According to the DOJ it is a best practice for every business is to have “legal counsel that is familiar with legal issues associated with cyber incidents” in its recent “Best Practices for Victim Response and Reporting of Cyber Incidents.” The April 2015 “Best Practices” includes these comments about ensuring legal counsel is familiar with technology and cyber incident management since “Cyber incidents can raise unique legal questions”:
An organization faced with decisions about how it interacts with government agents, the types of preventative technologies it can lawfully use, its obligation to report the loss of customer information, and its potential liability for taking specific remedial measures (or failing to do so) will benefit from obtaining legal guidance from attorneys who are conversant with technology and knowledgeable about relevant laws (e.g., the Computer Fraud and Abuse Act (18 U.S.C. § 1030), electronic surveillance, and communications privacy laws). Legal counsel that is accustomed to addressing these types of issues that are often associated with cyber incidents will be better prepared to provide a victim organization with timely, accurate advice.
Many private organizations retain outside counsel who specialize in legal questions associated with data breaches while others find such cyber issues are common enough that they have their own cyber-savvy attorneys on staff in their General Counsel’s offices. Having ready access to advice from lawyers well acquainted with cyber incident response can speed an organization’s decision making and help ensure that a victim organization’s incident response activities remain on firm legal footing.
The DOJ Cybersecurity Unit (Computer Crime & Intellectual Property Section, Criminal Division) identified these steps “Before a Cyber Intrusion or Attack Occurs”:
- Identify Your “Crown Jewels”
- Have an Actionable Plan in Place Before an Intrusion Occurs
- Have Appropriate Technology and Services in Place Before An Intrusion Occurs
- Have Appropriate Authorization in Place to Permit Network Monitoring
- Ensure Your Legal Counsel is Familiar with Technology and Cyber Incident Management to Reduce Response Time During an Incident
- Ensure Organization Policies Align with Your Cyber Incident Response Plan
- Engage with Law Enforcement Before an Incident
- Establish Relationships with Cyber Information Sharing Organizations
Since cybercrimes are daily headlines it certainly behooves all lawyers to understand in order to serve their clients.