So…Everyone’s Been Compromised? What To Do In The Wake of the Equifax Breach

By now, you’ve probably heard that over 143 million records containing highly sensitive personal information have been compromised in the Equifax data breach. With numbers exceeding 40% of the population of the United States at risk, chances are good that you or someone you know – or more precisely, many people you know – will be affected. But until you know for certain, you are probably wondering what to do until you find out.

To be sure, there has been a lot of confusion. Many feel there was an unreasonable delay in reporting the breach. And now that it has been reported, some have suggested that people who sign up with the Equifax website to determine if they were in the breach might be bound to an arbitration clause and thereby waive their right to file suit if necessary later (although Equifax has since said that is not the case). Others have reported that the “personal identification number” (PIN) provided by Equifax for those who do register with the site is nothing more than a date and time stamp, which could be subject to a brute-force attack, which is not necessarily reassuring when dealing with personal information. Still others have reported that the site itself is subject to vulnerabilities such as cross-site scripting (XSS), which could give hackers another mechanism to steal personal information. And some have even questioned the validity of the responses provided by Equifax when people query to see if they might have been impacted.

In all the chaos, it’s hard to know how to best proceed. Fortunately, you have options other than using Equifax’s website.

1. Place a Credit Freeze

Know that if you are a victim of the breach, you will be notified by Equifax eventually. In the meantime, consider placing a credit freeze on your accounts with the three major credit reporting bureaus. All three major credit reporting bureaus allow consumers to freeze their credit reports for a small fee, and you will need to place a freeze with each credit bureau. If you are the victim of identity fraud, or if your state’s law mandates, a credit freeze can be implemented without charge. In some states, you may incur a small fee. Lists of fees for residents of various states can be found at the TransUnionExperian, and Equifax websites. Placing a freeze on your credit reports will restrict access to your information and make it more difficult for identity thieves to open accounts in your name. This will not affect your credit score but there may be a second fee associated with lifting a credit freeze, so it is important to research your options before proceeding. Also, know that you will likely face a delay period before a freeze can be lifted, so spur-of-the-moment credit opportunities might suffer.

Here is information for freezing your credit with each credit bureau:

Equifax Credit Freeze

  • You may do a credit freeze online or by certified mail (return receipt requested) to:

            Equifax Security Freeze

            P.O. Box 105788

            Atlanta, GA 30348

  • To unfreeze, you must do a temporary thaw by regular mail, online or by calling 1-800-685-1111 (for New York residents call 1-800-349-9960).

Experian Credit Freeze

  • You may do a credit freeze online, by calling 1-888-EXPERIAN (1-888-397-3742) or by certified mail (return receipt requested) to:

            Experian

            P.O. Box 9554

            Allen, TX 75013

  • To unfreeze, you must do a temporary thaw online or by calling 1-888-397-3742.

TransUnion Credit Freeze

  • You may do a credit freeze online, by phone (1-888-909-8872) or by certified mail (return receipt requested) to:

            TransUnion LLC

            P.O. Box 2000

            Chester, PA 19016

  • To unfreeze, you must do a temporary thaw online or by calling 1-888-909-8872.

After you complete a freeze, make sure you have a pen and paper handy because you will be given a PIN code to keep in a safe place.

2. Obtain a Free Copy of Your Credit Report

Consider setting up a schedule to obtain a copy of your free annual credit report from each of the reporting bureaus on a staggered basis. By obtaining and reviewing a report from one of the credit reporting bureaus every three or four months, you can better position yourself to respond to unusual or fraudulent activity more frequently. Admittedly, there is a chance that one of the reporting bureaus might miss an account that is reported by the other two but the benefit offsets the risk.

3. Notify Law Enforcement and Obtain a Police Report

If you find you are the victim of identity fraud (that is, actual fraudulent activity – not just being a member of the class of affected persons), notify your local law enforcement agency to file a police report. Having a police report will help you to challenge fraudulent activity, will provide you with verification of the fraud to provide to credit companies’ fraud investigators, and will be beneficial if future fraud occurs. To that end, be aware that additional fraud may arise closer to the federal tax filing deadline and having a police report already on file can help you resolve identity fraud problems with the Internal Revenue Service if false tax returns are filed under your identity.

4. Obtain an IRS IP PIN

Given the nature of the information involved in the breach, an additional option for individuals residing in Florida, Georgia, and Washington, D.C. is to obtain an IRS IP PIN, which is a 6-digit number assigned to eligible taxpayers to help prevent the misuse of Social Security numbers in federal tax filings. An IP PIN helps the IRS verify a taxpayer’s identity and accept their electronic or paper tax return. When a taxpayer has an IP PIN, it prevents someone else from filing a tax return with the taxpayer’s SSN.

If a return is e-filed with a taxpayer’s SSN and an incorrect or missing IP PIN, the IRS’s system will reject it until the taxpayer submits it with the correct IP PIN or the taxpayer files on paper. If the same conditions occur on a paper filed return, the IRS will delay its processing and any refund the taxpayer may be due for the taxpayer’s protection while the IRS determines if it is truly the taxpayer’s.

Information regarding eligibility for an IRS IP PIN and instructions is available here and to access the IRS’s FAQs on the issue, please go here.

Conclusion

Clearly, the Equifax breach raises many issues about which many individuals need to be concerned – and the pathway forward is uncertain at the moment. But by being proactive, being cautious, and taking appropriate remedial measures available to everyone, you can better position yourself to avoid fraud, protect your rights, and mitigate future fraud that might arise.

 This post was written by Justin L. Root Sara H. Jodka of Dickinson Wright PLLC © Copyright 2017
For more legal news go to The National Law Review

Third-Party Aspects of Cybersecurity Protections: Beyond your reach but within your control

Data privacy and cybersecurity issues are ongoing concerns for companies in today’s world.  It is nothing new to hear.  By now, every company is aware of the existence of cybersecurity threats and the need to try to protect itself.  There are almost daily reports of data breaches and/or ransomware attacks.  Companies spend substantial resources to try to ensure the security of their confidential information, as well as the personal and confidential information of their customers, employees and business partners.  As part of those efforts, companies are faced with managing and understanding their various legal and regulatory obligations governing the protection, disclosure and/or sharing of data – depending on their specific industry and the type of data they handle – as well as meeting the expectations of their customers to avoid reputational harm.

Despite the many steps involved in developing wide-ranging cybersecurity protocols – such as establishing a security incident response plan, designating someone to be responsible for cybersecurity and data privacy, training and retraining employees, and requiring passwords to be changed regularly – it is not enough merely to manage risks internal to the company.  Companies are subject to third-party factors not within their immediate control, in particular vendors and employee BYOD (Bring Your Own Device).  If those cybersecurity challenges are not afforded sufficient oversight, they will expose a company to significant risks that will undo all of the company’s hard work trying to secure and defend its data from unauthorized disclosures or cyberattacks.  Although companies may afford some consideration to vendor management and BYOD policies, absent rigorous follow up, a company may too easily leave a gaping hole in its cybersecurity protections.

VENDORS

To accomplish business functions and objectives and to improve services, companies regularly rely on third-party service providers and vendors.  To that end, vendors may get access to and get control over confidential or personal information to perform the contracted services.  That information may belong to the company, employees of the company, the clients of the company and/or business partners of the company.

When information is placed into the hands of a vendor and/or onto its computer systems, stored in its facilities, or handled by its employees or business partners, the information is subject to unknown risks based on what could happen to the information while with the third-party.  The possibility of a security breach or the unauthorized use or access to the information still exists but a company cannot be sure what the vendor will do to protect against or address those dangers if they arise.  A company cannot rely on its vendors to maintain necessary security protocols and instead must be vigilant by exercising reasonable due diligence over its vendors and instituting appropriate protections.  To achieve this task, a company needs to consider the type of information involved, the level of protection required, the risks at issue and how those risks can be managed and mitigated.

Due Diligence

A company must perform due diligence over the vendor and the services to be provided and should consider, among other things, supplying a questionnaire to the vendor to answer a host of cybersecurity related questions including:

> What services will the vendor provide?  Gain an understanding of the services being provided by the vendor, including whether the vendor only gains access to, or actually takes possession of, any information.  There is an important difference between a vendor (i) having access to a company’s network to implement a third-party solution or provide a thirdparty service and (ii) taking possession of and/or storing information on its network or even the network of its own third-party vendors.

> Who will have access to the information?  A company should know who at the vendor will have access to the information.  Which employees?  Will the vendor need assistance from other third-parties to provide the contracted-for services?  Does the vendor perform background checks of its employees?  Do protocols exist to prevent employees who are not authorized from having access to the information?

> What security controls does the vendor have in place?  A company should review the vendor’s controls and procedures to make sure they comply not only with applicable legal and regulatory requirements but also with the company’s own standards.  Does the vendor have the financial wherewithal to manage cybersecurity risks?  Does the vendor have cybersecurity insurance?  Does the vendor have a security incident response plan?  To what extent has the vendor trained with or used the plan?  Has the vendor suffered a cyberattack?  If so, it actually may be a good thing depending on how the vendor responded to the attack and what, if anything, it did to improve its security following the attack.  What training is in place for the vendor’s employees?  How is the vendor monitoring itself to ensure compliance with its own procedures?

The Contract

A company should seek to include strong contractual language to obligate the vendor to exercise its own cybersecurity management and to cooperate with the company to ensure protection of the company’s data.  There are multiple provisions to consider when engaging vendors and drafting or updating contracts to afford the company appropriate protections.  A one-size-fits-all approach for vendors will not work and clauses will need to be modified to take account of, among other things:

 > The sensitivity of the information at issue – Does the information include only strictly confidential information, such as trade secrets or news of a potential merger?  Does the information include personal information, such as names, signatures, addresses, email addresses, or telephone numbers?  Does the information include what is considered more highly sensitive personal information, such as SSNs, financial account information, credit card information, tax information, or medical data?

> The standard of care and obligations for the treatment of information – A company should want its vendors to meet the same standards the company demands of itself.  Vendors should be required to acknowledge that they will have access to or will take possession of information and that they will use reasonable care to perform their services, including the collection, access, use, storage, disposal, transmission and disclosure of information, as applicable.  This can, and often should, include: limiting access to only necessary employees; securing business facilities, data centers, paper files, servers and back-up systems; implementing database security protocols, including authentication and access controls; encrypting highly sensitive personal information; and providing privacy security training to employees.  Contracts also should provide that vendors are responsible for any unauthorized receipt, transmission, storage, disposal, use, or disclosure of information, including the actions and/or omissions of their employees and/or relevant third-parties who the vendors retain.

> Expectations in the event of a security breach at the company – A company should include a provision requiring a vendor’s reasonable cooperation if the company experiences a breach.  A company should have a contact at each of its vendors, who is available 24/7 to help resolve a security breach.  Compliance with a company’s own obligations to deal with a breach (including notification or remediation) could be delayed if a vendor refuses to timely provide necessary information or copies of relevant documents.  A company also can negotiate to include an indemnification provision requiring a vendor to reimburse the company for reasonable costs incurred in responding to and mitigating damages caused by any security breach related to the work performed by the vendor.

> Expectations in the event of a security breach at the vendor – A company should demand reasonable notification if the vendor experiences a security breach and require the vendor to take reasonable steps and use best efforts to remediate the breach and to try to prevent future breaches.  A company should negotiate for a provision permitting the company to audit the vendor’s security procedures and perhaps even to physically inspect the vendor’s servers and data storage facilities if the data at issue is particularly sensitive.

Monitoring

Due diligence and contractual provisions are necessary steps in managing the cybersecurity risks that a vendor presents, but absent consistent and proactive monitoring of the vendor relationship, including periodic audits and updates to vendor contracts, all prior efforts to protect the company in this respect will be undermined.  Determining who within the company is responsible for the relationship  – HR? Procurement? Legal? – is critical to help manage the vendor relationship.

> Schedule annual or semi-annual reviews of the vendor relationship –  A company not only should confirm that the vendor is following its cybersecurity protocols but also should inquire if any material changes to those protocols have been instituted that impact the manner in which the vendor handles the company’s data.  Depending on the level of sensitivity of the data being handled by the vendor, a company may consider retaining a third-party reviewer to evaluate the vendor.

> Update the vendor contract, as necessary – A company employee should be responsible to review vendor contracts annually to determine if any changes are necessary in view of cybersecurity concerns.

BYOD

Ransomware – where a hacker demands a ransom to unencrypt a company’s data caused by malicious software that the hacker deposited onto the company’s network to hold it hostage – certainly is a heightened concern for all companies.  It is the fastest growing malware targeting all industries, with more than 50% growth in recent years.  Every company is wary of ransomware and is trying to do as much as possible to protect itself from hackers.  The best practices against ransomware are to (i) periodically train and retrain your employees to be on the lookout for ransomware; (ii) constantly backup you data systems; and (iii) split up the locations where data is maintained to limit the damage in the event some servers fall victim to ransomware.  One thing that easily is overlooked, however, or is afforded more limited consideration, is a company’s BYOD policy and enforcement of that policy.

Permitting a company’s employees to use their own personal electronic devices to work remotely will lower overhead costs and improve efficiency but will bring a host of security and compliance concerns.  The cybersecurity and privacy protocols that the company established and vigorously pursues inside the company must also be followed by its employees when using their personal devices – home computers, tablets, smartphones – outside the company.  Employees likely are more interested, however, in the ease of access to work remotely than in ensuring that proper cybersecurity measures are followed with respect to their personal devices.  Are the employees using sophisticated passwords on their personal devices or any passwords at all?  Do the employees’ personal devices have automatic locks?  Are the employees using the most current software and installing security updates?

These concerns are real.  In May of 2017, the Wannacry ransomware attack infected more than 200,000 computers in over 100 countries, incapacitating companies and hospitals.  Hackers took advantage of the failure to install a patch to Microsoft Windows, which Microsoft had issued weeks earlier.  Even worse, it was discovered that some infected computers were using outdated versions of Microsoft Windows for which the patch would not have worked regardless.  Companies cannot risk pouring significant resources into establishing a comprehensive security program only to suffer a ransomware attack or otherwise to have its efforts undercut by an employee working remotely who failed to install appropriate security protocols on his/her personal devices.

The dangers to be wary of include, among others: > Personal devices may not automatically lock or have a timeout function. > Employees may not use sophisticated passwords to protect their personal devices. > Employees may use unsecured Wi-Fi hotspots to access the company’s systems, subjecting the company to heightened risk. > Employees may access the company’s systems using outdated software that is vulnerable to cyberattacks.

Combatting the Dangers

To address the added risks that accompany allowing BYOD, a company must develop, disseminate and institute a comprehensive BYOD policy.  That policy should identify the necessary security protocols that the employee must follow to use a personal device to work remotely, including, among other things:

 > Sophisticated passwords

> Automatic locks

> Encryption of data

> Installation of updated software and security apps

> Remote access from secure WiFi only

> Reporting procedures for lost/stolen devices

A company also should use mobile device management technology to permit the company to remotely access the personal devices of its employees to install any necessary software updates or to limit access to company systems.  Of course, the employee must be given notice that the company may use such technology and the capabilities of that technology.  Among other things, mobile device management technology can:

> Create a virtual partition separating work data and personal data

> Limit an employee’s access to work data

> Allow a company to push security updates onto an employee’s personal device

Enforcement

Similar to vendor management, the cybersecurity efforts undertaken by having a robust BYOD policy in place, or even using mobile management technology, are significantly weakened unless a company enforces the policy it has instituted.

> A BYOD policy should be a prominent part of any employee cybersecurity training.

> The company should inform the employee of the company’s right to access/monitor/delete information from an employee’s personal device in the event of, among other things, litigation and e-discovery requests, internal investigations, or the employee’s termination.

CONCLUSION

Implementing the above recommendations will not guarantee a company will not suffer a breach but will stem the threats created by third-party aspects of its cybersecurity program.  Even if a company ultimately suffers a breach, having had these protections in place to administer the risks associated with vendor management and BYOD certainly will help safeguard the company from the scrutiny of regulators or the criticism of their customers, which would be worse!

This post was written byJoseph B. Shumofsky of  Sills Cummis & Gross P.C.
More legal analysis at The National Law Review.

Appeal in Home Depot Data Breach Derivative Action Results in Settlement of Corporate Governance Claims

Home Depot Data BreachSnatching victory of a sort from the jaws of defeat, shareholders who brought a derivative action alleging that the 2014 Home Depot data breach resulted from officers’ and directors’ breaches of fiduciary duties have reached a settlement of those claims. As previously reported, that derivative action was dismissed on November 30, 2016.  That dismissal followed on the heels of dismissals of derivative actions alleging management breaches of fiduciary duties in connection with the Wyndham and Target data breaches. Despite that discouraging precedent, the Home Depot shareholder plaintiffs noticed an appeal from the trial court’s order of dismissal.  The parties subsequently resumed settlement discussions that had broken off in the fall of 2016, on the eve of argument and decision of Home Depot’s motion to dismiss.  On April 28, 2017, the parties submitted a joint motion disclosing and seeking preliminary approval of the proposed settlement.  If approved, the proposed settlement would result in dismissal of the shareholders’ appeal and an exchange of mutual releases, thereby terminating the fiduciary claims arising from the Home Depot data breach.

The Stipulation of Settlement filed with the court specifies that Home Depot will agree to implement the following nine changes to its information governance practices (which are a checklist of best practices for any business):

  1. Document the duties and responsibilities of the Chief Information Security Officer (“CISO”);

  2. Periodically conduct Table Top “Cyber Exercises” to prepare for emergencies and train personnel to respond to data security threats;

  3. Monitor and periodically assess key indicators of compromise on computer network endpoints;

  4. Maintain and periodically assess the Company’s partnership with a dark web mining service to search for confidential Home Depot information;

  5. Maintain an executive-level committee focused on the Company’s data security;

  6. Receive periodic reports from management regarding the amount of the Company’s IT budget and what percentage of the IT budget is spent on cybersecurity measures;

  7. Maintain an Incident Response Team and an Incident Response Plan;

  8. Maintain membership in at least one Information Sharing and Analysis Center (ISAC) or Information Sharing and Analysis Organization (ISAO); and

  9. Retain their own IT, data and security experts and consultants as they deem necessary.

It is unknown whether Home Depot had independently contemplated implementing any of these practices in the aftermath of the breach.

The proposed settlement assigns credit for the changes to the derivative action and, by making them part of a court-approved settlement, does allow for judicial enforcement in the event that Home Depot fails to comply with the remediation program.  More significantly, wrapping these practices into the derivative action settlement provides a justification for the shareholders’ counsel to request a fee award of $1,125,000.  Significantly, Home Depot continues to deny any wrongdoing, and the Settlement Agreement expressly states that it may not be construed as evidence or admission of fault, liability or wrongdoing.

The amount of the requested fee award, which is relatively modest by the standards of large scale derivative litigation, suggests that this may have been a nuisance value settlement of an appeal with slim prospects for success.  Given the prior failures of derivative claims in data breach cases, it remains to be seen whether this settlement will encourage shareholders in future data breach cases to attempt to buck the odds by asserting derivative claims.

©1994-2017 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Cybersecurity: Yes, They Will Hack Your Car

Auto Traffic, NightimeAuto manufacturers are increasingly equipping vehicles with rapidly advancing technologies, raising concerns regarding how the public will be affected by these changes. Manufacturers are beginning to implement automated driving and vehicle-to-vehicle (V2V) communication capabilities into their cars, extending potential cybersecurity threats and associated safety issues to road users.

As consumers, we already see cybersecurity threats and breaches in many areas of our day-to-day lives. With the spike of auto-driven and connected cars across the auto industry, these same threats and breaches have a strong potential to sprout in our lives on the road as well.

NHTSA has outlined the factors it will consider in evaluating cybersecurity threats as potential safety-related defects. They are as follows:

  • The amount of time elapsed since the vulnerability was discovered (e.g., less than one day, three months, or more than six months)

  • The level of expertise needed to exploit the vulnerability (e.g., whether a layman can exploit the vulnerability or whether it takes an expert to do so)

  • The accessibility of knowledge of the underlying system (e.g., whether how the system works is public knowledge or whether it is sensitive and restricted)

  • The necessary window of opportunity to exploit the vulnerability (e.g., an unlimited window or a very narrow window)

  • The level of equipment needed to exploit the vulnerability (e.g., standard or highly specialized)

Additionally, NHTSA’s guidance suggests policies that manufacturers :

  • Participating in the Automotive Information Sharing and Analysis Center (Auto-ISAC), which became fully operational in January 2016

  • Developing policies around reporting and disclosure of vulnerabilities to external cybersecurity researchers

  • Instituting a documented process for responding to incidents, vulnerabilities, and exploits and running exercises to test the effectiveness of these processes

  • Developing a documentation process that will allow self-auditing, which may include risk assessments, penetration test results, and organizational decisions

  • For original equipment, developing processes to ensure vulnerabilities and incidents are shared with appropriate entities throughout the supply chain

  • As vehicle technologies continue to progress, we expect that NHTSA’s guidance will evolve to address future concerns

To continue reading through NHTSA’s enforcement plans on motor vehicle safety as it pertains to recent technological advances, be sure to check out Thursday’s post on automated vehicle regulations.

© 2017 Foley & Lardner LLP

The Department Of Homeland Security Proposes New Rules Affecting Federal Government Contractors

This week, the Department of Homeland Security (“DHS”) issued three proposed rules expanding data security and privacy requirements for contractors and subcontractors. The proposed rules build upon other recent efforts by various federal agencies to strengthen safeguarding requirements for sensitive government information.  Given the increasing emphasis on data security and privacy, contractors and subcontractors are well advised to familiarize themselves with these new requirements and undertake a careful review of their current data security and privacy procedures to ensure they comply.

  • Privacy Training

DHS contracts currently require contractor and subcontractor employees to complete privacy training before accessing a Government system of records; handling Personally Identifiable Information and/or Sensitive Personally Identifiable Information; or designing, developing, maintaining, or operating a Government system of records. DHS proposes including this training requirement in the Homeland Security Acquisition Regulation (“HSAR”) and to make the training more easily accessible by hosting it on a public website.  By including the rule in the HSAR, DHS would standardize the obligation across all DHS contracts.  The new rule would require the training to be completed within thirty days of the award of a contract and on an annual basis thereafter.

DHS invites comment on the proposed rule. In particular, DHS asks commenters to offer their views on the burden, if any associated with the requirement to complete DHS-developed privacy training.  DHS also asks whether the industry should be given the flexibility to develop its own privacy training.  Comments must be submitted on or before March 20, 2017.

  • Information Technology Security Awareness Training

DHS currently requires contractor and subcontractor employees to complete information technology security awareness training before accessing DHS information systems and information resources. DHS proposes to amend the HSAR to require IT security awareness training for all contractor and subcontractor employees who will access (1) DHS information systems and information resources or (2) contractor owned and/or operated information systems and information resources capable of collecting, processing, storing or transmitting controlled unclassified information (“CUI”) (defined below).  DHS will require employees to undergo training and to sign DHS’s Rules of Behavior (“RoB”) before they are granted access to those systems and resources.  DHS also proposes to make this training and the RoB more easily accessible by hosting them on a public website.  Thereafter, annual training will be required.  In addition, contractors will be required to submit training certification and signed copies of the RoB to the contracting officer and maintain copies in their own records.

Through this proposed rule, DHS intends to require contractors to identify employees who will require access, to ensure that those employees complete training before they are granted access and annually thereafter, to provide to the government and maintain evidence that training has been conducted. Comments on the proposed rule are due on or before March 20, 2017.

  • Safeguarding of Controlled Unclassified Information

DHS’s third proposed rule will implement new security and privacy measures, including handling and incident reporting requirements, in order to better safeguard CUI. According to DHS, “[r]ecent high-profile breaches of Federal information further demonstrate the need to ensure that information security protections are clearly, effectively, and consistently addressed in contracts.”  Accordingly, the proposed rule – which addresses specific safeguarding requirements outlined in an Office of Management and Budget document outlining policy on managing government data – is intended to “strengthen[] and expand[]” upon existing HSAR language.

DHS’s proposed rule broadly defines “CUI” as “any information the Government creates or possesses, or an entity creates or possesses for or on behalf of the Government (other than classified information) that a law, regulation, or Government-wide policy requires or permits an agency to handle using safeguarding or dissemination controls[,]” including any “such information which, if lost, misused, disclosed, or, without authorization is accessed, or modified, could adversely affect the national or homeland security interest, the conduct of Federal programs, or the privacy of individuals.” The new safeguarding requirements, which apply to both contractors and subcontractors, include mandatory contract clauses; collection, processing, storage, and transmittal guidelines (which incorporate by reference any existing DHS policies and procedures); incident reporting timelines; and inspection provisions. Comments on the proposed rule are due on or before March 20, 2017.

  • Other Recent Efforts To Safeguard Contract Information

DHS’s new rules follow a number of other recent efforts by the federal government to better control CUI and other sensitive government information.

Last fall, for example, the National Archives and Record Administration (“NARA”) issued a final rule standardizing marking and handling requirements for CUI. The final rule, which went into effect on November 14, 2016, clarifies and standardizes the treatment of CUI across the federal government.

NARA’s final rule defines “CUI” as an intermediate level of protected information between classified information and uncontrolled information.  As defined, it includes such broad categories of information as proprietary information, export-controlled information, and certain information relating to legal proceedings.  The final rule also makes an important distinction between two types of systems that process, store or transmit CUI:  (1) information systems “used or operated by an agency or by a contractor of an agency or other organization on behalf of an agency”; and (2) other systems that are not operated on behalf of an agency but that otherwise store, transmit, or process CUI.

Although the final rule directly applies only to federal agencies, it directs agencies to include CUI protection requirements in all federal agreements (including contracts, grants and licenses) that may involve such information.  As a result, its requirements indirectly extend to government contractors.  At the same time, however, it is likely that some government contractor systems will fall into the second category of systems and will not have to abide by the final rule’s restrictions.  A pending FAR case and anticipated forthcoming FAR regulation will further implement this directive for federal contractors.

Similarly, last year the Department of Defense (“DOD”), General Services Administration, and the National Aeronautics and Space Administration issued a new subpart and contract clause (52.204-21) to the FAR “for the basic safeguarding of contractor information systems that process, store, or transmit Federal contract information.”  The provision adds a number of new information security controls with which contractors must comply.

DOD’s final rule imposes a set of fifteen “basic” security controls for covered “contractor information systems” upon which “Federal contract information” transits or resides.  The new controls include: (1) limiting access to the information to authorized users; (2) limiting information system access to the types of transactions and functions that authorized users are permitted to execute; (3) verifying controls on connections to external information systems; (4) imposing controls on information that is posted or processed on publicly accessible information systems; (5) identifying information system users and processes acting on behalf of users or devices; (6) authenticating or verifying the identities of users, processes, and devices before allowing access to an information system; (7) sanitizing or destroying information system media containing Federal contract information before disposal, release, or reuse; (8) limiting physical access to information systems, equipment, and operating environments to authorized individuals; (9) escorting visitors and monitoring visitor activity, maintaining audit logs of physical access, and controlling and managing physical access devices; (10) monitoring, controlling, and protecting organizational communications at external boundaries and key internal boundaries of information systems; (11) implementing sub networks for publically accessible system components that are physically or logically separated from internal networks; (12) identifying, reporting, and correcting information and information system flaws in a timely manner; (13) providing protection from malicious code at appropriate locations within organizational information systems; (14) updating malicious code protection mechanisms when new releases are available; and (15) performing periodic scans of the information system and real-time scans of files from external sources as files are downloaded, opened, or executed.

“Federal contract information” is broadly defined to include any information provided by or generated for the federal government under a government contract.  It does not, however, include either:  (1) information provided by the Government to the public, such as on a website; or (2) simple transactional information, such as that needed to process payments.  A “covered contractor information system” is defined as one that is:  (1) owned or operated by a contractor; and (2) “possesses, stores, or transmits” Federal contract information.

ARTICLE BY Connie N BertramAmy Blackwood & Emilie Adams of Proskauer Rose LLP

New York Proposes First-Ever Cybersecurity Regulation for Financial Institutions

cybersecurity regulationThe New York Department of Financial Services recently announced a new proposed rule, which would require financial institutions and insurers to implement strong policies for responding to cyberattacks and data breaches.  Specifically, the rule would require insurers, banks, and other financial institutions to develop detailed, specific plans for data breaches; to appoint a chief privacy security officer; and to increase monitoring of the handling of customer data by their vendors.

Until now, various regulators have been advancing similar rules on a voluntary basis.  This is reportedly the first time that a state regulatory agency is seeking to implement mandatory rules of this nature.

“New York, the financial capital of the world, is leading the nation in taking decisive action to protect consumers and our financial system from serious economic harm that is often perpetrated by state-sponsored organizations, global terrorist networks, and other criminal enterprises,” said New York Governor Cuomo. He added that the proposed regulation will ensure that the financial services industry upholds its commitment to protect customers and take more steps to prevent cyber-attacks.

The rule would go into effect in 45 days, subject to notice and public comment period.  Among other detailed requirements, it will mandate a detailed cybersecurity program and a written cybersecurity policy.  While larger financial institutions already likely have such policies in place, the rule puts more pressure on them to fully comply.  It also mandates the hiring of a Chief Privacy Officer at a time when privacy professionals are already in a very high demand.  To attract top talent, the financial institutions will need to allocate appropriate budgets for such hiring.

Additionally, the rules outline detailed requirements for the hiring and oversight of third-party vendors.  Regulated entities who allow their vendors to access nonpublic information will now have to engage in appropriate risk assessment, establish minimum cybersecurity practices for vendors, conduct due diligence processes and periodic assessment (at least once a year) of third-party vendors to verify that their cybersecurity practices are adequate.  More detailed specifications can be found here.  Other requirements include employment and training of cybersecurity personnel, timely destruction of nonpublic information, monitoring of unauthorized users, and encryption of all nonpublic information.  As DFS Superintendent Maria Vullo explained: “Regulated entities will be held accountable and must annually certify compliance with this regulation by assessing their specific risk profiles and designing programs that vigorously address those risks.”

Among other notable requirements, the regulations further mandate that banks notify New York’s Department of Financial Services of any material data breach within 72 hours of the breach.  The regulations come at the time when cybersecurity attacks are on the rise.  The proposed rules also follow on the heels of recent legislative initiatives in 4 other states to bolster their cybersecurity laws, as we previously discussed.

The regulations are sweeping in nature in that they potentially affect not only New-York-based companies but also insurers, banks, and financial institutions who conduct business in New York or have customers who are New York residents.  If you are unsure about your company’s obligations and the impact of the proposed rules on your industry, contact Mintz Levin privacy team for a detailed analysis.

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Employee Error Accounts for Most Security Breaches

security breachesA recent study by a well-known information security company captures one of the most common information security fallacies: that information security is a technology problem. Most businesses view mitigating information security risks as falling squarely in the purview of their information technology department. However, this study reports that human error actually accounted for nearly two-thirds of security compromises, far exceeding causes like insecure websites and hacking.1 While technological measures (e.g., anti-virus software, access controls, firewalls, and intrusion detection systems) are clearly important, their effectiveness pales in comparison to the benefits gained by effective security awareness training.

Just as troubling, another recent study found a 789% increase in e-mail phishing attacks containing malicious code, including ransomware, in the first quarter of 2016 over the final quarter of 2015.2 Phishing, which is an attempt to obtain confidential information or access by fraudulently posing as a legitimate company seeking information via e-mail, instant message or other electronic communication, specifically preys on employees who have not been trained to recognize the scam. A successful phishing expedition can result in the loss of confidential and financial information, system disruption and consumer litigation exposure. Every industry is impacted and at risk.

The results of these studies should serve as a clarion call to businesses. While we have long known that the human component is the key to improved security,3 it is also one of the most neglected areas in many business’ information security programs. Security awareness training for employees is one of the most important and effective means of reducing the potential for costly errors in handling sensitive information and protecting company information systems. Regardless of how much money and effort a business spends on its technological security measures, it cannot achieve an adequate level of security without addressing the human component.

Awareness training can ensure employees have a solid understanding of employer security practices and policies, as well as the tell-tale signs of an attempt to gain improper access to computer systems and confidential information. In contrast, uninformed employees are susceptible to mistakes, malware, phishing attacks, and other forms of social engineering. They can do substantial harm to a company’s systems and place its data at risk. The recent spate of ransomware attacks highlight just how critical the human element really is, as almost every one of those attacks resulted from human error.

First and foremost, it is critical that training programs have the participation of and include input from all relevant stakeholders at the company, including Human Resources, IT, Information Security, Legal, and Compliance.

Key aspects of any successful training program should also include the following:

  • Train on an ongoing basis. Avoid limiting training to when an employee is first hired or assigned to a new role in the organization

  • Train creatively, not just in a non-interactive classroom setting

  • Look for means to introduce interactivity into the training process

  • Have a means of measuring progress

To be truly effective, a security awareness program must provide “multiple methods of communicating awareness and educating employees as well (for example, posters, letters, memos, web based training, meetings, and promotions).”[1]

Training can be conducted through a number of means:

  • Classroom sessions

  • Webinars

  • Security posters and other materials in common areas

  • Brown bag lunches

  • Helpful hints distributed to employees via e-mail or corporate intranet posts

  • Simulated phishing attacks (e.g., systems that will periodically send phishinge-mail to employees attempting to lure them into clicking on an attachment or a hyperlink and then alerting the employee that they have engaged in an insecure activity)

Additionally, having comprehensive and understandable employee policies is critical to a company’s information security safeguards. Readable and effective policies can be used in conjunction with effective employee training to reduce data security incidents caused by human error.

Finally, one of the most effective ways to increase employee security awareness is to help employees understand that good security practices can also benefit them personally. Being security-aware not only serves to protect their employer’s systems, but also helps in better securing the employee’s own personal data and computers. For example, by being more vigilant in identifying potential phishing attacks at work, the employee will become more vigilant in using home e-mail accounts and thereby protect their own data, photographs, financial accounts, etc.


1https://www.egress.com/news/egress-ico-foi-2016
2http://phishme.com/phishme-q1-2016-malware-review/
3 See, e.g., Common Sense Guide to Mitigating Insider Threats, 4th Edition.http://www.sei.cmu.edu/reports/12tr012.pdf.