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Encryption - Don’t Leave Home (or Work) Without It



by Robert G. Marasco
Procopio, Cory, Hargreaves & Savitch LLP - San Diego Office

August 4, 2014

Previously published on July 29, 2014

Encryption is more commonly becoming the recipe to avoiding the harsh consequences of a data breach. Some of those consequences include penalties for violations of the Health Insurance Portability and Accountability Act (“HIPAA”) and similar state laws, governmental enforcement actions for failing to disclose a breach, or private litigation by the victims of a breach. Unsecured data is what leads to these types of consequences. So why aren’t more companies that deal with confidential personal information not sufficiently securing that data? Most likely, it’s the financial cost of changing the way they have done business for so long. As more and more companies, however, are dealing with data breaches and the costly consequences, there is more and more incentive to ensure the data they store is encrypted. While encryption likely will not prevent the number of unauthorized attempts to access confidential personal information, it will significantly decrease the amount of confidential personal information that is actually viewed or accessed, which is a critical aspect of being deemed liable for any of the consequences mentioned above. Indeed, the California courts have recently explained that ensuring confidential personal information is not viewed, which can be done through encryption, will permit companies and health care providers in particular from being liable for at least one of those costly consequences.


 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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