WHY TALKING ABOUT DATA BREACH IS RELEVANT DURING COVID-19?

Data breaches happen every day.  Companies failing to prevent , mitigate or notify a databreach may incur in GDPR sanctions.  Therefore being able to handle a databreach, especially during covid-19 emergency, is crucial.

Since 25 May 2018 to 31 March 2020, 2,368 breaches were notified to the Data Protection Supervisor, with a peak between 30 September and 31 December 2019 of 553 notifications followed in the latest period (i.e. from January to March) by 295 notifications. This does not mean, however, that this number actually corresponds to the number of data breaches actually happened because, as we will see below, not all breaches must be notified.

In this post we will assess how to prevent a databreach. You can also find our databreach podcast  here.

The current cybersecurity scenario

The most recent report by Clusit – Italian Association for Information Security, which reported how – in 2019 alone – about 1670 cyber attacks occurred in Italy, with a growth percentage of 7.6% compared to 2018 and 91.2% compared to 2014. This percentage, however, refers only to real attacks, i.e. those that have overcome all the existing defenses adopted by data controllers or data processors and have therefore caused significant damage, without considering failed and/or blocked attack attempts. The report also highlights that those affected by cyber attacks belong to the most varied categories, from companies providing online or cloud services to telcos, from the retail sector to the chemical/pharmaceutical or banking sector. This shows that no company processing personal data is immune from this type of danger.

Risks during emergency periods

Today, moreover, there is a further reason to talk about data breaches: as we will see in more detail, the emergency situation we are experiencing prevents – at least at the moment – all workers from going to their offices, so that many of these workers are turning to the remote working mode, which involves significant risks.

HOW TO PREVENT A DATABREACH

First of all, it should be pointed out that most data breaches are caused either by the adoption of insufficient technical security measures or by real human errors. It therefore one of the most effective ways of avoiding this is to adopt, as required by the legislation, security measures – both technical and organisational – that are appropriate.
Now, the concept of adequacy is certainly mutable, since – unlike in the past – the GDPR does not indicate minimum measures to be taken to ensure data security, but on the contrary, it requires the controller to make a case-by-case assessment of what is actually adequate, taking into account

• the state of the art and the costs of implementing the measures it intends to adopt,
• the nature, object, context and purposes of the processing,
• risks to the rights and freedoms of natural persons.

Organizational measures

In this context, from an organisational point of view, an internal privacy compliance model is certainly essential. It is therefore necessary to identify the individuals who have a privacy role . In this context, it is very often assumed that the appointment of a Data Protection Officer is sufficient, but this is not the case. If the appointment of a DPO is necessary with respect to certain activities related to the data controller, this does not mean that the DPO should be called upon to ensure the privacy compliance of the data controller, as is often the case. On the contrary, the DPO plays the role of advisor and controller of the controller’s activities, providing advice and suggestions, but then the final decision is up to the controller, who must therefore be well aware of the risks arising from its choices.
This policy, depending on the circumstances, must identify the roles assigned to each person processing personal data and consequently the obligations and instructions applicable to them. In this context, fundamental precautions become both (i) ensuring that the procedures adopted are made known to the entire company population and (ii) that they are well understood also through training activities for employees and collaborators.

Technical measures for remote working

In addition to this, there are all the technical security measures that the owner must adopt, and GDPR, for example, refers merely to the pseudonymisation and encryption of personal data, however their suitability must again be assessed on the basis of the actual processing.

Many authorities and institutions, such as the Department of Public Administration, ENISA and the Irish Data Protection Supervisor, have provided suggestions and guidelines on practices to be followed to ensure IT security in remote working. From a technical point of view, the main solutions that the employer can use are:

• the activation of a VPN connection, i.e. that “secure” communication channel between the remote device and the company, through which applications and company data can be accessed directly;
• the setting up of a remote device management system, with which the company’s IT technicians can monitor and manage any problems, after assessing the privacy compatibility of these tools with the provisions of the Workers’ Statute;
• the use of ACL (Access Control List) systems, particularly effective in limiting the risk of unauthorized access, dissemination, loss and destruction of data.

Training

In addition to technical measures, employee awareness and training are essential to stay up to date with the latest threats. In particular, adequate information about certain essential security concepts should be provided:

• secure wifi connection; most wifi systems at home today are properly protected, but some older installations may not be. With an unsecured connection, people nearby can snoop around in network traffic;
• updated security software and antivirus system; PC security tools such as privacy tools, browser add-ons, etc. need to be updated. Patch levels and system updates must be checked regularly;
• regular backups; all important files must be backed up regularly. In the event of a computer attack, for example, the entire contents of a device could be lost without a backup.

In addition, employers can take action to optimize organizational management in case of incidents or risks, for example by providing a specific procedure to employees on how to react in case of problems and giving appropriate priority to support for remote access solutions, including through the establishment of special shifts for support staff.

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In the next post we will assess how to handle a databreach once it happens and how to evaluate whether it shall be notified to the Supervisory Authority. Meanwhile you can find our databreach podcast here.

For more info on this topic you can contact Giulia.zappaterra@dlapiper.com and Tommaso.ricci@dlapiper.com.