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Efforts to Improve Cybersecurity as a Liability

Congressman Adam Putnam (R.-Fla), commenting upon some of the dialogue between members of his Corporate Information Security Working Group, also had the following to say in his opening statement during the cybersecurity and identity theft hearing:

I am simply tired of hearing that lawyers are advising against the adoption and implementation of cyber security best practices or online privacy policies because they are afraid that they may be creating liability.  My friends…in my estimation, a failure to aggressively address these issues may in and of itself be creating that liability.  While I am not a lawyer, I am a businessman…I am a taxpayer…and I am an involved citizen.  This issue is about national security and economic stability along with sound business practices and deserves your immediate attention.

His sentiments are probably shared by most corporate executives and leaders within the higher education community.  However, corporate counsel, many of which don’t understand information technology, are taking very conservative legal positions that may be harmful in the long-term. 

As many commentators have pointed out, even without security legislation, courts are likely to hold businesses and institutions of higher education to a “standard of care” that is appropriate for the industry.  Additionally, if organizations continue to refuse to take voluntary steps to improve security because of fear of legal liability, we can expect legislators or regulators to step in and create the standard and to devise new forms of liability or accountability.

Colleges and universities may be inclined to put up similar “legal fences” or claim that the “academic culture” will not permit the pursuance of best practices.  Recognizing the legal, political, and cultural tensions that many CIO’s and CISO’s would face, the Security Task Force has developed Principles to Guide Efforts to Improve Computer and Network Security for Higher Education that I would urge institutions of higher education to consider.

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