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ERM, Cyber Risk and Ed Hochuli

Risk management and the sports world unexpectedly intersected in a morning session at RIMS 2012, when panelists discussed how adopting an ERM strategy can help mitigate cyber risk while under the watchful eye (and whistle) of session moderator and well-known NFL referee Ed Hochuli. Much like in an NFL game, Hochuli, who is also an attorney with Jones Skelton & Hochuli, took control of the discussion by donning his referee jersey and throwing his penalty flag whenever any of the presenters went over a pre-determined time limit for remarks.

Panelists Carol Fox of RIMS, David Speciale of Identity Theft 911, Richard Magrath of USLAW NETWORK and John Hall of Hall Booth Smith & Slover were flagged for multiple delay-of-game penalties (and one good-natured taunting violation), but this did not stop them from delivering their timely and informative presentation.

As data breach incidents, such as Sony’s infamous PlayStation Network breach last year,  have increased, so has the financial and reputational impacts. Perhaps more importantly, however, this so-called cyber risk no longer only belongs to IT departments. In fact, many IT departments may not even understand the entire scope of the risk. “They are used to dealing with how many servers they have, not necessarily what is on those servers,” said Fox. Since data breaches effect the entire enterprise, mitigation and remediation efforts need to involve all departments in order to effectively limit damages and reduce costs. This makes a data breach plan a vital component of a company’s ERM program.

And given all the complex data protection regulations, jurisdictional issues, and due diligence and privilege concerns, Magrath and Hall recommended that risk managers do not try to go it alone and instead, should engage counsel as a kind of quarterback to help them assess their risk and make sure they are as protected as they can be.

Speciale warned that despite all of a company’s best efforts, 100% protection may be impossible and some fallout may be unavoidable. “When a company is breached, a small percentage of people will never do business with them again,” he said. The key, then, is to be able to prevent as many breaches as you can and then strengthen your defense so you are a less attractive target.

In order to help companies develop a plan of their own, RIMS, US LAW NETWORK and Identity Theft 911 developed an executive report entitled “ERM Best Practices in the Cyber World.” The report details how risk managers can go about developing an effective data breach plan of their own. As the session made clear, thousands of dollars of investment could prevent millions of dollars in losses.

Crisis Management in the Age of Cybercrime

[The following is a guest post by Richard S. Levick, Esq, president and chief executive officer of Levick Strategic Communications. You can Follow Richard on Twitter @RichardLevick where he comments daily on risk management and crisis management.] 

Immense as it may be, the March 30 Global Payments data breach that dominated headlines is only the latest in a series of events that made this current crisis eminently predictable. If there are any illusions that this breach was anomalous, consider the extent to which high-profile data breaches similarly dominated headlines in 2011.

Sony suffered over a dozen data breaches stemming from attacks that compromised its PlayStation Network, losing millions and facing customer class action lawsuits as a result. Cloud-based email service provider Epsilon suffered a spear-phishing attack, reportedly affecting 60 million customer emails. RSA, whose very business related to on-line security, experienced an embarrassing and damaging theft of information related to its SecureID system, necessitating an expenditure of more than $60 million on remediation, including rebuilding its tattered reputation.

And the list goes on.

Right now, just about all businesses face cyber risks. The worst include intellectual property losses due to economic espionage — by far the greatest risk to companies — as well as data breaches and ideological “hacktivists.” And the growth rate of those risks often exceeds a company’s ability to fight them.

Over the last decade, companies have experienced exponential increases in the volume and type of their digital assets along with an explosion in the types of storage devices that house them. With enterprise resource planning software, email, cloud computing, laptops, iPads, smart phones, and other portable devises, companies may have data storage systems that number in the hundreds. Managing and securing critical information has become a commensurately more daunting task.

As the situation grows worse, many boards and senior management now take a head-in-the-sand approach to cyber-threat management. A recent survey from Carnegie Mellon University’s CyLab analyzed the cyber governance policies of the Forbes Global 2000. Its findings are troubling. “Boards and senior management are still not exercising appropriate governance over the privacy and security of their digital assets,” states the report. Less than one-third undertake even the most basic cyber-governance responsibilities.

These findings are supported by an in-depth look at cyber-crime published by PricewaterhouseCoopers late last year. According to the survey, which polled nearly 4000 executives from 78 countries, while cybercrime ranks as one of the top four economic crimes (falling just after asset misappropriation, accounting fraud, and bribery/corruption), 40% of respondents reported that they had not received any cyber-security training. A quarter said that their CEOs and boards do not conduct regular, formal reviews of cyber-crime threats, and a majority reported either that their company does not have – or they do not know whether their company has – a cyber crisis-response plan.

Welcome to the risk management officer’s worst nightmare.

According to the Ponemon Institute’s most recent statistics, the average cost of a data breach is $7.2 million with the average cost per compromised record coming in at $214. But the damage done by a cyber-breach goes well beyond the initial information loss. Real costs from business interruption, intellectual property theft, lost customers and diminished shareholder value due to reputation damage all can — and do — inflate those figures. In fact, for 40% of respondents in the PwC study, it is the reputational damage from cybercrime that is their biggest fear.

As cyber-risks continue to grow, companies must therefore focus on reputation as well as strengthening the mechanisms with which data is secured. A few things are imperative.

Boards and senior management must take responsibility for crisis response. Their objective must be to crystalize the company’s crisis instincts – to make crisis response part of the institutional DNA.

Crisis plans are actually counter-productive if they are created simply to be put on a shelf and read only when they are needed. Particularly in the context of cyber-crime, a realm in which new risks seem to emerge almost daily, the need to revisit and revise the plans is exigent. Regular rehearsals, refinements, discussions and additions transform the culture into one rooted in not the possibility but, rather, the expectation of crisis.

Education of employees is imperative. Employees often assume that securing company information is solely the responsibility of company IT specialists – an assumption fraught with risk. Every employee in an organization has the responsibility and the means to protect company data.

In addition to education, the key for companies is to keep less information in the first place, according to Paul Rosenzweig, Esq., founder of Red Branch Law & Consulting, PLLC. Backing up data on the other end is also vital. And while there are attendant costs involved, they are well worth it, he says. “In a world in which the bottom line is everything and the benefit of your expenditure may be recaptured only over years, if ever, this is hard,” said Rosenzweig. “It may well seem like all cost and no benefit in the beginning – that is, until the day it is all benefit and no cost.”

Companies must also designate a response team and ensure that all participants understand their roles. During a crisis, the response team must make critical decisions with too little notice and too little information. Regular meetings ensure that team members understand their individual responsibilities and develop trust in one another. Periodic crisis team exercises allow companies to capture what goes right and what goes wrong in each simulation. The lessons learned are critical when a real crisis is at hand.

When a data breach does occur, companies must make full disclosure as quickly as possible and let stakeholders know how they plan to remediate the situation so that it will not recur. Focusing on corrective future initiatives can restore trust.

With the advent of new technologies, the risks for companies are now greater than ever. Companies’ ability to recognize this moment and transform the way they think about their information is key to long-term sustainability and brand value.

Managing the Risk of Cyberattacks: When Will Boards Learn?

Even after the many cyberattacks initiated by Anonymous and Lulzsec, it seems boards are still not exercising appropriate governance over the privacy and security of their digital assets, that’s according to a new study by Carnegie Mellon CyLab entitled “Governance of Enterprise Security.”

The study says that “even though there are some improvements in key ‘regular’ board governance practices, less than one-third of the respondents are undertaking basic responsibilities for cyber governance. The 2012 gains against the 2010 and 2008 findings are not significant and appear to be attributable to slight shifts between ‘occasionally,’ ‘rarely,’ and ‘never.'”

A look at the numbers:

And even with the advancement of enterprise risk management throughout organizations, it seems there is still a disconnect between boards and senior executives understanding that privacy and security and IT risks are a part of ERM. A whopping 58% of those surveyed said their board did not review the organization’s insurance coverage for cyber-related risks.

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The survey proved that they do not have full-time senior level personnel in place to manage privacy and security risks.

Less than two-thirds of the Forbes Global 2000 companies surveyed have full-time personnel in key roles responsible for privacy and security in a manner that is consistent with internationally accepted best practices and standards.

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Moreover, the common practice of assigning security personnel both privacy and security responsibilities creates segregation of duties issues at line responsibility levels.

Though there are signs of progress compared to previous years, the 2012 CyLab survey shows a serious lack of attention at the top in regards to cybersecurity.

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The Benefits and Limitations of Cyberinsurance

(The following is a guest post for the Risk Management Monitor written by Rick Kam, president and co-founder of ID Experts, a provider of data breach solutions.)

The Information Age. The Digital Age. The Computer Age. Whichever name you use, we’re in an era where many companies’ most valuable asset is information, from consumer buying habits to patient diagnoses to scientific data. At the same time, this asset also comes with a burden: companies are responsible for safeguarding the information they hold.

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Given the almost immeasurable amount of information produced today—something often called “Big Data”—the task can become overwhelming.

Data privacy laws such as the Gramm–Leach–Bliley Act in the financial sector and the Health Insurance Portability and Accountability Act (HIPAA) for health care are designed to protect customers in the event their information is compromised, most often during a data breach. Data breach notification laws, starting with California’s SB1386 in 2003 raised the legal and financial stakes for companies holding sensitive data. Since then, class action lawsuits and regulatory fines have become synonymous with data breaches. For instance, under the 2009 Health Information Technology for Economic and Clinical Health (HITECH) Act, health-care organizations could face up to $1.5 million in fines for violation of the HIPAA privacy and security rules.

In addition, new trends such as outsourcing data processing to cloud providers and the increased use of personal mobile devices to conduct business have greatly increased the risk of a data breach, since data are now in less-secure environments.

Statistics prove that data breaches are occurring more frequently, rising 32% in the health-care sector, according to a study on patient privacy and data security by the Ponemon Institute. InformationWeek reported that 419 data breaches were publicly disclosed in 2011 in the United States, with a combined 22.9 million records exposed, based on a study from the Identity Theft Resource Center.

The Benefits of Cyberinsurance

To help bear the costs associated with data breaches, some companies are turning to cyberinsurance as part of their overall risk management strategy. These organizations have discovered several advantages to having cyberinsurance.

1.  Closing the Gap Between Traditional Coverage and Current Needs
Some cases have indicated that traditional insurance commercial liability insurance only covers liability arising out of  “tangible” property, for instance the server on which a data is stored, rather than the data itself, says David Navetta, a founding partner of Information Law Group.

Traditional policies also do not explicitly cover first-party breach notification costs. This could leave a significant gap in coverage of an organization’s digital assets exposing them to the full costs of a data loss event.  Cyberinsurance was designed to cover that gap. According to The Betterley Report, cyberinsurance typically provides coverage for: (1) Liability for data breach or loss of data, (2) remediation costs to respond to breach, and (3) regulatory and legal fines and penalties.

2. Offsetting the Expenses of a Data Breach
Given their unpredictable nature, data breaches are difficult to budget for. The size, scope, and complexity of each data breach vary widely. The breach of protected health information (PHI) can be particularly costly, given strict notification requirements, the potential for fines from multiple regulatory agencies, and specialized medical identity monitoring and recovery services.

Many organizations have found that cyberinsurance helps cope with unexpected expenses and bear some of the data breach costs, especially the costs around data breach notification. Typical breach coverage includes: Forensics investigations, legal fees (during and after response), data analysis, communication (notification letters, call center and regulatory notices), identity monitoring (i.e., credit monitoring), identity restoration services, public relations, regulatory fines, and legal settlements

3. Providing Resources for Data Breach Response
Many carriers, either through informal referrals or panel of approved vendors, offer resources to companies facing a data breach. Often, this includes a breach coach, an attorney who guides the insured through the breach response process and seeks to limit the organization’s legal exposure.

 In addition, insurers may be able to provide referrals for a range of service providers including forensics, data breach notification, legal and PR, often at a pre-negotiated, discounted rate. Sometimes the use of approved vendors can increase coverage limits. Some companies find it convenient to use these vendors rather than shop around for their own data breach services provider. The other benefit to using a carrier’s resources is that of experience. A company’s legal counsel, for example, may not have experience in the data breach/privacy sector.

The Limitations of Cyberinsurance

As with all types of coverage, cyber liability insurance has limits. The following are three that every potential policyholder should understand.

1. Limits on Coverage
Not all policies are the same. What one may cover, another will not. For instance, some breaches are caused not by the data “owners” but by a third-party service provider, such as a cloud provider. In the health-care sector, the data owners (often hospitals or insurance providers) are often liable for the breach of protected health information caused by their business associates.

Another example: Companies with data breaches that cover multiple states face different notification laws. While the company may want to provide the same notice to all affected individuals, the insurer may not cover the cost of notification in states where it is not legally required.

Another variance is the source of a breach: Does a policy only cover “technical breaches,” such as the loss of a computing device or unauthorized access of a company’s systems? Other factors that affect coverage may include the types and amounts of fines or penalties levied or other actions by regulators that affect the outcome of a data breach.

2. Limits on Choice
The terms of a cyberinsurance policy may restrict the way an organization responds to a data breach.  For instance, it may cover credit monitoring services for the breach of protected health information, which requires the monitoring of a patient’s medical identity, not their credit.

Cyberinsurance policies may also limit the choice of vendors when responding to a data breach. Many companies may prefer to use providers with whom they have an existing relationship, such as legal counsel, but are required to use the services of a preapproved vendor. Such limitations can impact the quality of a data breach response. For instance, the use of a foreign call center to manage the breach of sensitive data such as mental health records could be subpar.

3. Cannot Replace the Need for Data Protection
Even with the most comprehensive cybercoverage, companies still have the responsibility to improve their internal privacy and security measures. Ultimately, prevention is still the best form of insurance against a data breach. All organizations should regularly assess their privacy and security risks and then take actions to mitigate the identified gaps.

Additionally, all departments, from IT to human resources, should develop and regularly review their “Incident Response Plan.” This plan must provide an effective, cost-efficient means of helping the organization meet statutory requirements and develop guidelines related to data breach incidents.

Given the increasing complexity and likelihood of data breaches, companies are finding cyberinsurance provides a measure of security. Cyberinsurance, unlike traditional insurance, is designed to meet the needs of companies in the digital age.

As with all types of coverage, however, cyberinsurance has its limitations.

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Companies would do well to thoroughly research all their options before deciding to invest in cyberinsurance or other means of data breach prevention.

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