To many, the dawn of a new year brings energy and a desire to take on new tasks and commitments. Along with the familiar resolutions to exercise more, drink less, lose weight, and eat more kale, legal counsel, risk managers, and chief information and privacy officers should consider whether their organizations are adequately prepared to deal with data breaches.
While experiencing a data breach is inevitably a nightmare for all involved, there is no question that having a well-crafted, intelligent data breach plan in place before the event occurs will help lessen the blow.
Regulations are expected this year that will put into force The Personal Information Protection and Electronic Documents Act’s mandatory reporting requirements for breaches of “security safeguards” as mandated by the Digital Privacy Act passed in June 2015. So creating a robust data breach plan should be on the top of everyone’s “to-do” list this year.
The following are some considerations that should come into play when preparing a plan.
Know your information
It’s impossible to create a knowledgeable plan without understanding your organization’s information and what you are actually trying to protect.
For example, what information under the control of the organization is truly personal information? Where is it contained within the organization? How much of the personal information is being generated internally versus received from external, third-party sources? Who are the key custodians of personal information within the organization? Is it feasible to protect everything or should you just focus on the organization’s core assets?
It’s a critical first step to map your data/personal information to see where it resides within your organization and tailor the plan appropriately.
Determining responsibilities
There is no one-size-fits-all plan. Ideally, the plan should set out, among other things:
(i) the individuals (or titles of individuals) from various departments of your organization that have a role in handling privacy/security breaches;
(ii) the process for identifying and confirming the breach; risk assessment criteria; tiered responses; and
(iii) a consideration of notification requirements.
One of the considerations, however, will be to decide who will be responsible at the organizational level to deal with data breaches. The CIO? The board? The CEO? Some organizations have a false sense of security that no plan is required because “IT has it,” but in my experience, IT will take its lead from others in the organization unless they are expressly tasked with this responsibility.
Besides, was IT even given the resources to deal with breaches in your company? Does it even have the necessary technology or corporate authority?
Alternatively, some organizations set up “privacy breach response teams” and “privacy committees” with very clear responsibilities. The response team or privacy committee may be led by the organization’s CPO, in-house counsel, or the CIO. Regardless of the committee’s exact composition, senior management must also be represented to ensure adequate corporate buy-in and fulfill corporate oversight responsibilities.
The plan can also provide that in the event of a breach, the lead can liaise and update the board and CEO as directed.
Consider key stakeholders
In considering the key stakeholders to be referenced in the data breach plan, it’s important to consider both internal and external resources.
For example, it’s obvious that an organization’s general counsel, CPO, and CIO should be involved in dealing with a data breach, but what about human resources (if past/present employees/contractors are involved), marketing (for managing the “message” regarding the data breach), and customer service (for insight into dealing with consumers/the public)?
Additionally, key external stakeholders that should be considered and possibly referenced in the plan include outside legal counsel, forensic investigators, and PR experts, as required.
Lessons learned
The act of creating the plan may expose privacy/security weaknesses in your organization that require further action. For example, does the existing role of the CPO in the organization’s hierarchy/org chart support his/her responsibilities in the plan? Does IT require additional resources to conduct breach audits and analysis? What about additional employee training, etc.?
Notification considerations
Depending on the nature of the personal information involved, your organization may not have any actual mandatory data breach notification requirements at this time. However, any plan should also set up a mechanism for data breach notification considerations depending on the location of the data and the persons whose data is involved (i.e. anyone from Alberta?); the nature of and sensitivity of the data involved (i.e. is there any personal health or sensitive financial information?); whether there is a real risk of “significant harm” caused by the breach; and whether the organization has any extant contractual commitments to promptly notify data owners as a result of the breach.
Even though PIPEDA does not have mandatory data breach notification requirements yet, the privacy commissioner has always encouraged notification if the breach is significant and companies want to get ahead of the story by notifying relevant regulators before an individual makes a complaint or the media breaks the story — if only to better shape the narrative.
Once mandatory notification under PIPEDA is required, the plan should be updated to reference requirements to notify the OPC, affected individuals, and any third-party organizations, government institutions, or part of a government institution if this additional notification may be able to reduce the risk of harm that could result from the breach or mitigate that harm.
The plan should also include the roles and responsibilities associated with notification, i.e. who within the organization will be responsible for contacting these organizations and affected individuals.
Creating an incident report
As a result of recent Digital Privacy Act amendments, organizations will be required to maintain a record of every breach of security safeguards involving personal information under its control and, if requested, provide the OPC with access to or a copy of the record.
Accordingly, the plan should include the completion of a data breach incident report for evidentiary, tracking, and legal purposes. This report should also discuss what steps the organization is taking to understand the cause of the breach and tighten any weaknesses in security or internal practices (i.e. undertaking a root cause analysis, security audit, policies, procedures, and internal employee training).
The incident report should also set out mitigation efforts, including breach containment steps taken and various self-help remedies to be provided to affected individuals.
Ensure adequate implementation
Once any data breach plan is implemented, ensure it is spearheaded and executed by a person who has sufficient authority within the organization to see it through (the CIO, CPO, or GC).
The best plan cannot just sit in a drawer. It is critical for organizations to practise implementing their plans and doing walk-throughs with key employees/stakeholders/vendors. Additionally, organizations must ensure their employees receive proper training on the plan and protecting its information more generally.
For example, if in the middle of a data breach event an organization’s employee is cornered in a parking lot by a reporter, do employees understand who should be speaking for the organization?
Ensure the plan is revisited at least annually and updated periodically to reflect modern technologies and circumstances, changes in personnel, organizational structures, etc.
In conclusion, I strongly believe all organizations should have robust data breach plans in place prior to the occurrence of a breach. If you wait until the data breach occurs — it’s already too late. Arguably, data breaches are inevitable — it’s how you deal with them that counts.
