One of the first questions I ask in my role as an attorney responding to a cybersecurity incident is typically: Do you have any logs?
All too often, the answer is no.
The sad truth is that even a simple ransomware event becomes legally complicated without logging mechanisms. Why? Because a cybersecurity attorney's job is to navigate the statutory framework applicable to a cyber event. That includes determining whether the client needs to give notice under any applicable law to a client's customers, employees, patients, or other affected individuals.
The legal implications of notice can be intense. A standard breach notice contains a brief summary of the incident along with specific language from the relevant breach notification statute. But beyond the piece of paper, the breach notice can give rise to affected individuals bringing lawsuits or making demands related to the cyber event. Notice to customers or other affected persons can also then require notice to regulators. Notice is often the last thing a company will want to do unless it is absolutely forced to do so under the law.
For most businesses, there is no uniform breach notification protocol that must be followed. Instead, it is left to me, the lawyer, to piece together the myriad applicable statutes potentially at play and to determine whether notice is required under those statutes.
Here are three important examples to consider in a breach context:
HIPAA (Health Insurance Portability and Accountability Act), governing protected health information, ..
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