A four-step data breach and response plan can be viewed here. Lawyers are, or should be involved in all four steps of this process, obviously being most involved in defining and implementing the legal requirements which permeate all these stages. Let’s look at an example of the value-add of your lawyer’s early involvement in this process.
So, say you decide to create a data breach and response plan and have accomplished the first step in defining the systems and data you hold. You now turn to your staff and ask: “what do we do?”
If a lawyer is involved, he or she will likely address the question in two ways: the attorney will assure that your privacy and related policies are suitable given the systems and data you maintain, and also will analyze the legal requirements that may exist with respect to the need for security and the legal requirements which will arise if there is a data breach. This information is crucial to the first, third, and fourth steps described above. Without this information, you may find that you are creating legal risks even before a data breach, and you are multiplying the risks many-fold after a breach.
And, what does the law require even apart from your policies? A lot. Most states, for example, have a set of procedures in place which governs whom you need to notify, when you need to send notices, and how to send the notices. The Maryland data breach notification statute is codified at Md. Code, Com. Law §§ 14-3501 et seq. That statute defines PII, provides for notice to affected parties and the Attorney General, may require notice to credit reporting agencies in certain circumstances, and describes when and how notice is to be given. All this information should be keyed into your data breach and response plan, so you are not starting too late to comply with the law.
Be prepared is not just the Scout motto or a song from Lion King. It is a requirement in the world of cyber security.
Questions about cyber security?
Please contact Edward Tolchin at firstname.lastname@example.org.
ABOUT EDWARD TOLCHIN
Edward Tolchin is a Principal and Chair in the firm’s Government Contracting practice group. Mr. Tolchin’s practice is focused on government contracting, business litigation, and technology matters. In the technology arena, Mr. Tolchin has assisted in disputes, licensing, and business development matters for clients ranging from startups to Fortune 500 companies. Mr. Tolchin’s interest in and knowledge of technology issues also has enabled him to assist clients involved in security and privacy disputes and business issues in the cyber arena. Mr. Tolchin has an active blockchain practice and has written and spoken regarding the legal perspectives of blockchain enterprise development and cryptocurrencies.
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