Cybersecurity and Individual Liability: ‘U.S. v. Sullivan’ and the Criminalization of a Cyber Attack Response

Cyberattacks, data breaches, ransomware—these are now the stuff of corporate and boardroom discussion. Hardly a day goes by without a reminder of the centrality of cybersecurity to business and government. In one of many recent headlines, the country’s largest oil and gas pipeline system, Colonial Pipeline, was the target of a cyberattack in 2021 and a demand for a $4.4 million ransom, which was paid with the support of federal authorities. War in the Ukraine has heightened already intense concern about the vulnerability of critical infrastructure to cyberattacks.

To date, cybersecurity has generally been viewed as an organizational responsibility, and data breaches similarly have been treated as organizational weaknesses or failures. States have enacted laws that require organizations to report incidents of data theft “expeditiously” to state authorities and individuals adversely affected. In addition, public companies are required to disclose information about data breaches when such information is material to investors.