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February Edition

DATA BREACHES BOOMING
How to Avoid Sanctions when Sailing the Sea of Data

DATA BREACHES BOOMING

The Identity Theft Resource Center says reported data breaches increased by 47% from 2007 to 2008

In a down year, data breaches went up, again.

In 2008, according to the Identity Theft Resource Center, there were 656 reported data breaches, an increase of 47% from the 2007 total of 446.

The breaches were reported in the following sectors: business (240), education (131), government/military (110), health/medical (97), and financial/credit (78).

"The financial, banking, and credit industries have remained the most proactive groups in terms of data protection over all three years," the ITRC said in a statement. "The government/military category has dropped nearly 50% since 2006, moving from the highest number of breaches to the third highest."

With the business sector accounting for 36.6% of the breach total in 2008, up from 28.9% of the 2007 total and 21% of the 2006 total, the ITRC observes that the business community needs to improve its data security measures.

An analysis published on the Chronicles of Dissent blog argues that the financial sector should be singled out for poor security.

"Whereas ITRC's analysis might lead to the conclusion that the financial section is the most proactive sector because they represent less than 12% of all breaches, inspection of the raw frequency data suggests a somewhat different picture: reported breaches increased over 250% from 2007 to 2008," the blog states. "That trend indicates that security in the financial sector is not keeping pace with previous threats and new threats to data security."

One obvious place to start would be actually attempting to protect data. "[O]nly 2.4% of all breaches had encryption or other strong protection methods in use," according to the ITRC. "Only 8.5% of reported breaches had password protection."

According to the ITRC, malware attacks, hacking, and insider theft account for 29.6% of the breaches with known reported causes. Insider theft alone more than doubled from 2007 to 2008, and now accounts for 15.7% of breaches with known reported causes.

The ITRC also notes that electronic breaches (82.3%) are significantly more common than paper breaches (17.7%).

On the positive side, breaches related to human error -- data lost while on the move and accidental exposure -- declined, though they still account for 35.2% of breaches with reported causes.

Also, the government and military showed marked improvement, accounting for only 16.8% of the breaches last year, compared with 30% in 2006.

How to Avoid Sanctions when Sailing the Sea of Data

By Mark Prewitt, Director of Information Technologies

In today's society, the storage of documents is increasingly in electronic form. To search these documents requires some knowledge of technology and the best application of this technology to ind the important facts in the tsunami of electronic information. In this paper, we will discuss the problems, pitfalls and potential solutions for managing such a deluge of data.

Searching through this ocean of data for cases is usually referred to by one of several common terms, Electronic Discovery, e-discovery, Electronic Data Discovery (EDD), or Electronically Stored Information (ESI). Data is collected from sources known in the industry as custodians, via forensically sound methods that allow attorneys for both sides (Plaintiff and Defense) to review the information for relevance to their case. As an example of how tedious this can be, a case may contain anywhere from a few hundred megabytes of email files to a case which may entail server hard disk images, resulting in terabytes of data. Regardless, the mere presence of this data requires that an attorney know something about technology or hire someone who does. This technology knowledge requirement has been slowly creating new problems for the legal industry as attorneys realize that mistakes in managing this information can cost them through sanctions.

The focus of this paper is on the dangers that face attorneys, as they must evaluate the electronic data in their cases. My own personal email contains more than 50,000 emails. Imagine the magnitude of email and other electronically stored documents in a company with ten or more employees! The task is frightening to manually review each of these emails, just to ind the few that are relevant to a case - it's akin to the proverbial needle in a haystack. This need has spawned an entire litigation support industry as well as created sanctions due to improper handling of this torrent of data. Because of this overwhelming flood of data, the litigation support industry has developed tools to help shrink the data to a manageable amount.

One way that tools provide assistance is to filter documents by using keywords, dates, or concepts to shrink the pool of data into something more useful. It's the use of these filtering tools that has recently become more complicated due to improper application and sanctions. An example of how mishandling data can affect a case, we cite the Oualcomm Inc. v. Broadcom Corp.1 case in which the attorneys for Qualcomm were blasted by the judge for 'aggravated litigation abuse.' The Judges opinion, on top of previous opinions on electronic discovery in the last few years, is defining the course that attorneys must navigate in this swelling sea of data.

This growth in electronic information has invaded the legal market and caused long established, well paid attorneys, to choose whether to go back to school and learn about technology, or hire people to do the work for them, so they can concentrate on the law.

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