Who – if anyone – is responsible for notifying victims of some breaches?

I’ve blogged a number of times about how although law enforcement may uncover breaches or data theft, the victims often do not get notified in a timely fashion – if at all.  Here are just a few scenarios where no one may notify people whose data have been stolen:

• Law enforcement discovers a handwritten list of hundreds of individuals’ names, dates of birth, and Social Security numbers
• Paper records with sensitive information – sometimes including medical information – are discovered in a dumpster and traced back to a defunct business or practice.
• Law enforcement investigates stolen information available for sale on an underground market.

When credit card information is involved, people are more likely to get notified, as law enforcement may send a list of numbers to AmEx, Discover, or other card issuers who then take steps to protect and notify the consumer.  But if there are no credit card numbers involved, it seems there are gaps in notification.

The recent controversy over the FERC/EDRM data set involving emails from Enron employees provides a useful example of the hole in our patchwork quilt on notification.  The data set, available publicly, contained unredacted PII – including Social Security numbers – on thousands of people.    

The data were originally gathered by the Federal Energy Regulatory Commission, and when the issue of redaction came up in court, the court was sensitive to the issue. But did FERC and their contractor do a thorough enough job in removing documents? It seems that they didn’t if there was so much PII left in the data set, even though FERC  and their contractor went through a number of reviews of the data set to delete personnel’s personal information that was not appropriate for public release, as detailed in in this document.  

The data set has been available for download for years, and many people knew that it contained PII.  Is this a situation that the individuals affected should have been informed about? As a privacy advocate, I would say, “definitely.” But who is responsible for notifying them? And even though EDRM and Nuix have released a newly washed data set, the other Enron email data set has not yet been re-released after new washing.  More importantly, even when it is released, copies of the older data sets remain on numerous people’s hard drives and are still available for download on the Internet. As a result, those whose PII were exposed are still at risk.

I would bet that FERC takes the position that it gave Enron and others an opportunity to have PII removed and therefore, they are not responsible for any notification. EDRM may take the position that they merely distribute/make available the government’s records, and therefore they are not responsible.

So is no one responsible or liable for exposing thousands of individuals’ SSN to cybercriminals? Is no one responsible for notifying individuals that their SSN and details have been available for download on the Internet for years, and have been downloaded by people all over the world? Is no one responsible for contacting every site that hosts the problematic data sets to ask them to remove them?

And if you believe that either FERC or EDRM are responsible and should be held accountable in terms of notification to individuals, what existing law(s) are you basing that on?

In the meantime, the buck seems to stop… nowhere.