The best way for a company to handle a data breach is to be prepared.  As we discuss in our data breach readiness handbook, preparation includes, among other things, drafting an incident response plan, reviewing cyber-insurance, reviewing contractual obligations with business partners, having relationships to help investigate security incidents, and training your incident response teams. 

Preparation also requires anticipating decision-points that are likely to arise in a breach.  Our clients often ask to look back at the approximately 600 data security incidents and breaches that we have handled over the years and identify the decision-points that are most difficult. 

Many of the areas where we have seen companies struggle involve management-level strategic decisions that must be made when a security incident is identified.   This eight-part series explores these difficult decision points.  For each there are no “right” or “wrong” answers.  Like all strategic decisions management must examine the specific facts facing their company and their organization’s culture, their industry, and business realities.  

While there may be no right or wrong answer, in our experience executives that have anticipated these decision points before a breach are better able to make decisions that align with the organization’s overall strategic goals and are able to do so with greater speed and confidence. 

Part 3: What To Say About An Incident That Has Not Been Fully Investigated.

Situation.  If a company makes a strategic decision to notify the public about a security incident before an investigation is complete, or if the existence of the investigation is leaked to the public before it is complete, companies must decide what to say about the incident at a time when little may be known.

Some strategic considerations:  Management typically considers the following factors when determining what to say about a security incident when a full forensic investigation is not complete:

  1. It can be difficult to say anything substantive. Companies often have relatively little confidence in the accuracy of preliminary information about an incident.  As a result, it can be near-impossible to have any level of confidence concerning substantive information disclosed about the incident.
  2. Disclosing preliminary findings can be dangerous. Disclosing preliminary findings may inadvertently result in conveying information that is later determined to be inaccurate.  For example, if a company notifies the public that its ongoing forensic investigation has not identified any evidence of a security breach, if evidence is uncovered in a week suggesting that a breach may have occurred the company will have to decide whether to immediately update the public (e., to rectify what is no longer accurate information).  The company may also face potential lawsuits or investigations that seek more information about what the company knew as of the date of the initial disclosure.
  3. Assuring the public can be dangerous. Companies often feel pressure to, at a minimum, assure consumers that their information is safe if they continue to do business with the company. If such an assurance is given, even if it is based on the best information available at the time, if it later proves inaccurate lawsuits or investigations may characterize the decision as designed to ignore possible risks.