Risk Insider: Jack Hampton

The Changing Concept of Privacy

By: | December 7, 2016 • 2 min read
John (Jack) Hampton is a Professor of Business at St. Peter’s University and a former Executive Director of the Risk and Insurance Management Society (RIMS). His recent book deals with risk management in higher education: "Culture, Intricacies, and Obsessions in Higher Education — Why Colleges and Universities are Struggling to Deliver the Goods." His website is www.jackhampton.com.

Classical Chinese Mandarin had no word that conveyed the modern meaning of privacy. Its closest term conveyed a message close to “shameful secret,” as when a person wanted to hide a disgraceful behavior from others.

Everybody knows the meaning of “privacy.” It is freedom from being observed or disturbed by others. Legally, it is a right to control access to our personal information.

Is the issue of privacy about to change as a major theme in our society?

We can ask German Chancellor Angela Merkel, “Did you feel violated when you learned the U.S. National Security Agency listened to and recorded your cell phone conversations?”

We could contact 32 million members of Ashley Madison, the commercial website that facilitates discreet sexual affairs for married adults. Did bad things happen after the release of their full names, home addresses, and credit card transactions?

We might be curious about what happened to Ashley Madison’s clients in Saudi Arabia where adultery is a crime punishable by death.

Curiosity is one thing. Managing the exposure from a privacy breach is a potential disaster.

Risk managers are concerned about privacy violations that increasingly are coming from out of nowhere. We should be concerned too.

Ask Erin Andrews, the ESPN reporter who was videotaped naked in her hotel room. A jury verdict was $55 million from Marriott for violation of privacy.

You can’t ask Tyler Clementi, an 18-year-old student at Rutgers University. He jumped to his death from the George Washington Bridge after his roommate used a webcam and shared an Internet video of Clementi kissing another man.

Advertisement




Privacy violation is big business. The collection of our private data is a $300 billion-a-year industry employing millions of people in the United States. They gather information without regard to how it will be used. They digitally scour Facebook for information about people going on vacation, match it with email addresses, and sell it to vendors in destination locations who promote events for tourists. Unintentionally, the information can wind up in the hands of burglars who break into empty homes.

Elsewhere, recruiters uncover personal data not volunteered in applications for employment. Unscrupulous proprietary schools identify financially struggling students and put them into debt pursuing programs they will not complete.

The quest for sensitive data and other secrets is part of a new discipline called “business analytics.”

Privacy violation is big business. The collection of our private data is a $300 billion-a-year industry employing millions of people in the United States. They gather information without regard to how it will be used.

The definition is quite harmless. It refers to continuous and repeated exploration and investigation of data to improve performance.

It uses the availability of the massive amount of data collected by companies, governments, and other parties who have little or no respect for privacy.

The situation is complicated because we actually train people to violate privacy. Business analytics is a “hot” academic program on college campuses. Students learn how to pore through our personal lives to create “meaning” that will be used for or against us by complete strangers.

What is the reality of personal privacy? It’s gone.

Politicians use business analytics to find friendly voters. The media tracks down hidden stories that inform, entertain, or titillate. Lawyers pursue clients. Employers dig for conflicts of interest. Netflix manages its business based on our viewing patterns.

Everybody is sharing the data. Nobody is taking much time to respect privacy.

We might conclude with a mission statement that could apply to a modern company.

“We have to be forthright with our customers. We must earn their confidence. We have to show them we care about them and will protect them. Then, we can find their shameful secrets and invade their privacy.”

Cyber Liability

Fresh Worries for Boards of Directors

New cyber security regulations increase exposure for directors and officers at financial institutions.
By: | June 1, 2017 • 6 min read

Boards of directors could face a fresh wave of directors and officers (D&O) claims following the introduction of tough new cybersecurity rules for financial institutions by The New York State Department of Financial Services (DFS).

Advertisement




Prompted by recent high profile cyber attacks on JPMorgan Chase, Sony, Target, and others, the state regulations are the first of their kind and went into effect on March 1.

The new rules require banks, insurers and other financial institutions to establish an enterprise-wide cybersecurity program and adopt a written policy that must be reviewed by the board and approved by a senior officer annually.

The regulation also requires the more than 3,000 financial services firms operating in the state to appoint a chief information security officer to oversee the program, to report possible breaches within 72 hours, and to ensure that third-party vendors meet the new standards.

Companies will have until September 1 to comply with most of the new requirements, and beginning February 15, 2018, they will have to submit an annual certification of compliance.

The responsibility for cybersecurity will now fall squarely on the board and senior management actively overseeing the entity’s overall program. Some experts fear that the D&O insurance market is far from prepared to absorb this risk.

“The new rules could raise compliance risks for financial institutions and, in turn, premiums and loss potential for D&O insurance underwriters,” warned Fitch Ratings in a statement. “If management and directors of financial institutions that experience future cyber incidents are subsequently found to be noncompliant with the New York regulations, then they will be more exposed to litigation that would be covered under professional liability policies.”

D&O Challenge

Judy Selby, managing director in BDO Consulting’s technology advisory services practice, said that while many directors and officers rely on a CISO to deal with cybersecurity, under the new rules the buck stops with the board.

“The common refrain I hear from directors and officers is ‘we have a great IT guy or CIO,’ and while it’s important to have them in place, as the board, they are ultimately responsible for cybersecurity oversight,” she said.

William Kelly, senior vice president, underwriting, Argo Pro

William Kelly, senior vice president, underwriting at Argo Pro, said that unknown cyber threats, untested policy language and developing case laws would all make it more difficult for the D&O market to respond accurately to any such new claims.

“Insurers will need to account for the increased exposures presented by these new regulations and charge appropriately for such added exposure,” he said.

Going forward, said Larry Hamilton, partner at Mayer Brown, D&O underwriters also need to scrutinize a company’s compliance with the regulations.

“To the extent that this risk was not adequately taken into account in the first place in the underwriting of in-force D&O policies, there could be unanticipated additional exposure for the D&O insurers,” he said.

Michelle Lopilato, Hub International’s director of cyber and technology solutions, added that some carriers may offer more coverage, while others may pull back.

“How the markets react will evolve as we see how involved the department becomes in investigating and fining financial institutions for noncompliance and its result on the balance sheet and dividends,” she said.

Christopher Keegan, senior managing director at Beecher Carlson, said that by setting a benchmark, the new rules would make it easier for claimants to make a case that the company had been negligent.

“If stock prices drop, then this makes it easier for class action lawyers to make their cases in D&O situations,” he said. “As a result, D&O carriers may see an uptick in cases against their insureds and an easier path for plaintiffs to show that the company did not meet its duty of care.”

Advertisement




One area that regulators and plaintiffs might seize upon is the certification compliance requirement, according to Rob Yellen, executive vice president, D&O and fiduciary liability product leader, FINEX at Willis Towers Watson.

“A mere inaccuracy in a certification could result in criminal enforcement, in which case it would then become a boardroom issue,” he said.

A big grey area, however, said Shiraz Saeed, national practice leader for cyber risk at Starr Companies, is determining if a violation is a cyber or management liability issue in the first place.

“The complication arises when a company only has D&O coverage, but it doesn’t have a cyber policy and then they have to try and push all the claims down the D&O route, irrespective of their nature,” he said.

“Insurers, on their part, will need to account for the increased exposures presented by these new regulations and charge appropriately for such added exposure.” — William Kelly, senior vice president, underwriting, Argo Pro

Jim McCue, managing director at Aon’s financial services group, said many small and mid-size businesses may struggle to comply with the new rules in time.

“It’s going to be a steep learning curve and a lot of work in terms of preparedness and the implementation of a highly detailed cyber security program, risk assessment and response plan, all by September 2017,” he said.

The new regulation also has the potential to impact third parties including accounting, law, IT and even maintenance and repair firms who have access to a company’s information systems and personal data, said Keegan.

“That can include everyone from IT vendors to the people who maintain the building’s air conditioning,” he said.

New Models

Others have followed New York’s lead, with similar regulations being considered across federal, state and non-governmental regulators.

The National Association of Insurance Commissioners’ Cyber-security Taskforce has proposed an insurance data security model law that establishes exclusive standards for data security and investigation, and notification of a breach of data security for insurance providers.

Once enacted, each state would be free to adopt the new law, however, “our main concern is if regulators in different states start to adopt different standards from each other,” said Alex Hageli, director, personal lines policy at the Property Casualty Insurers Association of America.

“It would only serve to make compliance harder, increase the cost of burden on companies, and at the end of the day it doesn’t really help anybody.”

Advertisement




Richard Morris, partner at law firm Herrick, Feinstein LLP, said companies need to review their current cybersecurity program with their chief technology officer or IT provider.

“Companies should assess whether their current technology budget is adequate and consider what investments will be required in 2017 to keep up with regulatory and market expectations,” he said. “They should also review and assess the adequacy of insurance policies with respect to coverages, deductibles and other limitations.”

Adam Hamm, former NAIC chair and MD of Protiviti’s risk and compliance practice, added: “With New York’s new cyber regulation, this is a sea change from where we were a couple of years ago and it’s soon going to become the new norm for regulating cyber security.” &

Alex Wright is a U.K.-based business journalist, who previously was deputy business editor at The Royal Gazette in Bermuda. You can reach him at [email protected]