Session 1B DON T LET THEM EAT YOUR LUNCH The Prevention Method for Cyber Risk!

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1 Session 1B DON T LET THEM EAT YOUR LUNCH The Prevention Method for Cyber Risk! Patrick Bourk, Integro Insurance Brokers (Moderator) Senior Vice President Office: Mobile: Kadey B.J. Schultz, Schultz Frost LLP Partner Office: Mobile: Eileen Greene, HKMB Hub International Vice President and Partner Office: Winston Krone, Kivu Consulting Managing Director Office: Mobile:

2 CYBER RISK IT IS EVERYWHERE!! A bombardment of media attention Death by a thousand stories and a thousand statistics! Will the real statistic please step forward?? According to the NetDiligence Cyber Claims Study 2014, which analyzes claims information provided by insurance company participants, the range of cost per record lost in 2014 was between $0 and $33,000! The average cost per lost record was $ ? Data Breach revealed 19,000,000 google references; Cyber Breach revealed 20,300,000 references and Privacy Breach revealed 81,700,000 references! Cyber Risk must therefore be really bad! Fear-mongering as it relates to cyber breaches is at an all time high OR IS IT?!?! Damages being sought according to the Notice of Action in the Eliot Shore vs. Avid Life Media Inc. and Avid Life Dating Life Inc. class action (a.k.a. the Ashley Madison Case!) are $750,000,000 in general damages and $10,000,000 in punitive damages. Special damages are still to be determined of course! Irony Alert: On June 15 th, 2015 LastPass, a company that stores people s passwords, announced that hackers broke into its computer system and got access to user addresses, password reminders, and encrypted versions of people's master passwords. Irony Alert Redux: Experian, a large credit monitoring service provider in the U.S. was hit with a class action lawsuit (July 15 th, 2015) alleging that they negligently violated consumer protection laws when it failed to detect that a customer of its data broker subsidiary (Court Ventures) ran a criminal service that resold consumer data to identity thieves! Experian and the former owner of Court Ventures are suing each other!

3 CYBER RISK The Legal Landscape in Canada What has recent case law highlighted? Unprecedented litigation activity and class certifications Jones v. Tsige The tort of intrusion upon seclusion The courts are creating the framework for response requirements until legislation catches up Plaintiffs are finding creative damage mechanisms (Evans v. Scotia) Claims for unauthorized loss/access and business practices So-called snooping cases as distinct from corporations using privately collected information beyond the scope of the intended purpose it was collected for Employees and policies/procedures often are cause of problem Not all breach incidents are committed by criminal hackers. Employee negligence represents a significant portion of insured losses The corporation s response matters All industries are potentially affected

4 CYBER RISK The Legal Landscape in Canada Legislation for Breach Response has caught up! The Digital Privacy Act (Bill S-4) Passed on June 18 th, 2015 and makes significant change to the Personal Information Protection and Electronic Documents Act ( PIPEDA ). Details in Regulations still to come. Mandatory breach notification is now the law! Organizations must notify affected individuals and the Privacy Commissioner of Canada where there is a reasonable belief that the breach creates a real risk of significant harm to the individual. Mandatory record-keeping for all breaches Organizations will now be required to keep and maintain a record of every breach of safeguards involving personal information under their control, irrespective of whether the breach gives rise to a risk of significant harm. More stringent consent requirements when collecting personal information Consent will only be valid if the affected individual understands the nature, purpose and consequence of why their personal information was being collected. Enforcement and Penalties Violations of breach notification and breach of record keeping obligations can result in punishment ranging between summary conviction and a $10,000 fine to indictable conviction and $100,000 fine. Whether the fine will be per individual violation or not is yet to be determined.

5 The Culture of CYBER RISK The U.S. Perspective Greater liability due to Litigation/Regulatory Risk Risk grows with increased sharing of data (e.g. use of Cloud providers/outsourcing) Third parties can lose your data You can lose data entrusted to you by customers/partners Entire U.S. cyber ecosystem is experiencing a stress test Unprecedented levels of network scanning, automated brute force attacks, phishing U.S. computer networks being shaken until they break Speed of the attackers versus speed of the defence is highly in favour of the attackers Secure systems are found to vulnerable, and weakest links exploited The herd is roped together being faster than the slowest antelope is not enough! Cost of Data Breach some counter-intuitive discoveries: While ONE of cost drivers is NUMBER OF RECORDS exposed (e.g. number of names/social security numbers, etc.), equally important cost drivers include: o o How is data stored? (unstructured v. structured data) Was the data in possession of a third party? (slows up/hampers response) Cost of responding to breach highly influenced by who discovers the breach. Many times organizations find out they ve been breached from third parties clock immediately running, difficult to control public relations

6 CYBER RISK Cyber Security needs to be Proactive Risk Assessments Should seek to meaningfully lower risk (versus Regulatory Compliance) Make assessments more focused o Only Assess what you can afford to Remediate o Determine what are YOUR major risks Base security on consistent, common security standard (e.g. ISO 27002, NIST sp800-53, etc.) Objective standards hold up in litigation/regulatory investigation You are less likely to have your claim denied by the insurance carrier Change perception of stakeholders (C-suite, employees, customers): Move from ease of use back to need to know Security measures that were optional became mandatory o Encrypt everything not just USB devices and laptops o Multi-factor authentication (e.g. or remote access from a new device) Many defences are illusory e.g. anti-virus, firewalls, lame security training All breaches start as incidents but not all incidents become breaches Be able to prove it didn t happen (historical data/logs monitoring exiting data, cross network traffic) Restrict how far an infection can jump restrict internal access by user Restrict how much data is stored identify/segregate/purge/encrypt Before you buy any new toys, make better use of the ones you already have Unforeseen cost of administering new monitoring systems Many networks don t turn on defences they already have paid for

7 CYBER RISK A Risk Managed Perspective Engaging the prospective insurance purchaser at different levels Structuring a comprehensive risk management approach to insurance Operational Preparedness: How prepared is the organization in the event of a data breach, network security attack, regulatory inquiry or social media event? How vulnerable is the organization? Assessing Risk Exposure: What type of situations would materially impact the organization? Risk Tolerance: What would be the cost implication of a network security or privacy breach incident? Mitigation: A customized approach to the purchase of cyberliability insurance WHO is involved in the risk management process is critical Cybersecurity is a risk management issue and not just a technology issue Executive leadership needs to be informed and engaged now more than ever A consultative approach with representatives from all organization divisions is imperative (i.e. CEO, CFO, CIO, COO, IT, GC )

8 CYBER RISK A Risk Managed Perspective Designed for Various Commercial Organizations

9 CYBER RISK The Insurance Perspective To what extent do traditional insurance policies respond to breaches? Common insurance policies purchased by most enterprises that may or may not respond to network security or privacy breach situations General Liability Business Interruption Fidelity (Crime) Directors & Officers Liability Professional Liability 3 rd Party insurance coverage vs. 1 st Party direct loss coverage Pros and Cons of adding Cyber coverage to traditional insurance policies by way of endorsement

10 CYBER RISK The Insurance Perspective What do underwriters look for in their risk assessment? Can your organization survive without insurance: Shaken or stirred? All about Planning: Incident Response Plans, Disaster Recovery Plans, Business Continuity Plans, Responsive and protective IT security procedures Your people Controls in place to set expectations for employees as far as their awareness and responsibility for dealing with sensitive information Governance: How engaged is the executive management and leadership? Network Security and privacy issues are no longer an IT issue. They are a governance issue Information Security Do you understand what all kinds of data you control and why? Due diligence internally and with outside service providers for data protection Safeguards for personally identifiable information, especially healthcare

11 CYBER RISK The Insurance Perspective Third Party Liability Privacy Liability: Covers loss arising out of the organization s failure to protect sensitive personal or corporate information in any format. Can also be enhanced to provide coverage for regulatory proceedings brought by a government agency alleging the violation of any federal, state, or foreign identity theft or privacy protection legislation. Network Security Liability: Covers any liability of the organization arising out of the failure of network security, including unauthorized access or unauthorized use of corporate systems, a denial of service attack, or transmission of malicious code. Internet Media Liability: Covers infringement of copyright or trade mark, invasion of privacy, libel, slander, plagiarism, or negligence by the organization from the content on its internet website

12 CYBER RISK The Insurance Perspective First Party Expenses Data Breach Expenses: Forensic Expenses: Covers expenses to retain third party computer forensics services to determine the scope of a failure of Network Security Notification Expenses: Covers expenses to retain third party computer forensics services to determine the scope of a failure of Network Security Crisis Management Expenses: Covers expenses to retain third party computer forensics services to determine the scope of a failure of Network Security Credit Monitoring Expenses: Covers expenses to retain third party computer forensics services to determine the scope of a failure of Network Security Network Extortion: Covers extortion monies and associated expenses arising out of a criminal threat to release sensitive information or bring down a network unless consideration is made. Digital Asset Loss: Covers costs incurred to replace, restore or recollect data which has been corrupted or destroyed as a result of a network security failure. Business Interruption Loss: Covers loss of income and extra expense arising out of the interruption of network service due to an attack on the insured s network.

13 CYBER RISK The Insurance Perspective In addition to covering for costs associated with a breach, certain insurance providers provide access to a range of expert services designed to mitigate reputational risk and diminish the risk of a legal action being brought. These services can reduce the administrative burden that organizations commonly encounter when handling a breach on their own. Claims hotlines across time zones Coordination of the following services globally Forensic Investigations - If a breach is suspected, experienced forensic professionals can be on hand to assess the cause, gravity and extent of any breach as well as advising on how to prevent future occurrences. Legal services from firms with multi-jurisdictional data breach legal advice - Once a breach is identified, legal experts can provide advice and support on the legal implications of the breach and what actions are required to mitigate them. Access to notification specialists Specialists available to lessen the administrative burden of mitigating the effects of the data breach. Access to public relations and crisis management specialists who can help draw up and implement a fully integrated crisis response plan. The plan can be critical to effective reputation management in the wake of a crisis and includes: Stakeholder mapping and analysis Scenario planning Messaging and media training Internal communications

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