By Derek Hawkins
Europe’s General Data Protection Regulation requires companies with customers in the E.U. to notify regulators of a breach within 72 hours or face a severe penalty. Fifty-four percent of experts we surveyed supported a similar law in the U.S. The Network is our panel of more than 100 cybersecurity leaders from government, academia and the private sector who vote in our ongoing, informal survey on cybersecurity issues. (You can see the full list of experts here. Some were granted anonymity in exchange for their participation.)
Some experts said they favored federal legislation because it would help replace the patchwork of state laws that govern data breach notification in the United States. “Today, companies in the United States are required to comply with 50 different state laws when they suffer a data breach affecting personally identifiable information they control,” said Rep. Jim Langevin (D-R.I.), who has introduced legislation to create a national breach notification standard. “This is bad for business and bad for consumers, who are treated differently depending on where they live.”
“Europe now plays by one set of rules, while the United States plays by over 40,” added Jeff Moss, who founded the Def Con and Black Hat hacking conferences. “This is a costly, confusing and at times contradictory mess that only a national breach notification law can resolve.”
The issue has been in the spotlight in recent weeks. In late September, Facebook reported that hackers stole information that could have allowed them to take over of tens of millions of accounts. After learning of the breach, Facebook disclosed it within 72 hours even though the company did not have all the information about the breach. Google took a different approach. The search giant learned that a software bug exposed data on half a million accounts on its social media service Google in March but did not disclose it until this month — and was criticized for not being transparent.
Survey respondents disagreed on how much time companies should be given to disclose their breaches. Langevin’s bill, for instance, would offer companies more leeway than GDPR. Instead of three days, they’d have 10 days to notify regulators after discovering a breach, and 30 days to notify consumers. “These timelines allow flexibility for companies to determine the scope of a breach while ensuring prompt notification so people can protect themselves,” he said.
There are competing bills on Capitol Hill, though: Legislation introduced by Sens. Amy Klobuchar (D-Minn.) and John Kennedy (R-La.) would mirror GDPR, requiring companies to disclose a breach within 72 hours of discovering it.
And other experts said 72 hours would be the right time frame. Chris Wysopal, chief technology officer at the cybersecurity firm CA Veracode, said that window would help the victims of a data breach take quick action to protect themselves from attackers who seek to misuse their information. “Attackers want to monetize the private data the companies store,” he said. “People have a right to know and protect themselves from subsequent attacks using this data, whether it is phishing or fraud. Having a standard like 72 hours will help all companies being on a level playing field and build processes to respond in a timely way.”
Harley Geiger, director of public policy at the cybersecurity firm Rapid7, agreed — provided that the countdown begins “when the company concludes a breach has occurred, not on discovery that an incident or attack occurred.”
“The company will need time to identify and investigate the incident, determine whether data was accessed or exfiltrated, and conclude based on the evidence that a breach has actually occurred,” Geiger said. “Reporting ‘a breach’ to regulators or the public prior to that process can be counterproductive for all sides, including consumers.”
The hack disclosed by Facebook late last month illustrates the complications of reporting a breach early. While Facebook took just three days to notify privacy regulators and the public that hackers may have compromised up to 50 million user accounts, the social media giant had only just begun to investigate the incident at the time of the announcement, and Facebook officials weren’t able to offer users a clear picture of the risks. In an update Friday, Facebook revealed that the hack affected about 20 million fewer users than it previously estimated — but that hackers had stolen more sensitive information than the company initially indicated, including search histories and location data.
Mark Weatherford, a former cybersecurity official in the Department of Homeland Security, supports a breach notification law but cautioned that figuring out the scope of an incident is complex and time-consuming work. “While there needs to be a trigger that starts the process, reporting too soon leads to mistakes, revisions and recriminations that might be avoided by waiting until enough information is gathered,” he said.
Jamie Winterton, director of strategy for Arizona State University’s Global Security Initiative, said a U.S. breach notification law should be coupled with measures that provide recourse to breach victims and impose consequences on companies. “Timely notification is important. But without some guidance on what regulators — and victims — should do, it feels somewhat toothless,” she said. “They should specifically address the needs of breach victims and establish some sense of corporate responsibility.”
Yet 46 percent of respondents said the United States shouldn’t impose a breach notification standard similar to the one in Europe.
“Unfortunately, GDPR does not take into account the reality of incident response and will lead to multinational companies disclosing breaches before they can provide accurate information or even be sure their attacker has been flushed from their network,” said Alex Stamos, Facebook’s former chief security officer who is now an adjunct professor at Stanford University. “Any U.S. law should balance promoting speedy disclosure with accurate disclosure.”
Jessy Irwin, head of security at Tendermint, agreed. “Being required to report a breach so early in the investigative process, when new facts emerge and information changes rapidly, will cause much more harm than it prevents on all fronts, especially if reporting has the potential to compromise an organization’s ability to effectively coordinate with law enforcement,” she said. “This kind of instant-gratification breach reporting legislation sets up smaller teams with fewer resources for major, major failure.”
There isn’t a one-size-fits-all solution, some experts argued. “Timing isn’t always the most important part of transparency,” said Steve Weber, founder and director of the Center for Long Term Cybersecurity at the University of California at Berkeley. “And — as most people in the business know — 72 hours isn’t enough time to unravel what has really happened in even a moderately complex breach. The intention behind the law may be good, but this provision is just not sensible.”
Giving companies flexibility is reasonable, as long as they’re acting in the interest of the breach victims, said Cindy Cohn, executive director of the Electronic Frontier Foundation. “While we have been concerned about companies sitting on this bad news, there are also legitimate reasons for delay, like when either the company or law enforcement is trying to identify and catch the perpetrators or when important facts about the situation (how many people are impacted) are still unclear,” she said. “Fiduciary responsibility framing can help give some clarity here; the company must act in the interest of those whose data is impacted, not its own here.”
There could be risks to consumers, too. Some experts worried that a 72-hour timeline could wind up overwhelming users with unnecessary notifications that their information was compromised just to meet the standard. “The deadline is going to produce a lot of half-baked breach reports and lead to ‘breach notice fatigue,’ ” said Stewart Baker, former general counsel of the National Security Agency.
