On February 4, 2021, the New York State Department of Financial Services (DFS) issued specific guidance to property/casualty insurers writing cyber insurance policies, known as the Cyber Insurance Risk Framework (“Framework”). The DFS promoted itself as the first US regulator in the nation to issue a specific guidance on cyber insurance, explaining the suggestions of the Framework are based on continued dialogue with the insurance industry and experts in cyber insurance regarding the shifting landscape of cybersecurity.
With the Covid-19 pandemic forcing companies to shift to an online workforce, cybercrimes, like ransomware and malware attacks, have drastically increased in frequency, severity, and cost to victimized companies. Cybercriminals use payments extorted from ransomware to fund more frequent and sophisticated ransomware attacks, emboldening them to target other organizations and widen their campaigns. The widespread use of ransomware has pressured cyber insurers to increase rates and tighten underwriting standards for cyber insurance.
The DFS advises New York regulated property/casualty insurers offering cyber insurance to establish a formal strategy for measuring cyber insurance risks that can be approved by a board or a governing entity. The Framework acknowledges that strategies should be proportionate with each insurer’s risk based on the insurer’s size, resources, geographic distribution, market share, and industries insured. It is important to note the Framework constitutes a list of best practices and suggested approaches and does not yet constitute rules or regulations for the insurance industry.
The Cyber Insurance Risk Framework encourages cyber insurers to formalize a Cyber Insurance Risk Assessment Strategy that is managed by a governing body and establishes and/or formalizes qualitative and quantitative measures and goals for cyber risk that incorporate six best practices identified by DFS:
- Manage and Eliminate Exposure to “Silent” Cyber Insurance Risk
Cyber insurers should determine whether they are exposed to silent or non-affirmative cyber insurance risk, an insurer’s obligation to cover cyber incident losses under a policy that does not explicitly mention cyber incidents. The Framework suggests that insurers evaluate their silent risk exposure and take steps to minimize that exposure.
2. Evaluate Systemic Risk
Cyber insurers should conduct regular systemic risk evaluations and plan for potential losses. Increased reliance on third-party vendors has caused systemic risk to grow exponentially and thus, insurers should understand the third parties used by their insureds and model the effect of catastrophic cyber events that may result in simultaneous losses.
3. Rigorously Measure Insured Risk by Using Data
Cyber insurers should use a comprehensive, data-driven approach to assess their insured’s potential gaps and cybersecurity vulnerabilities.
4. Educate Insureds and Insurance Producers
Cyber insurers should educate their insureds and insurance producers about the value of cybersecurity measures and the need for, benefits of, and limitations of cyber insurance.
5. Obtain Cybersecurity Expertise
Cyber insurers can use strategic recruiting practices to hire employees with cybersecurity experience and invest in their training and development.
6. Require Notice to Law Enforcement
In the event of a cyberattack, cyber insurance policies should require victims notify and engage law enforcement agencies to help recover lost data and funds.
This guidance brings operational and other challenges to those in the property/casualty insurance market. It also adds new potential requirements to pass along to their insureds. For example, insureds may not know that their policy will require notification of law enforcement, and they may have reasons not to notify law enforcement, but if they choose not to it can lead to a coverage dispute.
Octillo advises those in the insurance industry on risk management, cybersecurity best practices and measures, third-party vendor management, and incident response. Octillo also works with global clients to evaluate risk management, including opportunities to obtain various cyber and tech related coverage. We can be reached 24/7 via our data breach hotline at 844.502.9363 or IR@octillolaw.com.
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