Data Breach Notifications: Time For Tough Love

Should businesses that suffer a data breach be legally required to issue a prompt notification to affected consumers?

The White House thinks so. Mythili Raman, the acting assistant attorney general at the Department of Justice, told the Senate Judiciary Committee Tuesday that the White House is proposing the creation of a "consistent national standard" that would require businesses to "provide prompt notice to consumers in the wake of a breach." Breaches involving sensitive information pertaining to 5,000 or more people, as well as any breach involving federal or law enforcement databases, would also have to be reported to federal law enforcement agencies within 10 days of being discovered.

What counts as prompt? A suit filed last month by California attorney general Kamala Harris against Kaiser Foundation Health Plan provides one answer. In 2011, Kaiser lost a hard drive that contained personal information -- names, addresses, birth dates, Social Security numbers -- for 20,539 Kaiser employees and their families. "Kaiser regained custody of the hard drive in December 2011 and conducted a forensic analysis to determine the types of data it contained," according to a blog post from the law firm Hogan Lovells.

Kaiser officials then waited three months to notify affected individuals. California state law requires breached organizations to notify affected consumers "in the most expedient time possible and without unreasonable delay." Cue the state suing Kaiser for $2,500 for each violation -- which could add up to a $51.3 million fine. "The state alleges that this three-month delay was unwarranted and violated California's unfair competition law," according to Hogan Lovells.

[Do you have control over your data? See Data Governance Plans: Many Companies Don't Have One.]

Eva Casey Velasquez, president and CEO of the nonprofit Identity Theft Resource Center (ITRC), told us that, besides helping to protect affected consumers, states use breach notification laws to deter otherwise legitimate businesses from cutting corners. "Law enforcement also has that obligation to ensure that they keep that playing field level, so businesses don't have an unfair advantage if they don't disclose that information."

In the wake of the breaches at Target, Neiman Marcus, and other retailers, requiring breached businesses to issue prompt and informative notifications to affected consumers has become a legislative rallying cry. "I am working on legislation that would foster quicker notification by replacing the multiple -- and sometimes conflicting -- state notification regimes with a single, uniform federal breach notification regime," Rep. Lee Terry (R-NE) said Wednesday during a House Energy and Commerce Committee hearing.

Likewise, Sen. Dianne Feinstein (D-CA) -- co-author of the Data Security and Breach Notification Act introduced Jan. 30 -- has argued that businesses should make a prompt notification directly to affected consumers. "The public notification is always vague," she said at the Senate Judiciary Committee hearing Tuesday.

This isn't the first time some legislators have attempted to tackle these issues. Feinstein introduced a national mandatory breach notification bill in 2003. It died, as have subsequent efforts.

Instead, many US organizations are now governed by a patchwork of notification requirements, including laws on the books in 47 states -- Alabama, Michigan, and Missouri, you're out of luck -- only some of which require direct consumer notification. Health data breaches involving 500 or more records, meanwhile, require that a notification be made directly to affected people, while smaller breaches must only be reported annually to the Department of Health and Human Services.

But, as Feinstein has noted, not all notifications are created equal. Over the past seven years, for example, 42% of reported breaches haven't detailed -- to state attorneys general or affected consumers -- the number of compromised records, according to the ITRC, which tracks public breach notifications. A whopping one-third of notifications don't include any details about the breach.

In other words, not all businesses behave like Target, which issued a clear notification to affected consumers within seven days, and then again in January, after investigators found 70 million customer records had been stolen. Likewise, Neiman Marcus said it notified affected customers 37 days after learning about the breach, which involved up to 1.1 million credit cards. But Feinstein (a Neiman Marcus shopper) said Tuesday that she'd received no such notification.

Timing wise, those two retailers were on the hook after journalist Brian Krebs published separate reports that payment processors had traced unusual levels of fraud to both of those businesses. They had little choice but to own up -- and quickly.

Why not hold all breached businesses to a preset consumer-notification timeline? In fact, the ITRC's Casey Velasquez warned against that approach and said some breaches are more complex than others. "We have to weigh the right of people to know that their information has been breached and compromised with the good of knowing all of the information at once."

She also warned against trickling information out to affected consumers. "I'm not certain that it's better to tell people in chunks. If you say something like 'You must notify them within 24 hours,' and you aren't able to give them the full picture... that does more harm than good." Partially notified consumers have no way of knowing what, if any, actual risks they might face. Breach fatigue -- and subsequent inertia -- may also result.

The Target and Neiman Marcus breaches aside, the widespread paucity of particulars in notifications suggests that many breached businesses haven't invested in an IT infrastructure -- backed by rigorous security policies -- designed to help digital forensic investigators unpeel hack attacks. Take this week's disclosure by St. Joseph Health System that it suffered a security breach from Dec. 16 to Dec. 18. Officials said the breach may have exposed 405,000 past and current patients' records, as well as employee information. But digital forensic investigators hired by the hospital can't tell for sure.

Incomplete breach notifications make a mockery of any notion of corporate responsibility, especially given the immense amount of wasted time and stress -- not to mention privacy violations -- facing consumers when a business loses their personal information or financial details. Why, then, are consumers left to clean up the mess?

If Congress wants retailers and other businesses that handle customer data to get serious about securing it, let's start by implementing a parking garage model, akin to how you take a ticket when you drive into the garage and then pay when you leave for the number of hours you parked. Lost your ticket? Then you pay the maximum amount.

Do the same for data breaches. If a business can't detail how it was breached or how many customer records, health records, or credit card accounts were stolen, then just presume every record has been compromised. Make it the responsibility of businesses and government agencies to prove otherwise. Maybe then more of them will begin taking data breach prevention seriously.

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