Are pundits discussing the personal information allegedly accessed by a campaign staffer for Bernie Sanders? No, not really, and that is the point.

Scheduled to debate tonight at St. Anselm College in Manchester, New Hampshire, Democratic presidential candidates Bernie Sanders and Hillary Clinton are almost certain to joust over an alleged intrusion into Clinton’s voter data by a Sanders campaign staffer. According to reports, the staffer accessed confidential voter data maintained by a vendor, NGP VAN, while the firewall protecting that data had been removed. (hmmm…a third party vendor) In response, the Democratic National Committee (DNC) terminated the Sanders campaign’s access to all voter data, including the campaign’s own data. Litigation followed, a deal was reached, but reverberations continue. Turn to your favorite cable news channel.

One hears “data breach” and immediately Social Security numbers, credit card data, or medical information come to mind. In this case, the personal information reported to be involved included names, addresses, ethnicity, and voting history, hardly considered to be sensitive personal information in the United States. In fact, none of the state data breach notification laws would require notification based solely on these data elements. (But see, e.g., FTC settlement involving email addresses). But, some of the information, particularly analytical data concerning voter preferences, can be tremendously helpful to a campaign. So it is easy to see why it is causing such a stir, particularly for the Sanders campaign.

Why is this important beyond presidential politics?

Organizations are beginning to recognize the need for data breach preparedness. This is good – we are seeing more internal teams being assembled and comprised of key stakeholders within organizations. They are meeting, learning and developing data breach response plans including sample investigation checklists and policies, template notification letters, vendor relationships and engaging in tabletop exercises.

Their initial focus, however, is often exclusively on breaches involving personal information that would trigger notification obligations under federal (e.g., HIPAA) and state laws. The Sanders breach and others before it should make clear that these teams need to look beyond Social Security numbers and payment cards and account for data breaches that could initiate an entirely different set of concerns, exposures, considerations and mitigation steps.

If breached, an organization’s proprietary data, internal email communications among executives and management, customer or client data, sales information, and as we are seeing even voter data can have catastrophic consequences for an organization. A breach exposing insensitive email correspondence in the c-suite about customers, or suggesting systemic discriminatory employment practices, or outlining detailed labor management strategies can have significant implications for a company’s market position and workforce management. It can also trigger unwanted litigation and adversely impact the organization’s reputation. Putting data belonging to others at risk also could result in the loss of access to critical business information help by others, as in the Sanders breach. These are only a handful of examples and one need only think about some of the sensitive business information maintained or accessed by their own organizations that is not personal information to understand the effects of a breach of that information.

Organizations cannot prevent all unflattering emails that are sent and received by members of their workforce, they cannot avoid collecting or accessing sensitive business information entirely, nor can they prevent all data breaches from occurring. But they can take steps to be prepared in the event of a breach and in doing so, should consider the broad range of breaches they could encounter. Organizations engaged in data breach response planning, therefore, need to consider a wide range of data breaches that could affect their organizations – those affecting personal information and those affecting other sensitive and critical business information.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.