In part two of our series exploring the relationship between law and security, we’ll look at the key questions cybersecurity should ask legal when a company learns about a vulnerability in a product they produce or use.
Vulnerabilities reside within somewhat of a legal and ethical gray zone when it comes to disclosure and response. There are responsible disclosure practices, but no laws that regulate disclosure. However, vulnerabilities have triggered several instances of litigation.
That’s right: Even without a security breach, a vulnerability alone is enough to bring legal action. Having a legal team be a central part of your vulnerability management plan could save your organization a much bigger headache down the line.
Five questions cybersecurity should ask legal about vulnerability disclosure
#1. What are the legal risks we’ll have in the event of a reported vulnerability?
Recent litigation trends show lawsuits emerging over vulnerabilities, even in situations where breaches have not occurred. Knowledge of a vulnerability without timely public disclosure and patching can lead to lawsuits over negligence, breach of implied warranty, deceptive practices and more. Take, for example, the 32 lawsuits that emerged over Intel’s handling of microchip vulnerabilities Meltdown and Spectre.
Asking your legal team about the legal risks of vulnerability disclosure can inform your vulnerability management program and prevent unwanted litigation.
#2. What are some practical steps we can take to avoid legal action?
No one wants to get sued. Regardless of the legal outcome, lawsuits can result in reputational harm to your organization. Moreover, your organization will incur costs and expend time and resources on the lawsuit. There are several steps your organization can take to avoid legal action:
- Have a vulnerability disclosure program (VDP)
- Practice responsible or coordinated disclosure
- Patch vulnerabilities in a timely fashion
#3. How can we use the law to understand our cyber risk?
Too often, security and tech fields fail to recognize that the law is a crucial tool for understanding cybersecurity. In some instances, the law can actually help security and tech teams understand their cyber risk. Both GDPR and the California Consumer Protection Act (CCPA) require organizations to provide “reasonable” security when it comes to protecting consumer data.
Interpreting what reasonable security means for your organization can help to understand your specific organization’s cyber risk. For example, examining where protections are already in place can reveal other areas that lack similar protection. The definition of reasonable security has changed from when it was first used, and the phrase will likely continue to evolve with industry changes. So, it is important to continuously compare your security measures to those of your peers. In doing so, you are using the law to help understand your cyber risk, and develop and maintain your security measures.
#4. How can legal help us improve our vulnerability management response plan?
When vulnerabilities are disclosed, particularly those that receive media attention, panic can ensue. Mitigate this by having a vulnerability management program that prepares you for when vulnerabilities are disclosed. A vulnerability management program should include:
- A VDP
- A response plan
- An outline for expected communications between researchers, companies and media
Having legal, security and IT work as a cohesive unit can hugely benefit your response plan. Asking the legal team for their input could bolster your vulnerability management program because it creates the opportunity for additional insight. A lawyer may not have the same technical skills as, say, the IT department, but their unique background can bring a fresh perspective to vulnerability management. They may be able to discern whether or not legal issues could arise out of your vulnerability management plan.
#5. Does our VDP follow legal best practices?
If your organization has a VDP (which it should), you can establish legal best practices. Aside from providing security researchers with a clear process and scope for reporting vulnerabilities, a VDP should also grant researchers safe harbor. A sound VDP lets researchers know that you won’t sue them for finding and reporting a vulnerability in your system. Your legal team can assist in developing a VDP that follows industry best practices and provides a legal safety net for researchers.
The questions above are just a starting-off point, helping establish both stronger communication between legal and security teams and a better vulnerability management plan.
Get more information
- U.S. Department of Justice: A Framework for Vulnerability Disclosure Programs for Online Systems
- U.S. Department of Homeland Security, National Infrastructure Advisory Council Vulnerability Disclosure Framework