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TAG Cyber Law Journal

July 2018
The real anxiety behind what has become a media cliché.
The real anxiety behind what has become a media cliché.
By David Hechler
I DON'T KNOW ABOUT YOU, but all those articles about insomnia make me weary. You know the ones. A reporter asks a group of general counsel on the phone, or a moderator asks a panel of them at a conference, “What keeps you up at night?”
  Is it time to give these articles a rest?
  After reading one that specifically focused on cybersecurity, I decided to talk to someone who advises lawyers to see whether it's all just a media creation. So I asked Ruth Hill Bro whether she’s ever spoken to general counsel who complained that their concerns were impinging on their sleep.
  Actually, she said, she has. Bro specializes in privacy and cybersecurity and is co-chair of the American Bar Association Cybersecurity Legal Task Force. What’s more, “When I am leading a panel, one of my questions is, ‘What keeps you up at night?’” Bro confessed. “You do hear that quite frequently,” she acknowledged.
  “But conversely,” Bro continued, “some people are hitting the snooze button.” They tell themselves, “I think I’ll deal with that later.”
  So who’s losing sleep? “People in Europe are concerned about criminal penalties, which can really get your attention,” Bro said. Closer to home, “I've worked with a lot of clients with sensitive data.” One senior counsel was employed at a health care company where she felt management was a little too cavalier, telling Bro: “Sometimes I just want to secretly make an anonymous call to the Federal Trade Commission.” Just to get her colleagues’ attention and make them understand why these issues are important.
  Clients bring it up in different ways. “I have had clients who have asked me to compile a list of penalties around the world for privacy and security noncompliance. Or write memos about why this is an important issue. And I often say, ‘Insert your company’s name in the most recent headline about a data misstep.’ And then suddenly it can become all too real.”
  As for cybersecurity, “it’s a legal compliance issue, not just a business continuity issue,” Bro said. “And if there is a legal noncompliance issue, guess who they’re going to call?
  “General counsel, who know it’s a big issue,” she said, answering her own question. “If their company doesn’t get it, that is a recipe for not sleeping well at night.”
  So, it appears I’ve been cavalier myself—about those articles. I guess the real message is: Stop hitting the snooze button, general counsel. Wake up and focus on this issue right now, and you may be able to throw away the Ambien.

In the August issue, we’ll have an interview with Ruth Hill Bro in which she talks about the ways general counsel can shore up their cyber defenses, and the resources the ABA has to help them.
If there’s a noncompliance issue at a company, who are the executives going to call?