by Dallas Hammer and Jason Zuckerman
Congress should act to protect cybersecurity whistleblowers because information security has never been so important, or so challenging. In the wake of a barrage of shocking revelations about data breaches and companies mishandling of customer data, a bipartisan consensus has emerged in support of legislation to give consumers more control over their personal information, require companies to disclose how they collect and use consumer data, and impose penalties for data breaches and misuse of consumer data. The Federal Trade Commission (“FTC”) has been held out as the best agency to implement this new regulation. But for any such legislation to be effective, it must protect the courageous whistleblowers who risk their careers to expose data breaches and unauthorized use of consumers’ private data.
Whistleblowers strengthen regulatory regimes, and cybersecurity regulation would be no exception. Republican and Democratic leaders from the executive and legislative branches have extolled the virtues of whistleblowers. High-profile cases abound. Recently, Christopher Wylie exposed Cambridge Analytica’s misuse of Facebook user data to manipulate voters, including its apparent theft of data from 50 million Facebook users as part of a psychological profiling campaign. Though additional research is needed, the existing empirical data reinforces the consensus that whistleblowers help prevent, detect, and remedy misconduct. Therefore it is reasonable to conclude that protecting and incentivizing whistleblowers could help the government address the many complex challenges facing our nation’s information systems. Continue reading
by Evan Bundschuh and Dallas Hammer
This post is the second part of a two-part post by the authors, entitled The Rise of Cybersecurity Whistleblowing.
Companies seeking to mitigate that risk of cybersecurity whistleblowing through insurance face a unique set of challenges. Cyber whistleblower claims fall in an area somewhere between cyber and D&O insurance, and poorly structured policies will yield little to no coverage. Organizations that have placed both policies nonetheless will likely assume that they have performed their due diligence and that coverage is in place for claims at time of loss. However, affording broad coverage for even standard whistleblower claims can be difficult. Continue reading
by Dallas Hammer and Evan Bundschuh
Your company’s security controls are lacking, and a high level employee in IT is naturally worried – he’s addressed his concerns a number of times. Employees are regularly transmitting unencrypted information, sharing passwords and using non-compliant cloud services to share data and sensitive client side IP. This doesn’t seem overly alarming, we’ve all made similar mistakes, so the comments fall on deaf ears and operations continue. A few months later however the employee becomes increasingly vocal so senior management decides to let him go. Problem solved. Or…the problem might just be beginning.
Companies that ignore (and retaliate against) employees who address cybersecurity vulnerabilities can face significantly increased liability resulting from a new breed of whistleblower claims – cyber whistleblowing. With cyber regulatory oversight increasing at a rapid rate, these claims are poised to increase as well. While no federal laws specifically protect cybersecurity whistleblowers, existing anti-retaliation provisions are often broad enough to cover employees who raise information security concerns. Most notably, federal statutes prohibiting retaliation against corporate whistleblowers and employees who report misconduct in connection with federal funds, as well as state wrongful discharge actions, may apply to cybersecurity whistleblowers. Continue reading