United States: OCIE and FINRA Announce the Results of Cybersecurity Initiatives

Tags: cybersecurity governance, financial services

On February 3, 2015, the Office of Compliance Inspections and Examinations ("OCIE") of the US Securities and Exchange Commission ("SEC") and the Financial Industry Regulatory Authority ("FINRA") announced the results of their cybersecurity examination initiatives.¹ Other financial services regulators have undertaken similar examination initiatives as cybersecurity has become one of the leading concerns for the financial services industry.² Beginning in 2013 and over a one-year period,³ OCIE examined 57 broker-dealers and 49 investment advisers,⁴ focusing on: (1) identification of cybersecurity risks; (2) cybersecurity governance and policies and procedures; (3) network protection (e.g., external frameworks and standards, training, certain technical controls, certain metrics, training, and incident response plans ("IRPs")); (4) remote access to client information and fund transfer requests (e.g., informational material for client cybersecurity awareness and policies for addressing clients' cyber-related losses); (5) vendors and third-parties; and (6) detection of unauthorized activity (including technical controls for that purpose).⁵ It has been reported that OCIE plans to begin "Phase 2" of its cybersecurity examination initiative in fiscal year 2016, during which it will conduct on-site reviews of advisers and broker-dealers.⁶

FINRA's examination initiative consisted of: (1) a survey of 224 broker-dealers in 2011; (2) on-site reviews of broker-dealers in 2010 and 2011; and (3) targeted-examination letters (i.e., the sweep survey) that were sent to brokerdealers in 2014.⁷ FINRA's cybersecurity initiative focused on the following topics: (1) cybersecurity governance (including written policies and procedures) and risk management; (2) cybersecurity risk assessments; (3) technical controls; (4) incident response planning; (5) vendor management; (6) staff training; (7) cyber intelligence and information sharing; and (8) cybersecurity insurance.⁸

OCIE reported the results of its cybersecurity initiative in a "risk alert," which offers observations of industry cybersecurity practices (without any recommendations), which investment advisers and broker-dealers can use to review and enhance their cybersecurity programs. FINRA's report on its cybersecurity initiative provides observations regarding broker-dealers' current cybersecurity practices, as well as recommendations from FINRA regarding effective cybersecurity practices for broker-dealers.

This update begins with a discussion of OCIE and FINRA's views regarding the prevalence of cyber attacks. Next, we review the regulators' observations and recommendations concerning: (1) cybersecurity policies and procedures; (2) cybersecurity governance; (3) frameworks and standards; (4) metrics; (5) identification of risks; (6) technical controls; (7) responding to cybersecurity incidents; (8) vendor management; (9) staff training; (10) promoting client cybersecurity awareness; (11) cyber intelligence and information sharing; and (12) cybersecurity insurance.

Prevalence of Cyber Attacks

In the OCIE Risk Alert, OCIE observed that most of the examined advisers and broker-dealers had been cyber attacked, either directly or through a vendor, or through the use of malware or fraudulent e-mails,⁹ at some point since January 1, 2013.¹⁰

From FINRA's perspective, common cyber attacks targeted at the broker-dealers that participated in the initiative included Distributed Denial of Service ("DDoS") attacks, malware infections, insider threats, and cyber-enabled fraudulent wire transfers.¹¹ Other financial services firms have also faced the same types of cyber attacks, prompting regulatory guidance aimed at the identification of the risks presented and the possible ways to mitigate these risks.¹²

OCIE observed that almost half of the examined advisers and broker-dealers received fraudulent e-mails requesting the transfer of client funds.¹³ Of those broker-dealers that received fraudulent e-mails, one-quarter reported losses exceeding $5,000 and one-quarter of the broker-dealers that lost funds due to fraudulent e-mails attributed the losses to employees deviating from the identity authentication procedures. One adviser, which was part of OCIE's sweep examination, reported losing more than $75,000 due to such an e-mail, for which it made the client whole. The adviser attributed this loss to employees who had deviated from the adviser's identity authentication procedures. OCIE found that two-thirds of the examined broker-dealers that received fraudulent e-mails reported the emails to Financial Crimes Enforcement Network ("FinCEN") and very few reported the e-mails to other regulators or to law enforcement, while examined advisers generally did not report fraudulent e-mails.¹⁴ Although examined advisers and broker-dealers identified authorized-user misconduct as a significant cybersecurity risk, OCIE found that very few advisers and broker-dealers reported misconduct by employees or authorized users that resulted in misappropriated funds, confidential information, or network damage.

Cybersecurity Policies and Procedures

OCIE observed that a majority of the examined investment advisers and broker-dealers have written cybersecurity policies and procedures.¹⁵ OCIE also observed that a majority of the examined advisers and most of the examined broker-dealers conduct periodic audits to evaluate compliance with their cybersecurity polices and procedures.¹⁶

FINRA recommended generally that brokerdealers maintain policies and procedures that are appropriate for broker-dealers' size and risk exposure, and that address how cybersecurity risks and controls are managed. Further, FINRA recommended that broker-dealers' policies and procedures articulate the roles and responsibilities of their cybersecurity personnel. More specifically, FINRA believes that effective cybersecurity policies and procedures should enable broker-dealers to: (1) identify cyberrelated risks; (2) estimate the severity of each identified cyber risk; and (3) determine appropriate risk-mitigating steps.¹⁷ As discussed below, conducting ongoing assessments to identify existing and new risks is one of the key aspects of an effective cybersecurity program.

FINRA recognized, however, that implementing a cybersecurity program could pose a "significant governance challenge" and recommended that broker-dealers consult with and obtain the views of their business, IT, risk management, and audit departments. FINRA suggested that broker-dealers assign cybersecurity-related responsibilities to each of these departments. Thus, the business or IT unit should select and maintain the cybersecurity controls (e.g., identity access management, encryption, or testing), while risk management should formulate the monitoring standards, and audit should assess the effectiveness of the cybersecurity program (e.g., evaluating whether the cybersecurity controls are functioning as expected).

Cybersecurity Governance

OCIE observed that one-third of the examined advisers have a Chief Information Security Officer ("CISO"), while two-thirds of the examined broker-dealers have a CISO. OCIE also observed that most examined advisers assign cybersecurity responsibilities (i.e., oversight of the implementation, management, and enforcement of the cybersecurity program)¹⁸ to a Chief Technology Officer or to a third-party consultant that reports to the Chief Compliance Officer, Chief Executive Officer, or Chief Operating Officer.¹⁹

FINRA observed that examined broker-dealers who emphasized the importance of the role of the board of directors in a cybersecurity program also had an actively engaged board and an adequately resourced cybersecurity program. FINRA also observed that many of the examined broker-dealers' boards of directors were informed of cyber-related matters through reports on a quarterly, annual, or ad hoc basis. As with existing privacy-related compliance programs under Regulations S-P and S-ID, involvement by the board is an important aspect of an effective cybersecurity program.

FINRA stated its view that active involvement by senior-level management and leadership by the board is essential for effective governance of cyber risks.²⁰ Citing a National Association of Corporate Directors publication, FINRA recommended that broker-dealers' boards of directors: (1) treat cybersecurity as an enterprise-wide risk management issue, not an issue for IT, and should set the expectation that management will establish an enterprisewide cybersecurity risk management framework that is adequately staffed and resourced; (2) understand the legal implications of cyber risks; (3) have access to cybersecurity expertise and allot adequate time for cybersecurity-related discussions at board meetings; and (4) discuss cybersecurity issues (e.g., cybersecurity insurance) with management.

Frameworks and Standards

Cybersecurity frameworks and standards are published by organizations like the National Institute of Standards and Technology ("NIST"), the System Administrator, Audit, Networking, and Security Institute ("SANS"), and the International Organization for Standardization ("ISO"). These frameworks and standards can be used by firms when developing their own information security architectures ("ISAs"), which set the roadmap for firms' cybersecurity controls and help ensure that firms' controls provide comprehensive coverage of their cybersecurity risk exposures.²¹ While the adoption of these frameworks by financial services firms is generally voluntary, they are often considered best practices by the regulators and, at a minimum, are useful in evaluating existing or new practices.

OCIE found that half of the examined advisers and a majority of the examined broker-dealers develop their ISA with reference to external cybersecurity risk standards.²²

During its 2014 sweep examination, FINRA observed that nearly all of the examined brokerdealers use external frameworks and standards to develop their ISA. Of these broker-dealers, FINRA observed that some firms had explicitly modeled their ISA after a framework or standard, while others had used the framework or standard as a reference point to assess their ISA.

In FINRA's view, broker-dealers should use an external framework or standard when developing their ISA.²³ According to FINRA, the benefit of developing the ISA after an external framework or standard is that it provides a "tested approach" for effective cybersecurity practices that should help broker-dealers identify any gaps in their ISAs and establish a common vocabulary for cybersecurity controls amongst other broker-dealers and industry participants.

Metrics

"Metrics" refers to measurements of data (e.g., measurements of the number of cyber attacks, encryption coverage, Microsoft patch coverage, anti-virus coverage, and employee training). During its 2014 sweep examination, FINRA observed that nearly all of the examined brokerdealers use metrics to monitor the performance of their cybersecurity programs. FINRA also observed that examined broker-dealers use metrics to measure nearly every aspect of their cybersecurity programs,²⁴ but that smaller broker-dealers' use of metrics was more limited than their larger counterparts.

FINRA recommended that broker-dealers: (1) develop metrics tailored to their business and cybersecurity risks (see Cybersecurity Risk Assessments below); (2) set performance thresholds to assess whether those metrics have been achieved; and (3) establish appropriate policies and procedures that document the foregoing and establish an escalation process for cases where the thresholds have not been met. Each is discussed further below.

Developing Metrics. FINRA stated that broker-dealers should develop metrics that track important (or, even, nearly all) aspects of their cybersecurity program. Without a strong understanding of baseline data, it is difficult to identify anomalies or abnormal cyber activities. According to FINRA, metrics can be used to monitor cyber attacks (e.g., by tallying the number of DDoS attacks), to monitor endpoints (e.g., patches, anti-virus software, and encryption), and to ensure cybersecurity awareness (e.g., frequency of employee training).²⁵

Establishing Performance Thresholds. FINRA recommended that broker-dealers establish a threshold that defines the target level of performance (as indicated by metrics) to be achieved. For example, FINRA stated that a threshold might have a target that at least 95% of broker-dealers' computers have up-to-date Microsoft patches. In such a case, explained FINRA, the failure to achieve that target means that the threshold has not been met and, thus, the matter should be escalated for review.

Policies and Procedures; and Escalation. FINRA recommended that broker-dealers establish policies and procedures that address which metrics to track, set the performance thresholds for those metrics, and identify the persons within the organization who are responsible for reviewing escalated matters (e.g., unmet thresholds) and monitoring the effectiveness and continued appropriateness of the metrics and thresholds.²⁶ FINRA noted that senior IT, risk, or business personnel may be well suited to review matters that have been escalated.

According to FINRA, if a broker-dealer makes limited use of metrics, then it may have a weak cybersecurity program, because management would not be able to evaluate effectively the performance of the cybersecurity program (based in part on the broker-dealer's cybersecurity risk assessment, discussed below) or identify the program's vulnerabilities.

To read this Report in full, please click here.

Originally published 25 March 2015

Footnotes

1. OCIE, National Exam Program, Risk Alert: Cybersecurity Examination Sweep Summary (Feb. 3, 2015) [hereinafter OCIE Risk Alert], available at http://www.sec.gov/about/offices/ocie/cybersecurity-examination-sweep-summary.pdf?_cldee=aGFubmFoLndlaW5zdG9jay1nYWxsYWdoZXJAY29yZGl1bS5jb20%3D&urlid=1; FINRA, Report on Cybersecurity Practices (2015) [hereinafter FINRA Report], available at https://www.finra.org/web/groups/industry/@ip/@reg/@guide/documents/industry/p602363. pdf. For FINRA's news release announcing the results from its cybersecurity initiative, see FINRA Issues Report on Cybersecurity Practices, Cybersecurity Investor Alert, FINRA (Feb. 3, 2015), https://www.finra.org/Newsroom/NewsReleases/2015/P6 02385. These initiatives were announced in early 2014. For the SEC's announcement of the cybersecurity initiative, see OCIE, National Exam Program, Risk Alert: Cybersecurity Initiative (Apr. 15, 2014), available at http://www.sec.gov/ocie/announcement/Cybersecurity+Risk+Alert++%2526+Appendix+-+4.15.14.pdf. For FINRA's announcement of the cybersecurity sweep exams, see Targeted Examination Letters: Cybersecurity, FINRA (Jan. 2014), http://www.finra.org/Industry/Regulation/Guidance/TargetedExaminationLetters/P443219.

2. See, e.g., FFIEC, Cybersecurity Assessment General Observations, available at http://www.ffiec.gov/press/PDF/FFIEC_Cybersecurity_Assessment_Observations.pdf (last visited Mar. 23, 2015) (discussing cybersecurity examination of over 500 community banks); NY Dep't of Fin. Servs., Report on Cyber Security in the Banking Sector (May 2014), available at http://www.dfs.ny.gov/about/press2014/pr140505_cyber_security.pdf; NY Dep't of Fin. Servs., Report on Cyber Security in the Insurance Sector (Feb. 2015), available at http://www.dfs.ny.gov/reportpub/dfs_cyber_insurance_report_022015.pdf.

3. For broker-dealers, the review period covered calendar year 2013; for advisers, the review period covered early 2013 through April 2014. See OCIE Risk Alert, at 1 n.3.

4. For investment advisers, OCIE's examinations generally concentrated on advisers with assets under management of greater than $400 million that had large concentrations of retail clients and custody of client assets. See id. app. B.

5. Id. at 1.

6. Expect OCIE to Release Sample Document Request Letter for Next Cybersecurity Sweep, IA WATCH, Mar. 9, 2015.

7. FINRA Report, at 3. FINRA's cybersecurity sweep exam focused on, among other things, broker-dealers': (1) approaches to cybersecurity risk assessments; (2) organizational structures and reporting lines; (3) assessments of the impact of cyber attacks over the preceding twelve months; and (4) training programs. See Targeted Examination Letters: Cybersecurity, FINRA (Jan. 2014), http://www.finra.org/Industry/Regulation/Guidance/TargetedExaminationLetters/P443219 (a general description of the cybersecurity sweep exam questions). FINRA's 2011 survey on cybersecurity likely covered the preceding twelve-month period (i.e., calendar year 2010), given that the 2014 Risk Control Assessment survey asked about current cybersecurity practices, but tied other questions to circumstances in 2013. See FINRA Risk Control Assessment (2014), available at https://www.finra.org/web/groups/industry/@ip/@reg/@guide/documents/industry/p478730.pdf. It is possible that FINRA's on-site examinations covered a period longer than twelve months, because FINRA examiners typically explain the nature and scope of the exam during the initial meeting. See Preparing for a FINRA Cycle Examination, at 4, FINRA, available at http://www.finra.org/web/groups/industry/@ip/@edu/documents/education/p038336.pdf (last visited Mar. 24, 2015).

8. FINRA Report, at 3.

9. OCIE Risk Alert, at 2–3.

10. In its risk alert announcing the cybersecurity sweep examination results, OCIE did not state the time period for which it had sought information from firms concerning cybersecurity incidents (e.g., information about the number of DDoS attacks since "X" date); however, based upon the sample cybersecurity sweep examination questions provided by OCIE, it is likely that OCIE had asked firms to report about cybersecurity incidents since January 1, 2013. See OCIE, National Exam Program, Risk Alert: Cybersecurity Initiative, at 6–7 (Apr. 15, 2014), available at http://www.sec.gov/ocie/announcement/Cybersecurity+Risk+Alert++%2526+Appendix+-+4.15.14.pdf (asking "Since January 1, 2013, has your Firm experienced any of the following types of events?" and listing malware, DDoS, fraudulent e-mails, etc.).

11. FINRA Report, at 23. In its cybersecurity report, FINRA did not identify the time period during which these common attacks were observed to have occurred. However, it is likely that such period was 2013–2014. See Targeted Examination Letters: Cybersecurity, FINRA (Jan. 2014), http://www.finra.org/Industry/Regulation/Guidance/TargetedExaminationLetters/P443219 (requesting that broker-dealers provide an "assessment of the impact of cyber-attacks on the [broker-dealer] over the past twelve months").

12. See, e.g., FFIEC, Joint Statement on Distributed Denial-of-Service Cyber Attacks, Risk Mitigation, and Additional Resources (Apr. 3, 2014), available at http://www.ffiec.gov/press/PDF/FFIEC%20DDoS%20Joint%20Statement.pdf. While generally applicable to banks and other depository institutions, the FFIEC statement provides helpful guidance for any organization facing a DDoS attack.

13. OCIE Risk Alert, at 3.

14. Broker-dealers are required to file suspicious activity reports ("SARs") and, thus, may be required to file SARs for fraudulent e-mails where the amount involved exceeds $5,000. See 31 C.F.R. § 1023.320(a)(2); In re Oppenheimer & Co., Release Nos. 33-9711, 34-74141, at 9 (Jan. 27, 2015), available at http://www.sec.gov/litigation/admin/2015/33-9711.pdf. Investment advisers do not have SAR filing requirements, although they may voluntarily file a SAR. See FinCEN, The SAR Activity Review: Trends, Tips, and Issues, at 10 n.5 (2009), available at http://www.fincen.gov/news_room/rp/files/sar_tti_15.pdf.

15. OCIE Risk Alert, at 2.

16. Id.

17. FINRA Report, at 6.

18. See SANS Inst., Implementing an Effective IT Security Program, at 8, available at http://www.sans.org/reading-room/whitepapers/bestprac/implementing-effective-security-program-80 (last updated Mar. 25, 2015).

19. OCIE Risk Alert, at 4–5.

20. FINRA Report, at 7.

21. See SANS Inst., Information Systems Security Architecture: A Novel Approach to Layered Protection, at 5 (Sept. 9, 2004), available at http://www.sans.org/reading-room/whitepapers/auditing/information-systems-security-architecture-approach-layered-protection-1532.

22. OCIE Risk Alert, at 2. OCIE did not specify whether the examined advisers and broker-dealers had explicitly modeled their cybersecurity programs after a framework or standard or had used the framework or standard as a reference point to assess their own cybersecurity programs.

23. FINRA Report, at 9. FINRA did not recommend which framework or standard broker-dealers should use, and FINRA did not suggest whether broker-dealers should explicitly model their policies and procedures after a framework or standard, or whether they should use the framework or standard as a reference point. Id. at 9–10.

24. Id. at 10.

25. Id. at 11.

26. Id.

Learn more about our Privacy & Security, Financial Services Regulatory & Enforcement, Investment Management and Broker-Dealer practices.

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2015. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.