A Q&A with Ryan Kriger
Among state Attorneys General, Vermont has gained a reputation for being particularly aggressive about data breach and privacy regulation. To better understand the state’s Consumer Protection Act requirements and processes for data breach investigation, I talked to Ryan Kriger, Assistant Attorney General.
What should a small business know about complying with the Vermont law?
We have a guidance available on our website, which should be helpful. In the case of a breach, they should first contact law enforcement, their insurer, their lawyer, any IT people involved and, if there’s credit card information at stake, their processor. Their primary duty is to figure out what happened and get the situation under control. They have to notify us within 14 days of finding out about the breach. That preliminary notice is kept confidential. We want businesses to give notice to consumers relatively quickly, and the 14-day notice to us allows us to stay on top of things and make sure they are doing that. We did create a waiver last year—if your company has policies in place and you’re confident that you will comply with the law, you can be certified ahead of time as long as you sign the document and get it on file with us before a breach incident. If you have a certification on file, you don’t need to notify us within 14 days. Another subsection says that if the data collector is sure that the data never got into the wrong hands—say, a password protected laptop was lost for five hours, then returned—they can call and ask us if they still need to give notice, and we probably won’t require it.
If it’s a really big breach and we think it could be problematic, we may follow up with questions. If we perceive the company’s actions to be unreasonable, unfair or deceptive, such as in the case with TJX, then we will begin an inquiry. Often, this wouldn’t just be Vermont, but multiple states getting together and asking questions.
How might you approach a data breach incident?
The first step is that we want to make sure the business has covered all of the necessary notification. Notice to consumers should go out “in the most expedient time possible and without unreasonable delay.” Vermont has a 45-day deadline, but we think in many cases notice should go out sooner. We encourage companies to send us their notification letter before it goes out to consumers, and we can help them make sure it’s in line with the statute. Also, the sample letter to consumers gets posted to our website, so consumers can confirm that the letter itself is legitimate. The second thing is to make sure the company fixes the problems that led to the breach. Sometimes smaller businesses think it’s a one-shot deal and don’t want to change their business practices, but we remind them that they are on notice, and that the fine outlined in the Consumer Protection Act is $10,000 per violation. Now, we’ve never had to levy that fine as most people seem to want to resolve the issues, but we want businesses to know that we are here to protect consumers and they need to take that seriously. In the TJX case, it appears that the company may have been collecting credit card information at point of sale and transmitting it, unencrypted, over unprotected wi-fi networks. This sort of blatant violation of standard security practices, and the length of time that it was allowed to continue, clearly justified bringing an enforcement action. We’re not trying to trick people, and in most cases we can resolve things in a cooperative fashion, but when a company drags their feet, we will go after them.
What are some of the key weak spots that lead to a privacy/data breach incident?
It can be all over the map—certainly, not encrypting data where encryption is appropriate is one issue. Over-collecting data you don’t need, such as using SSNs as an identifier, could be another. Other problems we see: collecting credit card data through a homemade system that’s not PCI-compliant when you could be using a secure third-party system. Not changing passwords or updating software. In smaller businesses, it might be negligence about employees who could be stealing credit card information. In general, it’s a good practice to have the occasional forensic analysis or stress test. We have partnered with Norwich University to offer penetration testing to any small business in Vermont that wants it. The Verizon Report has shown us that small businesses are the prime focus of security breaches, so we are particularly sensitive to the needs of small businesses in Vermont.
What type of fines and penalties can a company face for noncompliance? Can the lack of certain actions or controls increase their culpability in your view?
I mentioned the $10,000 per violation fine, and we consider each day you go beyond the deadline a separate penalty. Our Consumer Protection Act doesn’t have an intent requirement, but we obviously take intent, negligence and lack of controls into account when we think about enforcement and penalties. A business suffering a breach calling us to ask what they can do, making it’s clear they want to do the right thing, is very different from a business that denies anything went wrong, after we’ve found out about the breach three months later. We are very cautious with our use of power and we’re not trying to bully anyone, but if we need to use a large fine to get a business into compliance, we will do so. If an enforcement action reaches a settlement agreement, called an assurance of discontinuance or consent judgment, we may seek penalties, but we will also seek injunctive relief, which is asking the business to change its behavior. For example, we may want the business to put security or compliance systems into place, offer restitution for consumers, or take other steps to make sure it doesn’t happen again. In general, we are eager to proactively work with businesses to protect consumers and create a productive, cooperative relationship in order to prevent breaches.
I first met AAG Ryan Kriger at our NetDiligence® Cyber Risk & Privacy Liability Forum last year in Marina del Rey. I thought he might be guarded about the state’s approach to enforcement, but boy, was I wrong. He was actually very forthright in talking about how seriously Vermont takes the issue of consumer privacy, including violators of state regulation. He makes the point that his department is willing to work with organizations that suffer a data breach incident and will give them a roadmap to do the right thing by the victims (whose personal information is now in wrongful hands). What is clear is that organizations that demonstrate a lack of care (or even willful nondisclosure) will be penalized.
Ryan is also speaking at the upcoming NetDiligence® Cyber Risk & Privacy Liability Forum in Philadelphia this June 6-7.