Last year’s proposed comprehensive framework for cybersecurity rules for large financial institutions is suddenly facing an uncertain future.1With the comment period having closed as of February 2017, the framework was facing criticism as unnecessary for an industry already subject to a host of federal, state, and international cybersecurity regimes. That criticism – now coupled with the Trump Administration’s general retreat from regulatory rulemaking across the board – may result in cybersecurity rules that are ultimately more limited in scope than originally envisioned, or lead to the proposed framework being abandoned altogether. In the meantime, large banks and other financial institutions must continue to comply with existing cybersecurity rules under the ever-growing scrutiny of regulators both in the United States and overseas.
I. Overview of the Proposed Framework
On October 19, 2016, three federal banking regulators – the Federal Reserve Bank (“FRB”), the Office of the Comptroller of the Currency (“OCC”), and the Federal Deposit Insurance Corporation (“FDIC”) – issued an advance notice of proposed rulemaking for new cybersecurity regulations for large financial institutions (i.e., institutions with consolidated assets of $50 billion) and critical financial infrastructure.2 The framework was intended to result in rules to address the type of serious “cyber incident or failure” that could “impact the safety and soundness” of not just the financial institution that is the victim of a cyberattack, but the soundness of the financial system and markets overall. Accordingly, the framework envisioned “enhanced standards for the largest and most interconnected entities… as well as for services that these entities receive from third parties.”3
The proposed framework broadly addresses five cybersecurity categories:
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Cyber Risk Governance. This would require that institutions covered by the new rules develop – and their boards and management approve – an enterprise-wide cyber risk management strategy that articulates how it intends to address its inherent cyber risk and maintain system resilience. Among other things, a cyber strategy must (i) identify cyber risk; (ii) address mitigation strategies; (iii) establish reporting structures for cyber incidents; and (iv) provide a means of testing the effectiveness of the cyber strategy.4
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Cyber Risk Management. This would require institutions covered by the new rules to adopt a “three lines of defense” risk management model for cyber risk that is often used by large corporations to manage other forms of risk, including traditional financial crime risk. The lines of the “defense” include (i) the business units, which would be tasked, as a first line of defense, with adhering to and implementing the new cyber policies, assessing risk, and reporting incidents; (ii) an independent risk management function, as a second line of defense, that would identify, measure, and monitor the effectiveness of the cyber risk controls in place and to report exceptions and incidents to senior management; and (iii) an independent audit function that would, as a third line of defense, assess whether the cyber risk management framework complies with applicable laws and regulations and is appropriate for the financial institution.5
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Internal Dependency Management. This category refers to standards that are intended to ensure that financial institutions can effectively identify and manage risk associated with “internal dependencies,” such as, for example, a financial institution’s own employees, technology, and facilities. Examples of risks related to internal dependencies include those from insiders, data system failures, and problems arising from old legacy systems that were acquired through mergers. Among other things, the rules in this category would require financial institutions to maintain a current and complete list of all internal assets and business functions, including mapping the connections and information flows between those assets and functions.6
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External Dependency Management. “External dependencies” refer to an entity’s relationship with “outside vendors, customers, utilities, and other external organizations and service providers that the entity depends on to deliver services, as well as the information flows and interconnections between the entity and those external parties.” Rules in this category would require financial institutions to maintain complete lists of all external dependencies, to analyze the risks associated with external relationships, and to identify and test alternative solutions in the event an external partner is compromised or otherwise fails to perform as expected. Further, the agencies propose that the standards apply directly to third-party vendors who provide financial services to banks (such as payment processors), including those vendors that provide services unrelated to banking or finance if those vendors nonetheless have trusted access to the bank’s computer systems.7
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Incident Response, Cyber Resilience, and Situational Awareness. The final category is intended to ensure that financial institutions effectively plan for, respond to, and quickly recover from disruptions caused by cyber incidents – including incidents targeting their external service providers. These rules would require that institutions (i) provide for backup storage of critical records; (ii) establish contingency plans if the institution is unable to perform a service due to a cyber incident; (iii) test for cyber incidents; and (iv) identify and gather intelligence on potential threats.8
The proposed framework provides for additional, even more stringent, standards for anything deemed to be a “sector critical system,” which includes (i) systems that support the clearing or settlement of at least 5 percent of the value of transactions in certain financial markets; (ii) depository institutions that hold a “significant share” (approximately 5 percent) of the total deposits in the United States; and (iii) any system that serves as a “key node” to the financial sector.9 For “sector critical systems,” it proposes that financial institutions adopt additional rules and safeguards, including:
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requiring that financial institutions minimize the cyber risk posed to “sector critical systems” by implementing the most effective, commercially-available means of protection;10 and
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requiring that financial institutions establish a recovery time, validated by testing, for “sector critical systems” of 2 hours after a harmful cyber attack.11
Finally, in terms of implementing the standards proposed in the framework, the proponent agencies propose three alternatives: (i) a general regulatory requirement for covered entities to maintain an appropriate cybersecurity risk management program supplemented by policy statements that set forth minimum expectations and standards; (ii) comprehensive regulations that propose specific cyber risk management standards; or (iii) comprehensive regulations that propose specific cyber risk management standards and which contain detailed objectives and practices that firms would be required to adopt.12
II. Potential Hurdles
Recent developments call into question whether the rules prepared as a result of the proposed framework will be as strict as originally envisioned, or whether any new rules will be adopted at all.
First, although some of the comments received during the comment period welcomed the interest in this area, many were critical of the new standards. In general, the comments raised several common concerns, including the following:
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New rules would, if implemented, join a host of other, already-existing mandatory state, federal, and foreign cybersecurity regulations, including those required under the Gramm-Leach-Bliley Act, the Fair Credit Reporting Act, and, most recently, the strict cybersecurity regime adopted by the New York State Department of Financial Services.13 In addition, there are a number of voluntary standards that many financial institutions already follow, such as the Cybersecurity Framework published by the National Institution of Standards and Technology (“NIST”), the Payment Card Industry Data Security Standard, and the Federal Financial Institutions Examination Council’s Cybersecurity Assessment Tool.14 Few, if any, of these competing regimes are harmonized with each other and, as a result, the adoption of yet another cybersecurity regulation would add to the already heavy regulatory burden facing financial institutions without, necessarily, resulting in improved cybersecurity.15
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To the extent that the proposed framework contemplates applying new cybersecurity rules not just to financial institutions but also to their third-party service providers, there is a concern that rules tailored for large financial institutions would not easily down-scale to smaller companies in different industries and with different risk profiles.16 Further, the additional compliance costs imposed on third-party vendors could potentially drive them away from providing services to the financial sector or stifle innovation.17
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As an alternative to binding, prescriptive rules, the agencies should consider adopting a set of flexible, risk-based guidelines, similar to the NIST Cybersecurity Framework, that would allow financial institutions to assess and mitigate their particular cybersecurity risks. Specific, prescriptive rules are likely to become outdated by technological developments and, further, encourage regulated entities to focus on merely complying with the rules rather than seeking to comprehensively address their outstanding cybersecurity risks.18
Second, the Trump Administration itself has signaled that it has a limited appetite for major new regulations. Shortly after taking office, President Trump told a group of business leaders that he intends to cut federal regulations by 75 percent or “maybe more.”19 On January 30, 2017, the President signed an executive order which, among other things, required that federal agencies identify two existing regulations for elimination for each new regulation that is proposed.20 Although the “two-for-one” limitation does not apply to independent regulatory agencies such as the FRB, the OCC, and the FDIC,21 the White House nonetheless stated that it is encouraging independent regulatory agencies to “identify existing regulations that, if repealed or revised, would achieve cost savings that would fully offset the costs of new significant regulatory actions.”22
Finally, although the Trump Administration has not yet settled on a comprehensive cybersecurity policy, early indications show that it is likely to favor “public-private” partnerships and other incentives over new mandatory regulations. For example, President Trump’s pick to head the Securities and Exchange Commission, Jay Clayton, has said that he does not believe in regulations to impose cybersecurity mandates on businesses.23Further, an early draft of a proposed Executive Order on cybersecurity – which has not yet been signed – directed the federal government to study “economic or other incentives” to encourage the private sector to adopt effective cybersecurity measures.24 This suggests that the Trump Administration is considering a host of ways to promote cybersecurity risk management in the private sector beyond compulsory regulations.
III. Conclusion
Industry opposition, coupled with the stated reluctance of the Trump Administration to pursue broad new regulatory regimes, may result in the proposed cybersecurity framework being scaled back or even left to wither and die on the vine. However, even in their absence banks and other large financial institutions must continue to comply with the plethora of existing state, federal, international, and industry standards that already apply. Whether and how the proposed framework – and any new rules that emerge therefrom – fits into the existing regulatory scheme so far remains to be seen.
© Copyright 2017 Cadwalader, Wickersham & Taft LLP
1 See Press Release, Agencies Issue Advanced Notice of Proposed Rulemaking on Enhanced Cyber Risk Management Standards (Oct. 19, 2016),available at https://www.federalreserve.gov/newsevents/press/bcreg/20161019a.htm.
2 Enhanced Cyber Risk Management Standards (Oct. 19, 2016), available athttps://www.federalreserve.gov/newsevents/press/bcreg/bcreg20161019a1.pdf.
3 Id. at 8.
4 Id. at 24-26.
5 Id. at 26-29.
6 Id. at 31-32.
7 Id. at 33-35.
8 Id. at 39.
9 Id. at 39.
10 Id. at 40.
11 Id.
12 Id. at 44-45.
13 See, e.g., Comments of Consumer Data Industry Association, at 2-6 (Jan. 12, 2017), available athttps://www.federalreserve.gov/SECRS/2017/February/20170206/R-1550/R-1550_011317_131681_551357712049_1.pdf. We note that any financial institution large enough to be covered by the proposed standards is likely to have operations outside of the U.S. and, thus, may be subject to cybersecurity or data protection regimes in other jurisdictions, such as the EU’s General Data Privacy Regulation (“GDPR”). We discussed the GDPR in a recent Clients & Friends Memorandum. See S. Baker, J. Facciponti, J. Rennie, and J. Tampi, The EU’s New Data Protection Regulation – Are Your Cybersecurity and Data Protection Measures up to Scratch? (Mar. 6, 2017). We further discussed the New York State cybersecurity rules in a separate client memorandum. See J. Facciponti, J. Moehringer, and H. Wizenfeld, New York State Revises “First-In-Nation” Cybersecurity Rules (Jan. 10, 2017).
14 See, e.g., Comments of SIFMA, ABA, and IIB, at 3 (Feb. 17, 2017), available athttps://www.federalreserve.gov/SECRS/2017/February/20170221/R-1550/R-1550_021717_131711_434399470067_1.pdf (“The Agencies’ [proposed rules] risks undermining the cybersecurity efforts of financial institutions by failing to fully recognize extensive efforts that firms have already made to implement risk-based approaches such as the NIST Cybersecurity Framework and existing federal requirements.”) (“SIFMA Comments”); Comments by the U.S. Chamber of Commerce, at 4-5 (Jan. 18, 2017), available athttps://www.federalreserve.gov/SECRS/2017/February/20170208/R-1550/R-1550_011817_131688_286658311250_1.pdf (“Chamber of Commerce Comments”).
15 See, e.g., Comments of Financial Services Sector Coordinating Council, at 5 (Feb. 17, 2017), available athttps://www.federalreserve.gov/SECRS/2017/February/20170221/R-1550/R-1550_021717_131709_429070260162_1.pdf; Comments of Financial Services Roundtable/BITS, at 3-4 (Feb. 16, 2017), available athttps://www.federalreserve.gov/SECRS/2017/February/20170221/R-1550/R-1550_021617_131723_560608420203_1.pdf; Comments of Electronic Transactions Association, at 1-4 (Feb. 13, 2017), available athttps://www.federalreserve.gov/SECRS/2017/March/20170307/R-1550/R-1550_030717_131766_542476603001_1.pdf (“ETA Comments”); Chamber of Commerce Comments, at 10-11.
16 See, e.g., ETA Comments, at 5; Comments of Mastercard Worldwide, at 3-4 (Jan. 17, 2017), available athttps://www.federalreserve.gov/SECRS/2017/February/20170203/R-1550/R-1550_011717_131679_551358024222_1.pdf; Comments by IHS Markit, at 4 (Feb. 17, 2017), available at https://www.federalreserve.gov/SECRS/2017/March/20170303/R-1550/R-1550_021717_131731_315895562414_1.pdf.
17 See, e.g., Comments of Amazon Web Services, at 5 (Feb. 17, 2017), available athttps://www.federalreserve.gov/SECRS/2017/March/20170307/R-1550/R-1550_030717_131764_542476134029_1.pdf; SIFMA Comments, at 5.
18 See, e.g., Comments by Information Technology Counsel, at 13 (Feb. 17, 2017), available athttps://www.federalreserve.gov/SECRS/2017/March/20170303/R-1550/R-1550_021717_131706_428178516928_1.pdf; Comments by Business Roundtable, at 2 (Feb. 13, 2017), available at https://www.federalreserve.gov/SECRS/2017/February/20170227/R-1550/R-1550_021417_131700_411451111014_1.pdf; Chamber of Commerce Comments, at 3, 6-10 (“There is no regulatory silver bullet for cybersecurity. The complex, dynamic nature of cyber risk makes pursuing flexible, tailored approaches critical.”); Comments of North American CRO Council, at 1 (Jan. 17, 2017), available at https://www.federalreserve.gov/SECRS/2017/February/20170203/R-1550/R-1550_011717_131686_503116251901_1.pdf.
19 See J. Pramuk, Trump tells business leaders he wants to cut regulations by 75% or ‘maybe more’, CNBC (Jan. 23, 2017), available athttp://www.cnbc.com/2017/01/23/trump-tells-business-leaders-he-wants-to-cut-regulations-by-75-percent-or-maybe-more.html.
20 See Executive Order, Reducing Regulation and Controlling Regulatory Costs (Jan. 30, 2017), available athttps://www.whitehouse.gov/the-press-office/2017/01/30/presidential-executive-order-reducing-regulation-and-controlling.
21 See 44 U.S.C. § 3502(5).
22 See Memorandum: Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, Titled, “Reducing Regulation and Controlling Regulatory Costs” (Feb. 2, 2017), available at https://www.whitehouse.gov/the-press-office/2017/02/02/interim-guidance-implementing-section-2-executive-order-january-30-2017.
23 See Roger Yu, Honed by Wall Street: What Makes Trump SEC Chair Pick Jay Clayton Tick, USA Today (Jan. 4, 2017), available athttp://www.usatoday.com/story/money/2017/01/04/donald-trumps-sec-chair-nominee-comes-deep-wall-street-ties/96162306/.
24 See Draft Executive Order, Strengthening U.S. Cyber Security and Capabilities, at 4-5, available athttps://apps.washingtonpost.com/g/documents/world/read-the-trump-administrations-draft-of-the-executive-order-on-cybersecurity/2306/.
