Tag Archives: cybersecurity risks

Why Buy Cyber and Privacy Liability. . .

An industry known for embracing paper and shunning change, the property and casualty insurance market struggles to keep pace with the modern business world, which is full of personally owned mobile and other portable devices, and concepts such as advanced persistent threats (APTs), the Internet of Thingsand the “cloud.” While insurance companies are known for creating bespoke policies to address new risks not initially contemplated within the confines of traditional property and liability policies (see Y2K, environmental legal liability and employment practices liability), insureds are within their right to see how those current programs address 21st-century risks.

If only one of Target, Snapchat, Facebook, Google, Twitter, Yahoo! Adobe and so on and so forth had suffered a serious data breach within the last few months, that would be sufficiently troubling. Yet data breaches have become so ubiquitous that a single week (if not days) without one hitting the headlines seems almost strange. By now every organization should appreciate that—no matter how robust and sophisticated its network security is—it remains a vulnerable target for cybersecurity breaches and the host of negative consequences that typically follow, including class action lawsuits (so far, dozens of suits have been filed against Target), substantial breach notification costs, and other “crisis management” expenses, including forensic investigation, credit monitoring, call centers and public relations efforts, as well as potential regulatory investigations, fines and penalties.

This article will briefly look at how an organization’s commercial general liability—specifically, the personal and advertising injury coverage—may currently address privacy risks.

Although there can be substantial overlap between the concepts of cybersecurity, network security liability and privacy, as they typically are understood in the industry, this article will focus on those risks associated purely with privacy risks, or the “unauthorized access, collection, use or disclosure of personal information.” Therefore, we will not be covering those issues related to cyber liability, or “breach-related expenses, including forensic investigations, outside counsel fees, crisis management services, public relations experts, breach notification and call center costs.” This article will also not be addressing the recent first-party bodily injury, property damage and business interruption coverage associated with the damage attributable to unauthorized access of operational technology (SCADA systems).

We will first summarize the current industry standard form key coverage grant, definitions and exclusions. We will then discuss the recent Sony decision and the new 2014 industry form exclusionary endorsements targeted at eliminating coverage for data breaches under standard-form CGL coverage.

Current standard-form CGL coverage

The Coverage B “Personal and Advertising Injury Liability” coverage section of the current standard-form Insurance Services Office, Inc. (ISO) CGL policy states that the insurer “will pay those sums that the insured becomes legally obligated to pay as damages because of ‘personal and advertising injury,’ which is caused by an Id. §1.b.offense arising out of [the insured’s] business.” “Personal and advertising injury” is defined in the ISO standard-form policy to include a list of specifically enumerated offenses, which include the “offense” of ‘[o]ral or written publication, in any manner, of material that violates a person’s right of privacy.’” The policy further states that the insurer “will have the right and duty to defend the insured against any ‘suit.’” The CGL Coverage B can indemnify and provide a defense against a wide variety of claims, including claims alleging violation of privacy rights, such as data breach cases.

Coverage disputes have generally focused on whether there has been a “publication” that violates the claimant’s “right of privacy”—both terms are left undefined in standard-form ISO policies. Courts generally (although certainly not universally) have construed the language favorably to insureds and have found coverage for a wide variety of claims alleging breach of privacy laws and regulations, including, for example, in respect of claims alleging violations of the Telephone Consumer Protection Act (TCPA), claims alleging violations of the Fair Credit Reporting Act (FCRA), claims alleging violations of the Fair and Accurate Credit Transactions Act (FACTA), claims alleging violations of the Electronic Communications Privacy Act and the Computer Fraud and Abuse Act, claims alleging violations of the California Confidentiality of Medical Information Act (CMIA), and claims alleging violations of the California Lanterman-Petris-Short Act. Courts have found in favor of coverage in data breach cases, although the recent decision in Zurich American Insurance Co. v. Sony Corp. of America et al. highlights the issues that insureds may face in obtaining coverage for data breaches under CGL policies.

Zurich v. Sony

Arguably the most visible legal case surrounding the applicability of the CGL personal and advertising injury coverage to claims alleging data breach came about because of Sony’s massive 2011 PlayStation data breach. Zurich American and Mitsui Sumitomo had issued primary CGL policies to Sony. In April 2011, hackers broke into Sony networks and stole personal and financial information of more than 100 million users.

Sony was named as a defendant in numerous class actions immediately following the breach. Mitsui denied coverage, and Zurich responded by filing a declaratory relief action seeking a declaration that Zurich had no duty to defend.

At issue in the case is whether Sony or the hackers were responsible for the actual “publication” of the personally identifiable information (PII). A New York court recently held that there was no coverage, essentially because it was the perpetrators of the breach who ultimately “published” the private information, rather than Sony itself. Legal experts have argued both in favor of and against the court’s decision, arguing, among other things, that the trigger for the personal and advertising injury coverage must be an affirmative act by Sony or, conversely, that coverage is triggered to the extent Sony has liability.

The case is currently under appeal, and its final decision will potentially be an indicator of how insurers and courts will view data breach coverage under the personal and advertising injury coverage.

In the meantime, however, the decision underscores the difficulties that insureds can face in pursing data breach coverage under their traditional CGL policies.

Although this endorsement appears to have quietly flown in under the radar, it in reality is even more sweeping than the 2014 data breach exclusionary endorsements because it entirely eliminates coverage in the first instance.

Conclusion

Over the years, the commercial general liability policy has been the proverbial “catch all” for claims subsequently determined to be outside the intent and scope of the underwriters. Past examples have included pollution liability, asbestos, employment practices liability and professional liability. Cyber and privacy liability may well be heading in the same direction. Insurers are stating publicly that this exposure was never contemplated when the policy language was drafted. And, of course, cybersecurity and privacy liability has recently risen to potentially catastrophic levels of potential liability (e.g., Target). Insurers, therefore, are increasingly seeking to separately insure the risk, subject to separate underwriting criteria.

In the end, before a cybersecurity or privacy incident, companies should take the opportunity to carefully evaluate and address their risk profile, potential exposure to cyber and privacy risks, their risk tolerance, the sufficiency of their existing insurance coverage and the potential role of specialized cyber risk coverage.

Another Reason to Consider Cyber Insurance

Here a breach, there a breach, everywhere a data breach.

Verizon’s most recent 2013 Data Breach Investigations Report remarks that “[p]erhaps more so than any other year, the large scale and diverse nature of data breaches and other network attacks took center stage” this year.1 And no organization is immune from a breach. The last two years have seen some of the world’s most sophisticated corporate giants fall victim to some of the largest data breaches in history. It is clear that cyber attacks — including data breaches — are on the rise with unprecedented frequency, sophistication and scale. They are pervasive across industries and geographical boundaries. And they represent “an ever-increasing threat.”2 The problem of cyber risks is exacerbated, not only by increasingly sophisticated cyber criminals and evolving malware, but also by the trend in outsourcing of data handling, processing and storage to third-party vendors, including “cloud” providers, and by the simple reality of the modern business world, which is full of portable devices such as cellphones, laptops, iPads, USB drives, jump drives, media cards, tablets and other devices that may facilitate the loss of sensitive information.

While data breaches and other types of cyber risks are increasing, laws and regulations governing data security and privacy are proliferating. In its most recent 2013 Cost of Data Breach Study, the Ponemon Institute reports that U.S. organizations spend on average $565,020 on post-breach notification alone.3 Companies may also face lawsuits seeking damages for invasion of privacy, as well as governmental and regulatory investigations, fines and penalties, damage to brand and reputation and other negative repercussions from a data breach, including those resulting from breaches of Payment Card Industry Data Security Standards. The Ponemon Institute’s recent study reports that the average organizational cost of a data breach in 2012 was $188 per record for U.S. organizations ($277 in the case of malicious attacks) and that the average number of breached records was 28,765, for a total of $5.4 milion.4 The study does not “include organizations that had data breaches in excess of 100,000” records,5 although large-scale breaches clearly are on the rise. In the face of these daunting facts and figures, it is abundantly clear that network security alone cannot entirely address the issue; no firewall is unbreachable, no security system impenetrable.

Insurance can play a vital role in a company’s efforts to mitigate cyber risk. This fact has the attention of the Securities and Exchange Commission. In the wake of “more frequent and severe cyber incidents,” the SEC’s Division of Corporation Finance has issued guidance on cybersecurity disclosures under the federal securities laws. The guidance advises that companies “should review, on an ongoing basis, the adequacy of their disclosure relating to cybersecurity risks and cyber incidents” and that “appropriate disclosures may include” a “[d]escription of relevant insurance coverage.”6

While some companies carry policies that are specifically designed to afford coverage for cyber risk, most companies have various forms of traditional insurance that may cover cyber risks, including Insurance Services Office (ISO)7 standard-form commercial general liability (CGL) policies. There may be significant coverage under CGL policies, including for data breaches that result in disclosure of personally identifiable information (commonly termed “PII”) and other claims alleging violation of a right to privacy. For example, there is significant potential coverage under the “Personal and Advertising Injury Liability” coverage section (Coverage B) of the standard-form ISO CGL policy, which currently states that the insurer “will pay those sums that the insured becomes legally obligated to pay as damages because of ‘personal and advertising injury.’”8 “Personal and advertising injury” is defined to include a list of specifically enumerated offenses, which include “[o]ral or written publication, in any manner, of material that violates a person’s right of privacy.”9 Coverage disputes generally focus on whether there has been a “publication” that violates the claimant’s “right of privacy”—both terms are left undefined in standard-form ISO policies, and courts generally have construed the language favorably to insureds and have found coverage for a wide variety of claims alleging misuse of customer information and breach of privacy laws and regulations.10 There may also be coverage under the “Bodily Injury and Property Damage” section of the standard CGL form (Coverage A), which states that the insurer “will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’” that “occurs during the policy period.”11

As courts have found coverage for various types of cyber risks, however, ISO has added limitations and exclusions purporting to cut off CGL lines of coverage. For example, in response to a number of cases upholding coverage for breach of the Telephone Consumer Protection Act, the Fair Credit Reporting Act and other privacy laws, the current ISO standard form contains the following exclusion, which is applicable to both Coverage A and Coverage B:

This insurance does not apply to:

Recording And Distribution Of Material Or Information In Violation Of Law

“Personal and advertising injury” arising directly or indirectly out of any action or omission that violates or is alleged to violate:

  1. The Telephone Consumer Protection Act (TCPA), including any amendment of or addition to such law;
  2. The CAN-SPAM Act of 2003, including any amendment of or addition to such law;
  3. The Fair Credit Reporting Act (FCRA), and any amendment of or addition to such law, including the Fair and Accurate Credit Transactions Act (FACTA); or
  4. Any federal, state or local statute, ordinance or regulation, other than the TCPA, CAN-SPAM Act of 2003 or FCRA and their amendments and additions, that addresses, prohibits or limits the printing, dissemination, disposal, collecting, recording, sending, transmitting, communicating or distribution of material or information.12

Insurers have raised this exclusion, among others, in recent privacy-breach cases.13

More sweepingly, as part of its April 2013 revisions to the CGL policy forms, ISO introduced an endorsement, titled “Amendment Of Personal And Advertising Injury Definition,” which entirely eliminates the key “offense” of “[o]ral or written publication, in any manner, of material that violates a person’s right of privacy” (found at Paragraph 14.e of the Definitions section of Coverage B):

With respect to Coverage B Personal And Advertising Injury Liability, Paragraph 14.e. of the Definitions section does not apply.14

And the latest: ISO has just filed a number of data-breach exclusionary endorsements for use with its standard-form primary, excess and umbrella CGL policies. These are to become effective in May 2014. By way of example, one of the endorsements, titled “Exclusion – Access Or Disclosure Of Confidential Or Personal Information And Data-Related Liability – Limited Bodily Injury Exception Not Included,” adds the following exclusion to Coverage A:

This insurance does not apply to:

Access Or Disclosure Of Confidential Or Personal Information And Data-related Liability

Damages arising out of:

(1) Any access to or disclosure of any person's or organization's confidential or personal information, including patents, trade secrets, processing methods, customer lists, financial information, credit card information, health information or any other type of nonpublic information; or

(2) The loss of, loss of use of, damage to, corruption of, inability to access or inability to manipulate electronic data.

This exclusion applies even if damages are claimed for notification costs, credit-monitoring expenses, forensic expenses, public relations expenses or any other loss, cost or expense incurred by you or others arising out of that which is described in Paragraph (1) or (2) above.15

The endorsement also adds the following exclusion to Coverage B: This insurance does not apply to:

Access Or Disclosure Of Confidential Or Personal Information

“Personal and advertising injury” arising out of any access to or disclosure of any person’s or organization's confidential or personal information, including patents, trade secrets, processing methods, customer lists, financial information, credit-card information, health information or any other type of nonpublic information.

This exclusion applies even if damages are claimed for notification costs, credit-monitoring expenses, forensic expenses, public relations expenses or any other loss, cost or expense incurred by you or others arising out of any access to or disclosure of any person's or organization's confidential or personal information.16

ISO states that “when this endorsement is attached, it will result in a reduction of coverage due to the deletion of an exception with respect to damages because of bodily injury arising out of loss of, loss of use of, damage to, corruption of, inability to access, or inability to manipulate electronic data” and that “[t]o the extent that any access or disclosure of confidential or personal information results in an oral or written publication that violates a person's right of privacy, this revision may be considered a reduction in personal and advertising injury coverage.”17 While acknowledging that coverage for data breaches is currently available under its standard forms, ISO explains that “[a]t the time the ISO CGL and [umbrella] policies were developed, certain hacking activities or data breaches were not prevalent and, therefore, coverages related to the access to or disclosure of personal or confidential information and associated with such events were not necessarily contemplated under the policy.”18 The scope of this exclusion ultimately will be determined by judicial review.

Although it may take some time for the new (or similar) exclusions to make their way into general liability policies, and the full reach of the exclusions remains unclear, they provide another reason for companies to carefully consider specialty cyber insurance products. Even where insurance policies do not contain the newer limitations or exclusions, insurers may argue that cyber risks are not covered under traditional policies. The legal dispute between Sony and its insurers concerning the PlayStation Network data breach highlights the challenges that companies can face in getting insurance companies to cover losses arising from cyber risks under CGL policies. Sony argues that there is data breach coverage because “[t]he MDL Amended Complaint… alleges that plaintiffs suffered the ‘loss of privacy’ as the result of the improper disclosure of their ‘Personal Information’ [which] has been held to constitute ‘material that violates a person’s right of privacy’.”19 However, the insurers seek a declaration that there is no coverage under the CGL policies at issue, among other reasons, on the basis that the underlying lawsuits “do not assert claims for … ‘personal and advertising injury’.”20 The Sony coverage suit does not represent the first time that insurers have refused to voluntarily pay claims resulting from a network security breach or other cyber-related liability under CGL policies. Nor will it be the last. Even where there is a good claim for coverage, insurers can be expected to continue to argue that cyber risks are not covered under CGL or other traditional policies.

As far as data breaches are concerned, cyber policies usually provide some form of “privacy” coverage. This coverage would typically provide defense and indemnity coverage for claims arising out of a data breach that actually or potentially compromises PII. By way of example, the AIG Specialty Risk Protector specimen policy21 states that the insurer will “pay … all Loss” that the “Insured is legally obligated to pay resulting from a Claim alleging … a Privacy Event.” “Privacy Event”22 includes:

  1. any failure to protect Confidential Information (whether by “phishing,” other social engineering technique or otherwise) including, without limitation, that which results in an identity theft or other wrongful emulation of the identity of an individual or corporation;
  2. failure to disclose an event referenced in Sub-paragraph (1) above in violation of any Security Breach Notice Law; or
  3. violation of any federal, state, foreign or local privacy statute alleged in connection with a Claim for compensatory damages, judgments, settlements, pre-judgment and post-judgment interest from Sub-paragraphs (1) or (2) above.23

“Confidential Information” is defined as follows:

“Confidential Information” means any of the following in a Company’s or Information Holder’s care, custody and control or for which a Company or Information Holder is legally responsible:

  1. information from which an individual may be uniquely and reliably identified or contacted, including, without limitation, an individual’s name, address, telephone number, Social Security number, account relationships, account numbers, account balances, account histories and passwords;
  2. information concerning an individual that would be considered “nonpublic personal information” within the meaning of Title V of the Gramm-Leach Bliley Act of 1999 (Public Law 106-102, 113 Stat. 1338) (as amended) and its implementing regulations;
  3. information concerning an individual that would be considered “protected health information” within Health Insurance Portability and Accountability Act of 1996 (as amended) and its implementing regulations;
  4. information used for authenticating customers for normal business transactions;
  5. any third party’s trade secrets, data, designs, interpretations, forecasts, formulas, methods, practices, processes, records, reports or other item of information that is not available to the general public[.] 

There are numerous specialty cyber products on the market that generally respond to data breaches. A policy offering the privacy coverage will often offer coverage for civil, administrative and regulatory investigations, fines and penalties and, importantly, will commonly offer “remediation coverage” (sometimes termed “crisis management” or “notification” coverage) to address costs associated with a security breach, including:

•     costs associated with post-data breach notification

•     credit-monitoring services

•     forensic investigation to determine cause and scope of a breach

•     public relations efforts and other “crisis management” expenses

  • legal services to determine an insured’s indemnification rights where a third party’s error or omission has caused the problem.

Cyber insurance policies offer other types coverages, as well, including media liability coverage (for claims for alleging, for example, infringement of copyright and other intellectual property rights and misappropriation of ideas or media content), first party property and network interruption coverage, and cyber extortion coverage. The cyber policies can be extremely valuable. But selecting and negotiating the right cyber insurance product presents a real and significant challenge. There is a dizzying array of cyber products on the marketplace, each with their own insurer-drafted terms and conditions, which vary dramatically from insurer to insurer—even from policy to policy underwritten by the same insurer. Because of the nature of the product and the risks that it is intended to cover, successful placement requires the involvement and input, not only of a capable risk management department and a knowledgeable insurance broker, but also of in-house legal counsel and IT professionals, resources and compliance personnel—and experienced insurance coverage counsel.