The Evolving Landscape of Cybersecurity: Red Team Testing Gains Legal Significance
In the rapidly evolving realm of cybersecurity, red team testing has transitioned from a discretionary practice to a near-necessity for organizations aiming to bolster their defenses against cyber threats. This shift was extensively discussed in a recent session at the RSAC 2026, where panelists underscored the legal ramifications of these security measures. Scott Giordano, a partner at The CISO Law Firm, articulated that red teaming has now become a crucial discipline within information security, suggesting it is increasingly viewed as a de facto legal standard.
From a legal standpoint, the emphasis on outcomes rather than intentions was highlighted by attorney David Patariu, who has represented a variety of tech giants including Lenovo and Motorola. He advised Chief Information Security Officers (CISOs) to contemplate how both regulators and corporate boards will scrutinize an organization’s security protocols and testing methodologies. “They’re going to say, ‘Show me what you did, show me the documentation, show me how you approached these issues,’” Patariu noted, underscoring the critical nature of thorough record-keeping in this context.
CrowdStrike’s red team specialist, Joey Melo, echoed this sentiment, emphasizing that while adversarial testing is already a prudent strategy for organizations, it is on the verge of becoming a regulatory requirement. This suggests that both regulatory bodies and insurance companies may soon mandate companies to engage in red team exercises to mitigate risk.
Aligning Legal and Testing Teams
Organizations investing in red team testing face numerous considerations, particularly regarding the attorney-client privilege for the test outcomes. Kip Boyle, a fractional CISO and founder of Cyber Risk Opportunities, cautioned against carelessness when it comes to maintaining legal protections for their testing records. “Those records could be discoverable in the case of a lawsuit,” he warned, advising organizations to avoid merely copying attorneys on correspondence as a means of asserting privilege. Rather, a more meticulous approach to legal documentation is necessary.
Boyle emphasized that if an organization chooses not to address or mitigate a finding from red team evaluations, this could serve as a damaging factor in potential litigation. Proper preparation is thus vital. Patariu added that asserting attorney-client privilege post-factum, especially once red team testing is already underway, is unlikely to withstand legal scrutiny. He highlighted the importance of engaging legal counsel to help frame the testing initiative before it even begins, as merely having an attorney involved is insufficient unless their involvement is documented in the relevant communication.
The panelists were unanimous in their belief that a structured red team testing initiative is essential. Such a framework can serve as a crucial reference point for demonstrating that a business is taking reasonable cybersecurity measures. An organization with well-documentation of its adversarial testing will be better equipped to address difficult questions during any regulatory scrutiny or legal proceedings.
Addressing the Changing Nature of Threats with AI
AI technologies are fundamentally altering the cybersecurity landscape by broadening the potential attack surface. The introduction of agentic AI, which acts autonomously, has further complicated this dynamic. Patariu pointed out that not only should organizations test their AI models directly, but they must also consider how these models behave when integrated into products and services. The significance of this assessment cannot be overstated, as the ramifications of compromised AI functionality can be severe.
Security teams must recognize the inherent risks of allowing AI agents to operate within their systems. According to Patariu, the complexities tied to AI extend beyond merely evaluating output; they necessitate a rigorous testing framework to ensure secure operations. He referred to a widely publicized incident from 2025, where an AI agent erroneously deleted a production database, highlighting the tangible and potentially damaging risks associated with these technologies.
For organizations that cannot substantiate their testing efforts, the impression created is often one of insufficient cybersecurity protocols. The validation of these efforts will hinge on the robustness of the documentation generated by adversarial testers. Melo advised that when hiring a red team, organizations should prioritize the quality of reports they produce, suggesting that companies obtain sample reports to understand how their findings are communicated. This clarity is paramount, especially as scrutiny from regulators and other stakeholders increases.
Melo also pointed out that while AI models strive to be helpful, their inherent design makes them less capable of declining requests, rendering basic safety mechanisms inadequate. This reality underscores the vital need for rigorous red teaming to ensure robust cyber defenses.
In conclusion, the growing emphasis on red team testing reflects an evolving understanding of cybersecurity’s legal implications. As organizations contend with rising regulatory expectations, the ability to demonstrate a proactive approach to adversarial testing will not only strengthen their defenses but also provide a critical buffer against potential legal challenges.