Risk Insider: Kevin Kalinich

Lights Out! Can Insurance Help?

By: | January 25, 2016 • 3 min read
Kevin Kalinich is the global cyber risk practice leader for Aon Risk Solutions, focusing on identifying exposures and developing insurance solutions. He can be reached at [email protected]

In “Lights Out: A Cyberattack, A Nation Unprepared, Surviving the Aftermath,” author Ted Koppel suggests that a catastrophic cyber attack on America’s power grid is likely and that we’re unprepared.

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Let’s examine his assertions from a risk management perspective.

• Power Grid Attack Likely?

Clients tell us that they are hacked more frequently than is reported. A Dec. 21, 2015 article, “Biggest U.S. Electric Company Battles Off Steady Cyberattacks,” reported that Duke Energy’s computer systems that manage dams, nuclear power plants and other types of generating plants are under constant attack. A reported cyber attack last month caused one-half of Western Ukraine to lose power.

• U.S. Unprepared?

Opinions differ on whether we have seen improved prevention, mitigation, response and resiliency since the Northeast power outage of 2003. Mr. Koppel described a bureaucracy that is moving slowly and with poor focus against a dynamic threat.

For example, the National Protection and Programs Directorate at the Department of Homeland Security, responsible for coordinating risk reduction to critical American infrastructure, is divided in two separate and distinct parts –- one physical and one cyber-related.

We are, however, seeing certain governmental actions and changes. The Cybersecurity Information Sharing Act of 2015, signed into law December 2015, provides immunity from liability to participating organizations that share certain cyber-threat information with the federal government and vice versa.

Federal and state agencies such as the Federal Energy Regulatory Commission may consider increased fines for grid failures that have ranged from $50,000 to $350,000. By way of example, Florida Power and Light Company was fined $25 million in 2009 for a February 2008 blackout.

However, most reported cases of cyber damage and regulatory action to date relate to protection of personally identifiable information, such as the Federal Communications Commission’s $25 million fine against AT&T and $100 million fine against Lifelock.

• Catastrophic?

According to search engine Shodan, the U.S. has more than 57,000 industrial controls systems connected to the internet. But how do we quantify potential losses? Information on how companies and the government respond to hacks is often protected and sometimes classified, which can defeat transparency.

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A 2015 Lloyd’s of London/University of Cambridge report, “Business Blackout,” sets forth the insurance implications of a cyber attack on the U.S. power grid. The report estimated a hypothetical worst case scenario of $243 billion to $1,024 trillion in direct and indirect losses, with between $21.398 billion and $71.109 billion in estimated insurance industry losses.

Currently there are not enough stand-alone cyber limits to pay for such losses.

Many property and general liability insurers are inconsistent and/or hesitant to cover cyber exposures likely because there’s insufficient actuarial data. Since we don’t have sufficient actuarial data for cyber exposures, we should borrow from other complex modeling situations like typhoons, earthquakes and hurricanes — relatively rare events that could have catastrophic impacts.

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We’ve come to the conclusion that we need to break down the silos between the insurance company property/GL groups and cyber groups, and develop a combined all-risk policy that combines the actuarial data of property losses with cyber experts to identify and quantify frequency and severity. To analogize, a similar approach is used to build terrorism insurance programs, with mixed success (see graphic).

By combining an objective risk management context based on data analytics, we can learn from natural weather incidents and terrorism threats to develop robust public-private partnerships to help improve our preparedness and reduce losses stemming from a cyber attack.

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).

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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.”

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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.”

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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]