Possibly, yes. The European Data Protection Board (EDPB) has issued draft practical guidance on various types of data breaches to assist companies with identifying situations in which a data security incident may need to be reported to EU supervisory authorities (the government regulator for privacy in various EU member countries).

The EDPB addresses a common scenario in which an employee falls victim to social engineering and gives up his or her log-in credentials, enabling a threat actor access to their email account. The EDPB’s examples focus on the threat actor’s desire to intercept a payment transaction to divert funds for financial gain but notes that, in the process, personal data may be exposed. That confidentiality breach of personal information could require notification even though the threat actor’s target likely was not the personal data itself but instead money.

In the EDPB’s example, the threat actor sets up an auto-forwarding rule (a common tactic in such compromises whereby the threat actor has all incoming email forwarded to his personal email account, thus guaranteeing he will continue to receive the target’s emails even if the target changes the account password), which results in name and wage information relating to certain employees being auto-forwarded. The EDPB opines that such a risk would give rise to notification requirements to both the supervisory authority and the data subjects.

However, the EDPB does not address whether a full review of the contents of the mailbox would be required, instead focusing only on the content of what was auto-forwarded.

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Photo of Jena M. Valdetero Jena M. Valdetero

Jena M. Valdetero serves as Co-Chair of the firm’s U.S. Data Privacy and Cybersecurity Practice, and is a trusted advisor to clients facing complex and high-stakes data privacy and security challenges. With a track record of leading thousands of data breach investigations for…

Jena M. Valdetero serves as Co-Chair of the firm’s U.S. Data Privacy and Cybersecurity Practice, and is a trusted advisor to clients facing complex and high-stakes data privacy and security challenges. With a track record of leading thousands of data breach investigations for more than 20 years, Jena combines her broad litigation experience with a deep understanding of the evolving privacy landscape to protect her clients’ interests. She is highly skilled in defending companies in privacy and data breach litigation, particularly class actions, and is proactive in helping clients prepare for incidents by designing and facilitating customized tabletop exercises.

Jena offers practical, results-driven counsel on data privacy and security compliance programs and guides clients through privacy and cyber risk considerations in mergers, acquisitions, venture capital, and securities transactions. Her experience spans a wide range of privacy laws, including the General Data Protection Regulation (GDPR), the California Consumer Privacy Act (CCPA), the Gramm Leach Bliley Act (GLBA), and the Health Insurance Portability and Accountability Act (HIPAA). Certified as a privacy professional through the International Association of Privacy Professionals (CIPP/US),  Jena provides clients with actionable insights on both current and emerging privacy regulations. She previously served as KnowledgeNet Co-Chair for the International Association of Privacy Professionals, further reflecting her leadership in the field. Jena is a founding board member of the Chicago Compassion Project, a nonprofit supporting low-income families in Chicago.

Jena has been recognized by Chambers USA as a leading privacy and data security lawyer, with clients praising her “very deep knowledge of subject matter” and calling her “extremely responsive and business-minded.” She is trusted for her “great strategic advice” and practical approach to complex data privacy issues, with one client saying, “I’d unequivocally recommend her to anybody with any kind of privacy or data breach concerns.”