Tag Archives: cyber-attack

Has an International Cyber War Begun?

Cyber attacks were once on the periphery of American business consciousness. That mindset changed over the past two years. A series of devastating events, including the 2014 cyber attack against Sony, catapulted cyber liability concerns from an IT department issue to a major priority for boardrooms across America. As U.S. government officials concluded that North Korea was behind the attack, many C-suite executives suddenly found themselves asking questions. Is this the start of a cyber war? Could we be the next victim? If we are, how will it affect our operations and our bottom line? Do our insurance policies cover any of these costs?

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Today, many insurance buyers look to their cyber insurance policies to fill coverage gaps that often exist in other policies. For example, a property policy may respond to physical damage from a named peril, but it will likely exclude loss for non-tangible assets as a result of a cyber attack. Similarly, a commercial general liability policy will likely provide liability coverage for causing bodily injury because of negligence but exclude coverage for liability because of a failure to secure sensitive data from hackers.

Many policyholders may be unaware that some, though not all, of these cyber policies contain specific terrorism and war exclusions. As a result, gaps in cyber insurance coverage can exist in cases like the Sony breach, where government agencies, like the FBI, conclude that a foreign government or terrorist organization is responsible for the attack.

Is a Cyber Attack “Terrorism” or “War”?

Immediately following the Sony attack, President Obama referred to it by saying, “I don’t think it was an act of war . . . but cyber vandalism.” Then, on April 1, 2015, President Obama signed the Executive Order on Cybersecurity with the goal of protecting the private sector against hackers and thereby bolstering national security. The order seeks to identify and punish individuals behind attacks, but it could also lead some to categorize an apparent hacking event or act of cyber terrorism as an “act of war.”

Changes in government definitions trickle down into coverage disputes because many policies that exclude or include “war,” “terrorism” or “cyber terrorism” either fail to define those terms or define them by referring to standard government definitions.

Government Definitions of Terrorism, Cyber Terrorism and War

THE TERRORISM RISK INSURANCE ACT (TRIA)

“Act of terrorism” is defined as any act certified by the secretary of the Treasury in concurrence with the secretary of State and the attorney general of the U.S. to be:

» an act of terrorism

» a violent act or an act that is dangerous to human life, property or infrastructure

» an act resulting in damage within the United States or Outside (on a U.S.-flagged vessel, aircraft or U.S. mission)

» an act committed by an individual or individuals acting on behalf of any foreign person or foreign interest, as part of an effort to coerce the civilian population, U.S. policy or the U.S. government.

The secretary of the Treasury may not delegate his certification authority, and his decision to certify an act or not is not subject to judicial review.

DEPARTMENT OF DEFENSE (DOD)

The DOD defines “terrorism” as “the unlawful use of violence or threat of violence, often motivated by religious, political or other ideological beliefs, to instill fear and coerce governments or societies in pursuit of goals that are usually political.” The term “act of war” is understood to mean “a use of force [that may] invoke a state’s inherent right to lawful self-defense.”

DEPARTMENT OF JUSTICE (DOJ)/FEDERAL BUREAU OF INVESTIGATION (FBI)

The FBI defines “cyber terrorism” as “the premeditated, politically motivated attack against information, computer systems, computer programs and data [that] results in violence against non-combatant targets by subnational groups or clandestine agents.”

DEPARTMENT OF HOMELAND SECURITY (DHS)

The National Infrastructure Protection Center (NIPC), (formally a branch of DHS), defines “cyber terrorism” as “a criminal act perpetrated through computers resulting in violence, death and/or destruction and creating terror for the purpose of coercing a government to change its policies.”

Cyber Terrorism and the ‘Act of War’ Exclusion

Cyber policies are relatively new and manuscript products; as such, the wording varies significantly. Many policies contain a standard exclusion for “war, invasion, acts of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power, confiscation, nationalization, requisition, or destruction of, or damage to, property by or under the order of any government, public or local authority…” An attack by the Taliban, for example, would probably fit within the exclusion as an act sponsored by a “public or local authority.”

Traditionally, war exclusions were relatively narrow; they required an actual war or, at the very least, “warlike operations”; “for there to be a ‘war,’ a sovereign or quasi-sovereign must engage in hostilities.” Pan Am. World Airways, Inc. v. Aetna Cas. & Sur. Co., 505 F.2d 989, 1005 (2d Cir. 1974) (finding that a Jordanian terrorist group that hijacked a plane was not a de facto government for the purposes of applying the war exception).

However, the events of Sept. 11, 2001, changed the way certain events and groups were perceived and classified, ultimately leading many to label the 2014 cyber attack on Sony an “act of war.”

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Litigation surrounding the Sept. 11 attacks led directly to an expanded view of the war exclusion. For one thing, the Second Circuit Court of Appeals ruled that the attacks were an “act of war.” In re Sept. 11 Litig., 931 F. Supp. 2d 496, 512 (S.D.N.Y. 2013), an owner of a building near the site of the World Trade Center attacks sought to recover cleanup and abatement expenses for removing pulverized dust that infiltrated into the owner’s building after the collapse of the Twin Towers. He sued under the Comprehensive Environmental Response, Compensation, and Liability Act [CERCLA], which allows strict liability claims in pollution cases, but the court applied CERCLA’s “act of war” exception to strict liability.

In concluding that the attacks were an act of war, the court commented that “Al Qaeda’s leadership declared war on the United States, and organized a sophisticated, coordinated, and well-financed set of attacks intended to bring down the leading commercial and political institutions of the United States,” id. at 509, and that “as we learned in the twentieth century, and as has been true throughout history, war can take on a formal structure of armies in contrasting uniforms confronting each other on battlefields, and war can persist for years, fought by irregular, insurgent forces and capable of causing extraordinary damage,” id. at 511.

This expansion of the legal definition of “act of war” to include acts by “irregular, insurgent forces and capable of causing extraordinary damage” could lead to attacks by hacktivist groups or foreign intelligence services being considered acts of war and therefore excluded from cyber policies.

Cyber Insurance and TRIA

The Terrorism Risk Insurance Act (TRIA) is a government program designed to provide a backstop for reinsurers in the event of large terrorism-related losses (more than $100 million). There is debate over whether TRIA applies to cyber policies at all. TRIA applies to commercial property and casualty insurance coverage, but some cyber policies are written as another line of coverage, such as professional liability, which is not included in TRIA.

Even assuming that TRIA would apply to cyber insurance, for TRIA coverage to be in effect, (1) there must be losses, resulting from property damage, exceeding $100 million; and (2) they must be caused by a certified terrorism event:

(1) Property Damage: For TRIA to apply, physical property damage must occur, and what constitutes “physical damage” in the context of a cyber attack remains an open question. What we do know is that TRIA will probably not cover business interruption or reductions in business income absent some physical loss or property damage. Many cyber attacks do not involve any physical damage, which would exclude TRIA coverage.

(2) A Certified Terrorism Event: For TRIA to apply to any event, the event would need to be certified as an act of terrorism. This onerous and political certification process requires the secretary of the Treasury, secretary of State and attorney general to agree that an incident was an “act of terrorism.” Many political and economic issues factor into certifying a terrorism event, which can lead to counterintuitive results. For instance, as of the date of this publication, the April 2013 Boston Marathon bombing has not been certified as a terrorist act.

Conclusion

To ensure coverage for cyber terrorism and cyber warfare, buyers of cyber insurance will need to seek out a cyber risk insurance policy that explicitly includes this coverage in the broadest terms possible. As more insurance carriers enter the cyber insurance market, one must be wary that policy terms will vary from one policy form to the next, and some will have coverage terms superior to others.

The State of Cyber Insurance

Cyber attacks are escalating in their frequency and intensity and pose a growing threat to the business community as well as the national security of countries. High-profile cyber incidents in 2014 reflected the expanding spectrum of cyber threats, from point-of-sale (POS) breaches against customer accounts to targeted denial-of-service (DoS) attacks meant to disable a company’s network. Businesses in ever-greater numbers sought financial protection through insurance, buying coverage for losses from data breaches and business outages.

Boost in Cyber Insurance Demand Drives Insurers’ Response

Healthcare facilities, universities and schools continue to be on cybercriminals’ radar, but attacks in the hospitality and gaming, power and utilities and other sectors reveal that no organization is immune to a cyber attack or failure of technology.

Healthcare and education clients had the highest cyber insurance take-up rates in 2014, followed by hospitality and gaming and services. Universities and schools present attractive targets because they house a vast array of personal information of students, parents, employees, alumni and others: Social Security numbers, healthcare information, financial data and research papers can all be compromised.

The broader scope of hacktivists contributed to the increase in cyber insurance purchases in 2014. Sectors that again showed notable year-over-year increases in the number of clients purchasing cyber coverage included hospitality and gaming and education. Other areas that stood out in 2014 included the power and utilities sector, with more clients buying standalone cyber coverage. Power and utilities companies frequently cite the risks and vulnerabilities associated with the use of supervisory control and data acquisition networks — which control remote equipment — and the cost of regulatory investigations as driving factors behind their cyber coverage purchases.

The reasons for purchasing cyber coverage vary from board mandates seeking to protect corporate reputations to companies looking to mitigate potential revenue loss from cyber-induced interruptions of operations. Insurers responded to this demand by offering broader cyber insurance coverage in 2014, including coverage for contingent business interruption and cyber-induced bodily injury and property damages. They also expanded availability of loss-control services, including risk-assessment tools, breach counseling and event response assistance.

Cyber Limits Rise

Companies with revenues of more than $1 billion have increased their cyber insurance limits worldwide by 42% on average since 2012, according to Marsh Global Analytics estimates. Over the same time period, healthcare companies have bought 178% more cyber insurance, and power and utilities firms have expanded their coverage by 98%.

Rising spending on cyber insurance

Source: Marsh Global Analytics. Percentage increase in spending by companies with more than $1 billion in revenues on cyber-risk insurance from 2012 through 2014.

Cyber Rates and Coverage

Increases in the frequency and severity of losses and near-constant headlines about attacks and outages kept cyber insurance premiums generally volatile in 2014. Average rate increases at renewal for both primary layers and total programs were lower in the fourth quarter than in the first. The increased loss activity prompted pricing challenges for some insureds, particularly retailers, where renewal rates rose 5% on average and as much as 10% for some clients.

Market capacity also varied according to industry. Most industries were able to secure cyber coverage with aggregate limits in excess of $200 million, while the most targeted industries, like retailers and financial institutions, faced a challenging market.

Insureds also face heightened due diligence from underwriters seeking to drill down beyond simple reviews of the company’s general information security policies. For example, insureds in the retail sector are being asked about their deployment of encryption and EMV (credit card) technology. And all insureds are now routinely asked whether they have formal incident response plans in place that outline procedures for protecting data and vendor networks and, more importantly, if such plans have been tested.

A Growing Concern

In 2015, managing cyber risk is clearly a top priority for organizations. For example, business interruption (BI) drew a lot of attention in 2014, a trend likely to continue throughout 2015. While BI has historically been thought of as the effect of a critical system going down for an extended period, technology failures and cyber attacks can create far-reaching outages affecting secondary systems, clients and even vendors. Such events can also lead to higher recovery costs, which are becoming a concern for boards of directors and senior management.

There is also concern stemming from the expansion of regulation and litigation. Regulators were active in policing cyber risks in 2014, and oversight is likely to expand significantly in coming years. With cyber risk seen as a critical issue on both sides of the aisle in Washington, D.C., companies will face regulatory challenges in 2015 and beyond.

Sectors that have already seen significant regulatory activity — for example, healthcare, financial services and education — will likely face more stringent regulations and larger fines. All industries should pay attention to existing and impending regulations, tighten controls and prepare to present and defend their compliance regime. Civil litigation in the wake of a breach or disclosure of a cyber event also escalated in 2014, with class actions at times following the disclosure of a breach by mere hours.

As demand for cyber insurance grows, remember that risk transfer is only part of the solution. Enhanced information sharing between industry and government is another step toward having a comprehensive risk-mitigation strategy. Insurers and brokers are expanding the availability of loss-prevention and risk-mitigation services such as risk-assessment tools, breach preparation counseling and breach response assistance. The expanded roster of services and enhanced coverage can provide additional value from policies, usually without a specific added premium.

5 Questions to Ask About Cyber

Cyber security placed first in a list of emerging casualty risks among insurance buyers, according to a survey of 135 insurance professionals conducted by London-based specialty lines broker RKH Specialty. 70% of respondents put cyber risk in the top spot. According to a Best’s News Service article about the survey, healthcare and retailers have been the major buyers. Logic will tell you that the reason for the growing demand for specialized cyber coverage is the simple fact that losses stemming from cyber-related attacks and business interruption can be catastrophic.

Of course, not all policies are created equal, so here are some things to consider when purchasing cyber security coverage to help ensure that policyholders are adequately protected from the losses after a cyber attack.

#1 If your business has a cyber attack, will your operations cease or be interrupted? If so, you need to make sure the cyber coverage you procure has “business interruption coverage.”

#2 Does your cloud contract stipulate that your third-party cloud vendor must meet all the federal regulatory requirements in encrypting personally identifiable information (PHI) and healthcare records? If not, you need to verify how the third-party vendor is protecting your employees’ and patients’ information from cyber attacks and whether its cyber coverage will protect you.

#3 Do all mobile devices – such as smartphones and tablets – have proper encryption software to protect personally identifiable information and healthcare records? HIPAA security regulations require healthcare providers to use encryption as a means of protection for their patients electronic PHI. If they don’t do so, healthcare providers can be heavily penalized by federal regulators. Most cyber policies have a stipulation that, to be covered, all insureds must adhere to the most recent encryption requirements for electronic protected health information (ePHIs).

#4 Does your legal counsel have experience responding to cyber attacks? Businesses often have their own attorneys and use them frequently for everyday operations. However, the likelihood is that the in-house counsel does not specialize in the legalities of cyber attacks. Having an attorney who specializes in data breaches can make the process run more smoothly and ensure that important details are not missed or mishandled – such as notifying regulatory agencies, properly setting up notification of employees and patients as well as advising PR staff on all media inquiries and other external communications.

#5 Does your business have an expert consultant they can call on to make recommendations on cyber coverage or risk management strategies to reduce the risk of attacks – or to help manage the crisis after an attack? Enlisting the help of a cyber-liability expert and mapping out a plan can help mitigate the potentially catastrophic losses related to a data breach event.

Cyber Risk: The Expanding Threat

Summary

— Interest in cyber insurance and risk has grown beyond expectations in 2014 and 2015 as a result of high-profile data breaches, including a massive data breach at health insurer Anthem that exposed data on 78.8 million customers and employees and another at Premera Blue Cross that compromised the records of 11 million customers. The U.S. government has also been targeted by hackers in two separate attacks in May 2015 that compromised personnel records on as many as 14 million current and former civilian government employees. A state-sponsored attack against Sony Pictures Entertainment, allegedly by North Korea, made headlines in late 2014.

— Cyber attacks and breaches have grown in frequency, and loss costs are on the rise. In 2014, the number of U.S. data breaches tracked hit a record 783, with 85.6 million records exposed. In the first half of 2015, some 400 data breach events have been publicly disclosed as of June 30, with 117.6 million records exposed. These figures do not include the many attacks that go unreported. In addition, many attacks go undetected. Despite conflicting analyses, the costs associated with these losses are increasing. McAfee and CSIS estimated the likely cost to the global economy from cyber crime is $445 billion a year, with a range of between $375 billion and $575 billion.

–Insurers are issuing an increasing number of cyber insurance policies and becoming more skilled and experienced at underwriting and pricing this rapidly evolving risk. More than 60 carriers now offer stand-alone cyber insurance policies and insurance broker Marsh estimates the U.S. cyber insurance market was worth more than $2 billion in gross written premiums in 2014, with some estimates suggesting it has the potential to grow to $5 billion by 2018 and $7.5 billion by 2020. Industry experts indicate rates are rising, especially in business segments hit hard by breaches over the past two years.

— Some observers believe that cyber exposure is greater than the insurance industry’s ability to adequately underwrite the risk. Cyberattacks have the potential to be massive and wide-ranging because of the connected nature of this risk, which can make it difficult for insurers to assess the likely severity. Several insurers have warned that the scope of the exposures is too broad to be covered by the private sector alone, and a few observers see a need for government coverage akin to the terrorism risk insurance programs in place in several countries.

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4 Ways Risk Managers Can Engage on Cyber

Five years ago, a cyber-attack on your organization would likely have been a quick one-two punch to compromise your firewalls and obtain your customers’ personal data. As the risk manager, you would have been informed of the breach by IT staff, determined the severity of the incident and given an account to the company’s compliance staff.

Fast forward to today. An attack takes a subsidiary’s corporate network offline and threatens the entire firm’s email system. Critical product formulas or sales data may have been stolen. You are called to not only provide a report of the incident to the chief information security officer but also to the CFO and CEO. The media and shareholders are clamoring to know how it happened, and the board wants to know how you plan to prevent another one.

Prepared or not, your role has changed as cyber criminals have grown more sophisticated – and more menacing. You can no longer simply react to cyber events. You are a crucial member of cybersecurity task forces and cyber risk strategy teams and are increasingly relied on by the most senior corporate leadership.

You’re probably routinely called to be part of the team that develops best practices for assessing, managing and responding to cyber events, on top of ensuring that effective cyber insurance or other risk transfer mechanisms are in place. As regulators, shareholders, customers and others hold senior corporate leadership accountable for cybersecurity, you have to be diligent in identifying, analyzing and anticipating all of your organization’s risk exposures.

Four Steps to Cyber Risk Management

To help meet the increasingly difficult and complex challenge of cyber risk management, start with these four tactics:

  1. Create an operational risk working group around cyber that includes IT, information security, legal and others. As a risk manager, you’re probably uniquely positioned – for example, through risk committees – to pull together a cross section of key stakeholders around an issue such as cybersecurity.
  2. Quantify, as much as possible, the costs of a cyber event across all business units. Consider using analysis and assessment tools that quantify impacts by business, sector and other areas.
  3. Communicate the potential impact of risks to various stakeholders inside the organization as well as to third-party vendors.
  4. Deliver the cyber risk management strategy to the chief information officer or the C-suite/board in a timely manner – and be accountable for maintaining and amending the plan as required.

Heightened awareness of cyber events has enabled risk executives to play an ever-more critical role in their organization’s cybersecurity strategy, but only with the right risk management tools can you truly succeed.

This article is part of a series that discusses cyber awareness among key stakeholders. For access to the other cyber articles, please click here.