Category Archives: Cyber Insurance

The latest risk management news about cyber insurance.

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Information Security Teams Drastically Underfunded, Understaffed

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LAS VEGAS—As the information security industry’s hackers, IT professionals, technology developers and even Hillary Clinton’s campaign descend on Las Vegas for this year’s Black Hat conference, Black Hat has released the results of a survey from last year’s convention, offering an insider’s look at the state of cyberrisk. The report offers a failing report card for current investment on cyberrisk and some key feedback for the C-suite about current risk exposure.

The Rising Tide of Cybersecurity Concern is the second annual Black Hat attendee survey. Last year’s results included the alarming findings that 72% of respondents felt it likely that their organizations would have to deal with a major data breach in the year ahead, while approximately two-thirds of respondents said they did not have enough staff, budget, or training to meet those challenges.

Unfortunately, these top security experts have only grown more concerned.

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As cyberrisks proliferate – and attention from the C-suite increases – 15% “have no doubt” they will have to respond to a major security breach in the next year, with another 25% considering it highly likely and 32% calling it somewhat likely.

Yet information security teams are not getting the funding, staffing or training they need to combat this top risk. Only 26% of those polled said they have enough staff to simply defend against current threats.

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Black Hat reports some 63% of security professionals say their departments do not have enough budget to defend their organizations against current threats, with 20% saying they are “severely hampered” by a lack of funding.

The training critical to effectively managing evolving cyberrisks also presents a considerable concern for many security professionals. Two-thirds of respondents said they feel they do not have enough training and skills they need to perform all of the tasks for which they are responsible — up from 64% last year. Ten percent of respondents said they feel “ill-prepared” for many of the threats and tasks they face each day.

Experts considered the top new cyberrisks:

blck hat enterprise security

The weakest links in enterprise security:

When asked why security initiatives fail, some 37% of respondents (a plurality) pointed toward this shortage of qualified people and skills, with a lack of commitment and support from top management the second-most frequently cited response at 22%.

blck hat enterprise security

“Organizational priorities such as compliance and risk measurement consistently reduce the time/budget available for security professionals to resolve issues they consider the most critical,” Black Hat noted. “These pressing issues include targeted attacks, social engineering, and internal application security troubleshooting. Although the 2015 report revealed this trend, rather than a reverse in expenditure behavior, the issue has continued to increase.

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Additional findings from the survey include:

  • 37% see the re-emergence of ransomware as the greatest new threat to appear in the last 12 months
  • The attacker that 36% of security professionals fear most is the one with internal knowledge of the organization
  • While the emergence of the Internet of Things (IoT) has garnered much attention in recent years, only 9% of those surveyed are currently concerned with IoT security. However, 28% believe this will be a concern two years from now. This ranking has not altered since 2015.

Businesses Ignore Significant Cybersecurity Risks to Proprietary Data

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Knowledge assets are critical to any business remaining functional and competitive, yet this data is routinely exposed to the risk of theft and overlooked in cybersecurity risk management. According to a new report from the Ponemon Institute and law firm Kilpatrick Townsend & Stockton, the organizations are increasingly ineffective at safeguarding data like trade secrets, product design, development or pricing, and other proprietary information.

As breach notification laws, regulatory requirements, and reputation considerations draw more focus to cybersecurity surrounding personal data of customers or personnel, businesses are leaving more risk on the table regarding their most valuable assets, and that risk has a notable price tag.

In the past year, the average cost of remediating these attacks was about $5.4 million, and half of respondents estimated the maximum cost would range over $250 million, with seven out of ten placing it over $100 million. What’s more, on average, respondents believe only 35% of the losses resulting from knowledge asset theft would be covered by their current insurance policies.

The primary drivers of these costs, respondents said, were (out of 100 points):

knowledge asset theft costs

Why are so many businesses failing to take action against the risks to knowledge assets?

knowledge asset data theft risk

Among the findings, the report noted:

  • Theft is rampant. Seventy-four percent of respondents say it is likely that their company failed to detect a data breach involving the loss or theft of knowledge assets, and 60% state it is likely one or more pieces of their company’s knowledge assets are now in the hands of a competitor.
  • Companies don’t know what they need to protect, or how to protect it. Only 31% of respondents say their company has a classification system that segments information assets based on value or priority to the organization. Merely 28% rate the ability of their companies to mitigate the loss or theft of knowledge assets by insiders and external attackers as effective. The great majority who rate their programs as not effective cite as the primary reasons a lack of in-house expertise (67%), lack of clear leadership (59%), and lack of collaboration between different job functions (56%).
  • Executives and boards aren’t focused on the issue and its resolution. A data breach involving knowledge assets would impact a company’s ability to continue as a going concern according to 59% of respondents, but 53% replied that senior management is more concerned about a data breach involving credit card information or Social Security numbers than the leakage of knowledge assets. Only 32% of respondents say their companies’ senior management understands the risk caused by unprotected knowledge assets, and 69% believe that senior management does not make the protection of knowledge assets a priority. The board of directors is often even more in the dark. Merely 23% of respondents say the board is made aware of all breaches involving the loss or theft of knowledge assets, and only 37% state that the board requires assurances that knowledge assets are managed and safeguarded appropriately.
  • Careless employees and unchecked cloud providers are key risk areas. The most likely root cause of a data breach involving knowledge assets is the careless employee, but employee access to knowledge assets is not often adequately controlled. Fifty percent of respondents replied that both privileged and ordinary users have access to the company’s knowledge assets. Likewise, 63% of respondents state that their company stores knowledge assets in the cloud, but only 33% say their companies carefully vet the cloud providers storing those assets.

Thanks in part to the lack of action currently, there is plenty businesses can easily do to improve.

“Companies face a serious challenge in the protection of their knowledge assets. The good news is there are steps to take to reduce the risk,” said Dr. Larry Ponemon, chairman and founder of the Ponemon Institute. “First of all, understand the knowledge assets critical to your company and ensure they are secured. Make sure the protection of knowledge assets, especially when sharing with third parties, is an integral part of your security strategy, including incident response plans. To address the employee negligence problem, ensure training programs specifically address employee negligence when handling sensitive and high value data.”

Holding Executives Accountable for Cybersecurity Failures

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The average cost of a data breach for companies surveyed has grown to $4 million, a 29% increase since 2013, with the per-record costs continuing to rise, according to the 2016 Ponemon Cost of a Data Breach Study, sponsored by IBM. The average cost hit $158 per record, but they are far more costly in highly regulated industries—in healthcare, for example, businesses are looking at $355 each, a full $100 more than in 2013. These incidents have grown in both volume and sophistication, with 64% more security incidents reported in 2015 than in 2014.

Ponemon wrote:

Leveraging an incident response team was the single biggest factor associated with reducing the cost of a data breach–saving companies nearly $400,000 on average (or $16 per record). In fact, response activities like incident forensics, communications, legal expenditures and regulatory mandates account for 59 percent of the cost of a data breach. Part of these high costs may be linked to the fact that 70 percent of U.S. security executives report they don’t have incident response plans in place.

With so much on the line, more and more companies and consumers continue to search for whom to hold accountable for cybersecurity failures, and the message is becoming clearer: executives need to get serious or watch out.

In a recent report from Bay Dynamics, “How Boards of Directors Really Feel About Cyber Security Reports,” board members expressed a surprising amount of confidence in their abilities to understand and act on cyberrisk threats and indicated there are real risks on the table for IT and security executives. Almost all of those surveyed said that some form of action will be taken should these executives not provide useful and actionable information, with 59% claiming there is a good chance one or more security executives would lose their job over such reporting failures.

More board members (26%) ranked cybersecurity risk as their highest corporate priority than any other risk, including financial, legal, regulatory and competitive risks, and 89% said they are “very involved” in making cybersecurity decisions.

Following the typical presentations from IT and security executives, more than three in five board members are both significantly or very “satisfied” (64%) and “inspired” (65%), but 32% are significantly or very “worried,” and 19% are significantly or very “confused” and “angry.”

According to the report:

Of the information provided to them during these presentations, the majority of board members (97%) say they know exactly what to do or have a good idea of what to do with the information. This statistic, however, does conflict with IT and security executives’ thoughts on the information they present. Based on our December 2015 survey, only 40% of IT and security executives believe the information they provide the board is actionable. There is a clear disconnect here between what the board perceives is actionable information, and what IT and security executives define as data that can be used to make informed decisions.

“IT and security executives are focusing on what they believe are the most impactful issues: a) forward-looking information about known vulnerabilities that could potentially harm the company in the future, b) specifics about data that was lost as a result of known infiltrations and data breaches, and c) the impact of these infiltrations and breaches,” Bay reports. “Interestingly, while information about how much is spent to address cyber risk is reported by IT and security executives in less than one-half of the companies surveyed, this was the most commonly cited information that board members said they needed to make investments for cyber risk planning and expenditures.”

Bay also pointed to a critical challenge in the education gap of many board members and the reliance upon information security executives: a large portion of the education board members have on infosec is from the organization’s IT and security executives, and “when the person education you on cybersecurity is the same individual tasted with measuring and reducing cyberrisk, there’s a fundamental disconnect.” It is extremely difficult for board members to understand what they are missing without education of their own and a third-party audit in place.

As cyberrisk continues to become a top enterprise risk priority, the consequences of failure may impact more of the C-suite than just chief information security officers or top IT executives. In May, following a social engineering fraud case that resulted in a wire transfer of 50 million euros, Austrian aircraft parts manufacturer FACC fired its chief executive of 17 years. Some regulators also want to start holding chief executives accountable in a way that truly speaks to them: their paychecks.

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According to a report from members of parliament on the British Culture, Media and Sport Select Committee, Britain’s status as the leading internet economy in the G20 is under threat from a combination of increasing reliance on digital infrastructure, and inadequate protection of it. To address the issue, they suggest that chief executives who fail to prevent cybersecurity breaches have a portion of their pay docked.

Such was the case with Baroness Harding, the chief executive of TalkTalk, Britain’s fourth-largest broadband provider, which suffered a high-profile cyberattack recently.

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Her performance bonus was slashed by more than a third as a result of the company’s security failings.

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“Companies must have robust strategies and processes in place, backed by adequate resources and clear lines of accountability, to stay one step ahead in a sophisticated and rapidly evolving environment,” said Jesse Norman, chairman of the committee. “Failure to prepare for or learn from cyber-attacks, and failure to inform and protect consumers, must draw sanctions serious enough to act as a real incentive and deterrent.”

Risk Landscape: Coverage Trends to Watch

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Being aware of your company’s new and changing risks is critical for sound risk management. As the year progresses, we have identified growing risks facing
companies, and their directors and officers, that are likely to impact policyholders. These risks include cybersecurity, Telephone Consumer Protection Act (TCPA) lawsuits, drones, wage and hour lawsuits and food recalls. The risks and issues to watch out for are expanded below:

Cybersecurity

Cyberattacks against businesses doubled in 2015 and are expected to continue to increase as attackers become even more sophisticated. Watch out for:

Phishing scams and social engineering fraud. In social engineering scams, hackers utilize phishing, purporting to be legitimate employees or third parties try to trick businesses into wiring funds or allow access to their systems. Although many businesses have crime insurance that covers “computer systems fraud,” ambiguous provisions or liability limits may restrict coverage. SomCompliancee courts have held that fraud coverage applies only when intrusions are unauthorized, but not when an unwitting employee falls prey to an online scam.

Data breaches. Companies should also be conscious about their coverage for data breaches, which increasingly present significant exposures. Insurers often contest whether data breaches constitute “publication” of private information, and, if so, whether an insurer’s duty to defend applies. This is particularly important as the storage of consumer data is a lynchpin of many businesses’ operations and marketing.
Businesses need to ensure that their commercial insurance policies adequately cover their business risks and consider purchasing dedicated cyber policies.

Coverage for TCPA claims

Certain efforts to engage with consumers may come at a steep cost. Under the Telephone Consumer Protection Act (TCPA), businesses that send unsolicited faxes, voice calls or text messages to consumers may be held liable for at least $500 per violation.

General liability coverage of TCPA claims. In recent years, commercial general liability (CGL) insurers have increasingly added broad exclusions to their policies for TCPA claims. Moreover, courts are split on whether “right to privacy” coverage in CGL policies cover these claims. Some courts uphold coverage only for losses from incidents that divulge confidential information (secrecy-related claims), whereas others uphold coverage for unsolicited communications, even if they do not republish confidential information.
While such coverage may be restricted under CGL policies, policyholders may have coverage under their directors’ and officers’ (D&O) insurance.

LA Lakers test case for D&O coverage. In 2016, the Ninth Circuit will likely address this issue in an appeal by the Los Angeles Lakers. The franchise’s marketing campaign included sending unsolicited text messages to fans. When sued under the TCPA, the franchise sought coverage for its defense costs under its D&O policy. In April 2015, a California federal court rejected coverage, finding that the policy’s “invasion of privacy” exclusion precluded coverage.
As businesses seek to engage consumers directly through various media, they should consider whether their insurance protects against TCPA claims.

UAVs and Insurance in 2016

Unmanned aerial vehicles (UAVs), or drones, promise to revolutionize not just commerce but insurance as well. The United States Federal Aviation Administration (FAA) estimates that, by 2023, annual global spending on UAVs will total $11.5 billion, and by 2020, about 30,000 commercial and civil drones will dot the skies.

Drone property loss and liability. The rise of drones raises several risks. The most obvious of these risks are loss of property and third-party liability. Use of drones for package or cargo delivery raises the risk of damage to the UAV itself—or its payload, which is usually the bigger loss. As shown by recent news reports and the first lawsuit, Boggs v. Merideth (W.D. Ky.), operators face liability for costs of defense and settlements or judgments payable to third-party claimants when UAVs go astray. With drones’ ability to film and collect data, other risks include privacy-related claims and data breach and hacking.

New coverage provisions. In June 2015, the Insurance Services Office, Inc. (ISO), approved new coverage provisions addressing commercial use of drones. The new ISO provisions modify standard CGL and umbrella/excess liability policy forms and merit close consideration by policyholders.
Because these new provisions are untested, policyholders should review them carefully against their entire insurance program and consult with insurance advisors to ensure that new provisions or policies provide the protection needed. Companies using UAVs should consider the aviation insurance market and also assess the need for cyber insurance coverage for privacy and data-breach exposures.

Wage-and-Hour Lawsuits

Cases alleging violations of the Fair Labor Standards Act (FLSA) have shot up in recent years. In 2015, almost 9,000 FLSA cases were filed in federal court, up more than 10% from 2014, and 30% from 2011. State courts have also experienced high volumes of wage-and-hour cases. California and New York recently enacted laws that allow directors, officers, and in New York, “top 10 shareholders” to be held personally liable for wage-and-hour violations.
Traditionally, companies have looked to their employment practices liability (EPL) and D&O insurance to protect against the defense and liability costs in wage-and-hour lawsuits. However, EPL insurance policies today regularly exclude coverage for such claims. Unlike EPL policies, D&O policies do not routinely exclude such coverage, but are including such exclusions with increasing frequency. As a result, policyholders must review D&O policies carefully to ensure that they protect against the threats posed by such claims.
Brokers and insurers have been developing new insurance products that specifically address these increasing wage-and-hour exposures. Policyholders, particularly those with significant operations in California and New York, should consider these newly emerging wage-and-hour specialty policies to ensure that they are adequately protected.

Food Contamination and Recall Coverage

The number of food product recalls for alleged contamination, undisclosed ingredients and other mislabeling issues also has risen dramatically. Although CGL and business property insurance policies provide some protection against liability for food contamination and recalls, savvy food companies should also consider specialized recall and contamination coverage.
These specialized policies may cover the reasonable costs that a policyholder incurs, for example, to examine its products for contamination, announce and institute a product recall, safely destroy contaminated products, and reimburse distributors and retailers for down-stream recall costs. Such policies often include crisis management coverage to help the policyholder mitigate negative media reports.

Varying types of special coverage. Because recall and contamination policies are not standardized, individual insurers offer differing policy terms and levels of coverage. Companies contemplating the addition of such coverage, or pursuing coverage under an existing policy, should closely examine the policy to understand the scope and limitations of coverage.

Items to watch. When purchasing such coverage, food companies need to identify their primary risks and negotiate the broadest possible coverage. In addition, because such policies often include very strict notice requirements, policyholders should give notice as soon as a recall arises to avoid coverage denial on late notice grounds.

Christina Buschmann, Linda Powell and Adrian Torres, Perkins Coie Insurance Recovery attorneys, also contributed to this article.