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NYDFS Files First Suit: What You Should Know
It’s crucial that security teams establish a comprehensive incident and breach response plan that defines what constitutes an incident (thus establishing authority and accountability for action) and identifies business and legal stakeholders for escalation actions.
Cybersecurity is becoming increasingly central to regulatory compliance, with more and more attention being required to cope with new privacy laws and regulations enacted by international entities (GDPR in the European Union, Brazil’s LGPD, Canada’s PIPEDA) and multiple US state governments (led by California and New York). The challenge many organizations struggle with is understanding what cybersecurity capabilities must be in place to meet regulatory needs.
Yet some overwhelmed organizations may fail to maintain compliance through complacency or by downplaying the likelihood that a regulation will be enforced. This is naïve: we’re seeing regulators paying closer attention to how businesses are protecting consumer information and the bar is being continuously raised for privacy and cybersecurity regulatory requirements.
If your organization doesn’t typically have regulators auditing your privacy and cybersecurity program, don’t be complacent. If you have a significant security incident, especially when consumer information is involved, it’s very likely that you’ll get a call. How you handle the response will directly affect the outcome of any investigations – especially if the incident is reported to regulators or made public by an outside source.
We’re now seeing this scenario play out with New York State Department of Financial Services (NYDFS) 23 NYCRR 500. The NYDFS has filed its first lawsuit, and the complaint centers on four familiar challenges. The NYDFS alleges multiple failures by the organization, specifically charging that it:
This incident was first publicly reported by Brian Krebs in May 2019, seemingly before any report to the superintendent, which is required within 72 hours from determination that a cybersecurity event has occurred.
The NYDFS press release reinforces the governance and risk management components of an information security program, starting with the basic edict to follow company policy. The NYDFS500 requires organizations to maintain a written cybersecurity policy that’s approved by a senior officer, board of directors or appropriate committee. Policies establish the organization’s rules and establish accountability; there must be consequences for not actively following the official policy.
If you find yourself facing a significant security incident, your response can determine the level of scrutiny you’ll receive from customers and regulatory authorities. Organizations are getting better at incident identification and analysis, but we continue to see evidence in the press that many still struggle with incident response. In the new NYDFS lawsuit, exposure of sensitive information was detected, but there wasn’t a well-honed action plan.
It’s crucial that security teams establish a comprehensive incident and breach response plan that defines what constitutes an incident (thus establishing authority and accountability for action) and identifies business and legal stakeholders for escalation actions. Components of the plan should include:
NOTE: The NYDFS establishes two scenarios under which covered entities need to report cybersecurity events (notice the regulation not say “confirmed breach”):
An organization’s response to incidents should hinge on the assessment of severity, which should be based on key facts gathered and analyzed by the incident response team. Examples of key inputs to severity analysis include:
The incident commander and other key personnel should periodically re-evaluate all elements of the incident response plan to ensure the organization’s response is assigned the appropriate resources and urgency as well as to ensure that appropriate communications tactics are in place.
As the ancient Greek poet Archilochus wrote, “We don't rise to the level of our expectations; we fall to the level of our training.” Having a plan in place establishing how to respond to security events helps an organization remain in control in the event of an incident, which will in turn assures higher levels of customer trust, minimizes business impacts and provide the best possible outcome of a regulatory investigation.
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August 20, 2019
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September 09, 2019
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