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While the media adds further information and details about the  Optus data breach each day, there are some key lessons that  organisations can learn which go beyond merely cybersecurity  hygiene. In this article, we put a spotlight on the broader  governance and risk issues that also need attention.
It is trite to say that the corporate material of just about  every organisation will say “cybersecurity is important”  to it. Similarly, just about every privacy policy begins with words  such as “your privacy is important to us”. However, there  is a question of whether the organisation's investment in risk  processes actually aligns with the stated risk appetite.
While we have no insight into the situation at Optus, we do have  the report from the NSW Auditor-General on   how effectively Transport for NSW (TfNSW) and  Sydney Trains identify and manage their cybersecurity risks  from July 2021 and the issues they had where high-risk known  vulnerabilities cybersecurity appeared on risk registers over  several years with no budget being allocated to that known risk.  Lack of budget allocation and investment in remediating known  issues is itself a key risk.
Organisations without an internal process that aligns with their  documented risk appetite may face regulators and other stakeholders  using that documented anomaly for the purpose of extracting  penalties and/or compensation.
Similar deficiencies were also called out by the NSW  Auditor-General in relation to their review into the   effectiveness of Service NSW's handling of customers'  personal information to ensure its privacy released in December  2020. One of the issues in that report was that responsibility and  reporting lines did not match up so key oversight was missing.  While it is clear that a Chief Financial Officer is responsible for  finance and there is a clear reporting line and sufficient  staffing, and a Chief Information Officer is responsible for  organisational information and systems, the risk of privacy  compliance is often one that is not subject to the same degree of  C-suite attention – we discuss why below.
While media attention is focusing on the current Optus event as  a cybersecurity incident, it is also a breach of the Privacy Act  and SingTel Optus has the rare honour of being the first company in  Australia to agree on an enforceable undertaking  (EU) for breach of the Privacy Act in March  2015.
At that time, there were three breach incidents that gave rise  to the regulatory intervention and the EU. In summary, they  were:
The EU involved Optus needing to undertake a number of reviews  of its systems by independent third parties, have the  recommendations of the reviews implemented and then have the  implemented changes certified by a further third party, all within  an 18-month timeframe.
Having been through this exercise, one might have thought that  Optus would have a robust process for assessing, on a risk basis,  new projects and would foresee and hence guard against some of the  issues that appear to have occurred in the most recent breach.
The Optus EU in 2015 involved an 18-month period. Increasingly,  regulators are imposing EUs which cover three years as a minimum  and involve sharing results of independent reviews directly with  the regulator. A likelihood many organisations would seek to  avoid.
The Optus breach calls into question the need for organisations  to have processes that are clearly documented to undertake risk  assessments and in particular, privacy impact assessments  (PIAs) of processes and procedures when they are  first implemented or later changed.
Given that some of the identity documents that have been hacked  at Optus appear to be out of date and that these details were  retained for a long time, arguably longer than they were reasonably  required to be held by the business, as is the limitation under the  Privacy Act, there was no documented procedure to ask the question  of data retention and destruction or deletion and deal with this  issue.
Organisations should consider even short-form PIAs to uncover  these types of risks when either a new process is being implemented  or an existing process is being changed. Finding the problem at the  design phase is far less costly than remediating a problem  later.
One of the issues that became apparent from the  Auditor-General's review of Service NSW was that when existing  systems and legacy arrangements were asked to do more and take on  more complex information, no PIA was undertaken and hence the risk  of overloading the system or of an existing system not being up to  the task of the information it was asked to retain in terms of  security and access, was missed as part of the risk process.
There is an old saying that the best interest is self-interest.  One risk for companies in allocating priority to matters of privacy  and potential data breaches is that the regulator, the Office of  the Australian Information Commissioner (OAIC), is  underfunded and that the fines that it can impose are small by  comparison to other regulators such as ASIC and ACCC. They, in  contrast, can also impose personal civil and criminal sanctions on  officers, including banning orders. Hence, the perceived risk of  action by the OAIC is likely to be low.
However, there are two facts that mitigate against complacency.  Firstly, the review of the Privacy Act is considering increasing  penalties to bring them into line with those imposed by the ACCC.  Secondly, even if those changes are delayed, we have seen since the  digital platforms enquiry and the move into open banking with the  advent of the consumer data right that there can be co-regulation  as between the ACCC and the OAIC and that raises the potential for  higher penalties.
Holding Redlich regularly assists management and boards with  implementing, reviewing and uplifting privacy and data governance  processes. We can also assist in data governance and breach  management processes, and management training.
This publication does not deal with every important topic or  change in law and is not intended to be relied upon as a substitute  for legal or other advice that may be relevant to the reader's  specific circumstances. If you have found this publication of  interest and would like to know more or wish to obtain legal advice  relevant to your circumstances please contact one of the named  individuals listed.
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