DataBreaches.Net

Menu
  • About
  • Breach Notification Laws
  • Privacy Policy
  • Transparency Report
Menu

Data Breach Investigation | Constitutionality | Arbitrary, Capricious?

Posted on September 22, 2010 by Dissent

Benjamin Wright is an attorney who teaches e-discovery, data security and cyber investigations law at the SANS Institute. In commenting on the recent matter of Lucile Salter Packard Hospital being fined for not notifying patients within 5 days of confirming that PHI were on a stolen computer, Wright states:

Yet I will say that it is irresponsible for data holders to issue breach notices before they have concluded a true breach has occurred. Unnecessary notices inflict angst and confusion on data subjects. A mere security vulnerability is not a breach.

To distinguish between a vulnerability and a breach often requires deliberation. Deliberation can require painstaking collection of facts, coordination with multiple parties such as law enforcement and careful review of the facts, often with input from multiple learned parties, such as outside experts.

Although I understand his point, the definition of what constitutes a reportable breach (as opposed to a vulnerability) would be seem to be defined by the state’s statute. If a breach is defined as “unauthorized acquisition of computerized data that compromises the security, confidentiality, or integrity of personal information maintained by the person or business” then the theft of equipment containing such information would seem to this non-lawyer to constitute a breach, not a vulnerability.

He continues:

The California Legislature made clear it wants notices to be issued quickly. However, the law should not be interpreted to require rash decision-making. If the law is interpreted as a hair-trigger requirement for notices before a competent investigation can be concluded, then I question the constitutionality of the law. That interpretation would render the law arbitrary, capricious, unreasonable, in conflict with the need for due process under the US Constitution.

Well, now I’m totally confused, as I thought states could regulate businesses and set rules and deadlines — and consequences under its authority. If a state decides that it’s in the interests of its residents that they be notified within 5 days if an entity has determined that their personal information has been stolen — even if the information is subsequently recovered — then where’s the constitutional issue?

I would love to see him expand his argument because although I have previously expressed my own reservations about the 5-day deadline, my concern was not a constitutional one per se.

You can read his entire column on IT Policy | Audit | Investigate Cyber Crime

The hospital has appealed the fine.


Related:

  • Two more entities have folded after ransomware attacks
  • Data breach feared after cyberattack on AMEOS hospitals in Germany
  • Premier Health Partners issues a press release about a breach two years ago. Why was this needed now?
  • Theft from Glasgow’s Queen Elizabeth University Hospital sparks probe
  • North Country Healthcare responds to Stormous's claims of a breach
  • Texas Enacts Electronic Health Record Data Localization Law
Category: Health Data

Post navigation

← UK: IT manager at Hull PCT pleads guilty in snooping charges
Stolen Ault Chiropractic Center computers contained patient info →

Now more than ever

"Stand with Ukraine:" above raised hands. The illustration is in blue and yellow, the colors of Ukraine's flag.

Search

Browse by Categories

Recent Posts

  • Scattered Spider Hijacks VMware ESXi to Deploy Ransomware on Critical U.S. Infrastructure
  • Hacker group “Silent Crow” claims responsibility for cyberattack on Russia’s Aeroflot
  • AIIMS ORBO Portal Vulnerability Exposing Sensitive Organ Donor Data Discovered by Researcher
  • Two Data Breaches in Three Years: McKenzie Health
  • Scattered Spider is running a VMware ESXi hacking spree
  • BreachForums — the one that went offline in April — reappears with a new founder/owner
  • Fans React After NASCAR Confirms Ransomware Breach
  • Allianz Life says ‘majority’ of customers’ personal data stolen in cyberattack (1)
  • Infinite Services notifying employees and patients of limited ransomware attack
  • The safe place for women to talk wasn’t so safe: hackers leak 13,000 user photos and IDs from the Tea app

No, You Can’t Buy a Post or an Interview

This site does not accept sponsored posts or link-back arrangements. Inquiries about either are ignored.

And despite what some trolls may try to claim: DataBreaches has never accepted even one dime to interview or report on anyone. Nor will DataBreaches ever pay anyone for data or to interview them.

Want to Get Our RSS Feed?

Grab it here:

https://databreaches.net/feed/

RSS Recent Posts on PogoWasRight.org

  • Congress tries to outlaw AI that jacks up prices based on what it knows about you
  • Microsoft’s controversial Recall feature is now blocked by Brave and AdGuard
  • Trump Administration Issues AI Action Plan and Series of AI Executive Orders
  • Indonesia asked to reassess data privacy terms in new U.S. trade deal
  • Meta Denies Tracking Menstrual Data in Flo Health Privacy Trial
  • Wikipedia seeks to shield contributors from UK law targeting online anonymity
  • British government reportedlu set to back down on secret iCloud backdoor after US pressure

Have a News Tip?

Email: Tips[at]DataBreaches.net

Signal: +1 516-776-7756

Contact Me

Email: info[at]databreaches.net

Mastodon: Infosec.Exchange/@PogoWasRight

Signal: +1 516-776-7756

DMCA Concern: dmca[at]databreaches.net
© 2009 – 2025 DataBreaches.net and DataBreaches LLC. All rights reserved.