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.
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.
“You don’t drown from falling into the water, you drown from not getting out.” Think about that — and think about how that applies to cyber security and data breach issues facing companies in today’s cyber world. Here, in my first ever video blog post, I explain this issue with more detail.
I recently posted about how corporate general counsel now view cybersecurity as a top 3 concern. At this rate, it will soon be their #1 concern. A recent article in Corporate Counsel gives several reasons for why this problem will only continue to increase in volume, expense, and overall risk to companies:
- Companies continue to move more infrastructure online
- The annual cost of data breaches is projected to rise to $2.1 trillion by 2019
- Cybercriminals are more often hacking for profit instead of for “causes” as with hacktivism
- Nearly 60 percent of data breaches in 2015 are anticipated to be in North America
- The average cost of a data breach is projected to exceed $150 million by 2020
- Companies are developing quantum computers with so much power they will render ineffective all currently known defenses
Not only should corporate general counsel be concerned about cybersecurity, but so too should companies’ officers and directors because there is a growing trend toward liability for them as well.
This was the ruling of a District Court in Virginia.
The court’s rationale is that the Fifth Amendment does not protect against providing physical or tangible information to further an investigation, such as DNA evidence or a physical key, but it does protect a defendant from having to provide information that must be communicated because by communicating that information, the defendant would be testifying against himself.