FTC Issues Guidance for Responding to Data Breaches

Caleb Skeath writes:

On Tuesday, the FTC issued new guidance for businesses on responding to data breaches, along with an accompanying blog post and video.  The data breach response guidance follows the issuance of the FTC’s “Start with Security” data security guidance last year and builds upon recent FTC education and outreach initiatives on data security and cybersecurity issues.  The FTC’s data breach response guidance focuses on three main steps:  securing systems and data from further harm, addressing the vulnerabilities that led to the breach, and notifying the appropriate parties.

Read more on InsidePrivacy.com.

A few comments on some of the FTC’s suggestions, based on this blogger’s experience:

Interview people who discovered the breach. Also, talk with anyone else who may know about it. If you have a customer service center, make sure the staff knows where to forward information that may aid your investigation of the breach. Document your investigation.

Sometimes, that will include researchers or journalists who reached out to you to notify you of the breach. Notice that the guidance says “Interview.” It does not say, “Treat them like criminals” or “Grill them like the third degree.” And do ensure that your public-facing staff all know the escalation procedures for forwarding information received about a breach.

Have a communications plan. Create a comprehensive plan that reaches all affected audiences — employees, customers, investors, business partners, and other stakeholders. Don’t make misleading statements about the breach. And don’t withhold key details that might help consumers protect themselves and their information. Also, don’t publicly share information that might put consumers at further risk.

So should entities tell consumers or patients if there has been an extortion demand? Does an extortion demand predict greater likelihood of misuse of data? If so, should those affected be told promptly?

In the section of notifying individuals, the guidance seems to stop short of telling individuals when the breach first occurred. Is that important information to help consumers and patients understand how far back they may need to check their records? As Protenus’s monthly Breach Barometer shows, in some cases, we are still seeing discovery two years after a breach actually began or occurred. Is that important for consumers to know?

Happily, the FTC’s new guidance also reminds entities that in addition to other rules, they may also need to comply with the FTC’s Health Breach Notification Rule and HIPAA/HITECH notification rules.

Overall, this is a welcome guidance, as this blogger has repeatedly called upon the FTC to provide more materials appropriate to small and medium-sized businesses. Hopefully, the word will get out on this guidance and more entities will actually read it and use it.

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