Today, the role of chief information security officer (CISO) role has transcended traditional boundaries, moving beyond managing firewalls and compliance checklists. The current landscape, marked by an upsurge in regulatory scrutiny and lawsuits against individual CISOs, demands a new approach.
To navigate this challenging environment, the CISO must become a legal sentinel, meticulously documenting decisions and establishing a verifiable defence of “due care” to protect both the enterprise and themselves from legal repercussions.
The paradox is that the more visibility CISOs have gained, the greater their legal exposure becomes. The solution lies in governance by design, a strategic approach that aligns cyber controls, risk metrics and executive communication around transparency and accountability to build trust among regulators, customers and investors. Governance by design is a proactive approach that integrates legal considerations into every aspect of cyber security strategy and decision-making, ensuring that the organisation is always prepared for legal scrutiny. In essence, cyber resilience and legal defensibility are now two sides of the same coin.
The legal landscape: Why CISOs are in the crosshairs
CISOs traditionally operated behind the scenes, focusing on threat prevention and response as technologists. Today, regulators expect CISOs to demonstrate not only technical competence but also governance maturity, ethical decision-making and transparency. Cyber security laws, such as the SEC’s Cyber Disclosure Rules, the EU’s General Data Protection Regulation (GDPR) and state-level privacy acts like California Consumer Privacy Act (CCPA), impose explicit duties on organisations to report breaches promptly, maintain reasonable safeguards and ensure transparency in disclosures.
When organisations fail to meet these obligations, regulators and investors increasingly look to the CISO as the responsible executive. We can see this in class-action lawsuits that now routinely name CISOs as defendants, especially when plaintiffs allege that executives ignored warnings, underfunded security programmes or misled stakeholders.
The CISO’s emails, reports, and board presentations often become evidence in litigation, making documentation and communication practices critical risk factors in their own right. The CISO’s defence rests on demonstrating due diligence, proving that they provided the board with accurate risk assessments and reasonable security measures were implemented, given the company’s resources and risk profile.
Protecting the organisation: Legal foresight as a security control
To protect the enterprise, CISOs must adopt a dual-lens mindset: one focused on risk reduction through technical and operational controls, and another geared to legal defensibility. Several best practices help balance these priorities, ensuring that legal implications are considered in every security decision.
- Embed legal awareness in cyber strategy: By integrating legal counsel into incident response, risk assessment, tabletop exercises, data protection impact assessments and vendor management discussions, security leaders can ensure that regulatory implications are understood before crises occur.
- Build a defensible documentation trail: CISOs must document major security decisions, such as risk acceptance, budget trade-offs and vendor selections, along with the rationale, as these records become invaluable in proving due diligence if an incident leads to regulatory review or litigation.
- Adopt a “disclosure-ready” posture: Ensuring that systems are in place for early breach detection, internal escalation and timely communication to leadership is crucial. This transparency, when clearly implemented, can mitigate reputational and legal fallout.
- Implement continuous oversight and board reporting: Presenting regular security briefings to the board that focus on measurable risk indicators, rather than just providing technical updates, helps drive accountability and distribute liability more equitably across governance layers.
Protecting the CISO: Personal legal safety nets
As accountability grows, CISOs must treat their personal risk exposure as part of professional hygiene. The following safeguards are now essential components of an executive’s toolkit:
- Directors and officers (D&O) insurance cover: CISOs must ensure that their comprehensive D&O insurance explicitly includes cyber security-related claims and personal indemnification clauses that specifically address the CISO role.
- Document and escalate material risks: If CISOs identify systemic weaknesses, such as a lack of funding, unpatched legacy systems, or noncompliance, they must formally escalate these risks to leadership and record the communication, as silence or informal discussions can later be construed as negligence.
- Establish a personal legal relationship: In high-stakes scenarios, the company’s counsel represents the organisation, not the individual. CISOs should have access to independent legal advice when handling investigations or disclosure decisions involving personal accountability.
- Maintain ethical and transparent communication: Misrepresentation is often the catalyst for prosecution. When briefing executives or regulators, the CISO must ensure that all statements are factual and appropriately qualified. Overpromising on security posture or mischaracterising an incident can backfire.
- Foster a culture of shared responsibility: The CISO should advocate that cyber security is a collective enterprise responsibility, not a siloed function. Embedding security accountability across engineering, operations and business units helps dilute individual liability and strengthen overall resilience.
Summing up
The CISO operates in one of the most demanding roles in the modern economy. Their technical expertise is what builds the defensive wall, but their diligence in governance and documentation is what creates the legal fort. By integrating legal foresight into cyber strategy, documenting transparent governance and securing personal protection, CISOs can transform potential liability into institutional resilience. CISOs must consistently demonstrate a defensible standard of reasonable security and absolute transparency to lead their organisation through an age defined by digital risk and legal scrutiny. Cyber security leadership is no longer just about protecting systems, it’s about protecting the people who defend the organisation including the CISO and their team.
Aditya K Sood is vice president of security engineering and AI strategy at Aryaka.
