ALLOCATING DATA PRIVACY/SECURITY RISKS

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1 ALLOCATING DATA PRIVACY/SECURITY RISKS CONTRACT AND CYBER LIABILITY INSURANCE CONSIDERATIONS Presented By: Cindy Davis (612)

2 2

3 HIGH PROFILE DATA BREACHES Massive IRS data breach much bigger than first thought A massive data breach at the IRS was much bigger than was first realized. The agency now says more than 700,000 social security numbers and other sensitive information may have been stolen. Hackers used the "Get Transcript" program, which allows you to check your tax history online. The IRS began the online program two years ago, allowing taxpayers to request their tax history over the Internet, in addition to the post office. But following a nine-month investigation by the Treasury inspector general for tax administration, the IRS says its online service has put hundreds of thousands of more taxpayers at risk of identify theft, reports CBS News correspondent Jan Crawford Data Breaches Expose 1.8 Million Records By Paul Ausick March 3, :10 pm EDT The latest count from the Identity Theft Resource Center (ITRC) shows that there has been a total of 110 data breaches recorded through March 1, 2016, and that nearly 1.8 million records have been exposed since the beginning of the year. The largest data breach to date was reported by Centene Corp. (NYSE: CNC) and involved medical information on 950,000 subscribers to the company s health insurance products. The data were stored on six hard drives that were briefly unaccounted for and are included in the ITRC statistics even though the drives have been recovered. 3

4 DATA BREACH TRENDS According to OCR in 2015 there were 253 healthcare breaches that affected 500 more individuals with a combined loss of over 112 million records: Anthem Hacking/IT incident - 78,800,000 affected individuals. Premera Blue Cross Hacking/IT Incident - 11,000 affected individuals. Science Applications International Corporation Theft - 4,900,000 affected individuals. Georgia Department of Community Health 912,906 affected individuals. CareFirst BlueCross BlueShield 1,100,000 affected individuals. Mercy Hospital Iowa City 15,000 affected individuals. According to the Ponemon Institute, for the first time, criminal attacks are the number one cause of data breaches in healthcare. 4

5 DATA BREACH TRENDS Surveys consistently show that at least 50% of breaches and leaks are directly attributed to user error or failure to practice proper cyber hygiene. The likely cause of the 180 million - record anthem data breach was hackers use of a database administrator s password captured through a phishing scheme. Examples of poor cyber hygiene: Password using birthdates, pets or children s names. Using same passwords for business and personal accounts. Failing to implement software updates. 5

6 TYPE OF BREACH Unauthorized Access/Disclosure 18% Unknown 12% Hacking/IT Incident 9% Improper Disposal 4% Loss 8% Other 6% Theft 43% Source: Breaches reported to OCR 6

7 LOCATION OF BREACH Other Portable Electronic Device 9% Other 13% Paper/Film 23% Network Server 13% Desktop Computer 11% Electronic Medical Record 4% Laptop 20% 7% Source: Breaches reported to OCR 7

8 THE HIGH COST OF A DATA BREACH The Ponemon Institute estimates that the average cost of a data breach for healthcare organizations is more than $2 million. The estimated cost of a data breach for a Business Associate is $1 million. Fifth Annual Benchmark Study on Privacy & Security of Healthcare Data, Ponemon Institute, May Direct costs (the amount spent to minimize the consequences of a data breach and assist victims) constitute 33% of the cost. $500,000 was spent on post-breach notification alone. The estimated cost of business disruption, including reputational damages and customers who terminate their relationship is $238,717. The average cost per lost or stolen record is $ Cost of Data Breach Study: United States, Ponemon Institute, May

9 DIRECT VS. INDIRECT COSTS COST PER RECORD (2015): $217 Direct Costs (Costs to minimize the consequences of a data breach) Notification Call Center Identity Monitoring Identity Restoration Discovery/Data Forensics Loss of Employee Productivity Direct Costs $74 Indirect Costs $143 Indirect Costs (Costs of existing internal resources to deal with data breaches) Indirect Direct Restitution Additional Security and Audit Requirements Lawsuits Regulatory Fines Loss of Consumer Confidence Loss of Funding 9

10 TOTAL CYBER SECURITY IS AN UNREALISTIC GOAL WHAT RISK TO AVOID, ACCEPT, MITIGATE OR TRANSFER THROUGH CONTRACT OR INSURANCE. 10

11 CONTRACT CONSIDERATIONS BUSINESS ASSOCIATE AGREEMENT- TAKE 2 11

12 CONTRACT TERM CONSIDERATIONS GENERAL PRINCIPLES (Continued) Perform due diligence of business partners before you begin drafting the Agreement. How critical is the relationship to your operations? Have prospective vendors completed a security due diligence questionnaire? Sample Included. 12

13 CONTRACT TERM CONSIDERATIONS GENERAL PRINCIPLES (Continued) Start with security. Access controls. Password standards. 2 - factor authentication. Use of private devices and remote lock/kill features. Restricting login attempts. Site visits. SOC 2 audits. Establish log configuration standards and verify data being captured. Not a one and done activity. New technologies. New products and services. New business partners. 13

14 CONTRACT TERM CONSIDERATIONS GENERAL PRINCIPLES (Continued) Tailor the agreement to the facts and circumstances. One size rarely fits all. Customize terms based on responses to security questionnaire. Do not automatically rely on Business Associate Agreements. Address any specific legal requirements. 47 states have laws related to data privacy. Government entities may have requirements specific to them. Multiple federal privacy laws may be implicated. 14

15 CONTRACT TERM CONSIDERATIONS BE SPECIFIC PEOPLE LOOKING AT THE SAME THING MAY SEE THEM DIFFERENTLY. 15

16 CONTRACT TERM CONSIDERATIONS CONTRACT DEFINITIONS Authorized Persons Who may interact with the data? Employees, affiliates, delineated subcontractors? May be useful to distinguish between authorized employees and authorized persons. Who may have access to information that may be sensitive, but does not constitute PHI? Make sure in practice you are restricting access to information. For example, if hiring a third party to develop an application do not use live files. 16

17 CONTRACT TERM CONSIDERATIONS CONTRACT DEFINITIONS (Continued) Categories of Data PHI, Personally Identifiable Information, Personal Information, Confidential Information. The definition of data subject to privacy and data security requirements under federal, and state privacy and data security laws vary. Most state data security laws apply to personal information which is defined as name, address, Social Security Numbers, driver s license numbers, state identification numbers, account numbers, credit card numbers or codes that would permit access to an individual s financial information. You may want/need the definition of data to which security and privacy provisions relate to be broader than PHI. The contract definition of protected information may be broader than state or federal privacy laws. 17

18 CONTRACT TERM CONSIDERATIONS CONTRACT DEFINITIONS (Continued) Categories of Data PHI, Personally Identifiable Information, Personal Information, Confidential Information (Continued). What categories of data will be collected and maintained and for what purposes? Distinguish between categories of data for various provisions of the agreement. Encryption requirements. Retention. Return/destruction upon termination. Material breach of the agreement. 18

19 CONTRACT TERM CONSIDERATIONS CONTRACT DEFINITIONS (Continued) Security Breach Is it any unauthorized use or disclosure of data and which categories of data? Or is a breach limited to an unauthorized use or disclosure of unsecured data that has a likelihood of compromising the confidentiality of the data? Sample Definition: Security Breach Means any: (1) act or omission that is likely to compromise the security, confidentiality or integrity of Personal Information or the physical, technical, administrative or organizational safeguards employed by Service Provider or any Authorized Person that relate to the protection of the security, confidentiality or integrity of Personal Information; (2) receipt by Client or Service Provider of any concerns in relation to the privacy practices employed by Service Provider or any Authorized Person; or (3) a breach or alleged breach of any provision of this Agreement relating to the privacy and security practices of Service Provider or any Authorized Person. 19

20 CONTRACT TERM CONSIDERATIONS OWNERSHIP OF INFORMATION Specify who owns the Personal Information and other data compiled, generated or maintained by the service provider (and its agents) and whether Personal Information is the confidential information of the service provider or client. Ownership is particularly relevant to state data breach laws. Scope of permitted use and disclosure of information solely as necessary for the exclusive purpose of performing the service provider s obligation under the contract, or for any purpose permitted by applicable law. De-identified data. 20

21 CONTRACT TERM CONSIDERATIONS APPLICABLE STANDARD OF CARE Personal Information vs. Confidential Information specify the applicable contract standard(s) if data falls within multiple classifications. For example, if the contract standard of care for Personal Information is more stringent than applicable law, does the contract standard trump the requirement of the service provider to perform in compliance with applicable law? For example, if the contract requires the service provider to protect the confidential information of the client in the same manner that the service provider protects its confidential information, what standard will apply if Personal Information also constitutes confidential information and the service provider s manner of protecting its confidential information is not consistent with the contract standard of care for Personal Information? 21

22 CONTRACT TERM CONSIDERATIONS APPLICABLE STANDARD OF CARE (Continued) Responsibility for use and disclosure of Personal Information by or under the control of the service provider or any authorized person. The Business Associate Agreement template does not address the extent to which a service provider remains responsible for the acts or omissions of its subcontractors. Who is responsible for the costs of mitigating a breach under state law and providing restitution for affected individuals? What is a service provider required to provide upon commencement or termination of a relationship with a subcontractor that has access to data? Proof of insurance? Business Associate Agreement or equivalent? 22

23 CONTRACT TERM CONSIDERATIONS DATA SECURITY STANDARDS Comply with applicable federal and state laws versus specifying a minimum standard. Department of Health and Human Services Guidance to Render Unsecured Protected Health Information Unusable, Unreadable, or Indecipherable to Unauthorized Individuals. Valid encryption processes for data at rest are consistent with NIST Special Publication , Guide to Storage Encryption Technologies for End User Devices. Valid encryption processes for data in motion are those which comply, as appropriate, with NIST Special Publications , Guidelines for the Selection and Use of Transport Layer Security (TLS) Implementations; , Guide to IPsec VPNs; or , Guide to SSL VPNs, or others which are Federal Information Processing Standards (FIPS) validated. Electronic media have been cleared, purged, or destroyed consistent with NIST Special Publication , Guidelines for Media Sanitization such that the PHI cannot be retrieved. One standard vs. varying standards based on data classification. 23

24 CONTRACT TERM CONSIDERATIONS REPRESENTATIONS AND WARRANTIES Application of minimum security standard. Service provider represents and warrants that its collection, maintenance, use, access, disclosure and destruction of Personal Information will comply with [insert standard or applicable federal and state laws], as well as the terms of this Agreement. Data location - within geographic boundaries of contiguous United States. Answers to data management questionnaire are complete and accurate. Affirmative obligation to notify client if a change in circumstances impacts the accuracy of any representation or warranty. SOC 2 Report examines system controls related to one or more of the following: security, availability, processing integrity, confidentiality or privacy. SOC 2 type 2 Report is an opinion of the fairness of the service provider s description of its system, the suitability of the design of the controls, and whether the controls have been implemented as of the specified date. SOC 2 type 2 Report describes the operating effectiveness of the controls over a period of time, the auditor s testing of the controls and the results of the tests. 24

25 CONTRACT TERM CONSIDERATIONS DATA BREACH How is a breach defined failure to comply with applicable law or with contract requirements? What are the obligations and liabilities of the business partner in the event of a breach? Business partner vs. subcontractor of business partner? Triggered by negligence, willful misconduct or strict liability? Who has authority to determine whether a breach has occurred? When must a written risk assessment be performed every unauthorized use or disclosure, or only if required under HIPAA or some other state or federal law? Will client receive a copy of the risk assessment? Will client have the right to receive information about corrective actions? 25

26 CONTRACT TERM CONSIDERATIONS DATA BREACH (Continued) Data breach procedures: Point of contact. Which data breaches must be reported to client and when? What information must be provided? Are updates required? If so, when? Who will coordinate the investigation? Access to facilities, documents and employees? Who controls the notification to affected individuals, regulators, law enforcement, as required by law, or in the discretion of [client or service provider]? In what time frame must notification be provided? 26

27 CONTRACT TERM CONSIDERATIONS DATA BREACH (Continued) Have a data breach response plan, test and update. Who pays what costs related to the data breach? Direct costs. Elective notices vs. legally required notices. Indirect costs. Responding to regulator inquiries. Subcontractors of service provider. 27

28 CONTRACT TERM CONSIDERATIONS AUDIT RIGHTS What rights does the client have to perform, or to have performed on its behalf, reviews, assessments, audits of the service provider s policies, procedures, facilities or computer system architecture? Who has the authority to determine the scope of any audit or inquiry? At the discretion of the client or upon the occurrence of triggering events? What information is client entitled to receive? Policies and procedures? SOC 2 type 2 report or SOC 2 type 3 certification? Who pays for the cost of any such audit? Does the service provider receive a copy of any audit report? Client inquiries about system security? 28

29 CONTRACT TERM CONSIDERATIONS INSURANCE REQUIREMENTS Required coverage. Cyber liability coverage. Errors and Omissions coverage. ERISA bond. Advance Notice of Material Coverage Changes. Certificates of Coverage. INFORMATION RETENTION 29

30 CONTRACT TERM CONSIDERATIONS INDEMNIFICATION Gross negligence, negligence, or material breach. Defend or pay costs to defend. Who has the right to settle any dispute? Sample Provision: Service Provider will defend, indemnify and hold harmless, Client and [list of desired indeminitees] ( Client Indemnitees ) from and against all losses, liabilities, penalties, fines, taxes, damages, actions, claims, judgment, interest, costs and expenses, including [reasonable] attorney s fees, the cost of enforcing any right of indemnification under this Agreement, and/or the cost of pursuing any insurance coverage, arising out of, related to, or resulting from, the negligence of the Service Provider or any of its agents, affiliates, and/or subcontractors or Service Provider s failure to comply with its obligations under [this Agreement or Section ]. 30

31 CONTRACT TERM CONSIDERATIONS DEFINITION OF MATERIAL BREACH Does a data breach constitute a material breach? DESTRUCTION OR RETURN OF DATA/INFORMATION Is service provider required to return data to client when the information is no longer needed or upon contract termination? What data? If data may be destroyed what method of destruction is required? Which party has the authority to decide if data will be destroyed? How long must data be retained before destruction? Certificate of return or destruction. Service provider. Subcontractors. 31

32 CONTRACT TERM CONSIDERATIONS COOPERATION UPON TERMINATION OF CONTRACT Is service provider required to cooperate in transitioning of business to a new provider? Transfer of data? What format? For what time period? Compensation? SURVIVAL OF PROVISIONS 32

33 CYBER LIABILITY INSURANCE TO HAVE OR NOT HAVE 33

34 CYBER LIABILITY INSURANCE COVERAGE GAPS 34

35 EXAMPLE OF GAPS IN TRADITIONAL INSURANCE Property General & Products Liability Crime E&O (Professional Liability) D&O Privacy/ Network 1st Party Network Risks Physical damage to Data In some policies Virus/Hacker damage to Data Denial of Service attack B.I Loss from IT security breach IT Extortion or Threat 3rd Party Privacy/Network Theft/disclosure of data Administrative privacy breach Technology E&O Media Liability (electronic content) Privacy breach expense/notification Damage to 3rd party's data Regulatory Privacy Defense/Fines Coverage Provided Limited Coverage No Coverage 35

36 CYBER LIABILITY INSURANCE NOT ALL CYBER LIABILITY INSURANCE IS EQUAL Policies are often written as excess and surplus coverage, as a result not regulated by the States. Lack of uniformity each carrier has its own coverages and exclusions. Negotiation of coverage. Some policies only respond if the insured is legally required to respond to a security incident may be in the best interest of the insured to respond regardless of a legal requirement. Credit monitoring services. Some policies exclude breaches of third-party vendor data systems. Limitations on coverage for data not on the insured s system. (i.e., cloud providers and IT hosting). Make sure contract provisions and insurance coverage address gaps. 36

37 CYBER LIABILITY INSURANCE FIRST PARTY LIABILITY COVERAGE Pays for expenses the insured incurs due to the loss of confidentiality, integrity or availability of data. Notification expenses - reimbursement for the cost to investigate and notify persons affected by a data breach as required by law. Credit monitoring or protection pays for cost of credit monitoring or protection services to those affected by breaches. Watch for as required by law limitation. Crisis management and public relations costs - reimbursement for public relations expenses to address publicity from data breach. 37

38 CYBER LIABILITY INSURANCE FIRST PARTY LIABILITY COVERAGE (Continued) Investigation and forensics costs - pays for the costs for experts in data breaches to identify what happened, how it happened, nature of the data and to contain the loss. Cyber extortion costs payment of expenses and amounts to address a credible cyber-liability threat. Data restoration costs reimbursement of costs to replace, restore or recollect electronic data that was lost or damaged due to a breach. Business interruption loss payment of income and extra expenses due to interruption of service of a covered computer system from network security failure or denial of service attack. 38

39 CYBER LIABILITY INSURANCE FIRST PARTY LIABILITY COVERAGE (Continued) Regulatory actions/civil fines pays defense costs and sometimes fines and penalties from formal and informal proceedings brought by a regulatory agency against the insured, for example the DOL and FTC in response to an unauthorized use or disclosure of personal information. THIS IS NOT STANDARD COVERAGE OFTEN SPECIFICALLY EXCLUDED. Payment Card Industry (PCI) fines and penalties is a significant risk for any entity that accepts credit cards. Generally not covered unless separate endorsement, which may be difficult to obtain. 39

40 CYBER LIABILITY INSURANCE THIRD-PARTY LIABILITY COVERAGE Payment of defense costs, settlements, and judgments from third party civil claims against the insured for breaches of privacy or data security. Defense fees and expenses. Damages. Plaintiff attorney s fees and expenses. Governmental fines and penalties. 40

41 CYBER LIABILITY INSURANCE COVERAGE ISSUES TO CONSIDER Coverage sub-limits. Retroactive coverage date. First party contingent/dependent business interruption. (This coverage is important if data is housed on a third-party s system). Breach of contract exclusions. If you accept credit cards, PCI issues and card brand fines and penalties. Coordinated retention endorsement (only one deductible/breach event). Choice of counsel. 41

42 CYBER LIABILITY INSURANCE MOST INSURANCE POLICIES EXCLUDE INSURED VS. INSURED CLAIMS SO THINK CAREFULLY ABOUT REQUESTING TO BE ADDED AS AN ADDITIONAL INSURED TO A VENDOR S CYBER LIABILITY POLICY. NOTIFY CARRIER IMMEDIATELY IN THE EVENT OF A BREACH. 42

43 SUMMARY DATA BREACHES ARE THE NEW NORMAL. REVIEW CURRENT ADMINISTRATIVE SERVICES AGREEMENTS AND VENDOR AGREEMENTS TO DETERMINE IF THESE AGREEMENTS ADEQUATELY ADDRESS YOUR EXPECTATIONS FOR: Allocation of responsibility for determining whether a breach has occurred; Determining the response and mitigation plan to address a breach; and Payment of costs associated with a breach. EVALUATE WHETHER TO TRANSFER RISK THROUGH CYBER LIABILITY INSURANCE. 43

44 Questions? CONTACT INFORMATION: Cindy Davis, Esq. Anderson, Helgen, Davis & Cefalu, PA 333 South Seventh Street, Suite 310, Minneapolis, MN

45 RESOURCES

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