Industry: Financial Services
Back in December 2013, a U.S. magistrate issued a seemingly routine warrant in a narcotics case demanding that Microsoft turn over messages from a customer’s email account that resided on a server in Ireland. That warrant, which issued under a 1986 law called the Stored Communications Act (“SCA”), 18 U.S.C. § 2703, is still being debated today.
Hedge funds and broker dealers can expect their cybersecurity preparedness to come under scrutiny again this year by federal securities regulators.
Today, Reuters reported that the New York Department of Financial Services (“DFS”) will delay the effective date of its new cybersecurity regulation. According to a “person familiar with the matter,” the DFS will publish a new version of the cyber security regulation on December 28, 2016, and the effective date for the rule will now be March 1, 2017.
Industry groups continued their assault yesterday on New York’s “first-in-the-nation” cybersecurity regulation by telling state lawmakers that the proposed regime was inflexible and unfairly burdened smaller institutions.
Just weeks before the Cuomo administration’s “first-in-the-nation” cybersecurity regulation is scheduled to go into effect, the New York State Assembly Standing Committee on Banks will open a public hearing on Monday, December 19th into the controversial plan to require financial institutions that operate in New York to comply with a series of strict – and in some cases, unprecedented – data security measures.
This is the second installment in our interview with Steven Grossman, VP Strategy & Enablement at Bay Dynamics, the cyber risk analytics company. Here, Steven discusses the importance of aligning an institution’s risk profile with its cybersecurity plan and recommendations for bridging the gap between IT and the boardroom.
As part of Patterson Belknap’s continuing focus on the New York Department of Financial Services (DFS) proposed cybersecurity regulation, we sat down with Steven Grossman, VP Strategy & Enablement at Bay Dynamics, a cyber risk analytics company, to talk about cybersecurity in a highly regulated environment. In the first installment of our 2-part interview with Steven, he discusses implementation of the new regulation and the fact that organizations shouldn’t confuse regulatory compliance with effective cybersecurity planning and strategy.
This is our final installment in a three-part series examining the New York State Department of Financial Services (“DFS”) new cybersecurity regulation. In this installment, we provide an overview of the regulation’s impact on third-party vendors and business partners, including law firms.
This is our second installment in a three-part series examining the New York State Department of Financial Services (“DFS”) new cybersecurity regulation. In this installment, we provide an overview of the regulation’s impact on corporate governance and the scope of liability for corporate boards.
This is the first installment in a three-part series examining the New York State Department of Financial Services (“DFS”) new cybersecurity regulation. The Patterson Belknap Privacy and Data Security Team has studied the regulation, its legislative and regulatory underpinnings, and practical consequences.
Bank regulators are continuing to demand more accountability from corporate leaders when it comes to compliance with cybersecurity safeguards.
This week, in the first post-Spokeo circuit court decision to address standing in a data breach class action, the Sixth Circuit joined the Seventh Circuit in holding that plaintiffs whose sensitive personal information has been obtained by hackers have Article III standing to sue based on the risk of future fraud and identity theft.
FTC Slaps Down ALJ’s Data Security Ruling in LabMD, Sets Broad Mandate for Protection of “Sensitive” Consumer Data
In a sweeping statement of its data security expectations for organizations that maintain consumer information, the Federal Trade Commission on Friday found that LabMD, the defunct medical testing lab, failed to employ adequate data security safeguards in violation of Section 5 of the FTC Act, even though there was no indication that any information had been misused or compromised.
In a ruling issued this morning, the Federal Trade Commission found that LabMD, the defunct Atlanta-based cancer detection lab, failed to protect patient information and is liable for unfair data security practices. The Commission’s ruling reverses an Initial Decision by an administrative law judge (ALJ) that had dismissed the FTC charges against LabMD.
A new set of federal banking regulations are on the horizon aimed at helping financial institutions put in place minimum compliance standards to prevent future cyber-attacks. Bloomberg Law has reported that the Federal Reserve, along with the Office of the Comptroller of Currency (“OCC”) and the Federal Deposit Insurance Corp. (“FDIC”), are working together to develop the standards.
On June 29, 2016, the Bank for International Settlements’ (BIS) Committee on Payments and Market Infrastructures (CPMI) and the Board of the International Organization of Securities Commissions (IOSCO) issued “Guidance on cyber resilience for financial market infrastructures” (Cyber Guidance), the first set of concrete recommendations following the 2012 CPMI-IOSCO Principles for Financial Market Infrastructure (PFMI).
Has North Korea struck again? Do its recent attacks signal a shift from those motivated by political retribution to those motivated by financial gain? What does this mean for financial institutions?
The chair of the U.S. Securities and Exchange Commission warned that cybersecurity is the biggest risk facing our financial system today. At an industry conference yesterday, SEC Chair Mary Jo White said that major exchanges, clearing houses and other players in the financial system did not have cyber defenses in place that aligned with the risks they faced.
Today, the U.S. Supreme Court decided one of the Term’s most closely watched cases: Spokeo, Inc. v. Robins. The 6-2 decision, while far from sweeping, creates a hurdle for plaintiffs in “no-injury” class actions.
A contentious legal battle over data security between the Federal Trade Commission and LabMD, a small medical testing lab, is chronicled in the latest edition of Bloomberg Businessweek. Dune Lawrence’s report raises lingering questions about the FTC’s prosecution of a now-defunct company, tampered evidence and regulatory overreach.
For months, the technology and business communities have been waiting anxiously for a Federal appeals court ruling on whether American companies can be forced to turn over customer information to U.S. law enforcement when that information is stored on servers abroad. It’s the result of a legal appeal filed last year by Microsoft Corporation that was argued before the U.S. Court of Appeals for the Second Circuit more than seven months ago.
Yesterday, the Seventh Circuit held in Lewart v. P.F. Chang’s that customers who may have had personal information compromised in a P.F. Chang’s data breach have standing, at the motion-to-dismiss stage, to sue the company. Given the Seventh Circuit’s 2015 opinion in Remijas v. Neiman Marcus, which involved similar facts, the decision in Lewart is not particularly surprising.
On April 14, 2016, the U.S. Attorney for the Southern District of New York filed a civil forfeiture action seeking to recover nearly $100 million stolen from an unidentified U.S. company through a form of wire fraud or Automated Clearing House (“ACH”) fraud.
A U.S. appeals court yesterday held that a traditional corporate general liability policy triggered an insurer’s duty to defend a class action lawsuit alleging that a medical records company failed to properly secure patient records on its server.
When it comes to buying cyber insurance, businesses might be right in taking comfort that they have mitigated the financial risks that come with a data breach. Just not all of them.
By now, you’ve probably heard about the massive cyber attack that hit Bangladesh’s central bank last month, resulting in the loss of $81 million through fraudulent transfers to accounts in the Philippines. Although the size and scale of this cyber heist was unprecedented, cybercrime targeting ACH (Automated Clearing House) financial transactions is nothing new. Financially motivated hackers regularly target ACH systems.
Recent surveys tell us that cybersecurity is the top risk faced by corporate America. The Bank Director’s 2016 Risk Practices survey – out yesterday – disclosed that three quarters of bank executives and board members believe cybersecurity is their top concern. And their general counsel agree. In another recent study, general counsel said that cybersecurity was their top area of organizational risk as well.
On March 2, the Consumer Financial Protection Bureau (“CFPB”) issued its first Consent Order against a company for flawed data security practices in violation of the Consumer Protection Act’s prohibition on unfair, deceptive, or abusive acts or practices concerning a consumer financial product or service. The Order signals the CFPB’s decision to prioritize data security issues, its willingness to pursue companies even before a breach occurs, and its scrutiny of companies’ representations about their data security practices. The Order also provides some guidance as to the types of data security policies and practices the CPFB considers important.
Faced with the prospect of overturning a decision by one of its own administrative law judges, the Federal Trade Commission on Tuesday explored ways in which to render a narrow decision. The argument was the most recent chapter in the long running data security enforcement action against LabMD, the now defunct medical testing laboratory.
On February 22, 2016, the Commodity Futures Trading Commission (“CFTC”) closed the public comment period on its recently proposed enhanced cybersecurity rules for derivatives clearing house organizations, trading platforms, designated contract markets, and swap data repositories.
Financial institutions sit atop a wealth of personal information – not to mention money. In an interconnected world in which sensitive customer information is stored on servers and in the cloud – and online and mobile banking have become the norm – the Federal Deposit Insurance Corporation (FDIC) is the latest federal regulator to warn financial institutions to make cybersecurity a top priority.
After several fits and starts, Congress finally passed the Cyber Information Sharing Act of 2015 (CISA) as part of the omnibus budget bill. President Obama signed the bill into law on December 18, 2015.
The U.S. Department of Homeland Security’s (DHS) top privacy official said today that a “clear mandate” from top management is the foundation of an organization’s ability to establish and implement an effective data security and privacy plan.
The Privilege of PR: Application of the Attorney-Client Privilege to Crisis Communications and Public Relations in Breach Response Planning
Cyber-attacks have become a matter of everyday reality for all businesses: regardless of industry or size, it is no longer if a data breach will happen, but when. And waiting for a breach to occur before designing and implementing a cyber incidence response plan is generally a recipe for disaster.
Not surprisingly, cybersecurity remains a top examination priority for the Comptroller of the Currency (“OCC”). And that means national banks and federal savings associations – and their leadership teams – should be prepared for “heightened” focus by OCC examiners in critical areas of cybersecurity risk including banks’ third-party and vendor relationships.
The legal wrangling between the Federal Trade Commission and LabMD, Inc. over data security continues.
On December 22, 2015, the FTC filed its appeal brief challenging Chief Administrative Law Judge (“ALJ”) D. Michael Chappell’s November 13, 2015 decision (the “Initial Decision”) dismissing the FTC’s complaint against LabMD, a now-defunct clinical testing laboratory alleged to have compromised the personal information of its customers. The appeal, which will be presented to the full Commission, was expected, as the FTC previously filed a Notice of Appeal shortly before Thanksgiving.
Earlier this month, the New York State Department of Financial Services (“DFS”) announced that it will propose new cybersecurity regulations for financial institutions. The DFS made the announcement in a letter to the Financial and Banking Information Infrastructure Committee — an eighteen member organization headed by the Treasury Department that has already begun tackling cybersecurity issues.
In a long-running and highly contentious data security enforcement action against LabMD, a small medical testing laboratory, the Federal Trade Commission was handed a stunning defeat late Friday. In a 92-page Initial Decision, Chief Administrative Law Judge D. Michael Chappell dismissed the FTC’s case against LabMD – after a full administrative trial – based on the Commission’s failure to prove it was “likely” that consumers had been substantially injured in two alleged data security incidents dating back nearly seven years.
SEC’s New Cybersecurity Guidance Sets Regulatory Expectations for Investment Advisers and Broker Dealers
The Securities and Exchange Commission’s Office of Compliance Inspections and Examinations (OCIE) recently issued a Risk Alert announcing the second round of examinations under its cybersecurity examination initiative. The Risk Alert details areas of focus for the next wave of examinations of investment advisers and registered broker-dealers. In 2014, OCIE launched its cybersecurity exam initiative to better understand the cybersecurity practices in the securities industry. The findings were released in February 2015 in OCIE’s Cybersecurity Examination Sweep Summary.
Federal and state cybersecurity agencies teamed up last week for a two-day summit focused on the evolving nature of cybersecurity threats to New Jersey businesses. The event was sponsored by the U.S. Department of Homeland Security’s (“DHS”) Critical Infrastructure Cybersecurity Voluntary Program and The New Jersey Office of Homeland Security and Preparedness.
In recent weeks, there have been several developments in some of the major data security class action suits.
With last week’s ruling by the Third Circuit Court of Appeals in FTC v. Wyndham Worldwide Corp. solidifying the Federal Trade Commission’s authority to enforce data security practices, organizations that use online computers to store customer information should take notice. Since 2005, the FTC has stepped up its enforcement efforts and has entered into more than 50 consent decrees relating to cybersecurity matters.
In a test of the Federal Trade Commission’s authority to police cybersecurity, the Third Circuit Court of Appeals yesterday ruled that the agency has broad power to take action against private sector companies which fail to take adequate steps to protect customer data.
In Federal Trade Commission v. Wyndham Worldwide Corporation, the Third Circuit upheld the FTC’s authority to pursue a lawsuit against the hotel and resort chain based on allegations that it failed to maintain reasonable data security standards. After three successful cyber-attacks on Wyndham’s computer networks led to the theft of thousands of customers’ records, the FTC sued Wyndham in federal court, alleging that Wyndham’s cybersecurity practices were “unfair and deceptive trade practices.” The district court denied Wyndham’s motion to dismiss, finding that the Commission had the authority to regulate data security practices. On appeal, the Third Circuit affirmed the district court’s ruling, holding that the unfairness prong of Section 5 of the FTC Act authorized the FTC to bring enforcement actions for lax data security practices.
This is the first federal appellate decision finding that the FTC has broad cybersecurity enforcement authority under Section 5 of the FTC Act. Since 2005, the FTC has settled 53 cases against companies related to data security. Wyndham is one of two companies to challenge the FTC’s authority in this area. The ruling opens the door for the FTC to commence additional enforcement actions against companies that do not employ reasonable data security practices, especially at a time when Congress has failed to pass comprehensive data security legislation.