Sage legal advice about navigating a data breach from a troubleshooting cybersecurity outside counsel.
While a serious security incident may be a rare occurrence inside an organization, as a troubleshooting outside counsel, I witness a range of incidents that run the gamut from serious to strange and are often riddled with common pitfalls. It never fails that the event seems to occur at the most inopportune times, such as Christmas Eve or when I’m standing in the middle of the frozen food section of the grocery store (both real-life examples) — the phone rings, and on the other line a client is experiencing their worst day ever. My job is to jump into the mix and begin troubleshooting the legal risks. Here are three traps I frequently see security teams fall into, and how best to navigate them.
Trap 1: Failure to Have a True Incident Response Plan (or to Follow It)
When was the last time you dusted off the ancient incident response plan and actually read it? No matter how sophisticated your organization may be, or how many times you’ve conducted a tabletop exercise in the last few years, it is important to review the plan and refresh it based on what incidents your organization may face today.
Do you know who is going to call outside counsel? Do you know who is alerting the insurance company? Or, better question, do you know what event triggers the alerting of both? These are often steps that need to happen either immediately or rapidly after first learning of an event.
Often, in the heat of a serious incident, the plan gets pushed to the wayside. Control of the incident response gets wrestled away from the CISO and may get placed in the hands of the CFO or the CEO. This is inevitable if the event is serious enough — not a single medical record compromised but the entire patient portal, for instance. You need to plan for those events that are catastrophic and work backward from there.
Is there a key member of the team that you know is going to be a part of the incident response, even if his or her job title doesn’t lend itself to being in the room? For example, is Alex a trusted member of the C-suite as chief strategy officer? If so, Alex may need to be considered as part of the team when the worst hits. What is Alex’s role? Practical planning in advance can save you a headache later.
Trap 2: Alerting the Wrong Law Enforcement Agency
This is another semiridiculous outcome. When the phone rings, a breathless client on the other end shares that law enforcement has already been alerted. Inevitably, it’s the wrong law enforcement agency for the event. While local police are great practical friends of many companies, they are rarely the group that should be called during a cybersecurity incident. Even state police in most states do not have the resources to adequately respond to a data breach.
In some cases, the question of whom to call will depend on the actual nature of the event and on the severity of the issue. In all cases, the decision about whether to call, when to call, and whom to call needs to be a conversation you first have with an attorney. While you may think that calling the FBI Cyber Crimes Division is the always the right move, there are exceptions, especially if you are dealing with an incident involving W2s or Employer Identification Numbers (EIN) theft, which may require a call to an IRS Special Agent. If there is physical mail involved, the U.S. Postal Service Fraud Division may be able to assign an agent to the investigation. There are strategic reasons for those calls and sometimes the reason can be simply finding an investigative authority who has the time to look into your particular issue.
Calling law enforcement before you have your attorney’s blessing can only make things more difficult. If you call the local police and they send over Deputy Andy with his cop car, employees will begin asking questions before the communications plan is ready to roll out.
Many if not most cybercrimes unfortunately do not result in handcuffs. And so some of you in the cybersecurity industry may ask whether it’s worth calling law enforcement at all. From the perspective of outside counsel, it is always better to be able to say we are “working with law enforcement” on a particular event, especially if it is catastrophic. But getting to the “working with law enforcement” part can be tricky. Sometimes, just because of the sheer number of incidents outside counsel have experienced, they may be able to get through to the right investigative authority quicker than you can alone. Trust that outside counsel will know who to call and let the call be placed.
Trap 3: Being Careless about Communications
Your cybersecurity event is never a “breach” until the thoughtful decision is made to categorize it as a “breach.” Until such time, it is an “incident” or an “event.”
Similarly, the way you characterize and describe the incident can have ramifications in potential lawsuits later on. When alerting employees, remember to use phrases like “our company has been the victim of a cybercrime.” Also, if Marla at the front desk clicked on a phishing email and exposed the crown jewels, now is not the time to say in group emails without counsel copied that you’ve been lobbying for her to be fired for failing to pass company phishing tests for years. As always, keep in mind that the highest cloak of confidentiality you can throw over communications is to loop in your attorney and use attorney-client privilege. Without that, every communication you send may be an exhibit in a later lawsuit.
Beth Burgin Waller is a lawyer who knows how to navigate between the server room and the board room. As chair of the cybersecurity & data privacy practice at Woods Rogers, she advises clients on cybersecurity and on data privacy concerns. In this capacity, she … View Full Bio