I just read a story titled Can a CISO Serve Jail Time? Having been Chief Security Officer (CSO) of Mandiant prior to the FireEye acquisition, I thought I would share my thoughts on this question.
In brief, being a CISO or CSO is a tough job. Attempts to criminalize CSOs would destroy the profession.
Security is one of the few roles where global, distributed opponents routinely conduct criminal acts against business operations. Depending on the enterprise, the offenders could be nation state adversaries largely beyond the reach of any party, to include the nation state hosting the enterprise. Even criminal adversaries can remain largely untouchable.
I cannot think of another business function that suffers similar disadvantages. If a commercial competitor took actions against a business using predatory pricing, or via other illegal business measures, the state would investigate and possibly prosecute the offending competitor. For actions across national boundaries, one might see issues raised at the World Trade Organization (WTO), assuming the two hosting countries are WTO members.
These pressures are different from those faced by other elements of the business. When trying to hire and retain staff, human resources doesn't face off against criminals. When trying to close a deal, sales people don't compete with military hackers. (The exception might be transactions involving Chinese or Russian companies,) When creating a brand campaign, marketing people might have to worry about negative attention from hacktivists, but if the foe crosses a line the state might prosecute the offender.
The sad reality is that no organization can prevent all intrusions. The best outcome is to prevent as many intrusions as possible, and react quickly and effectively to those compromises that occur. As long as the security team contains and removes the intruder before he can accomplish his mission, the organization wins.
We will continue to see organizations fined for poor security practices. The Federal Trade Commission, Securities and Exchange Commission, and Federal Communications Commission are all very active in the digital security arena. If prosecutors seek jail time for CSOs who suffer compromises, I would expect CSOs will leave their jobs. They already face an unfair fight. We don't need to add the threat of jail time to the list of problems confronting security staff.