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1 Investment Advisers Must Ramp Up Identity Theft Prevention Efforts By Bibb L. Strench Bibb L. Strench is Counsel at Seward & Kissel s Washington, D.C. office. He provides advice to registered investment companies, organizers of hedge funds and other private investment companies, investment advisers and SMA sponsors on all issues related to the operation of their businesses. He focuses his practice on fund formation, compliance programs and auditor independence issues. Identity theft continues to make headlines as evidenced by the magnitude of recent thefts of customer data and personal information. The latest large-scale identity theft scheme targeted customers of Target Corp., the third largest retailer in the U.S. The Target hackers stole account numbers, card security codes ( CSCs ) and related information for over 40 million credit and debit cards as part of the scheme. Target is now the subject of lawsuits (with more likely to follow), government investigations and negative press coverage that has damaged the store s brand and reputation. Until recently, investment advisers had, for the most part, been untouched by identity theft and identity theft prevention regulation. This changed on November 20, 2013, when many investment advisers became subject to Regulation S-ID, the identity theft or red flags rule. Regulation S-ID requires certain investment advisers to develop and implement a written program designed to detect, prevent, and mitigate identity theft in connection with client accounts. While most new regulations are unwelcome, an investment adviser that complies with the new identity theft regulations stands a better chance of avoiding the financial losses, hardships and reputational damage that Target is suffering. In this article, we review the regulatory background that led to the Securities and Exchange Commission (the SEC ) s adoption of Regulation S-ID and discuss how your firm can determine whether Regulation S-ID applies to it. The article then discusses the core components of an identity theft program, and concludes with a discussion of some of the identity theft program best practices for your firm that go beyond the requirements of Regulation S-ID. Regulatory Background The banking and consumer regulatory background of the identity theft rules is important, as much of the terminology employed by 2014, Bibb L. Strench 5

2 the identity theft rules is derived from the banking industry rather than investment management and securities industries. Congress s involvement with identity theft began in 1970, with the passage of the Fair Credit Reporting Act of 1970 ( FCRA ). The FCRA required bank regulators and the Federal Trade Commission ( FTC ) to adopt rules requiring credit and debit card issuers to follow identity theft prevention guidelines. In 2003, Congress amended the FCRA to require the FTC and certain other federal Until recently, investment advisers had, for the most part, been untouched by identity theft and identity theft prevention regulation. This changed on November 20, 2013, when many investment advisers became subject to Regulation S-ID. agencies (but not the SEC) to jointly adopt identity theft prevention rules and guidelines. While Congress gave the FTC the authority to adopt and enforce these rules with respect to SEC-registered investment advisers, the FTC chose not to exercise this authority, and took a narrow view of the regulations applicability to investment advisers. As a result, many investment advisers did not implement identity theft prevention procedures. Furthermore, the SEC did not have the authority to enforce the FTC s identity theft prevention rules. In 2010, Congress enacted the Dodd Frank Wall Street Reform and Consumer Protection Act, giving the SEC the authority to adopt and enforce identity theft prevention rules. 1 On April 13, 2013, the SEC adopted Regulation S-ID and its guidelines. 2 Regulation S-ID closely resembles the identity theft rules adopted by the FTC in 2003, with one notable exception. While the SEC elected to keep the rules the same, the Adopting Release provides a number of illustrations and examples that suggest that Regulation S-ID applies to investment advisers under a wide variety of circumstances. The SEC s broad interpretation of the provisions of Regulation S-ID coupled with the fact that these provisions contain predominately banking industry terminology, has caused much confusion for investment advisers attempting to determine whether they are required to comply with Regulation S-ID. Red Flag Rules and Regulations The logical starting point for your firm is to determine whether Regulation S-ID is applicable. Even if Regulation S-ID is not technically applicable to your firm, it may be prudent to implement an identity theft prevention program, considering the prevalence of, and serious consequences accompanying, incidents of identity theft. Whether your firm is required to adopt an identity theft prevention program depends on whether it is a financial institution or creditor under the FCRA that maintains covered accounts as defined by Regulation S-ID. The FCRA defines a financial institution as an entity that is either a type of bank listed in 15 USC 1681a(T) or any other person that directly or indirectly holds a transaction account belonging to a consumer. 3 If your firm is a type of bank listed in 15 USC 1681a(T), it will be a financial institution for purposes of Regulation S-ID. If your firm is a non-bank, it may fall under the purview of Regulation S-ID by virtue of being any other person that directly or indirectly holds a transaction account belonging to a consumer. A transaction account is defined by Section 19(b) of the Federal Reserve Act as an account on which the account holder is permitted to make withdrawals by negotiable or transferable instrument, payment orders of withdrawal, telephone transfers, or similar items for purpose of making payments or transfers to third persons or others. The SEC interprets this term broadly: an investment adviser is considered to hold a transaction account belonging to an individual if the adviser has the ability or as an agent has the ability to direct transfers or payments from accounts belonging to individuals to third parties upon the individuals instructions. 4 If your firm is not a financial institution, it may fall under the purview of the rule as a creditor. 5 The SEC takes the position that an investment adviser generally qualifies as a creditor if the adviser advances or loans money to clients. However, an investment adviser will not qualify as a creditor if it merely advances money for expenses incidental to a service provided by the adviser. If your firm is not a financial institution or creditor, it is not required to have an identity theft prevention program. If your firm is either a financial institution or creditor, it is 6 MARCH APRIL 2014 PRACTICAL COMPLIANCE & RISK MANAGEMENT FOR THE SECURITIES INDUSTRY

3 required to implement an identity theft prevention program only if it offers or maintains a covered account. A covered account is: (1) an account that a financial institution or creditor offers or maintains, primarily for personal, family, or household purposes, that involves or is designed to permit multiple payments or transactions, such as a margin account; or (2) any other account that the fi nancial institution or creditor offers or maintains for which there is a reasonably foreseeable risk to customers or to the safety and soundness of the financial institution or creditor from identity theft, including financial, operational, compliance, reputation, or litigation risks. 6 Your firm will not be subject to the rule under clause (1) or (2), even though it is a financial institution or a creditor, if it has no natural person clients and there is not a reasonably foreseeable risk to your clients of identity theft. An example of such firm could be an investment adviser whose clients are limited to large institutional entities and where the risk of identity theft is remote. Even if Regulation S-ID is not technically applicable to your firm, it may be prudent to implement an identity theft prevention program, considering the prevalence of, and serious consequences accompanying, incidents of identity theft. On the other hand, if your firm has a single natural person client, it likely will have a covered account and be subject to Regulation S-ID because of the SEC s expansive interpretation of clause (1) of the definition. In the SEC s view, a number of natural person client activities can result in an account that involves or is designed to permit multiple payments or transactions, including, for example, the client s ability to send account proceeds to a third party even if such account is maintained at a third-party qualified custodian. 7 The SEC purposely avoided providing specifi c guidance regarding what types of accounts offered or maintained by advisers would meet the definition of covered accounts. The lack of specificity gives the SEC free reign to find Regulation S-ID applicable to a given investment adviser. As a result, many investment advisers with natural person clients err on the side of caution, electing to implement Regulation S-IDcompliant identity theft prevention programs even if their clients assets are held in accounts at third-party custodians where there may be minimal risk of identity theft. Even investment advisers that have only institutional clients and thus need not satisfy clause (2) above to avoid Regulation S-ID may be hesitant to operate without complying with Regulation S-ID. In the Adopting Release, the SEC stated, somewhat cryptically, that the definition of covered account is deliberately designed to be flexible to allow the financial institution or creditor to determine which accounts pose a reasonably foreseeable risk of identity theft. It further stated that: [s]ome financial institutions or creditors regulated by the SEC do not offer or maintain accounts for personal, family, or household purposes, and engage predominantly in transactions with businesses, where the risk of identity theft is minimal. In these instances, the financial institution or creditor may determine after a preliminary risk assessment that the accounts it offers or maintains do not pose a reasonably foreseeable risk to customers or to its own safety and soundness from identity theft, and therefore it does not need to develop and implement [an identity theft program] because it does not offer or maintain any covered accounts. 8 The determination of the risk of identity theft is highly subjective and it is quite possible that the SEC and an investment adviser could reach different conclusions regarding the opportunity for identity theft. The analysis of whether Regulation S-ID applies to an investment adviser whose only clients are hedge funds is also complex and somewhat confusing based on the available guidance (or the lack thereof). On its face, investment advisers with only hedge fund clients would not be subject to clause (1) and thus would need identity theft procedures only if there was a risk of identity theft involving their hedge fund clients at their firm. However, in its discussion of hedge fund advisers in the Adopting Release, the SEC referenced natural 7

4 person hedge fund investors, who legally are not clients of the investment adviser. The SEC stated that if: an individual invests money in a [hedge] fund, and the adviser to the fund has the authority, pursuant to an arrangement with the [hedge] fund or the individual, to direct such individual s investment proceeds (e.g., redemptions, distributions, dividends, interest, or other proceeds related to the individual s account) to third parties, then that adviser would indirectly hold a transaction account. For example, a [hedge] fund adviser would hold a transaction account if it has the authority to direct an investor s redemption proceeds to other persons upon instructions received from the investor. 9 Consequently, investment advisers whose clients are limited to hedge funds must conclude both (1) that that their operations present no foreseeable risk for identity theft and (2) that redemption, distribution and other arrangements do not allow for investor money to be directed to various third parties before electing not to implement an identity theft prevention program. Implementing an Identity Theft Program and Procedures If you determine that your firm is subject to Regulation S-ID, your firm must develop and implement written procedures designed to detect, prevent and mitigate identity theft in connection with the opening of a covered account or any existing covered account. These procedures should be appropriate to the size and complexity of the firm and the nature and scope of its activities. As shown in the table below, Regulation S-ID and the accompanying Interagency Guidelines on Identity Theft Detection, Prevention, and Mitigation in Appendix B of Regulation S-ID (the Guidelines ) provide a detailed road map regarding what must be included in an investment adviser s identity theft prevention program. Notably, the SEC did not include the Guidelines merely as a helpful tool. Rather, paragraph (f) of Regulation S-ID mandates that investment advisers consider the guidelines in Appendix B of this part and include in its Identity Theft Prevention Program those guidelines that are appropriate. As described below, your firm may want to go beyond these mandated procedures when designing and implementing its identity theft prevention program. Administering Identity Theft Prevention Program Guideline VI of Regulation S-ID reviews methods by which your firm may administer its identity theft prevention program. At the outset, senior management or the board of directors of your firm are required to approve the program. 10 This requirement places the ultimate responsibility for identity theft prevention with the senior personnel of your firm. With such responsibility and potential liability, senior personnel are expected to play an active oversight role in the administration of the program once it is implemented. The Adopting Release also contemplated that an investment adviser s chief Table 1 Rule Section Requirement Guideline Number Guideline (d)(2)(i) Procedures designed to identify relevant red flags 1 II Lists risk factors that should be considered in identifying red flags and examples of red flags. Also contains Supplement A, which lists examples of red flags (d)(2)(ii) (d)(2)(iii) (d)(2)(iv) Procedures designed to detect red flags in connection with the opening of covered accounts and existing covered accounts Procedures that ensure appropriate responses to any red flags that are detected Procedures ensuring the periodical updating of the identity theft prevention program in response to changing risks III IV V Examples of various means to detect red flags Lists examples of appropriate responses to red flags Lists specific factors that may cause an adviser to update its procedures 1 Paragraph (b)(10) of Regulation S-ID defines red flag to mean a pattern, practice, or specific activity that indicates the possible existence of identity theft. 8 MARCH APRIL 2014 PRACTICAL COMPLIANCE & RISK MANAGEMENT FOR THE SECURITIES INDUSTRY

5 compliance officer will administer or supervise others who administer the identity theft program. 11 Regulation S-ID further requires appropriate personnel of the investment adviser to be trained periodically on the firm s identity theft prevention program procedures. Regulation S-ID contemplates the preparation of reports, at least annually, by an investment adviser s staff regarding the operation of the identity theft prevention program. 12 These reports must be circulated to and among the investment adviser s senior managers or board of directors. SEC enforcement action may result if Regulation S-ID is applicable to your firm and your firm fails to implement an identity theft prevention program. Oversight of Service Providers Your fi rm s identity theft prevention procedures must provide for appropriate and effective oversight of service provider relationships where identity theft may occur. 13 Paragraph (c) of Section VI of the Guidelines instructs that whenever a firm engages a service provider to perform an activity in connection with one or more covered accounts, the fi rm should take steps to ensure that the activity of the service provider is conducted in accordance with reasonable policies and procedures designed to detect, prevent, and mitigate the risk of identity theft. Paragraph (c) also suggests that firms contractually require service providers to have policies and procedures in place to detect relevant red flags that may arise in the performance of the service provider s activities. If red flags are detected, the service providers would be required either to report the red flags to the firm or take appropriate steps to prevent or mitigate identity theft. The SEC expects that these contractual arrangements would require the service providers to furnish the investment adviser with sufficient documentation to assess the service providers compliance with the identity theft red flag rules. Periodic Assessment Regulation S-ID requires periodic assessments of identity theft prevention programs by both investment advisers that are required to have identity theft prevention programs as well as firms that are not currently subject to Regulation S-ID but could be if circumstances change. Firms not presently subject to Regulation S-ID must conduct a periodic risk assessment to determine whether the firm offers or maintains covered accounts. When making this determination, the firm must consider: the methods it provides to open accounts; the methods it provides to access its accounts; and its previous experiences with identity theft. The SEC in the Adopting Release placed the burden on the investment adviser s CCO to monitor for events that may change the investment adviser s status, thus requiring the investment adviser to comply with Regulation S-ID. In the SEC s view, the CCO should be aware of changed circumstances before they happen because they may trigger the need for the investment adviser to adopt an identity theft prevention program. Examples of possible changed circumstances are: An adviser begins to accept natural person accounts; or Hedge fund investors are allowed to do something new such as sending redemption proceeds to third parties. Identity Theft Program Best Practices Your firm should pay close attention to the specific requirements of Regulation S-ID and the procedures mandated by the SEC in the Guidelines. Your firm, however, should not blindly limit its identity theft prevention program to Regulation S-ID s requirements. As suggested by the SEC in the Adopting Release, the procedures mandated by Regulation S-ID are not a one-size-fi ts-all identity theft prevention program. Rather, your firm should tailor the identity theft prevention program to its operations and the identity theft risks that arise from those operations. Over the years, identity theft prevention best practices have developed in the investment management industry, as well as the banking and broker-dealer industries. Set forth below are procedures that, though not expressly required by Regulation S-ID, should be implemented if appropriate to enhance your firm s identity theft prevention program: Client Assistance. When a specific identity theft incident occurs, an adviser should assist the affected client in minimizing the damage caused by the identity theft. Confidentiality Agreements. Agreements with service providers and other parties that may receive sensitive client 9

6 information should contain strict confidentiality agreements. Such clauses, especially if they have penalties and other consequences in the event of breach, may incentivize service providers to have controls and procedures designed to protect the investment adviser s client information. In addition, strong passwords should be in place to protect systems used to maintain client information. Document Destruction. Procedures should be in place to: Destroy sensitive information no longer needed, Shred discarded papers daily, and Erase/destroy electronic media before discarding. s should be monitored by trained supervisors to ensure that confidential client information is not shared with inappropriate persons. Certain communications known to contain client confidential information should be reviewed by a supervisor prior to transmission to persons outside the firm. Employee Security. An adviser should conduct background and credit checks all new employees. In addition, firms should limit the number of employees with access to clientlevel databases. Laptop Computers. Because of the threat posed by laptop computers, a firm should establish strong policies on the use of laptops and regarding the kind of data that can or cannot leave the office. Notification. If an adviser determines that personally identifiable information has been accessed that results in a foreseeable risk for identity theft, impacted clients should be notified immediately as well as other applicable persons, possibly including state or federal authorities. Other References and Resources When developing identity theft prevention procedures, your firm should consider guidance and resources outside of the investment management industry. As evidenced by the banking industry terminology used in Regulation S-ID, identity theft prevention and regulation was developed from and remains grounded in the banking world. The broker-dealer industry also addressed identity theft prevention procedures years before the investment management industry. The following non-adviser guidelines, notice and releases may offer practical solutions and procedures for an investment adviser implementing an identity theft prevention program: FINRA Firm Checklist for Compromised Accounts Industry/Issues/CustomerInformation Protection/P Firm Identity Protection - Issues/CustomerInformationProtection/p Notice to Members (July 2005) Safeguarding Your Financial Information: An Identity Theft Prevention Checklist - Investors/ProtectYourself/P FTC Fighting Identity Theft with the Red Flags Rule: A How- To Guide for Business - documents/bus23-fighting-identity-theft-red-flags-rulehow-guide-business FTC FACT Act Red Flags Rule Template National Institute of Standards and Technology Electronic Authentication Guidelines (December 2011) - SP pdf Office of the Comptroller of the Currency Incident Prevention and Detection-Protecting Information Security of National Banks Agencies Issue Frequently Asked Questions on Identity Theft Rules - ENDNOTES 1 The Act also provided the Commodities Futures Trading Commission (the CFTC ) with the authority to adopt and enforce identity theft prevention rules. 2 See Identity Theft Red Flags Rules, Investment Advisers Act Rel. No (April 13, 2013) (the Adopting Release ). The SEC adopted Regulation S-ID jointly with the CFTC. 3 The following are financial institutions: a State or National bank, a State or Federal savings and loan association, a mutual savings bank, and a State or Federal credit union. 10 MARCH APRIL 2014 PRACTICAL COMPLIANCE & RISK MANAGEMENT FOR THE SECURITIES INDUSTRY

7 4 See Identity Theft Red Flags Rules: A Small Entity Compliance Guide, smallbus/secg/identity-theft-red-flag-secg.htm. 5 Paragraph (b)(5) of Regulation S-ID states that creditor has the same meaning as in 15 U.S.C. 1681m(e)(4), and includes any futures commission merchant, retail foreign exchange dealer, commodity trading advisor, commodity pool operator, introducing broker, swap dealer, or major swap participant that regularly extends, renews, or continues credit; regularly arranges for the extension, renewal, or continuation of credit; or in acting as an assignee of an original creditor, participates in the decision to extend, renew, or continue credit. 6 See Paragraph (b)(3) of Regulation S-ID. 7 See the Adopting Release. 8 Id. 9 Id. 10 Regulation S-ID, Appendix B, Guideline VI. 11 Adopting Release. 12 Regulation S-ID, Guideline VI(b). 13 See paragraph (e)(4) of Regulation S-ID. This article is reprinted with permission from Practical Compliance and Risk Management for the Securities Industry, a professional journal published by Wolters Kluwer Financial Services, Inc. This article may not be further re-published without permission from Wolters Kluwer Financial Services, Inc. For more information on this journal or to order a subscription to Practical Compliance and Risk Management for the Securities Industry, go to pcrmj.com or call

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