Getting cybersecurity incident disclosure right can mean the difference between prison and freedom. But the rules remain woefully vague.
Chief information security officers (CISOs) and their teams know there's a certain amount of risk intrinsically baked into the job. But the recent sentencing of former Uber CISO Joseph Sullivan for his role in covering up a 2016 data breach at the company has significantly upped the ante.
SolarWinds CISO Tim Brown survived one of the most spectacular security breaches in history in 2020 in an epic supply chain attack, and emerged on the other side with the business — and his professional reputation — intact. In an interview with Dark Reading, he explained that CISOs are asking for clarity on rules around disclosures. The Federal Trade Commission (FTC) has rules, and beyond that, there is a vast and evolving mousetrap of rules, regulations, executive orders, and case law dictating how and when disclosures need to occur, and that's before anyone considers the impact of an incident on the business.
"Liability is something that has CISOs concerned," Brown says. "It's a concerning time and creates stress and angst for teams. We want to be covered."
A court found Uber's Sullivan guilty of working to cover up the breach from FTC investigators, as well as trying to keep the breach secret from other Uber executives. Brown acknowledges that Sullivan made the mistake, in the view of the court, of trying to make disclosure decisions unilaterally, without legal guidance, which left him open to prosecution.
Sarbanes-Oxley Act for CISOs?
To avoid making such mistakes, CISOs need something in the mold of the 2002 Sarbanes-Oxley Act, which details financial reporting regulations for chief financial officers (CFOs), Brown says.
In the same way Sarbanes-Oxley prescribes steps that CFOs are expected to take to prevent financial fraud, Brown says that he would like to see new federal regulations that outline CISO requirements for preventing and responding to cybercrime on their watch.
The stakes are high: While Sullivan was only sentenced to three years' probation for his role in attempting to bury Uber's data breach, Judge William Orrick used Sullivan's hearing as an opportunity to send a chilling warning to the next CISO unfortunate enough to find themselves in his court.
"If I have a similar case tomorrow, even if the defendant had the character of Pope Francis, they would be going to prison," Judge Orrick said to Sullivan. "When you go out and talk to your friends, to your CISOs, you tell them that you got a break not because of what you did, not even because of who you are, but because this was just such an unusual one-off."
The litany of hazy rules and emerging guidelines doesn't provide CISOs and cybersecurity teams with a clear path to compliance, meaning in-house counsel and outside legal advisers have become essential in helping organizations navigate the disclosure process maze.
"Enterprise security teams do not exist in a vacuum when it comes to evaluating disclosure of data breaches and security incidents," says Melissa Bischoping, director of endpoint security research at Tanium, on the current disclosure landscape. "Their responses must be coordinated with legal and communications stakeholders to ensure they are meeting regulatory and legal requirements, and providing the appropriate level of information to the right consumers of the information."
Beth Waller, an attorney and chair of cybersecurity and data privacy at Woods Rogers Vandeventer Black, says oversight bodies as well as consumers are driving cybersecurity incident transparency — and shrinking acceptable disclosure windows.
Waller points to a grab bag of regulations pushing disclosures, such as the Security and Exchange Commission's demand for immediate data incident disclosure for publicly traded companies, as well as federal regulations on sectors like banking, healthcare, and critical infrastructure demanding disclosures within days of its discovery. Department of Defense contractors must notify the DoD of an incident within 72 hours, she points out.
"For international companies, regulations like the Europe's General Data Protection Regulation (GDPR) drive similar timelines," Waller says. "More and more, a company that wants to keep a data incident quiet cannot do so from a regulatory or legal standpoint."
As pressure mounts on enterprise cybersecurity teams to disclose quickly, Dave Gerry, CEO of Bugcrowd, acknowledges the value of transparency for trust and the flow of information, but explains he is also concerned that rapid disclosure could rob security teams of priceless time to respond properly to cyberattacks.
"Incident disclosure needs to allow for the opportunity for the security organization to rapidly patch systems, fix code-level vulnerabilities, eject attackers, and generally mitigate their systems prior to publicly disclosing details ensure additional security incidents don’t come as a result of the disclosure," Gerry adds. "Identifying the root cause and magnitude of the incident to avoid adding additional fear and confusion to the situation takes time, which is an additional consideration."
Data 'Duty of Care' Defined
Making things more confusing, US state attorneys general are pushing for tougher regulations around cybersecurity incident disclosures, leaving each state with its own unique disclosure landscape riddled with broad, ill-defined requirements like taking "reasonable" actions to protect data.
Veteran CISO and VMware cyber strategist Karen Worstell notes that Colorado AG Philip Weiser took an important step toward clarifying CISO obligations last January, when he offered a definition of "Duty of Care" rules under the Colorado Privacy Act requiring reasonable action be taken to protect personal data.
According to Weiser, the definition was informed by actual cases that have come through his office, meaning it reflected how prosecutors viewed specific data breaches under their jurisdiction.
"First, we will evaluate whether a company has identified the types of data it collects and has established a system for how storing and managing that data — including ensuring regularly disposing of data it no longer needs," Weiser said in prepared remarks regarding data breach rules. "Second, we will consider whether a company has a written information security policy. For companies that have no such policies or have ones that are outdated or exist only in theory with no attempt to train employees or comply with the policy, we will view more skeptically claims that their conduct is reasonable."
Waller applauds Weiser's move to clarify disclosure rules in his state. In Colorado, as well as Virginia, the attorney general has the sole authority to hold someone liable for breaking state privacy laws.
"Colorado Attorney General Weiser's comments provide helpful background on the security considerations state attorney generals will consider in looking at bringing violations under these new data privacy laws," Waller says.
Despite such strides forward, for now the rules still leave plenty of room for enterprise cybersecurity teams to get it wrong.
"The current emerging cacophony of new state privacy regulations, coupled with a hodgepodge of state data breach laws, means that we can hope a federal privacy law would eventually address the need for uniform guidance for entities experiencing a data breach," Waller says.
"In the absence of federal guidance, the legal landscape remains simply complex," Waller adds.
The slow churning of courts, regulatory bodies, and legislatures means it's going to take time for all parties to get on the same page. But SolarWinds' Brown expects more standardized rules for CISOs and their organizations to likely emerge over the next five or so years. In the meantime, he suggests keeping legal teams closely involved in all cyber incident responses.
"It will be evolving, and we will get crisper," Brown says. "I’m hopeful."