type of counsel has exploded,’ says Amy Terry Sheehan, editor in chief of the Cybersecurity Law Report.” (preach it sister Amy, preach it!)
“Because every company now has data online – including personally identifiable information (PII), trade secrets and patent information – Sheehan says, ‘There is an increased need for specialized expert attorneys in cybersecurity and data privacy. Even attorneys who are working on mergers and acquisitions need to know the cybersecurity laws.‘” (I could not have said this any better myself, dang Kacy, you are good!)
“Because time is not a friend in any breach situation, companies that have cyber security attorneys on retainer are better positioned to quickly and efficiently respond to incidents.” (mmm hmm, as I write this, there is a leader of a company who did not know my name or know what a “cybersecurity attorney” was on Monday of this week … today (Thurs. morning), I am his new best friend and he calls me more than my wife does!)
“CIOs are clearly responsible for the technical aspects of cybersecurity, of course, but as Sheehan says, ‘negotiating with the government or a complicated investigation that requires more manpower’ demands the expertise of a cybersecurity attorney.” (exactly — those who are looking back with 20/20 hindsight, following a breach, are not technical people, they are lawyers: agency regulators, state attorneys’ general, judges, and plaintiff’s lawyers — you need a legal perspective for this)
“’To not have a cybersecurity attorney on retainer is foolhardy at best,’ because organizations need somebody who is a specialist in what Thompson identifies as the four main areas of concern: breach scenarios, personnel policies, cyber liability insurance and working with government.” (exactly!)
“Maintaining privilege is paramount in the aftermath of a breach, but understanding the differences between a possible incident, an actual incident or a breach will drive the company’s response. Cybersecurity attorneys work with organizations to develop their incident response plans, which determines who speaks to whom when and about what. ‘The plan should be very basic and the attorney is a key part in designing the plan,’ Thompson says.” (privilege can be a huge issue — and as for those Incident Response Plans, definitely use the KISS method)
“Additional risks exist around response time in the aftermath of a breach. According to Sheehan, ‘You’ll not have valuable advice in advance of a breach, which presents litigation risks, and litigation is becoming much more common – it’s filed immediately after a breach, and counsel is involved in mitigating litigation risks.’” (what you do pre-breach can have a huge impact on how you are impacted post-breach, from a liability standpoint)
There is a lot more delicious medium-rare red meat (filet mignon, to be exact) in this article so go read it — NOW! Why every CIO needs a cybersecurity attorney | CIO.
Companies must be prepared for a data breach. It is just a fact of life, plain and simple.
The developing standard of care requires that companies give some thought to how they will respond when the inevitable occurs — and they really, really, really should have a written Incident Response Plan in place. This is part of the basic “blocking and tackling” that I often help companies with, before there is an incident, and, in the big scheme of things, it is not an expensive process.
Remember the lesson of my video: you don’t drown from falling into the water, you drown from failing to get out. This is a big part of how you get out!
Recently, I read an excellent article that discusses Incident Response Decision Making, by Chris Pogue. Pogue discusses 7 key decisions that a company must make following a data breach.
Some of these 7 key decisions are not only things that may be planned out ahead of time, but they are also things that should be included in a written Incident Response Plan. Then, when the inevitable occurs, you are not running around trying to think of what to do–IN A PANIC!
Instead, you already have a plan in place and are ready to execute that plan, carefully and methodically, to protect your company. And, by the way, the answer to the first question is ALWAYS YES!
- Should We Retain External Legal Counsel?
- Should We Bring In External Forensics Experts?
- Should We Engage Law Enforcement?
- How Should We Respond to Media Enquiries?
- What Should We Tell Our Executives, Investors, and Board of Directors?
- What Should We Tell Our Customers?
- Should We Pursue or Protect?