KEN KIRSCHENBAUM, ESQ ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE You can read all of our articles on our website. Having trouble getting our emails? Change your spam controls and whitelist ken@kirschenbaumesq.com ****************************** cyber security liability December 23, 2025 ********************* cyber security liability ********************* Ken: Please inform the forum they need to ENSURE any computer device that is being utilized for remote functions OR ON PREMISE CHANGES does have the latest in software anti-virus protection. I was at an association meeting when one of the members indicated a technician on subscriber’s premise had ‘plugged in’ to a device to do requested changes. That subscriber’s network was infected with a virus! It was a horrible MESS when the technician took his device (assume laptop) from customer to customer and then the ‘time bomb’ virus later exploded. Not pretty! Respectfully, Joseph (Joe) Pfefer, President & Founder Jade Alarm Co Kansas City, MO ************************ Response ************************ Joe thanks for introducing a timely topic of importance. Cyber liability is a problem and only going to become more of a problem. Since you emphasized your warning with the standard of "ENSURE" I want to first make sure we all understand what that means; its generally understood meaning it's "make sure". The Kirschenbaum Contracts TM address cyber liability. A fair reading of the provision would address attacks from the internet; hacking. You can't be liable for that just because you installed devices that are connected to the internet unless you are offering to provide Cyber Protection. Cyber Protection is a service covered by the Kirschenbaum Security Contracts. Presumably you will subcontract that service to another unless you have the skill to design and provide the service. Whether you offer the Cyber Protection or you don't, the Kirschenbaum Contracts TM will provide the best contractual protection available so you will not be held responsible for cyber breach hacking. But clearly being the one to introduce the virus to the subscriber's network through your access to the network connected security devices, is another matter. The Kirschenbaum Contracts TM do offer protection against liability for your own acts and negligence. The protection is not unlimited. You will be responsible for your gross negligence and willful misconduct. And, you'll be lucky if your E&O carrier doesn't disclaim coverage for that level of conduct. Gross negligence is defined differently by state courts but they generally agree it's something more than ordinary negligence; it often is meant to equate with willful misconduct, though some states may have a lesser standard, such as failure to exercise even slight care. When your conduct crosses the line to gross negligence is a case-by-case analysis and really can't be determined unless the actual facts are considered. Willful misconduct is easier to determine because it entails intentional conduct intended to cause harm to another, economically or personally. Let's get back to the virus infected laptop or even your office computer you will use to log in remotely. I would argue that if you don't know about the virus you aren't going to be negligent. The injured party will want to know what steps you took to prevent viruses, such as cyber protection on your system and devices. Maybe we have reached the point in technology that it is negligent not to have virus protection on your systems. In any event, once you know about the virus you would be on notice. Whether it will take one or more subscribers to complain that they have been infected will be up to whoever is deciding your liability. Clearly the better practice is to have cyber protection on your devices; don't use devices or programs you know to be infected and certainly not to connect to your subscribers' systems and don't do any work without a properly executed Kirschenbaum Contract TM updated to include protection for cyber liability specifically. ************************ STANDARD FORM AGREEMENTS: To order up to date Standard Form Alarm / Security / Fire and related Agreements click here: www.alarmcontracts.com *************************** CONCIERGE LAWYER SERVICE PROGRAM FOR THE ALARM INDUSTRY - You can check out the program and sign up here: https://www.kirschenbaumesq.com/page/concierge or contact our Program Coordinator Stacy Spector, Esq at 516 747 6700 x 304. *********************** WEBINARS: https://www.kirschenbaumesq.com/page/alarm-webinars *********************** ALARM ARTICLES: You can always read our Articles on our website at www.kirschenbaumesq.com/page/alarm-articles updated daily ******************** Wondering how much your alarm company is worth? Click here: https://www.kirschenbaumesq.com/page/what-is-my-alarm-company-worth *********************** THE ALARM EXCHANGE - the alarm industries leading classified and business exchange - updated daily ************************* PODCASTS: https://podcasts.apple.com/us/podcast/ken-kirschenbaum-presents/id1794851477 ************************* Getting on our email list / Articles archived: Many of you are forwarding these emails to friends or asking that others be added to the list. Sign up for our daily newsletter here: Sign Up. ************************** Ken Kirschenbaum,Esq Kirschenbaum & Kirschenbaum PC Attorneys at Law 200 Garden City Plaza Garden City, NY 11530 516 747 6700 x 301 ken@kirschenbaumesq.com www.KirschenbaumEsq.com
