There’s no time like the present to be ready for an investigation or litigation...
The battle between Uber and Lyft to gain ground in the ride-sharing services market has taken a new turn. As recently reported by The Verge (and since denied by Uber as “patently false”), Uber allegedly engaged in marketing tactics to undermine Lyft by siphoning drivers to the Uber platform, supplying independent contractors (“brand ambassadors”) with burner iPhones and credit cards for bogus ride orders, subsequent cancellations and recruiting efforts. According to The Verge, an email outlined the process for recruiting Lyft drivers, linking to a form asking for recruiter name and email address, driver name, identification number, email, license plate number and vehicle year; a private group was also formed on the messaging app GroupMe for recruiters to post Lyft driver profiles and to check whether their Lyft driver had already been pitched.
Troves of data associated with Uber’s alleged marketing program now reside in the custody of third parties, including credit card, wireless carrier, mobile group messaging, and employment agency companies. Much of this information is personally identifiable information.
In the case of litigation or an investigation, some of this information arguably may be relevant—but some of it is protected from disclosure by federal and state privacy laws. Because recent cyberattacks have drawn attention to the perils of failing to protect sensitive information, many organizations are reviewing their current policies and procedures with the goal of bolstering their data security protocols.
Handling sensitive information, however, is particularly risky in electronic discovery. For example, organizations may inadvertently collect it as part of their collection effort, and send that data off to an e-discovery vendor or law firm (which may not have rigorous security protections in place) without taking safety measures to control the disclosure of sensitive data. As a result, discovery efforts can quickly run amok with privacy laws.
Below are five steps organizations can take to comply with data privacy laws and mitigate risks associated with disclosing sensitive data:
1. Develop an information governance strategy.
An information governance program is the foundation for governing data privacy and security policies that protect confidential information about employees, consumers, vendors and other third parties, as well as ensuring that retention procedures are adhered to.
Organizations should evaluate analytical tools and other technology that can easily locate, retrieve and categorize documents according to the value of their content and their business risk, including sensitive information.
The first step is to assess your organization’s data and data management practices to identify areas of potential risk or non-compliance. Key areas should include regulatory compliance, data security and privacy, records management, archiving, file sharing, end-user productivity and cloud-based technologies. As part of this effort, for organizations that store large volumes of protected information, data privacy “heat maps” can track data sources that pose the highest data privacy risks.
Second, a vision must be created on how to address short- and long-term goals and gaps. This vision — and its day-to-day implementation and management — should be clearly communicated to employees, vendors and other stakeholders. Many companies, for example, allow employees to use iPhones, iPads and other mobile devices for business purposes. In addition to governing how devices are used, organizations need to educate employees on how their data is monitored, secured and protected (and any prohibited use cases).
Finally, organizations should evaluate analytical tools and other technology that can easily locate, retrieve and categorize documents according to the value of their content and their business risk, including sensitive information.
2. Implement audit security procedures.
Regular compliance audits, along with audits of documented retention policies, can identify weaknesses in security procedures and areas for rectification. The audit should also compare existing procedures against the current legal and regulatory framework to identify and address discrepancies, and retention policies should be audited and updated.
3. Understand how data is managed in the cloud.
Organizations are increasingly outsourcing business functions to third-party cloud providers; as such, they should conduct due diligence on their providers’ security policies that govern data storage, access and retention, as well as understand their disaster recovery and security breach procedures.
4. Be litigation-ready.
There’s no time like the present to be ready for an investigation or litigation. Being discovery-ready entails the following: integrating your company’s records management approach and retention policies with e-discovery requirements; understanding where types and sources of data are maintained within the organization (and the cloud); implementing processes for monitoring and enforcing legal hold strategies; having defensible collection strategies in place; and training employees on what they need to know to help meet e-discovery obligations and avoid unnecessary risk.
5. Use advanced technology.
Use of advanced technology can help organizations minimize the risk of inadvertently disclosing sensitive information. For example, in the case of litigation, advanced e-discovery functionality, such as automated redaction features, enable corporate counsel and their law firms to search across voluminous data sets for user-provided terms (such as email addresses) and automatically redact those terms from the document. Inverse redaction tools allow users to select the content they wish to keep in a document and redact all remaining text. These tools can be utilized in conjunction with advanced data detection techniques that flag sensitive information contained in a document, such as Social Security and account numbers. Advanced technology can also enable organizations to proactively monitor, search for and manage sensitive data across a variety of data sources in real-time, helping to identify and mitigate potential issues on an ongoing basis.
The risks are significant if managing sensitive data is not part of a proactive plan — the consequences can include penalties, sanctions and reputational damage. Organizations that combine a proactive compliance strategy with technological innovation will improve the chances of detecting sensitive information before it is too late.
[Image credit: The Next Web]