TK Data Privacy and Cybersecurity Blog

Reducing Cyber Risks Posed by Vendors

    

Posted by Justin Cohen, Craig Carpenter, and Vlad Markovic - IS Security Manager

When we think about cybersecurity, we often focus on our own people and systems. However, our vendors play a critical part of cybersecurity given how often we share data and integrate our IT systems with others. The 2018 Ponemon statistics estimated that over 50% of organizations have experienced a data breach due to a vendor’s security shortcomings. Here are some recent examples of breaches caused by third parties:

-        Hanna Anderson (over 10,000 California customers affected due to alleged malware in Salesforce Commerce Cloud’s e-commerce platform)(2019)

-         Quest Diagnostics (11.9M records via American Medial Collection Agency)(2019)

-         Target (at least 41M customer payment card accounts accessed via HVAC vendor; $18.5M settlement)(2013)

-         US Customs and Border Protection (Lost 100,000 records via a subcontractor network)(2019)

-         FBI (Lost 3 terabytes of confidential information – including FBI investigation records, millions of department files, personal data, system credentials, and even internal communication records)(2019)

So what should we do first?

Ensure you have a risk assessment and mitigation plan in place for managing vendors. Some may categorize vendors by risk and develop specific policies, procedures, and technical measures to reduce cyber risks for categories of vendors.

Then what?

Ensure proper vetting to understand the risk posed by new and existing vendors. Such vetting can be done in-house through cybersecurity and data privacy questionnaires, or via legal counsel and/or other third parties that assess cyber risks posed by vendors. While initial vetting is critical, routine vendor audits are recommended to ensure that each continues complying with your company’s policies, processes, procedures, and technical measures deployed for purposes of safeguarding their data.

What about their contracts?

Like anything else, if it’s important, put it in writing. Ensure that each vendor contract specifically addresses and allocates the costs and risks associated with that engagement. Common contractual provisions include representations and warranties to abide by your company’s cyber and data privacy policies and procedures. Depending on the circumstances, a warranty regarding compliance with industry standards (e.g. SOC2 or PCI-DSS) with data security audit rights and certifications may be appropriate. Depending on the circumstances, you should also consider including prompt notice provisions when a breach involving your company’s data is suspected. You may also want to allocate the costs of a data breach investigation and remediation in the agreement to avoid unknowns if an incident occurs, including which party should be responsible for the fees and costs associated incident investigation and remediation. If this engagement poses a significant data privacy risk (e.g., your company’s most sensitive data is involved), you should consider requiring that a vendor maintain a certain level of cyber insurance that covers your costs should a breach investigation take place. Finally, specifying the procedures for handling a suspected data privacy or cyber breach in your vendor contracts can save valuable time when an incident occurs.

Zoom Bombing: Steps to Prevent Disruption and Potential Data Security Breaches during WFH Virtual Meetings

Posted by Craig Carpenter

In the current environment where many employees are working from home under shelter-in-place or social distancing directives, virtual meetings and video conferencing services have become critical for continued operations. One video conferencing provider in particular, Zoom Video Communications, has become a popular platform for many businesses, schools, and individuals.

However, along with the increase in useful and productive video conferencing, there has also been in uptick in video conference hijacking—what is being referred to these days as “Zoom bombing.”

Zoom bombing occurs when unauthorized or uninvited individuals “gate-crash” Zoom video conferences, often sharing their screens to show disturbing imagery, playing loud and offensive sounds, or other general mayhem. This occurs most frequently due to publicly available Zoom (or other provider) meeting links. While the disruption caused by Zoom bombing can be embarrassing and disturbing, there are also concerns that video conference hijacking could be used for more sophisticated and nefarious purposes such as theft of intellectual property, misappropriation of sensitive or proprietary information, and/or personal data breach.

Fortunately, there are steps video conference users can take to help prevent Zoom bombing and video conference hijacking. Recently, Zoom Video Communications posted a blog post with helpful tips and best practices to secure your meetings on their platform. These tips include:

• Be careful when posting your meeting links in a public forum
• Avoid using your Personal Meeting ID (PMI) to host public events
• As the host, use the host tools to manage the meeting and participants:
  • Manage participant screen sharing
  • Lock the meeting
  • Consider using the virtual waiting room

Additionally, it is important to consider your legal and data security obligations when using Zoom or other video conferencing platforms, including:

• Use caution when discussing sensitive or privileged information in a video conference, especially a virtual meeting room that has been publicly posted;
• Consider whether the camera will display personal and confidential information on your desk or in the background;
• Consider whether you have closed out all screens so that others can’t see what is on your computer if you use screen sharing; and
• Consider your obligations regarding recording video conferences and where that recording will be stored. 

These tips and suggestions not only apply to Zoom, but could also apply to any video conference platform.

As we all adjust to increased use of video conferencing while working remotely, these guidelines, along with the helpful tips from Zoom, should help users take control of their meetings and prevent unauthorized access and disruption.

For more information from Zoom Video Communications, see: https://blog.zoom.us/wordpress/2020/03/20/keep-the-party-crashers-from-crashing-your-zoom-event/

FDA Releases Warning on Cybersecurity Threat to Connected Medical Devices and Healthcare Networks

     

Posted by Timothy E. Hudson and Madeline Tansey

In a recent press announcement, the U.S. Food and Drug Administration (FDA) released a statement informing healthcare providers, patients, and medical device manufacturers about a set of cybersecurity vulnerabilities that could expose medical devices and hospital networks to serious risks.^[1] This set of vulnerabilities, referred to as “URGENT/11,” consists of a set of 11 network flaws that researchers from the enterprise security firm Armis discovered.^[2] Though the FDA has not yet received any reports of hackers exploiting these vulnerabilities, it has begun efforts to proactively protect the public from the threats URGENT/11 poses to the healthcare system.

            The problem dates back to the early 2000s, when software firms began implementing transmission control protocols and internet protocols (“TCP/IPs”), which are sets of rules and procedures that allow devices to connect to wireless networks. Around this time, Interpeak, a Swedish software firm, created its own TCP/IP network protocol called “IPnet” and sold it to a variety of customers that manage operating systems. These customers then incorporated the IPnet software into their operating systems, which enabled them to link medical devices to the internet and central device networks. Unfortunately, this integration occurred years before anyone discovered the flaws within IPnet that leave billions of medical devices susceptible to hacking.^[3]

            The implications to the healthcare system of IPnet’s vulnerabilities are much broader—and more severe—than originally thought. According to Armis researchers, URGENT/11 can enable remote users to take down firewall protections and control devices connected to the internet or internal networks.^[4] Medical devices on an operating system that use IPnet are consequently vulnerable to these attacks, including MRI machines, patient monitors, anesthesia machines, and infusion pumps. For example, Becton Dickinson, a major medical device manufacturer, found its Alaris infusion pump was potentially vulnerable to hacker exploitation because it used the IPnet software.^[5] Researchers were able to exploit the infusion pump’s vulnerabilities, which caused it to crash and become unresponsive. This experiment demonstrated the critical nature of the URGENT/11 vulnerabilities and the direct impact on patient safety.

Though IPnet is an old protocol, many medical devices that still use the IPnet software “are critical devices, which go under a much longer period of development and approvals than consumer devices, and have significantly longer life cycles once in use,” said Ben Seri, Vice President of research at Armis. To combat this issue, the FDA has taken steps to disseminate information about which operating systems are affected and has made recommendations to ensure patient safety. Thus far, the agency has identified one or more versions of the following operating systems as vulnerable: VxWorks (by Wind River); Operating System Embedded (by ENEA); INTEGRITY (by GreenHills); ThreadX (by Microsoft); ITRON (by TRON); and ZebOS (by IP Infusion).^[6]

The FDA encourages medical device manufacturers to continue monitoring, reporting, and remediating the cybersecurity vulnerabilities. Medical device end users should contact manufacturers to determine whether their devices are impacted and whether those manufacturers have designed software patches to prevent device exploitation. For example, Armis and Wind River (a manufacturer for software used in medical devices) have worked to develop system patches for VxWorks versions that were released subsequent to version 6.5, such as VxWorks 653 and VxWorks Cert Edition.^[7] Additionally, device users can contact device manufacturers for mitigation techniques, such as the installation of a firewall recommended by Becton Dickinson to block remote attempts to exploit its devices.^[8]

While the FDA, Armis, and the Department of Homeland Security seek to resolve this issue, the FDA will continue to focus on informing those in the healthcare sphere about URGENT/11. As one FDA spokesperson noted, “Awareness is key because without it, industry cannot begin their risk assessment and mitigation activities.”

 

[1]See U.S. Food & Drug Admin., FDA informs patients, providers and manufacturers about potential cybersecurity vulnerabilities for connected medical devices and health care networks that use certain communication software (Oct. 1, 2019).

[2]Lily Hay Newman, Decades-Old Code Is Putting Millions of Critical Devices at Risk (Oct. 1, 2019).

[3]See Dennis Fisher, URGENT/11 flaws now affect broader range of medical, network devices (Oct. 3, 2019).

[4]See Armis, UPDATE: URGENT/11 affects additional RTOSs – Highlights Risks on Medical Devices (last visited Oct. 8, 2019).

[5]Fisher, supra.

[6]U.S. Food & Drug Admin., supra.

[7]Armis, supra.

[8]Newman, supra.

Protect Yourself From Wire Transfer Fraud

Posted by Justin S. Cohen

Cyber criminals are targeting U.S. companies on a daily basis—many seeking to steal funds through fraudulent funds transfers. While the hackers’ methods are technically sophisticated, the plan is simple: a hacker takes control of a business email account, learns how the company moves money (such as through wire transfers), then sends an email to initiate a fraudulent transfer. Trend Micro reported that the average business email compromise (“BEC”) attack in 2016 cost the victim approximately $140,000. The FBI reported that BEC scams accounted for more than $12.5 billion in losses for U.S. companies in 2018, exceeding all expectations. We here at Thompson & Knight have seen an uptick in these attacks and their sophistication and have some suggestions on how companies can protect themselves.

The Problem: Business Email Compromise

Cyber criminals use BECs to steal from companies using fraudulent funds transfers, such as by changing direct deposit instructions, wire transfer instructions, or requesting business checks. A BEC begins with hackers gaining full control of a person’s email account so they can read that person’s emails, delete emails, re-direct emails using rules, and send emails as if they were that person. The hackers focus on the email accounts of C-suite executives, controllers, and those involved in funds transfers (e.g., direct deposit instructions, wire transfers, check writing). The identities of the right people can usually be deduced from a few LinkedIn searches. Hackers track out-of-office message and social media to determine when executives may be away from the office.

Once hackers gain control over a particular email account, they will study the company’s procedures and email traffic, sometimes for months. After learning about the company and how it handles wire transfer requests, they will begin their attack. Typically, they will write emails from the executive’s account requesting rush wire transfers to offshore accounts. Most are careful to make requests that will be acted upon quickly without raising too much suspicion (e.g., by crafting the email with a sense of urgency). These criminals often start small and then increase their activity and the wire transfer amounts until someone spots the theft. Some of these attacks can go on for months. Many target a one-month window to avoid detection.

We have also seen schemes where criminals impersonate suppliers or business partners and send new wire transfer instructions for upcoming payments. In other cases, criminals impersonate employees and send emails requesting changes to payroll direct-deposit instructions. Such criminals may also watch emails during the run-up to a merger or acquisition, then send fraudulent wire transfer instructions near the closing.

Compounding the problem is that when a BEC occurs, (1) the funds are rarely recoverable and (2) many crime and cyber insurance policies do not cover these sorts of losses.

The Solution: Be Aware and Implement Layered Security

Here are a few suggestions to protect your company from these threats:

• Update your funds transfer policies to ensure that there are non-email confirmations/multi-factor authentication to confirm wiring/payment instructions for certain incoming and outgoing funds transfers. This can be as simple as requiring a phone call or video chat between people who know one another. Include a plan for handling suspicious funds transfer instructions.

• Meet with your financial institutions to ensure everyone has a clear understanding of the protocols in place to handle wire transfers. If the protocol is simply “wire based on email instructions” the financial institution typically will claim no liability.

• Review cyber insurance policies to ensure that these types of criminal events are covered, including coverage for the stolen funds.

• Implement periodic cybersecurity training for executives and employees, especially those involved in funds transfers. Such training should include periodic test “phishing” emails from your IT department or a security vendor so people become accustomed to spotting suspicious emails.

• Use multi-factor authentication for email accounts, especially email accounts like Office 365 that are accessible via the Internet.

Guarding against wire transfer fraud through business email compromise requires a layered approach. Companies should also prepare for a possible incident and ensure that their cybersecurity policy covers not only the cost of responding to an incident, but also the stolen funds.

Cybersecurity Training for Your Corporate Board

Posted by Alejandro A. Sánchez-Mújica A.

It seems that not a day goes by without news of significant cyberattacks or breaches. Cybersecurity failures and malware are no longer considered as something that might happen, but something that will happen. Businesses need to have the framework in place to act fast in a worst-case scenario to contain reputational and bottom-line damage.

Corporate boards have become integral to cyberdefense strategies. NYSE Governance Services^[1] recently surveyed nearly 200 directors of public companies representing a variety of industries to discover how they view cybersecurity in the boardroom. More than 80% of respondents said cybersecurity topics are discussed at nearly every meeting – although one in five indicated they are only discussed after an incident happens internally or in the same industry.

Directors are responsible for managing the business affairs of a corporation, and they are subject to fiduciary duties. In carrying out the responsibility of managing the corporation, directors owe fiduciary duties of care (care on an informed basis when taking actions) and loyalty (based on the best interests of the corporation and its stockholders, refraining from transactions motivated by personal interest).

Part of a director’s duty is to oversee the corporation’s operations. There must be procedures in place so that the appropriate information comes to the attention of the board in a timely manner as a matter of ordinary operations, which should include cybersecurity matters and breaches.

Directors should receive cybersecurity training on at least a yearly basis. This training should cover the measures necessary to maintain confidentiality of the matters placed before the board, cybersecurity matters related to the industry’s particular challenges, and best practices for the directors’ access and use of company networks and data.

Additionally, periodic presentations by the corporate executive in charge of information technology should be made before the board.  These presentations should at least touch upon:

• The latest developments in cybersecurity, including relevant breaches and practices;
• Cybersecurity governance policies put in place, including IT systems use, remote work, and employee/contractor training policies;
• Data privacy compliance;
• Inventory of information assets, including descriptions of areas of potential vulnerabilities (e.g., personal data management, infrastructure);
• The company’s cybersecurity insurance coverage; and
• Incidents and failures in continuity planning.

Boards should also take the opportunity to ask questions regarding the readiness of the company to mitigate a cyberattack or breach, and should review the steps put in place to mitigate an incident. They should consider:

• Who has access to the corporation’s information assets? How are privileges managed?
• Which information assets would most likely be a target?
• What type of damage would the company incur if the assets were targeted?
• Which systems are crucial for business continuity?
• What measures are in place to detect an incident?
• What incident reporting procedures are in place?
• Is there an effective hotline or emergency procedure in place in the event of a cyberattack or threat? Have these been communicated to employees, contractors, and service providers?
• What employee, contractor, and service provider training procedures are in place?
• What types of audits are run on the IT infrastructure?

Board members can play an instrumental role in monitoring and mitigating cybersecurity risks, serving as a conduit between all the different functions of the business and bringing a wealth of experience in crisis management.

 

^[1] https://www.nyse.com/publicdocs/VERACODE_Survey_Report.pdf

The Weakest Links – Vendors in the Spotlight, Again

Posted by Michael C. Titens

Last week brought news of two more companies reporting the potential compromise of financial and medical information of millions of Americans. The headlines sound familiar, as does the attack vector – compromise of a third-party vendor with access to patient information.

On June 3, Quest Diagnostics Incorporated reported that a breach at one of its vendors, American Medical Collection Agency (AMCA), may have compromised the personal information of approximately 11.9 million of its patients. The compromised information includes credit card numbers, bank account information, Social Security numbers, and unspecified medical information, among other things. Quest stated that it has not yet obtained detailed or complete information from AMCA and has not received a list of the affected individuals, but that according to AMCA, an unauthorized person had access to AMCA’s system for up to seven months.

On June 4, Laboratory Corporation of America Holdings reported that approximately 7.7 million of its patients were affected by the AMCA breach. For LabCorp patients, the compromised information includes credit card numbers and bank account information, but not Social Security numbers or lab test results. LabCorp is also awaiting more detailed information from AMCA but unlike Quest, LabCorp reported that AMCA is notifying some LabCorp patients directly.

News reports have already identified a third victim of this incident, and there could be more to come. According to its website, AMCA is “the leading recovery agency for patient collections,” and its clients include “Laboratories, Hospitals, Physician groups, Billing services and Medical providers all across the country.” AMCA also operates under the “Retrieval Masters” brand and services “Direct Marketers, Telecom, Toll Agencies, and Debt Buyers,” further expanding the scope of potential victims. Quest and LabCorp are both public companies that reported the breach in filings with the Securities and Exchange Commission, but many of AMCA’s other clients are not subject to SEC reporting requirements.

Quest and LabCorp now face the familiar dilemma of responding to a cyber event resulting not from a breach of their own systems, but from a breach at a third-party vendor. Vendor breaches raise different issues than other breaches, including the following:

• Understanding what occurred, what information was compromised, and who must be notified: A company that obtains personal data from its customers is generally the party subject to notification and other obligations under applicable state and federal laws, even when the breach occurs in a vendor’s system. However, the ability of that company to obtain the information needed to provide notifications is often limited by the vendor’s ability and willingness to share information about the incident. For example, it was Quest, not AMCA, that received two separate letters from U.S. senators requiring the company to respond within 10-14 days to detailed questions regarding its cybersecurity policies and procedures and this breach in particular.
• Compliance with privacy policies: Companies should ensure that they are complying with their privacy policies when they share information with vendors. For example, LabCorp’s privacy policy (as published on its website) states that it may share information with contractors, but Quest’s published policy promises that no information will be shared with vendors unless the patient has authorized Quest to do so. Presumably, Quest obtained patient consent in some other way, such as a consent formed signed when the patient visited the Quest facility.
• Insurance coverage: Many cyber insurance policies cover notification costs and other losses only if the breach occurred in the insured’s systems. For losses arising from a vendor’s breach, a company often must rely on contractual indemnification rights, if any. Companies typically require their vendors to have certain levels of insurance coverage, but in many cases a vendor’s insurance policy will not cover the vendor’s contractual indemnification obligations to its customers. Indeed, contractually assumed indemnity is typically subject to a specific coverage exclusion.

Thompson & Knight’s Cybersecurity Practice Group routinely advises clients regarding vendor relationships. Some general suggestions include the following:

• Legal review: Ask knowledgeable legal counsel to review contracts with vendors to identify cyber issues and conformity with market terms. Vendor contracts often include provisions regarding data protection requirements, reporting requirements in the event of a breach, insurance coverage, and other matters.
• Data segregation: Limit the data shared with a vendor to just the information required for the vendor to fulfill its contract. For example, a medical collection agency might need information relating to the status of a patient’s account, but might not need the patient’s medical information.
• Data access: In cases where the vendor has access to computer systems, ensure that the access is restricted to the data the vendor needs to fulfill its contract, and that the vendor does not have rights to move throughout a client’s network.
• Monitoring of vendor activity: Where possible, employ tools to monitor vendor activity on your network. Earlier this year, criminals used phishing attacks to gain access to the computer networks of major IT outsourcing firms such as Wipro, and used that access to attack the networks of the IT firms’ customers. In many cases, the customers identified the rogue activity before significant damage could be done.

Comprehensive cybersecurity includes not only the integrity of your system, but also the integrity of any other system which may have access to your system or on which your data may be stored. Heightened diligence should be exercised whenever vendor relationships are established or evaluated.

Rethinking Password Management

 

Posted by Justin Cohen

Hackers have compiled a database of over 2.2 billion records of our login credentials (i.e., usernames/email addresses and passwords) by cobbling together records taken from dozens of data breaches. And they are sharing these stolen credentials through various websites. Out of curiosity, I used the Hasso-Plattner Institut’s online tool to see whether my personal and work email addresses were included in the leaked databases. Guess what? They both were. I then used the “have i been pwned?” password search tool to see if one of my old passwords was exposed. Unsurprisingly, it was. If you have employees who have created online accounts with Facebook, Marriott, eBay, LinkedIn, Yahoo!, Orbitz, Quora, Reddit, or any number of other websites or systems, it’s likely that your employees’ credentials have also been exposed.

The problem we have today is that many people use the same or similar credentials (e.g., email address and password) for their personal websites as they do to log in to their company’s enterprise accounts. While your company’s systems may not have been breached, it is likely that at least some of your employees’ credentials have been. So even if your organization has complex password requirements—and requires users to change those complex passwords often—those requirements don’t prevent hackers from finding users’ credentials on other sites, or using those passwords to guess the password for a user’s enterprise account (since many only use slight variations).

To address this problem, Google has launched a new extension to its Chrome browser to tell you if your password has been exposed. But for many, that may not be enough to address the risk of exposed credentials.

It may be time to start encouraging employees to utilize a password management tool, like Keeper, LastPass, or 1Password. These tools store credentials for various websites, apps, and portals so users don’t have to memorize each one (or, as some unfortunately do, store credentials in documents or spreadsheets). A user of these tools creates one complex passphrase, which gives them access to an encrypted database of their stored credentials. These tools can also test your password strength, and give you a score on your password security. For example, LastPass will give you a lower overall score if you’re using the same or similar password across multiple websites.

For many of us who have used and re-used the same or similar passwords over dozens of websites for years, it may be time to allow the password manager both to create new complex passwords and to store all of those credentials. Many of these tools also allow users to share credentials, and allow emergency access to one’s “vault” of credentials. These features are useful for employees that may need to share access to third-party websites for work. The tools enable users to share credentials with other employees in a more secure manner than email or notes. Plus, once shared, if one user changes the password, the tools enable the updated password to be shared automatically. Some also offer “emergency access” to a user’s vault of credentials, which may help avoid business interruption if an employee becomes ill or leaves the company without providing all of their credentials to work-related websites.

Encouraging your employees to use distinct, complex passwords for each personal website, enterprise system, and work-related website can significantly reduce the risk to your organization posed by these exposed passwords. A password management tool can help your organization promote that type of behavior. And if none of those reasons is particularly persuasive, perhaps you may want to read about what happened when the only person with the password to a company’s Bitcoin wallet worth over $190 million died.

FDA Releases New Cybersecurity Initiatives for Connected Medical Devices

Posted by Tim Hudson

 

To kick off National Cybersecurity Awareness Month, the FDA released a statement regarding the agency’s continued emphasis on medical device cybersecurity. As cyber attacks have become more and more prevalent, the increasing number of medical devices connected to hospital networks creates a greater possibility that cyber criminals could exploit vulnerabilities in medical devices. Recognizing that medical device cybersecurity incident preparedness is fundamental to protect patients, the FDA announced new initiatives, updates, and collaborations.

To learn more, please click here to read Thompson & Knight's recent Client Alert, which provides an overview of the significance of cybersecurity awareness and preparedness for connected medical devices and practical tips and recommendations for protecting sensitive medical data and patient privacy in the digital age.

Hindsight Is Not Wisdom: Timeliness of SEC Cyber Disclosures

 

Posted by Paul Stafford

 

The U.S. Securities and Exchange Commission (“Commission”) states as its mission the protection of investors; the maintenance of fair, orderly, and efficient markets; and the facilitation of capital formation.  In furtherance of this mission, the Commission requires public companies to timely disclose information about the security of the public company’s cyber infrastructure and data, as well as information about material incidents and breaches that may affect shareholders’ investment decisions in those companies.  Consequently, the Commission has promulgated a series of cyber security pronouncements and documents, including the CF Disclosure Guidance: Topic No. 2 – Cybersecurity (“2011 Guidance”, Oct. 13, 2011) issued by the Commission’s Division of Corporation Finance (the “Division”), and the Commission Statement and Guidance on Public Company Cybersecurity Disclosures (“2018 Guidance”, February 26, 2018). The 2018 Guidance reinforces and expands upon the 2011 Guidance by providing “interpretive guidance to assist public companies in preparing disclosures about cybersecurity risks and incidents”. 

When there is a “material cybersecurity risk or incident”, the Commission considers public companies to have a duty to disclose the material cybersecurity risk(s) or incident(s) to the Commission, and therefore to the public and the company’s investors and potential investors.  The Commission encourages companies to “take all required actions to inform investors about material cybersecurity risks and incidents in a timely fashion, including those companies that are subject to material cybersecurity risks but may not yet have been the target of a cyber-attack” (2018 Guidance, p.4), and believes that public companies should disclose “the most significant factors that make investments in the company’s securities speculative or risky” (2018 Guidance, p.13).   But what constitutes “timeliness” for purposes of cyber incident, breach, or risk disclosures to the Commission?  Although not a public company, can guidance as to the interpretation of “timeliness” be gleaned by examining was has occurred in most recent years in instances in which the government itself has been the subject of a cyber incident, breach, or risk?  Are these incidents instructive as to how the Commission may interpret timeliness within the cybersecurity context?

For instance, in June 2015, the U.S. Office of Personnel Management announced a data breach involving approximately 21.5 million records and approximately 4 million people, including Social Security numbers and detailed security-clearance-related background information.  The “data breach” involved two incidents.  The first incident was purportedly discovered on March 20, 2014 - over fifteen months before the announcement.  The second incident was purportedly discovered on April 15, 2015 - two months before the announcement.

In January 2016, the National Aeronautical and Space Administration (NASA) acknowledged a cyber breach of over 2000 NASA personnel, as well as flight logs and videos recorded by NASA aircraft.  In addition, the hackers were able to alter the flight path of a $222M NASA drone before the ground crew was able to restore the flight path by accessing the drone using satellites.  According to NASA, the hackers had been inside of NASA’s systems since 2013 – approximately three years before the announcement.

In February 2016, the Internal Revenue Service acknowledged a cyber breach of over 700,000 Social Security Numbers and other sensitive information occurring over a number of years through an online portal that permitted users to view their tax history.  The U.S. Justice Department also was breached in February 2016 with the publication of personal information for 20,000 FBI employees.  More recently, the FBI and Custom and Border Agents were among thousands of law enforcement personnel impacted by a breach involving the Advanced Law Enforcement Rapid Response Training (reported in June 2018).

It is undisputed that these public agencies are not subject to the regulatory and disclosure requirements of public companies.  It is also certainly arguable that these cyber incidents and breaches involving government entities and agencies may not have been widely publicized, and perhaps not announced in what some would consider a timely manner; however, in contrast, the Equifax breach became widely publicized on September 7, 2017 when Equifax announced that hackers had accessed data including Social Security Numbers and drivers license numbers and addresses for approximately 145 million Americans.  The cyber attack purportedly began in May 2017 and was detected in July 2017 – and was announced approximately two months later.   In the wake of Equifax’s disclosure, on September 20, 2017, the Commission issued a statement emphasizing the importance of cybersecurity and detailing the SEC’s approach to cybersecurity … as well as confirming a 2016 intrusion (purportedly discovered in August 2017) involving unauthorized access to the EDGAR test filing system, which is the system used by companies to make their legally required filings to the SEC – this after a July 2017 report released by the Government Accountability Office that found deficiencies in the SEC’s information systems.  Would the SEC’s cyber breach have become apparent and been announced but for the Equifax breach?

Understanding that the government is by the public and for the public but is not a “publicly held” company per se, it is evident that although the government may disclose cyber incidents, breaches, and risks when it deems appropriate after considerations of materiality, national security, and pragmatism, publicly-traded companies do not share this same deference in determining the timeliness of disclosures to regulatory or reporting bodies such as the Commission.  Accordingly, the interpretation of “timeliness” should be examined within other legal contexts, as well as within the Commission’s 2018 Guidance itself. 

For example, within the 14th Amendment constitutional desegregation context, timeliness is defined as “with all deliberate speed”, which was a purposefully vague and slow standard meant to ease the political and cultural ramifications of societal change. See Brown v. Board of Education II, 349 U.S. 294 (1955).

Within the context of the sale of previously occupied single-family residential real property, and pursuant to Section 5.008 of the Texas Property Code, the seller must timely disclose to the purchaser material facts and the condition of the property, known to the seller as of the date the notice (disclosure) is completed and signed by the seller.  This “seller’s disclosure” is legally interpreted as a representation rather than a warranty, with serious penalties and potential liabilities for misrepresentations.

And, within an insurance context, “timeliness” is often characterized by the standard form insurance language “as soon as practicable”.  In insurance cases alleging the breach of a material term by an insured, such as lack of notice in a policy, Texas courts have employed a “notice-prejudice” rule, which first examines whether notice was provided to the insurer, then examines when the insurer was provided notice, and finally examines whether a lack of what the insurer claims as “timely” notice in accordance with the “as soon as practicable” or other applicable standard form policy language resulted in prejudice to the insurer.  See PAJ, Inc. v. Hanover Insurance Co., 243 S.W.3d 630 (Tex. 2008) and Prodigy Communications Corp.  v. Agricultural Excess & Surplus Lines Ins. Co., 288 S.W.3d 374 (Tex. 2009).  Unless the court answers in the affirmative (i.e. – a finding of prejudice to the insurer due to lack of timely notice) the insured is determined not to have violated a material term of the insurance contract.  This creates an incentive on the part of the insured for timely notice (disclosure) of an occurrence (incident) to the insurer, but provides some protection to the insured from the subjectivity associated with an insurer’s unilateral determination of the term “timeliness” or the contractual phrase “as soon as practicable”. 

In contrast to desegregation jurisprudence, real estate sales contracts, and the insurance law context, the Commission has no such mechanism for determination of “timeliness” in disclosures pertaining to cyber incidents, breaches, or risks, instead employing a standard based on “expectations” placed upon public companies to determine when disclosure should occur.  So, as with “materiality”, a determination of the timing of disclosures to the Commission of cyber incidents, breaches, and risks is the responsibility of the public company, with the Commission and courts reserving the right to question the timing of disclosures as circumstances develop or additional facts and factors become known with the passage of time.  The Commission’s authority to exercise retroactive determinations of “timeliness” could reasonable lead to the invocation of a phrase famously stated in President George W. Bush's 2006 State of the Union Address,  “Hindsight alone is not wisdom, and second-guessing is not a strategy”. 

In the years since President Bush’s assertion, lots has occurred in the realm of cybersecurity, and hindsight and second-guessing have been refined to a legal art form.  For instance, the well-publicized cyber attacks (by Russian Federation hackers) on Yahoo included breaches in 2013 and in 2014. The 2014 breach, discovered in July 2016 and reported in September 2016, affected over 500 million Yahoo user accounts.   The August 2013 breach, discovered in July 2016 and reported in December 2016, was originally believed to have affected approximately 1 billion accounts; however, Yahoo later affirmed in October 2017 that the breach affected every Yahoo account that existed at that time – which is 3 billion accounts. In 2018, as a result of the 2014 breach, Yahoo agreed to pay a $35 million fine to the Commission as part of a settlement in the first enforcement action by the Commission for failure to timely disclose a cyber incident, breach, or risk. 

In hindsight, it is easy to inquire as to why the Yahoo of just a few year ago did not disclose the full nature of its cyber breach in a more timely manner; however, it is worth noting within this “timeliness” context that in January 2018, the U.S. Department of Homeland Security disclosed a cyber breach it discovered in May of 2017  involving the personal information for approximately 240,000 employees employed by DHS in 2014, as well as “subjects, witnesses, and complainants” associated with DHS Office of Inspector General investigations between 2002 and 2014. DHS did not begin notifying affected employees until November 2017, with DHA stating that this delay was due to “a thorough privacy investigation, extensive forensic analysis of the compromised data, an in-depth assessment of the risk to affected individuals, and comprehensive technical evaluations of the data elements exposed.”  “The investigation was complex given its close connection to an ongoing criminal investigation,” a notice posted on the DHS website read. “These steps required close collaboration with law enforcement investigating bodies to ensure the investigation was not compromised.” 

In relying upon the Commission’s guidance of today, the Commission acknowledges (just as in the DHS example) that “some material facts may be not available at the time of the initial disclosure”, that a company “may require time to discern the implications of a cybersecurity incident”, and that the necessity of cooperating with law enforcement and any ongoing investigation of a cybersecurity incident may affect the scope of disclosure regarding the incident; however, the Commission states that “an ongoing internal or external investigation … would not on its own provide a basis for avoiding disclosures of a material cybersecurity incident”(2018 Guidance, p.11).

In addition, and more specifically, 2018 Guidance, Note 15 references the NYSE Listed Company Manual Rule 202.05, which requires listed companies to “release quickly to the public any news or information which might reasonably be expected to materially affect the market for its securities.”  2018 Guidance, Note 15 also references Nasdaq Listing Rule 5250(b)(1), which requires listed companies to “make prompt disclosures to the public of any material information that would reasonably be expected to affect the value of its securities or influence investors’ decisions.”  2018 Guidance, p.19 states that  “A company’s disclosure controls and procedures should not be limited to disclosure specifically required, but should also ensure timely collection and evaluation of information potentially subject to required disclosure, or relevant to an assessment of the need to disclose developments and risks that pertain to the company’s businesses.”  And 2018 Guidance, p.11 states that, in accordance with Section 7 and 10 of the Securities Act: Sections 10(b), 13(a) and 15(d) of the Exchange Act; and Rule 10b-5 under the Exchange Act [15 U.S.C. 78j(b); 15 U.S.C. 78o(d); 17 CFR 240. 10b-5], “Where a company has become aware of a cybersecurity incident or risk that would be material to its investors, we would expect it to make appropriate disclosure timely and sufficiently prior to the offer and sale of securities and to take steps to prevent directors and officers (and other corporate insiders who were aware of these matters) from trading its securities until investors have been appropriately informed about the incident or risk.” 

The disclosure requirements in Commission Regulation S-K and Regulation S-X make no specific mention of cybersecurity risks and incidents; however, public companies must make every effort to adhere to the Commission’s reporting requirements, and may find guidance or specific instruction as to timeliness in the particular requirements for each category of report.  Examples include:  periodic reports, including Form 10-K annual reports, Form 10-Q quarterly reports (to be submitted every ninety days), and Form 20-F disclosures by foreign private issuers (within four to six months, depending on when the fiscal year ends); current reports, including Form 8-K (which require disclosure within four business days after discovery of a reportable condition) or Form 6-K reports (“promptly after the material contained in the report is made public”); and, Securities Act and Exchange Act obligations, including registration statements that (consistent with Section 11, 12, and 17 of the Securities Act, as well as Section 10(b) and Rule 10b-5 of the Exchange Act) must adequately and timely disclose all material facts required to be stated therein or necessary to make the statements therein not misleading.

Accordingly, given the Commission’s Guidance, and the realities of commerce in a digital world, public companies must make every effort to develop policies, procedures, and protocols designed to comply with the Commission’s expectation of timeliness in the disclosure of material information, incidents, breaches, or risks.

 

Whose Material Is This? Objective Subjectivity in SEC Cyber Disclosures

 

Posted by Paul Stafford

The U.S. Government, through several agencies and in conjunction with state governments and international governing bodies, has assumed the duty to regulate and to facilitate various aspects of commerce in a matter that minimizes economic uncertainty and promotes fairness in the market. As part of the government’s regulatory “contract” with the public, investors, and potential investors, the U.S. Securities and Exchange Commission (“Commission”) states as its mission the protection of investors; the maintenance of fair, orderly, and efficient markets; and the facilitation of capital formation. To carry out this mission, the Commission requires public companies to disclose information about the security of the public company’s cyber infrastructure and data, especially personally identifiable information, as well as information about incidents, and breaches that are “material” and that may affect shareholder decisions about investing in those companies.

Consequently, the Commission has promulgated a series of cybersecurity pronouncements and documents, including the CF Disclosure Guidance: Topic No. 2 – Cybersecurity (“2011 Guidance,” Oct. 13, 2011) issued by the Commission’s Division of Corporation Finance (the “Division”), and the Commission Statement and Guidance on Public Company Cybersecurity Disclosures (“2018 Guidance,” February 26, 2018). The 2018 Guidance reinforces and expands upon the 2011 Guidance by providing “interpretive guidance to assist public companies in preparing disclosures about cybersecurity risks and incidents.” The 2018 Guidance also addresses two topics not developed in the Division’s 2011 Guidance: the importance of cybersecurity policies and procedures, and the application of insider trading prohibitions in the cybersecurity context to deter selective disclosures and to prevent directors, officers, and corporate insiders from trading in a public company’s securities while in possession of “material non-public information.” But what is “materiality”?

When there is a “material cybersecurity risk or incident,” the Commission considers public companies to have a duty to disclose the material cybersecurity risk(s) or incident(s) to the Commission, and therefore to the public and the company’s investors and potential investors. The Commission encourages companies to “take all required actions to inform investors about material cybersecurity risks and incidents in a timely fashion, including those companies that are subject to material cybersecurity risks but may not yet have been the target of a cyber-attack” (2018 Guidance, p.4), and believes that public companies should disclose “the most significant factors that make investments in the company’s securities speculative or risky” (2018 Guidance, p.13). Such interpretive guidance on the term “material” not only encourages companies to develop procedures for determining “materiality” for disclosures of actual risks and incidents, but also protocols for determining prospective risks. As the 2018 Guidance (p.11) states, “[T]he materiality of cybersecurity risks or incidents depends upon their nature, extent, and potential magnitude, particularly as they relate to any compromised information or the business and scope of company operations,” and such information may include “personally identifiable information, trade secrets or other confidential business information, the materiality of which may depend on the nature of the company’s business, as well as the scope of the compromised information.”

The Commission’s 2018 Guidance (p.11) also states that “[T]he materiality of cybersecurity risks and incidents also depends on the range of harm that such incidents could cause,” with footnote 34 indicating that a company’s materiality analysis “should consider the indicated probability that an event will occur and the anticipated magnitude of the event in light of the totality of the company activity Basic v. Levinson, 485 U.S. 224, 238 (1988) (citing SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2d Cir. 1968))” and that within this analysis, “no ‘single fact or occurrence’ is determinative as to materiality, which requires an inherently fact-specific inquiry. Basic, 485 U.S. at 236.”

The Commission’s 2018 Guidance clearly illustrates that the legal construct of “materiality” is, by its nature, imprecise and flexible. The concept of “materiality” is contextual, requiring what the Commission terms a “tailored” approach (2018 Guidance, p.13) – and perhaps even, at times, subjectivity on the part of public companies based upon the factors, procedures, and protocols utilized in preventing and responding to cybersecurity incidents or in determining a company’s susceptibility to cybersecurity risks. Stated differently, for SEC purposes, an event that is material for one company may not be material for another.

Such subjectivity becomes more apparent when comparing and contrasting the disclosure obligations of the Commission with contract law or tort law principles. For example, the Restatement (2d) of Contracts Section 1 defines a “contract” as a “promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes a duty.” The determination of whether there is a breach is a question of law; however, a breach must be “material” to be actionable and compensable for foreseeable injuries or equitable relief. Some breaches are “material” as a matter of law (e.g., when a contract specifies that time is of the essence, failure to timely perform is a “material breach”); however, in most instances, the determination of whether a breach is “material” is a question of fact, and non-performance may be excused or damages may be awarded based upon a finding of materiality. As the court stated in Henderson v. Wells Fargo Bank, N.A., 974 F.Supp.2d 993, 1005, 1006 (N.D.Tex.2013), the question of whether a breach was sufficiently material to excuse a party’s performance under a contract is a question of fact for a jury to decide based on an analysis of the factors set out in the Restatement Second of Contracts 241 and 242. Accordingly, materiality in contract law is often determined by a finder of fact within a narrow context that considers performance, acts, and omissions precipitating the alleged material breach and tends towards a presumption of permitting the contract to survive and the contracting parties to perform.

By contrast, a determination of materiality within the context of disclosures to the Commission is the responsibility of the public company that is subject to the cyber risk(s) or incident(s), with the Commission and the courts serving as the ultimate arbiters (i.e., “finders of fact”) of the materiality of those cyber risk(s) or incident(s). The disclosure requirements in Commission Regulation S-K and Regulation S-X make no specific mention of cybersecurity risks and incidents; however, several of the requirements impose an obligation (i.e., “duty”) on public companies to disclose such risks and incidents depending on a company’s particular circumstances. Examples include: periodic reports, including Form 10-K annual reports, Form 10-Q quarterly reports, and Form 20-F disclosures by foreign private issuers; current reports, including Form 8-K or Form 6-K reports; and Securities Act and Exchange Act obligations, including registration statements that (consistent with Section 11, 12, and 17 of the Securities Act, as well as Section 10(b) and Rule 10b-5 of the Exchange Act) must adequately disclose all material facts required to be stated therein or necessary to make the statements therein not misleading. In addition to the information expressly required (or interpreted to be required) by Commission regulations, a public company is required to make a subjective determination and to disclose “such further material information, if any, as may be necessary to make the required statements, in light of the circumstances under which they are made, not misleading,” pursuant to Rule 408 of the Securities Act, Rule 12b-20 of the Exchange Act; and Rule 14a-9 of the Exchange Act. This interpretation of materiality regarding omissions is akin to the Texas Deceptive Trade Practices-Consumer Protection Act, Section 17.46 (b)(24), which addresses the “failure to disclose information concerning goods or services known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer otherwise would not have entered had the information been disclosed.”

The Commission considers omitted information to be material “if there is a substantial likelihood that a reasonable investor would consider the information important in making an investment decision or that disclosure of the omitted information would have been viewed by the reasonable investor as having significantly altered the total mix of information available.” (This is the standard established by the U.S. Supreme Court in TSC Industries v. Northway, 426 U.S. 438, 449 (1976)). The Commission’s articulation of materiality of omitted (non-disclosed) information illustrates that when determining materiality the Commission adopts a less subjective, and perhaps arguably objective, approach.

So the inquiry as to “materiality” then becomes not only, “What is material?” but “Who is asking?” and “Who is determining?” Accordingly, through the Commission’s articulated 2018 Guidance, the determination of “materiality” within the context of disclosures to the Commission can be seen as subjective when determined by the public company and perhaps objective when determined by the Commission, particularly regarding omitted (non-disclosed) information. Consequently, and in contrast to a contractual, tort, or litigation context, in a public company’s continuing effort and duty to timely provide the Commission information available as to the company’s actual or potential cyber risk(s) and incident(s), public companies should consider determining and defining “materiality” more broadly when providing disclosures to the Commission.