United States: Is Encryption The Key To Your Data Security?

With the increased rate of data breaches targeting personal information, an increased public awareness of online privacy, and an increasingly demanding regulatory landscape, large and small businesses are looking to additional forms of security to protect themselves and their customers from unauthorized access. These efforts have largely targeted preventing unauthorized access via different types of access control, like firewalls, strong passwords, anti-malware, two-factor authentication and data sandboxing. However, businesses must also plan for the failure of these technologies. In the event that unauthorized individuals gain access to sensitive data, businesses are increasingly turning to data encryption to safeguard the data itself.

What is Encryption?

Encryption is a way of "scrambling" data in such a way that without a key to "unscramble" it (or decrypt it), the data is unreadable. There are various forms of encryption, each with its own benefits and drawbacks, but generally, they all serve the same purpose: to reversibly randomize the data to make it unreadable to unauthorized individuals.

The strength of an encryption key is measured in "bits." The number of bits represents the number of characters (1's and 0's) in the encryption key. Thus, the commonly used standard AES 128-bit encryption is composed of a string of 128 1's and 0's used to encrypt and decrypt the data. Because each bit can be either a 1 or a 0, to attack such a password by attempting to guess the key, one would have to guess that key out of the 2128 possibilities. This puts attacks using raw computing power to guess the key — known as brute force attacks — out of the reach of most common modern computer systems. That said, the march of technology continues and computer systems are continually growing in strength and power. As a result, 192- and 256-bit encryption systems are becoming more common, making brute force attacks on these keys exponentially more difficult.

When is Encryption Important?

With the rise in data breaches (and the expense associated with such breaches), all businesses should consider encrypting any private, confidential or sensitive information, but particularly those industries where sensitive data protection is of a legal consequence. Attorneys, for example, handle confidential and privileged client data on a regular basis. Of additional concern is ABA Model Rule 1.1 which has recently been amended to include the requirement that an attorney has the duty "to stay abreast of changes in the law and practice includes understanding the benefits and risks of relevant technology." With the rise of encryption as a standard form of data protection in many industries, it is important for attorneys to not just understand encryption.  Someday soon, attorneys may be expected to encrypt privileged client data to comply with their professional responsibilities.

In addition to the legal field, healthcare has an affirmative requirement to protect "personal health information" under federal and state HIPAA statutes. In 2013, the Department of Health and Human Services published a Final Rule modifying the Federal HIPAA rules that explicitly anticipates that covered entities will employ encryption systems to protect patient data.

Outside of those industries where data protection is required by professional standards or the law, encrypting key data should also be a concern for those industries where data protection is critical to the success of the business.  For those industries heavily involved in technology, research and development efforts are often a large portion of business spend.  In such industries, protecting key technological data is increasingly important to protect business advantages.  Businesses and even sovereign states are actively involved in technological espionage.  One way to prevent your company's key technology from falling into the hands of your competitors is to encrypt that information.  It may also be a good idea to extend such encryption protection to information about who in your company is responsible for developing your technology to prevent key employees from being poached by competitors. 

Encryption is also increasingly important because of the prevalence of entry points to a business' networks. More recently, manufacturers of connected devices around the home, increasingly referred to as "the internet of things" or "IoT," are being scrutinized and found to lack encryption or sufficiently secure connections. As a result, devices that may be as simple as a connected light bulb, which can change color or be operated by a cell phone app, can provide intruders with unlimited access to a wireless network. While this may not be a serious issue in the home, should these devices be deployed in a business environment, they can represent real threats to the integrity of a business' network security.

Encryption Considerations

Encryption, despite its benefits in protecting sensitive data, is not without its pitfalls and considerations. First and foremost, it is not a "free" technology. Whenever data is encrypted and decrypted, it takes significantly more computer power than when unencrypted. When entire databases are encrypted, and large files are regularly read, this encryption can add up in terms of computational and electrical requirements for servers and personal systems, and, on older hardware, may degrade overall performance.

Encryption systems are also vulnerable to inconsistent application. When encrypted data is sent between systems, it may be encrypted when created and when transmitted, but once it reaches its destination, it may be stored in an unencrypted format, unbeknownst to the sender. When employing an encryption system to protect data that is shared with or received from other entities, it is important to understand where the encryption begins and where it ends.

Finally, as with any digital security system, the weakest link is often the human user. Data encryption usually relies on a password. This password is used to initiate the use of the key in decrypting the data. Weak passwords are as much a vulnerability to an encrypted set of data as they are to user accounts, email accounts, servers, and any other computer system. Such weak passwords are the most common reason that encrypted data may be compromised. Ensuring that strong passwords are used (i.e., passwords that are of sufficient length and complexity) in conjunction with encryption technology can greatly increase the effectiveness over using encryption alone. Thus, it is important to remember that encryption can only be a single part of a more comprehensive and multi-part security system employed to protect data.

At Thompson Coburn, we have a team of data privacy and cybersecurity attorneys who are experienced in assisting companies evaluate their ability to prevent and react to data breaches. We can assist with a review of the security procedures implemented in a business's day to day operations, help design an incident response plan, assemble an incident response team and assist in making sure your business is best prepared for any unauthorized access to its data. We would be happy to answer any questions you may have regarding this article or any other data security or cyber security issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.