How can UpCounsel Cybersecurity & Data Privacy Lawyers help you?

UpCounsel Cybersecurity lawyers can help your organization prepare for a data incident, respond to a breach scenario and respond to litigation under data privacy and cybersecurity laws. Information security practices that align with your organization’s use of personal data are not just a legal consideration but they are also at the top of consumer’s expectations. A seasoned privacy attorney will ensure your company is aware of and compliant with information requirements in the jurisdictions your company conducts business in.

Adapt to data privacy compliance requirements under state, federal and global laws

Keep up with requirements in the United States (E.g., CCPA & CCPR, Colorado CPA, Virginia CDPA, Connecticut Act Concerning Personal Data Privacy and Online Monitoring, Utah UCPA) as well as EU countries (GDPR), and Canada among many others around the world for processing personal data. Keeping in compliance with recent changes in the law is now a consumer expectation as well as necessary to avoid hefty penalties and fines.

Cybersecurity lawyers and data privacy attorneys can provide up-to-date overviews of breach notification laws around the globe (US, EU, UK, Canada, China, Singapore, etc.). Keep informed of federal and state incident risk assessment and reporting requirements for data breaches, including state-specific notice requirements. Assess your company’s strategy based on an informed risk assessment of data privacy requirements handled by an expert in information industry compliance.

Cybersecurity Due Diligence for M&A, Financings, Corporate Transactions and Securities Offerings.

Due diligence assessments with an emphasis on the sharing and processing of data play a pivotal role in understanding potential risk, liability and reputational exposure in a corporate transaction. Increasingly, risks relating to personal data are having a significant impact on current and future valuations and liabilities. Mergers & Acquisition decisions often boil down to calculating that the overall value of the combined new surviving entity is greater than the value of each individual company by itself plus acquisition costs.  

The value proposition of most targets acquired in a typical deal rely on forecasting that largely assumes operational (i.e., data integration and compliance) success achieved in some not-too distant future. Often, the promised value of the target is not realized due to different risk tolerances, operational gaps in data governance, and a knowledge gap between the two entities given the complexity of data privacy and cybersecurity laws. Due diligence risk assessments should, at a minimum, include individual data privacy rights, privacy notices, policies, training, data governance, data security, cross- border transfers, vendor management, privacy impact assessments, data mapping and inventories. 

How to Respond to a Data Breach Incident?

The question is not whether you will experience some type of data incident in the lifecycle of your business but rather when, why and how large of an impact it will have in the short, mid and long run. Minimize risks proactively developing and implementing data incident response procedures.

Cibersecurity risk assessment must account for common incidents like cyberattacks, ransomware, spear phishing, malware, system and process failure, employee negligence, and lost or stolen devices to name a few.  The time to assemble a dedicated team and a plan is before a security incident has occurred. Without appropriate procedures in place, your organization is likely to run afoul of various notice requirements under the law and commercial contracts. Determining whether an event is a privacy incident, security incident, or a data breach is an important cross-functional effort involving IT, cybersecurity and data privacy lawyers, public relations as well as impacted departments.  Depending on the severity of the breach, C-suite involvement may be needed as well, which takes careful advanced planning and consideration given the exposure and liability to stakeholders under data privacy laws.

Advise on how to respond when you suspect a data incident or breach

There are a number of factors involved in assessing an appropriate and legal response to a data incident or breach.  Even how you label an occurrence can have a significant legal and reputational impact. In most cases, an actual ‘data breach’ is a determination of law, which carries significant regulatory and commercial requirements such as notice to government bodies, affected individuals, and commercial vendors. To the extent remediation is underway, the forensic investigation will usually involve a data privacy and cybersecurity attorney, particularly if the incident involves sensitive data, which is a special category of data defined under the law. A response to a suspected incident will necessarily involve an assessment of which departments have been affected, what actions should be taken to stop the threat (in the case of an ongoing incident), remediation on how to resolve the occurrence, whether notification will be required (i.e., who to notify, when to notify, and how to notify).  Your response to a suspected data incident or breach will have a material impact on the monetary, regulatory, and reputational risks to your company and the customers you serve.

Support with state and federal privacy and cybersecurity requirements

The cybersecurity attorney also needs a firm understanding of privacy law. While the two disciplines are distinct, one of the core functions of a cybersecurity attorney is to ensure the company properly stewards the data entrusted to it. Therefore, the cybersecurity attorney must be—at a minimum— aware of privacy laws and have an understanding of where to find the answers your company is looking for. A data privacy attorney that specializes in cyber law is a valuable resource that can help support your understanding of state and federal cybersecurity requirements.

Preventative guidance to ensure your company’s data remains confidential

Maintaining the confidentiality of data includes technical, operational, and contractual measures that go beyond the determination of personal data. An experienced cybersecurity lawyer can help you review and negotiate licensing provisions, the purchase of hardware, an organization’s agreements with security vendors, and any agreements for cloud computing services. The cybersecurity lawyer should be able to rely on established company-specific agreements and contract clauses for vendors, partners, and customers. At minimum, your organization needs to understand the regulatory space you are operating under to ensure that provisions regarding appropriate notice and audit rights, among other things, are included in pertinent contracts with vendors (processors).

Services to identify, address, and respond to statutory, regulatory, contractual, and best-practice information privacy obligations.

Addressing remediation and responses to consumer privacy complaints is a complex arrangement involving cross-functional within your organization along with communication with regulators. For example, use of cookies without appropriate legal basis or consent is a growing area of regulatory scrutiny, which can expose your company to heavy fines. Your contracts must contain the right balance of protection and also include the information you need to respond to regulatory inquiries and comply with statutory guidance.

Identify and anticipate risks and obligations, design and implement form-fitting and customized plans and policies.

The attorney should be as involved in the company’s operations as the information technology expert deploying new defensive measures in the company’s networks. An effective cybersecurity attorney has to be in the trenches, helping to develop the statements of work for new contracts, negotiating information-sharing agreements, advising on legal risks associated with the many and varied daily decisions of securing networks, and managing the hour-by-hour response during an incident.

Data Mapping

Data mapping and conducting an inventory of all data that require protection is a critical step for data security projects. Maintaining an up-to-date registry of all sensitive records and data systems, including those used to store and process data, enables the organization to target its data security and management efforts. Classifying data by sensitivity helps the data management team recognize where to focus security efforts. Data records should be classified according to the level of risk for disclosure of personal data along with a written policy regarding data inventories that outlines what should be included in an inventory and how, when, how often, and by whom it should be updated as your company matures. Privacy regulations as well as internal retention policies mean that organizations need to be deleting, masking or anonymizing data when it is no longer required, or they are no longer permitted to have the data.

What does a cybersecurity lawyer do?

Audit before a cybersecurity incident

After a breach, it is too late.  A regulatory (whether from the EU as part of a GDPR violation or in response to a query from the California Attorney General pursuant to the CCPA) will take a critical look at your IT infrastructure, your remediation efforts, any steps taken that might have prevented the breach.  Many times, there is little in the way of documented processes in connection with data governance to substantiate company claims that processes were followed. This critical connection between what is disclosed on a privacy statement, terms of use, and other publicly available documents and how a company operationalizes such disclosures is a common area of misalignment exposing a company to compliance risk, reputational harm and unwanted regulatory scrutiny. 

An UpCounsel cybersecurity attorney can help a company assess risk, secure data and plan for a breach before a cybersecurity incident occurs to ensure that a company is in compliance with the types of regulations that a data privacy lawyer might help to interpret. 

Data breach

A data breach is usually a fact-specific question of law and as a practical matter, as defined in commercial contracts.  If a privacy incident meets specific legal definitions under international, federal or state laws, then it is considered a data breach.  A data breach will trigger certain notification requirements to the affected individuals, regulatory agencies, partners, vendors, controllers, and sometimes credit reporting agencies or the media depending on the specific circumstances. Certain contractual obligations require notice to business clients if the incident affected clients’ employees or customers.

Due to the complexity of notice requirements and organizations involved, a relatively few number of incidents involving data usually rise to the level of a true data breach. That said, getting this decision wrong under the law could have severe consequences to the organization not just in fines but also could lead to litigation and massive reputational harm. A multi-factor risk assessment is the key to avoiding the risk of over notification or under notification. Organizations should have a clear process to handle suspected data breaches, including documentation of their incident risk-assessment, notification decision, timeline, and proposed remediation plan. 

Cybersecurity trainings for employees

No matter your industry, many laws and mandates require employees to receive some level of cybersecurity training.  Maintaining the integrity of the information your company relies on is the responsibility of every employee. Not only is cybersecurity training mandated under the law but it starts at the top. The Board and the CEO must have the knowledge and skills necessary to assess cybersecurity risks, challenge security plans, discuss activities, formulate opinions, and evaluate policies and solutions that protect the assets of their organization. Our attorneys have provided trainings to big tech and growing organizations in a variety of industries.  

What does a data privacy lawyer do?

  • The data privacy lawyer’s role often includes preparing and implementing a data privacy program. A data privacy lawyer should, at minimum, understand the laws and industry requirements that apply to the processing of data within their organization. Utilizing project management principles, the data privacy lawyer must communicate with key stakeholders the objectives of a privacy program and implement change management across functional departments, if necessary.  Usually, this involves information gathering exercises such as a gap analysis, conducting an audit -Privacy Impact Assessment (PIA) for processing of special categories of personal data and updating/creating a data map. A data map is an essential tool that enables a data privacy lawyer to understand the types of data being processed, how these flow throughout the organization and, if an inventory is done correctly, the purpose driving the collection and processing of personal data.
  • The role of the cybersecurity lawyer is evolving as the cybersecurity field itself is in its nascent stages and quickly changing across the globe. At the core of a cybersecurity attorney’s job is to counsel their clients on requirements to keep data and information systems secure. The requirements themselves vary and stem from statutes designed to address cyber vulnerability at a state and federal level and are also derived from commercial contracts.
  • A cybersecurity attorney must establish a strong base in foundational cybersecurity statutes in order to contribute effectively to the company’s operations. These statutes include the Electronic Communications Privacy Act (including the Computer Fraud and Abuse Act and the Stored Communications Act), the critical infrastructure provisions of the Homeland Security Act, the Cybersecurity Information Sharing Act of 2015, the Federal Trade Commission Act (FTCA), data breach notification laws, applicable sector-specific state and federal laws (particularly for the financial, health care and government contracting sectors), and many others.

How to hire the best cybersecurity & data privacy lawyers?

Cybersecurity and data privacy lawyers that have experience in navigating a complex ecosystem of data privacy laws along with operational knowledge of how to implement best practices are essential to your organization. Protecting your data and keeping in compliance with changing federal and data privacy laws require an understanding of technical cyber security measures. Lawyers in cyber security can help your company respond to and prepare for a data incident as a seasoned privacy attorney will ensure your company is aware of and compliant with information requirements in the jurisdictions your company conducts business in. Post a job on UpCounsel and get free quotes in 24h.