You’ve Been Hacked! What Do You Do?

by Cooley LLP

The inevitable has happened.

There is an oft-repeated saying in the information security world:  “There are two types of companies:  those that know they’ve been hacked and those that have yet to find out they’ve been hacked.”  No matter how many times it happens, however, people rarely get used to it.  While no one enjoys being the victim of a data breach, there are certain things that can be done to deal with such situations.

All is (hopefully) not lost.

Here are a few steps you should consider when dealing with an actual or potential data breach:

  1. Take your hands off your keyboard, put down the phone, then take a deep breath.
  2. Then, take another deep breath.  Often, problems crop up in the context of a data breach response as a result of people overreacting and prematurely taking steps to respond before they understand the full picture.
  3. Calmly contact the “infosec tiger team” within the organization (i.e., the identified individuals responsible for information security responses).  This should include legal, IT, communications, and security.
  4. Invoke and follow the Incident Response plan of the company.  This should include regular update calls and/or meetings.
  5. Work with the IT team to take steps to contain the breach.  This may include isolating systems, disabling affected services, suspending questionable accounts, and increasing physical security (provided that none of the above alters or destroys evidence).
  6. Determine the source of the intrusion (internal or external).  If external, determine what data may have been compromised.  Obtain the assistance of forensically trained consultants if appropriate.
  7. To the extent possible, identify all missing items and data.   Missing items may include not only laptops and desktop computers, but also flash drives, PDAs, mobile phones, iPods, and other portable media on which sensitive data was stored, as well as any hard copy data that may be missing.
  8. As to data, begin process immediately of identifying any data that was altered, accessed, or downloaded by the intruder.  If any payment card data (including debit and credit card data) was compromised, notify the acquiring bank or the processing contact for each payment card brand (as required by the payment card industry rules).
  9. Carefully document steps taken to contain, investigate, and respond to the security breach.
  10. Convene a meeting of all stakeholders to determine whether to notify applicable law enforcement authorities.
  11. Begin determining what notifications may be necessary and what contracts might be affected.

Next steps will be needed.

Once you have worked through the above list, additional tasks may be needed.  For example, depending on the data affected, data breach notification may be necessary.  An analysis of applicable state data breach laws will determine those states in which notification may be required. Similarly, contracts that contain provisions related to a data breach may require further analysis or notification.  Note that contract review may need to include not only customer/client contracts (where the company may have liability) but also contracts with third party service providers (who may be liable to the company for causing or contributing to the breach).

Recovery may be slow, but it does get better.

Many examples exist where companies have survived a data breach (and in some cases, they have thrived).  Keep in mind there may be follow-on issues involving regulatory authorities, contractual partners, and/or consumers.  In all cases, you should be prepared with a common narrative and set of talking points.  Though issues may still arise, the most important points are to remediate, recover, and then move forward.  You can do this!

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Cooley LLP | Attorney Advertising

Written by:

Cooley LLP

Cooley LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.