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Why Perimeter Defenses Are No Longer Enough
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jjthomps
jjthomps,
User Rank: Apprentice
5/5/2014 | 11:03:39 AM
Re: Pivotal moment for "due care"
"...proof that internal policies were followed" <- exactly. My guess here is that Target had a policy that stated something like "... events categorized as X,Y,Z are escalated according to table A, with the following SLA's in table B."

Was their policy and supporting proceedures designed that way? If so, did they follow their defined process? If not, then what? Is the standard of due care in following the process as DESIGNED? In tests of operating effectiveness, Target "passed" for PCI, either their auditor did not properly test the controls, ignored residual risk issues, or that they reported on these issues and Target ignored the feedback. PCI does not do a good job forcing assessors to consider residual risk (the way accounting firms have to). Even if they did, then allowing QSACs and P's to opine on residual risk would be a mismatch in skills to activity being expected of the QSAPs.

Going back to design, what if the process and controls are not designed correctly, then who is responsible for determining that and what impact would that finding have? Right now the consumer and AG's are the option for accountability as there is no regulatory function in place to adequately manage this situation when it comes to consumer protection. 
Bprince
Bprince,
User Rank: Ninja
5/5/2014 | 1:13:02 AM
Re: Pivotal moment for "due care"
Seems like the bare minimum of due care would be compliance standards and proof that internal policies were followed. But does there need to be more, since as the Businessweek article points out there were signs that were missed? What if your internal policies aren't strong enough to prevent a breach? Should there be a law that says if alert X is triggered due to an unuauthorized act and an organization doesn't take action Y to remediate it they are liable? That could be very difficult to do right.  

 
jjthomps
jjthomps,
User Rank: Apprentice
5/2/2014 | 6:43:58 PM
Re: Pivotal moment for "due care"
Marilyn,

When I said "that would shape precedent, case law", I was saying that the pending legislation against Target, and the resultant decisions by the court, will shape case law moving forward about standards of due care and negligence. Please see case 14-CV-2069 Trustmark National Bank v. Target and Trustwave. As this is pending, we need to wait and see the outcome as well as the other suits being filed by state AG's. 
Marilyn Cohodas
Marilyn Cohodas,
User Rank: Strategist
5/2/2014 | 4:54:30 PM
Pivotal moment for "due care"
Thanks for the blog , J.J. I'm curious to learn more about the legal precedent you mention. Is there litigation pending against Target based on the due care standard? 


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