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, requires that a healthcare provider (or business associate) presume that an impermissible use or disclosure has occurred unless the entity can demonstrate that there is a low probability that the protected health information has been compromised based on a factor-by-factor analysis.
Virginia's breach notification statute defines a breach as "the unauthorized access and acquisition of unencrypted and unredacted computerized data that compromises the security or confidentiality of personal information maintained by an individual or entity as part of a database of personal information regarding multiple individuals and that causes, or the individual or entity reasonably believes has caused, or will cause, identity theft or other fraud to any resident of the Commonwealth."
New York's data breach notification statute was recently amended to apply beyond the notification of the unauthorized acquisition of computerized data to both unauthorized access to or acquisition of such data.
What do these arcane legal regulations mean in the context of network logs? It means that if an organization is victimized by a ransomware attack, for example, a lawyer can use the logs to show that personal or protected information did not leave the client's systems.
On the other hand, the lack of network logs would lead me to recommend that the company undertake complicated forensic steps — at significant cost — including the procurement of forensic images and assessments of those images as circumstantial evidence that information did not leave the safety of a client's network. Not only that, but network logs insulate a client from a regulator's watchful eye after an event. Having the logs to show a regulator that personal identifying information did not leave the client's systems is proof that may assist in shutting a regulatory inquiry down.
While notice to consumers or affected individuals can be necessary and unavoidable in certain cyber scenarios, it is never a decision that I as an attorney make lightly. As mentioned above, notice alerts a consumer to a potential negligence claim against a company for failure to provide adequate security protections. Notice can lead to lawsuits and lawsuits can lead to liability. Notice is, in short, the legal nuclear option.
Ensuring that logging is turned on, captured, and preserved immediately after a cyber event is critical to mitigating legal risk. Having proof that information did not get into the hands of a cybercriminal after a simple cyber event will avoid significant expense and exposure. So, turn the logs on. Your lawyer will thank you.