The U.S. Securities and Exchange Commission (SEC) is sending a clear message to all its regulated companies. The days of complacency, shoddy follow-through and minimal investment into cybersecurity compliance programs are over.
Governments (both federal and local) and businesses recognize that they are facing a wave of increasingly sophisticated and damaging cybersecurity attacks that threaten the US’s sensitive data and infrastructure. In May of this year, the Biden administration released an executive order aimed to enforce measures to vastly improve the nation’s cybersecurity protections for vital infrastructure. The order is a call for federal agencies to enhance security standards and elevate their cybersecurity performance goals.
The SEC has been ramping up its own examination and enforcement efforts. The commission considers that cyber-risk imperils the finances and future of companies and compromises the ability of public investors to make adequately informed and sound investment decisions. As evidenced by the charges against eight broker/dealers and investment advisors for security failures from June through August 2021, the SEC is upping its game in overseeing and enforcing cybersecurity standards to penalize those complacent in their security practices. Broker/dealers and investment advisors would be wise to understand and address the failures that prompted the SEC citations.
Breaking the Disclosure and Safeguard Rules
In August 2021, the cited companies agreed to pay penalties totaling $750,000 to resolve actions arising from incidents that led to the personal identity information (PII) exposures of thousands of customers via email account takeovers. Essentially, these companies broke the Safeguards Rule, which requires broker/dealers, investment companies and advisors to develop a written security plan with policies and procedures to safeguard customer records and information.
The nature of the violations on the part of the companies targeted by the SEC focused upon their failure to protect accounts according to their own company policies or their failure to adopt adequate protective programs. Additionally, there were failures to adopt and implement firm-wide enhancements to security measures for cloud-based email accounts in an expedient manner after a breach. In one instance, the time gap was three years from the discovery of the first breach.
Perhaps most disturbing was a pattern of misleading and falsifying third-party communications about cyber-events and the lack of timeliness of the notification concerning when the breach took place. The SEC investigators also identified a significant disconnect between those responsible for reporting cyber-events and senior staff, with executives at the highest levels often ill-informed regarding risk incidents.
Based on these SEC actions, it is fair to expect that these lapses will attract more enforcement actions by the SEC:
- Failure to adopt a written cybersecurity plan with clear policies and procedures
- Failure to fully act upon the company security plan in place in the event of a cyber-breach
- Failure to enhance cybersecurity policies and practices promptly after a breach
- Failure to fully disclose a cyber-event to all required parties promptly with accurate information
Avoiding the Sting of SEC Scrutiny by Ensuring High-Level Compliance
The SEC is sounding the bell that inadequate cybersecurity controls and practices will no longer be tolerated. Companies must face the situation and prioritize cybersecurity measures within their budget and in the boardroom because the days of minimal investment and “getting by” are gone.
Building a robust cybersecurity framework should be an imperative for every company. The only thing worse than not having a comprehensive security policy is having one in place that is ineffectual or not followed. The corporate culture, which starts at the very top and trickles down throughout the company, must pursue excellence. Companies that achieve a high level of compliance usually have developed a culture of excelling in other areas as well. With the cyber-threat landscape broadening daily, the nature of cybersecurity compliance must include a combination of advanced technology, procedures and best practice policies that provide the maximum protection.
Framework for Developing Strong Cybersecurity Compliance
- Create a disclosure committee with senior-level directors and employees; conducting quarterly evaluations to discern anomalies and share findings with the board and senior staff
- Incorporate advanced identity access management (IAM) tools, zero trust architecture and multifactor-authentication technology
- Build more visible processes with vulnerability management tools and platforms to assess digital assets, how critical they are and their overall exposure risk
- Provide complete and accurate descriptions of cyber-incidents to third parties with timely updates to disclosures and impacts
- Be prepared to disclose incidents before they are fully understood – do not understate the nature and scope of cyber-incidents
- Conduct regularly planned forensic assessments of cybersecurity systems with attack simulations and continuous monitoring of protection plan by the compliance team
Cybersecurity teams should avail themselves of nationally recognized cybersecurity frameworks such as those published by the National Institute of Standards and Technology (NIST). The Cybersecurity & Infrastructure Safety Agency (CISA) website also contains many helpful resources for business.
Conclusion
“The bare minimum” will no longer fly as a standard of cybersecurity compliance for broker/dealers and investment companies. Even if a company cannot prevent every cyber-incident, the SEC will certainly consider what processes, technical safeguards and personnel requirements were in place before the event occurred. Companies that lack effective policies or fail to follow through on those policies with rigor are likely to see harsher enforcement actions from the SEC compared to those companies making the necessary investments to protect their clients’ data.