This article is part of an ongoing series on privacy program metrics and benchmarking for incident response management, brought to you by RADAR, a provider of purpose-built decision support software designed to help privacy professionals perform consistent incident risk assessments and ensure timely notification, with real-time access to incident management reports and metrics. Find earlier installments of this series here.
In my conversations with fellow privacy professionals, one of the most common challenges I hear repeated — across industry, across roles, and across organization sizes — is keeping up with ever-changing data breach notification regulations. In 2018, we saw the much anticipated effective date for GDPR. Canada had the new mandatory breach notification and record-keeping requirements under PIPEDA go into effect. In the states, 10 bills that impact data breach notification obligations went into effect, and all 50 states now have their own breach notification regulation, each different from the next.
Clearly, given the legislative landscape, data breach notification requirements are growing and trending towards increasing stringency and complexity. But do increasingly rigorous regulations have a real impact on breach notification outcomes? This question is how we arrived at the topic of this month’s benchmarking article, in which we will explore compliance outcomes and the influence of increasingly specific U.S. state-mandated notification timelines.
Notification timeframes and the efficacy of increasingly specific data breach notification regulations
Historically in the U.S., a majority of state breach notification laws have ambiguous timeframes in which a breach of personal information requires notification to impacted individuals. It’s not uncommon to see definitions such as “in the most expeditious time possible, without unreasonable delay.” Unless an organization establishes its own notification policy, this ambiguity can lead to inconsistent notice timelines across incidents and jurisdictions.
Increasingly, states are replacing this ambiguous language with more specific notification timelines or outside limits by which time an impacted individual must be notified, specifying the number of days an organization may have to provide notification to individuals in order to remain compliant with the state’s breach notification law. 2018 alone saw eight states change their notification timelines, defining that organizations have:
- 60 days to notify individuals (South Dakota, Delaware, Louisiana).
- 45 days to notify individuals (Alabama, Arizona, Oregon, Maryland).
- 30 days to notify individuals (Colorado).
Digging into the aggregated metadata of data privacy incidents, we compared notification compliance within organizations that provided notice to individuals in states with ambiguous language against states with specific notice timeframes in order to answer the question: when a state regulation sets an explicit timeframe, do we see organizations typically providing notice faster or slower than they may otherwise under ambiguous timeframes?
The results, according to our analysis? For the most part, organizations provided notification to individuals within about the same time frames, regardless of whether or not the regulation had an explicit requirement in terms of the number of days to notify.
A few things to note about these findings:
- When we begin looking at the data, the majority of companies sampled provided notification in a consistent timeframe across ambiguously defined and specifically defined state data breach notification timeframes, meaning they were responding at about the same rate.
- Eleven percent of organizations notified impacted individuals more slowly when the notice time frame was ambiguously defined. Most organizations prioritize compliance with breach notification law of states that have a specified notification deadline over those that do not.
- Interestingly, 16 percent of organizations notified impacted individuals in jurisdictions with ambiguously defined timeframes more quickly than they did in jurisdictions with explicitly state-defined timeframes, and here’s where we see the influence of privacy policies even when regulations may have ambiguous or undefined timeframes. Some organizations that have set internal policies may apply a shorter timeframe to provide notification across all jurisdictions, essentially expediting the notification process in some states.
Why is this information important for privacy professionals?
The influence of regulatory requirements on how a privacy team is able to demonstrate compliance is an interesting area for exploration, because in this case it illuminates the value of strong privacy policies and consistency in incident response. The aggregated incident metadata represents best practices of organizations that use Radar for consistency and automation in their incident response process, operationalizing their privacy program to be highly data driven. In that sense, this data demonstrates that organizations can ensure data breach compliance across jurisdictions, meeting or exceeding notification deadlines through automation and best practices.
Another important item of note: While notification timeframes in the U.S. are generally defined by months, in a post-GDPR world, we’ve all become acutely aware of the 72-hour timeframe in which you must provide notification to supervisory authorities. Contractual obligations to provide notification are similar, in that the notification timeframe may be defined in hours rather than days. Your regulatory burdens require knowing the difference, being able to quickly identify these differences, prioritize the most urgent and timely tasks, and document your decisions.
Finally, I think every privacy professional is well aware that data breach notification regulations are rapidly changing, and remaining informed of these regulatory changes in the U.S. and beyond is critical to ensuring compliance. As regulations continue to condense the timeframe between the discovery of a breach and required notification to affected individuals, it’s increasingly critical that policies, processes and operational systems are in place to quickly escalate discovery of suspected privacy incidents, perform consistent and efficient multi-factor incident risk assessment, determine whether notification is required and streamline the overall incident response lifecycle.
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