March 20, 2015 • Discussion, Litigation, Security • by Paul
DISCLAIMER: This post is based on preliminary reports from press accounts without having reviewed the full and final settlement terms.
It's no secret, I'd like to see a more "cyber secure" nation. If you've read some of my past posts, you've probably heard me struggle with the effects of giving incentives (right, wrong and outright "disincentives") to both every day folks and security pros to help improve our cybersecurity posture. Earlier this month I gave a (dry even by sauvignon blanc standards) synopsis of some legislative developments as legwork for a following discussion on the incentives government gives and industry responds (or doesn't respond) to in order improve our collective security. At least that was "the plan." Skipping ahead a few steps, but definitely related, we have more developments in the Target data breach litigation.
As of this writing, Target appears poised to settle litigation over the massive 2013 data breach of their IT systems for a total of $10M (plus up to $6.75M in fees to settlement class counsel.) The breach affected 40 million accounts and up to 110 million individuals. From an "industry incentives" point of view, there are some mixed messages about security incentives in this news.
STANDING –Traditionally, cases like this are dismissed early in the process on the basis that cardholders and customers lack standing to sue because they suffered no actual, demonstrable harm as a result of the breach. The Target case (as one of a recent "four-pack" of cases indicating a coming change in this view of standing, see "CASES" below) is somewhat notable from the standpoint that it survived a standing challenge. Or as I heard defense counsel recently quip, "It's getting to the point where I may actually have to defend one of these cases on the merits soon." Talking incentives, this seems to be a clear indicator courts are giving more weight to favoring standing on likelihood of harm to customers grounds.
ACTUAL HARM – Surviving a challenge to standing hasn't exactly paved a road to compensation, however. Let's pause for a moment to do some math. Assuming a maximum potential affected class of 40 million accounts and/or 110 million individuals, Target and plaintiffs' counsel are contemplating 25¢ or 9¢ in full-class compensation respectively? Not exactly. The low compensation to class member ratio probably lies in the likely difficulty class members will face in proving they're entitled to compensation under the terms of the settlement. Individuals must:
Prove they used a debit or credit card at a US Target store (not the Target.com website) over the 19 day range of November 27, 2013 through December 15, 2013 [i]
Declare if they actually received a breach notice or if they simply believe their information was compromised [ii]
And must demonstrate they experienced at least one of the following:
Unauthorized, unreimbursed charges on their credit or debit card
Time spent addressing those charges
Fees to hire someone to correct their credit report
Higher interest rates or fees on the accounts
Credit-related costs
Costs to replace their identification, Social Security number or phone number
Loss of access or restricted access to funds
If you set the "way-back" machine to last December and my comments on Breach Fatigue (specifically, the difficulty in collecting and assessing information about your exposure as an "included individual" in a breach) it'll be interesting to see how many people actually get compensation as a result of this settlement. But settlements are all about controlling risk and outcomes. While Federal District Judge Paul Magnuson got to decide that standing existed for litigation to proceed, Target gets to decide the parameters of what constitutes "actual harm" with these settlement compensation requirements.
DUTY OF CARE/SECURITY IMPROVEMENTS – It's worth noting that this settlement affects consumer negligence claims that survived dismissal. Why's that important? Because if the litigation proceeds to trial it then opens up the possibility the court carves out a duty of care for security and handling of customer data for data stewards like Target. Again on the notion of controlling risk, it'd be risky to roll the dice on that standard being developed at Target's peril if an affordable alternative exists. It's also somewhat unique that as part of the settlement, Target has agreed certain security improvements be imposed as part of the court order. Similar to controlling the terms of determining actual harm, Target gets to control the dialogue around what steps should be taken in light of the breach. Settlement steps include:
Appointing a Chief Information Security Officer
Maintain a security program that identifies risks to shoppers' personal information
Have a process for monitoring security risks
Give security training to employees
To be fair, as a level 1 PCI merchant with nearly $52B in market cap, you could probably argue that these are "Security 101" steps for such an organization. And most, if not all, were probably already implemented between the time of the breach and the settlement. [iii] But by including these security improvements in the final order, we are getting some market indicators of thoughts around an evolving duty of care regarding security, even if this particular settlement provides no acknowledgement or precedent to that effect.
With new info from the Target consumer case regarding valuation (40M consumers and payout likely far south of the maximum $10M), standing (broader inclusion), actual harm and security duty of care (negligence claims allowed to proceed and parties including security improvements as part of order), are these more and better incentives to secure information or is this just an exercise in post breach risk management?
In re Adobe Sys. Privacy Litig., F. Supp. 2d, 2014 WL 4379916 (N.D. Cal. Sept. 4, 2014) – expansive treatment of "standing", accepting notion of "increased risk of future harm" & cost of steps to mitigate fraud & malfeasance.
FTC v. Wyndham Worldwide Corp., 10 F. Supp. 3d (D.N.J.2014) – Refusal to dismiss claims and FTC contention that "reasonable" steps were not taken to protect data.
In re LinkedIn User Privacy Litig., 2014 WL 1323713 (N.D. Cal. Mar. 28, 2014) – for paying premium users, payment of fee with misrepresentation of own privacy policy gives rise to standing
[i] Can't help but wonder then (here we go again with the math…) for a breach scope of 40M compromised accounts, does citing this specific date range mean that 12.6% of the US population (2013) shopped at Target using credit/debit over those 19 days??
[ii] As discussed in the opening disclaimer, I'm not intimately acquainted with the 97 page potential settlement doc, but I'm guessing not receiving a notification will be a barrier to receiving compensation.
[iii] For example, Target appointed Brad Maiorino CISO last summer.
March 4, 2015 • Legislation, Privacy, Public Sector, Security • by Paul
I know, talking legislation is sexy stuff. But a short look back at some recent developments will be foundational to some important coming discussions.
The past several months have been packed with Cybersecurity legislation. Law making is inherently an iterative process and at the risk of sounding cynical, despite all the activity it's fair to say we haven't covered much new ground in 2015. But don't interpret the following synopsis as cynicism. The legislation is absolutely indicative of substantive forward progress, but I feel there's an opportunity at hand for larger leaps forward. A short recap of recent legislation and recurring themes to frame a later discussion:
Private Sector Information Sharing: 2015's State of the Union address included a section focusing on Cybersecurity, specifically with a call for better efforts to "integrate intelligence." Less than a month later, the President would raise that concern again at a Cybersecurity and Consumer Protection Summit. The summit featured the introduction of an Executive Order (EO) "Promoting Private Sector Cybersecurity Information Sharing." Information sharing is hardly virgin ground for Cyber legislation.[i] The call for Cybersecurity Information Sharing and Analysis Organizations (ISAO) can be found in the Homeland Security Act of 2002, the 2013 State of the Union Address and the 2013 and 2015 versions of the proposed Cyber Intelligence Sharing and Protection Acts. The 2013 State of the Union Address also gave rise to its own EO (EO 13636) calling for the creation of a framework outlining processes for voluntary private sector information sharing. Two of four Cybersecurity bills passed late in 2014 called for similar collaboration, the Cybersecurity Enhancement Act and the National Cybersecurity Protection Act. Last month's EO would add additional detail to ISAOs calling for formalized changes and updates to sharing policy as well as the creation of a non-government ISAO Standards Organization. If recent legislation has a predominant theme it's "Please share…pretty please??"
Cyberspace as Critical Infrastructure: Legislation has also emphasized the protection of U.S. Cyberspace as key to economic, military and national security stability. Several sectors of U.S. Cyberspace were therefore defined as critical infrastructure in the Homeland Security Act of 2002. Provisions were made for critical infrastructure protection (CIP) in 2003's Homeland Security Presidential Directive-7. Those CIP prescriptions were further refined in Cybersecurity guidance of 2013's EO 13636 (titled "Improving Critical Infrastructure") & resiliency prescriptions of Presidential Policy Directive 21. And the Cybersecurity Enhancement Act of 2014 once again highlighted the importance of our cyber assets and infrastructure to American prosperity and well being. Second theme: "This stuff is important."
Privacy and Civil Liberties Are Essential: There have been two recent long form attempts to describe privacy rights and civil liberties in Cyberspace, 2012's Consumer Privacy Bill of Rights and last week's 2015 version of the Consumer Privacy Bill of Rights. In the span between those two offerings preserving privacy has also been a stated outcome of 2013's EO 13636, this year's EO Promoting Private Sector Cybersecurity Information Sharing and The National Cybersecurity Protection Act of 2014. At one point President Obama also threatened to veto the 2013 version of the Cyber Intelligence Sharing and Protection Act if wasn't amended to ensure privacy and civil liberty protections.
Now that the legal pedigree is behind us, that's thirteen years of the same three part harmony:
"Share information."
"Cyberspace is critical."
"Privacy is essential."
And let's be clear who the intended audience is – private sector. Because as of 2009 the vast majority of public sector organizations began some migration to some subset of the same government security standards. So after thirteen years, how are we still in roughly the same position? I believe it's because, on their face, those three previous statements don't provide enough incentive to bring the right stakeholders to consensus yet. I believe we're close. I've offered what I think it will take to get us there absent some positive change. But I also believe public sector (and not necessarily just the Feds) has at least one more compelling incentive it can offer. I think evidence of that can be heard echoed here in the reactions of Trustwave's Phil Smith, RSA's Mike Brown and Denim Group's John Dickson.
[i] Information sharing is one means of attempting to scale efforts to combat an "open source adversary." Open source adversaries, like cyber criminals and advanced persistent threats, can cheaply and easily replicate attack methods and vectors using scale to incredible advantage. J. Michael Daniel, cyber-security coordinator at the White House, gave this explanation of the counter tactic benefits: "We have seen industries that have increased their information sharing—such as in the financial services industry—and that does make a meaningful difference in being able to cut out a lot of the low-level attacks and intrusions. When you do that, then you can focus your humans on the more sophisticated intruders. I see this as a sort of baseline for us just to stay in the game." For a brief treatment on open source cyberwar see John Robb's blog or the excellent example in his book Brave New War.
December 18, 2014 • Discussion, Insurance, Litigation, Security • by Paul
Last week I was applying my "finishing touches" on a cybersecurity presentation: one last look at Twitter, glance at a feed aggregator & skim the day's headlines. Between breaking news on the Sony Pictures hack, progress on class action suits over the Home Depot compromise, and some continuing local coverage (in the Twin Cities) of the Target breach, there were plenty of updates. I even worked in a Dennis Rodman slide. This Sony thing is sort of his fault, after all (I kid.) Regardless of the audience or the technical subject matter there's always something in current events that updates the content on threat vectors, victim trends, cyber liability, regulatory landscape, etc. Every time, with every presentation, some "breach du jour" or something related leads to an update in my deck. It's a steady diet of ubiquitous bad cybersecurity news that somehow hasn't already led to effective steps to stem the tide of compromises. I find that surprising – but should I?
A few days ago I was trying to wrap my head around the notion of "breach fatigue" vis-à-vis the average American. I'm not just concerned with it affecting my neighbors next door, but also the fellow security geeks working in offices down the hall. Case in point: When news of Target broke, I was certain it was going to be the tipping point that would lead us down a path to change on a large scale (Spoiler alert: sometimes I'm wrong about stuff.) That was my conclusion, one I've aired more than a handful of times, and in the year-plus since it happened, a non-trivial number of colleagues have let me know they disagree. Some common sentiments from those doubting Thomases:
– "Breach fatigue – there are just so many headlines that people start to tune it out."
– "As long as it's not costing the [consumers/company/shareholders] money, they don't care."
– "Sure, another breach, but nothing ever changes."
In order, what about breach fatigue? Are peers and colleagues really telling me, with a straight face, "There's so much hacking that we have to ignore it?" I stated last week I believe the root cause is that incident information is so inadequate and alternative options so scarce, it creates a "Bruce Hornsby Effect" ("That's just the way it is, some things will never change") in the average breach victim. That may explain why there's not an overwhelming groundswell of victims calling for substantive security changes, but what's IT Operations' excuse? You'd sprain your brain trying to derive a clearer "canary in the coalmine" example of cyber threat trend analysis (or "Let's say this Twinkie represents the normal amount of nefarious cyber activity…")
Next comes the notion that breaches aren't hitting pocketbooks and bottom lines. I wrote last week about the difficulties the average consumer faces in calculating the costs of a breach. But what about the hacked organizations themselves and their shareholders? As a security guy, I know there are many ongoing efforts to track and quantify the cost of a breach – probably the most notable being the Ponemon Institute's Annual Cost of a Data Breach Study (which places the 2014 average cost at $201 per record lost.) Similarly, you can find staggering estimates around recent high profile breaches: Home Depot warns that costs will surpass its initial $70M report, Sony's two breaches account for over a quarter billion in losses over three years, and one Target estimate eclipses $1B. But then you may notice something interesting, for companies reportedly hemorrhaging money post-incident, none of their stocks appear to be in an all-out freefall. They trend down in short term response to the attacks, but all seem to mount comebacks that make you wonder if The Street really thinks these attacks are taking a toll.[i] You would think loss figures with that many commas in them would constitute "bet your business" or existential threats, even for organizations of this size. But who's really bearing the cost of the breach? We're seeing that payment card breaches drop the heaviest costs on issuing banks and many of the targeted retailers are drawing on cyber insurance policies to cover some, if not all, of the losses. It becomes another area where net effects and actual costs of an incident are hard to pinpoint. While that abstraction has made it hard to tally losses and pinpoint accountability, at least the banks have come to the conclusion that they shouldn't be bearing the full brunt of these breaches and they're litigating. As of this writing, Target is facing over 100 breach related lawsuits and Home Depot nearly 50. Both companies have recently suffered preliminary rulings allowing cases against them to proceed. It seems the previously murky gulf between an incident and who owns the financial fallout of that incident may be getting some clarity soon.[ii]
"Sure, another breach, but nothing ever changes." I find it disturbing that this particular symptom of the Bruce Hornsby Effect predominantly occurs in security professionals. Maybe you're fighting a lot of organizational inertia and have poor, abstract metrics at your disposal, but there is a flashing neon business case for revisiting and reevaluating security posture, standards and readiness here. We could continue diving into the reasons things haven't changed, or we can ask the much more important follow up question: Is this course sustainable? That surprise I feel every time I scan the headlines prepping for another presentation is disbelief that we haven't already had our hand forced by some compelling event.
So what will it take to see real change?
Litigation – Litigating a breach is not a new approach. But from talking to attorney colleagues about their current case load, it seems this round of litigation involves a lot more thought about what a negligence standard and duty of care for data stewards might look like. The technical understanding of the courts has matured from previous waves of cases as well. And even factoring in inertia and breach fatigue, when the "class" in a class action suit numbers in the hundreds of millions, awards are likely to scale to levels that cause even the biggest industry players and sectors to wince. A successful suit that helps define security and negligence standards would likely bring substantive security improvements forward.
Underwriting – In addition to banks, insurers are shouldering a large portion of the burden from this last wave of high profile breaches. I've reviewed examples of underwriting qualifications and policy exclusions based on specific security capabilities. One policy I've seen specifically states that unencrypted PII is out of scope for cyber liability coverage (Here's an example of a similar exclusion related to portable devices/removable media.) A broad-based industry initiative or underwriting shift by major insurers to require specific security controls (encryption, SIEM tools, segregation of duties, etc.) or compliance with a strategic security framework as a basis for coverage would also force substantive improvements to security postures at large.
Catastrophe – These are severely damaging events that carry tremendous impact. Some catastrophes may involve events we've caught bite-size glimpses of and perhaps even prepared for on a smaller scale: natural disasters (Hurricane Katrina), cyber warfare (Georgia, Ukraine), sabotage (Stuxnet), and general concerns about terrorist or nation-state attacks on critical infrastructure (power, water, transportation) and targeted systems disruption (financial market collapse.) But it would take an event of unprecedented magnitude to produce wholesale change in our approach to security and readiness. There are plenty of nightmare scenarios you can paste into this space, and numerous indicators that we are trending toward such an event. For our purposes though, my contention is that it would take a scenario with measurably greater impact than what we've seen to date to in order to induce real change (To wit, nearly a decade after Hurricane Katrina, how many organizations still have their disaster recovery site in the same general geographic region as their production data center?) It's entirely plausible (I'd argue predictable) to imagine that in the wake of a truly massive, crippling cyber event, many critical sectors of U.S. infrastructure would engage in a massive correction (and likely overcorrection) in security practices and standards as they did with physical security protocols following the September 11th attacks.[iii]
The previous section once read, "What would it take to see real change?" "Would" now reads "will" as I feel all three subsequent scenarios are extremely likely, if not forgone conclusions. Litigation and underwriting will continue to evolve in ways that redistribute the financial fallout of breaches and place the onus of protection back with IT as it carves out more appropriate and prescriptive security terms. While that iterative and reactive process takes place, the baddies will continue to outpace security improvements and drive us ever closer to a tipping point cyber event. The smart money is on proactively preparing for these eventualities and getting ahead of the threats and risks, right? It's common sense, it's intuitive, and traditionally it just doesn't happen because of things like inertia, fatigue, and Bruce Hornsby.
But stick to your guns, folks because "that's just the way it is…ah, but don't you believe them."
[i] Time will tell with Sony.
[ii] There's probably an entire series of discussions on cyber liability that could fork off of this thread. For the purposes of this discussion though, the most important development is that between issuing banks, breached companies, shareholders, insurers, and affected individuals, actions are proceeding to correct what some of these players perceive to be an unfair or imbalanced distribution of the costs associated with a breach.
[iii] While I'm advocating for change and improvement to security practices, I'm concerned that undertaking those changes as part of a hasty, irrational, knee-jerk response to a cyber event might actually exacerbate problems. The preferred approach is to develop an approach under normal operating circumstances, before such a catastrophe occurs, with an eye toward minimizing the impact of such an event and getting the organization back to normal business operations.