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Cyber Security - the Laws that Govern Incident Response - page 9 / 38

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2d. Monitoring Communications During an Incident; Provider Exception

Allows system administrator to conduct reasonable monitoring:

To protect provider’s “rights or property”;  

Must be “substantial nexus”  between the monitoring and the threat – cannot indiscriminately monitor (w/o consent)

When done in normal course of employment, while engaged in any activity which is a “necessary incident to the rendition of . . . service” by provider

Is a limited exception.  Not a criminal investigator’s privilege (cannot delegate to LE).

Provider may monitor the network to protect rights, and then disclose to law enforcement

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