Originally published by Metropolitan Corporate Counsel, July/August 2015
While the risks posed by data breaches are by now widely recognized, effective management of the risk is lagging. Statistics indicate that concern about data breaches is up, yet half of all businesses have no plans to dedicate more resources to avert these perils. The purchase of dedicated cyberinsurance products appears to be on the rise, but many in the insurance brokerage community indicate that the marketplace is not yet as robust as one would expect given the staggering scope of recent data breaches and the ensuing headlines.
Figuring out what kind of insurance is needed to respond effectively to cyberclaims is challenging. Recent history teaches that the losses occasioned by cybersecurity breaches are not always predictable. The Sony Pictures breach is a prime example, as it imperiled or implicated in one fell swoop proprietary and intellectual property, employee personal information, sensitive management communications, reputation/goodwill, extortion, threats of bodily injury and business income. Now that hackers are extending the playing field of targeted data beyond the familiar categories of customer credit card numbers, addresses and health-related data, risk managers need to re-prioritize certain protections (including insurance protection) that used to be lower down on the shopping list.
Further widening the scope of cyberclaims, D&O insurance came into the picture last year after data breaches spurred derivative lawsuits against company officers and directors. While cyberinsurance products are finally registering on the radar of senior corporate executives, D&O insurance policies remain nearest and dearest to directors' and officers' hearts. It is therefore essential that D&O insurance respond to suits targeting company managers and directors that have their genesis in data breaches.
Purchasing adequate insurance coverage for technology-related insurance claims is challenging, as products lack uniformity and the claims history is thin. Following the tips below will improve the chances of recovery from stand-alone cyber and D&O insurance policies.
1 Pursue Clarity: Buy an insurance policy that you can actually understand. Unfortunately, many stand-alone cyberinsurance policies are virtually incomprehensible. Since there is not a lot of uniformity of product right now in the marketplace, many policies are confusing and densely written, making it hard to determine the scope of actual protection provided. Comparison shop with a good insurance broker at your side to help you find the best forms. Once you have a good, comprehensible form to work with, the insurance company will often endorse it to provide protection that is better tailored to your needs if you know what to ask for.
2 Cover the Evolving Risk: Continuously monitor trends in computer hacks and data breaches. Remember that data breaches can still occur the old-fashioned way, through theft of sensitive hard-copy documents, as well as in cutting-edge ways not currently imagined. Your insurance policy needs to match the underlying exposure.
3 Cover Time-Element Losses: Business income coverage and reputational damage coverage take on added importance in the wake of recent hacking events. While a slew of insurance companies have offered cybercoverage for business income losses and reputational damage for several years, that coverage was not nearly as coveted as class action privacy litigation coverage, breach notification costs or regulatory proceedings coverage. Now, the reality that a breach can imperil the very core of the policyholder's ability to continue business operations takes on much greater import for risk management objectives. As such, consider insurance coverage that pays time-element claims resulting from reputational damage and business interruptions, including ones that partially interfere with business income.
4 Seek Retroactive Dates: Push for retroactive coverage whenever possible. Many insurance companies want to provide insurance protection only from the date that the first policy they sold you incepts. The problem is that some cyberthreats occur well before the policyholder actually learns of them. Computer forensic specialists will tell you that computer hackers can intrude into a computer system weeks, months and even years before the policyholder becomes aware of the threat. If you purchase insurance coverage with a retroactive date that pre-dates the policy period, your cyberinsurance company may ask you to provide a warranty letter. If you provide one, make sure it is carefully written and ensure that you do your due diligence in reaching out to other departments and employees within the company to ensure that your representations are fair.
5 Avoid Breach of Contract and Warranty Exclusions: Resist efforts to include breach of contract exclusions in your coverage. These provisions should be obsolete in an era in which so many policyholders do business pursuant to a contract (whether with customers, credit card companies, financial institutions, etc.). These exclusions are used all the time by some insurance companies to challenge insurance claims. While some recent court decisions have curtailed this use, it is best not to have the fight in the first place.
6 Avoid Cybersecurity Reasonableness Clauses: Resist insurance company efforts to include exclusions, warranties, representations or "conditions" in insurance policies concerning the soundness or reasonableness of the policyholder's data security efforts/protocol. These clauses are a recipe for disputes on potentially every security incident. Given the pace of technological innovation, almost every security step can be second-guessed with the benefit of 20-20 hindsight. Is it safe to log onto a secure network from your luxury hotel room using the hotel's wifi? The answer depends upon many factors that are difficult to pinpoint, including the exact point in time in which attitudes collectively begin to change. Such a question is bound to end in dispute if the cyberclaim is big enough.
7 Preserve D&O Insurance Coverage for Cyberclaims: Keep your directors and officers (D&O) insurance program (primary, excess, Side A, etc.) clean from any cyber-related exclusions or sublimits. Management will be highly concerned with any argued "gap" in coverage should a cyberevent ensue and D&O coverage be contested on the basis of an exclusion or limitation for suits where cyber may be the underlying cause or context of the claim.
8 Be Thorough When Filling Out Cyberinsurance Policy and D&O Policy Applications: Complete insurance applications carefully and gather information from other business units where necessary when answering questions. Even if an insurance company must pay a claim under the plain terms of the insurance policy, coverage may still be contested, under certain circumstances, on grounds that application questions were not correctly answered. Do not give the insurance company this opportunity.
9 Remember That Cyberbreaches Happen Off-line Too: Make sure your cyberspecific coverage protects losses involving mobile devices, home offices, data that is off-line at the time security is breached and devices that may not be owned by the policyholder. A lost flash drive containing gigabytes of information can lead to a breach and possibly an expensive one. Make sure your insurance coverage is available for such a scenario – even where the device is not actively connected to a network when the data breach occurs.
10 Cover Cloud and Third-Party Vendors: Make sure that your cyber-specific coverage protects against losses where others manage, transmit or host data for your company. Insurance coverage is available for cloud computing and instances where data is handled, managed or outsourced to a third party. Going back to point number one above, however, not all insurance policies are created equal, and there are cyberinsurance forms that on their face appear not to provide express protection for cloud-like scenarios. Most of these policies can be modified to extend such protection – if requested.
A static assessment of data security risk management will not work in most instances, given the rapid pace of change in this area. Be vigilant and adaptable in managing the security risk. Work with your colleagues in other departments to reduce risk where you can – and secure the best insurance your company can afford to protect against losses stemming from cyber-related perils.
David Wood Co-managing shareholder in the Ventura, California offi ce of Anderson Kill and is deputy chair of the fi rm's Cyber Insurance Recovery Group. firstname.lastname@example.org
Joshua Gold Shareholder in the New York offi ce of Anderson Kill and chair of the fi rm's Cyber Insurance Recovery Group. email@example.com
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