Cyber Liability - Why the Need?

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1 Cyber Liability - Why the Need?

2 CYBER LIABILITY: Why the Need? Robin Federici, CPCU, AAI, ARM, AINS, AIS, CPIW PO BOX 781 NORTH KINGSTOWN, RI Phone: Fax: Robin s Cell Fred s Cell Web site: 1

3 This material has been designed for use in training programs for insurance industry personnel. It is not intended to be used as a complete reference resource on the programs and coverages outlined herein. The program uses standard policy forms and endorsements for the purposes of discussing the exposures to loss that may exist, some of the coverage options available to treat them, and to provide a framework for discussions with carriers you represent concerning the programs they have available. Coverages, rules and materials presented during this program may differ from those used by individual insurance companies. Contact individual carriers for details about interpretations of their eligibility requirements, particular insurance contracts and rates. Copyright 2014 by Insurance Education & Training Associates, LLC. All rights reserved. This document or any part thereof may not be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information retrieval system, without the express written consent of Insurance Education & Training Associates, LLC. Inquires should be addressed to: PO Box 781, North Kingstown, RI

4 WHAT IS CYBER COVERAGE? Cyber Liability addresses the risks associated with e-business, the Internet, networks and informational assets. Cyber Liability Insurance coverage offers cutting-edge protection for exposures arising out of Internet communications. The concept of Cyber Liability takes into account first- and third-party risks. The risk category includes: privacy issues the infringement of intellectual property virus transmission, or any other serious trouble that may be passed from first to third parties via the Web WHY THE NEED? Anyone with a Web site now has the legal liabilities of a publisher: The Internet - has spun a whole new web of liability exposures. Creating a Web site is simple. The exposures that come with it are not. Commercial companies that disseminate information to the public via Web sites face the same legal exposures as publishers, yet most have little or no concept of their resulting legal responsibilities. New legislation continues to create potential liabilities, particularly in the areas of user privacy and domain name infringement. Traditional liability products do not address Internet exposures and the risks involved in Internet business have blossomed with the Net itself. The universe of potential plaintiffs is staggering, given the number of people and organizations that are currently surfing the Net. 3

5 LAWS AND REGULATIONS Privacy: To date, 46 states, the District of Columbia, the U.S. Virgin Islands, and Puerto Rico have enacted legislation requiring notification of breaches or potential breaches of personally identifiable information (PII) Several relevant federal statutes pertain to privacy. This patchwork of laws and regulations can make it nearly impossible for most business owners and risk managers to keep up, particularly for those who do business in multiple states. Privacy - Jurisdiction: The jurisdiction of the state laws is based on both: 1. The consumer s state of residence 2. The home state of the business. Compliance, especially for those in highly regulated industries, such as health care, legal, educational, and financial services, can be a difficult task 4

6 LAWS AND REGULATIONS FEDERAL The Privacy Act of 1974 : Health Insurance Portability and Accountability Act (HIPAA) of 1996: Financial Modernization Act of 1999, commonly called the Gramm-Leach Bliley Act (GLB) Fair Credit Reporting Act Of 1970 Sarbanes-Oxley(SOX) 0f 2002 FTC s Red Flag Rule Identity Theft Enforcement and Restitution Act Payment Card Industry Data Security Standards NOTEWORTHY FEDERAL PRIVACY LAWS Drivers Privacy Protection Act DMV and MVRs o Restricts the public disclosure of personal information contained in state department of motor vehicle records o Personal information" Individual's photograph or image Driver identification number Address (but not 5 digit zip code) Medical or disability information Social security number Name Telephone number 5

7 STATE LAWS It All Started with California In 2001, California became the first state to have an agency dedicated to promoting the protection of consumer privacy rights when the Office of Privacy Protection was created. The only four states that do not have data loss/breach notification laws are Alabama, Kentucky, New Mexico, and South Dakota. Massachusetts: General Law Chapter 93H/201 CMR 17.00) requires notification of any breach that involves one or more Massachusetts residents regardless of where the breach takes place or from where the entity that held the private information is domiciled and/or operating. New Jersey: In New Jersey, breaches must be reported to the Division of State Police for investigation. Nevada: Nevada passed the first law incorporating all of the Payment Card Industry (PCI) Data Security Standards (DSS) as a state requirement. Texas: In Texas, effective September 1, 2012, notice must be provided to any individual who is either a resident of Texas or a resident of a state that does not require notification of a security breach. Connecticut: August 18, 2010, the State of Connecticut Insurance Department issued Bulletin IC 2512 wherein all licensees and registrants are required to notify the Department of any information security incident that affects any state resident as soon as the incident is identified, but not later than 5 calendar days. One note of concern is the broad definition of information security incident, which includes even encrypted information. 6

8 WHAT IS CYBER LIABILITY INSURANCE? Cyber Liability is an insurance term for a policy that includes one or more of the following coverages: Multimedia Liability - Allegations from your internet site or printed media which cause defamation. Libel, slander, trade libel, product disparagement or torts relation to harm the reputation of others. Security and Privacy Liability - Failing to prevent or hinder unauthorized access or use of your computer system and the confidential material thereon such as loss of employee information, theft or loss of customer personal identifiable data and transmissions of malicious codes to others. First and Third party coverage is available. Privacy Regulatory Defense and Penalties - Regulatory Compensatory Awards or fines and penalties and related claims expenses in regards to Billing Errors Proceedings, STARK proceedings and EMTALA proceedings. Privacy Breach Response Costs, Customer notification and Customer Support and Credit Monitoring Expenses. Network Asset Protection - Restoring, updating or replacing digital assets to a level beyond that which existed prior to your Covered Cyber Loss including Business Interruption and Extra Expense Coverage. Cyber Extortion - Covers expenses and monies as applicable in the event of a cyber-extortion threat or series of threats. Cyber Terrorism - expenses such as income loss, interruption expenses during the period of restoration as a result of a total or partial loss or degradation in service which is directly caused by an act of terrorism. Regulatory claim expenses and shadow audit expenses - Covered claim expenses, shadow audit expenses and regulatory fines and penalties from certain regulatory proceedings against you. 7

9 CYBER POLICIES 3 rd Party THIRD-PARTY LIABILITY INSURANCE The focus of this coverage is to cover liability arising from violations of privacy and data breach notification laws. These exposures also require some first-party coverage These policies also can include coverage for a number of other types of liability Typically policies are on a claims-made and reported basis. It is important to pay attention to the prior acts date included Types of Information Covered: Key to coverage is the types of information the policy specifies as being covered, and there are substantial variations between forms. Coverage should be provided for both electronic and physical (paper, laptop, portable disk, personal digital assistant (PDA), etc.) breaches Look for coverage to include both personal and corporate information. Coverage should apply to employee data as well as customer information Information in the care, custody, or control of the insured s vendors should be covered Coverage should apply to accidental losses/leaks and not just breaches perpetrated by criminals Avoid (1) PCI compliant requirements, (2) encryption requirements, (3) insider exclusions 8

10 CYBER POLICIES 3 rd Party Virus/Malware/Hacking Coverage Coverage should apply to liability to others for unintentionally sending them a virus or malware. This should apply if the transmission is by or through malicious code placed on the insured s website. Some policies limit the coverage for viruses and hacking to direct intentional attacks that target the insured specifically Look for coverage that includes wild viruses that are not specifically targeting the insured. Media Liability/Content Injury: Intellectual Property Infringement and Personal Injury Avoid policy language that limits coverage to only claims made in the US Look for coverage that extends beyond the insured s website to also include social networking sites (e.g., LinkedIn, Facebook, and Badoo) as well as and other messaging services like Twitter. Coverage for user-generated content is particularly important because user posts are oftentimes opinionated and inflammatory Some insurers will extend trademark and copyright coverage beyond the insured s website content to the insured s products. This can be a very valuable coverage extension. E&O or Professional Liability There are policies tailored to address the specific needs of entities operating in various industry classes such as technology services providers, healthcare providers, and vendors. 9

11 CYBER POLICIES 1 st Party Fines, Penalties, Contract Obligations Coverage should include: 1. Regulatory fines and penalties 2. Contractual obligations such as charge-backs from credit card companies and the cost of replacing customers credit cards Business Interruption Coverage Coverage should: Respond when an interruption occurs as a result of the insured s own systems and failure of a third party system, including large-scale Internet failure If traffic or revenues are seasonal, limits should adjust accordingly (i.e. Cyber Monday) Include reasonable waiting periods (i.e. 12-hours). Nowadays, only the most catastrophic events will keep a network down for more than a few hours. Crisis Management This coverage varies generally includes: Data breach notification expenses Public relations expenses, and Costs associated with brand protection Questions to Consider: 1. SERVICE PROVIDER 2. DATA BREACH NOTIFICATION EXPENSES 3. CREDIT MONITORING EXPENSES 4. REQUIREMENTS FOR NOTIFICATION 5. COVERAGE TRIGGER 6. DEDUCTIBLE 7. PRE-LOSS AND LOSS PREVENTION 10

12 CYBER POLICIES 1 st Party Crime Coverages This coverage may apply to the perils of: Theft Fraudulent communication Extortion, and Vandalism Coverage Issues: Beware of other insurance clauses since this coverage often overlaps with traditional policies, which cover employee theft, computer fraud, and wire transfer fraud. Extortion coverage for demands of payment to prevent a criminal from taking down the insured s network or exposing PII can also be provided. DETERMINING LIMITS OF LIABILITY Determining the appropriate limits of liability that a company should purchase is more of an art than a science. Historical data are limited; even well-reported losses do not usually divulge internal costs. The cumulative average cost per breach is more than $2,500,000; however, costs can soar into the tens of millions and even higher. 11

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