Government Forces Awaken: The Rise of Cyber Regulators in 2016

by Sheppard Mullin Richter & Hampton LLP
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As the sun sets on 2015, but before it rises again in the New Year, we predict that, in the realm of cyber and data security, 2016 will become known as the “Rise of the Regulators.” Regulators across numerous industries and virtually all levels of government will be brandishing their cyber enforcement and regulatory badges and announcing: “We’re from the Government and we’re here to help.”

The Federal Trade Commission will continue to lead the charge in 2016 as it has for the last several years. Pursuing its mission to protect consumers from unfair trade practices, including from unauthorized disclosures of personal information, and with more than 55 administrative consent decrees and other actions booked so far, the FTC (for now) remains the most experienced cop on the beat.   As we described earlier this year, the FTC arrives with bolstered judicial-enforcement authority following the Third Circuit’s decision in the Wyndham Hotel case.  Notwithstanding the relatively long list of administrative actions and its published guidance – businesses that are hacked and that lose consumer data, are at risk of attracting the attention of FTC cops and of proving that their cyber-related systems, acts and practices were “reasonable.”

But the FTC is not alone. In electronic communications, the Federal Communications Commission (FCC) in 2015 meted out $30 million in fines to telecom and cable providers, including to AT&T ($25 million) and Cox Communications ($595K). And this agency, increasingly known for its enforcement activism, may have just begun.  Reading its regulatory authority broadly, the FCC has asserted a mandate to take “such actions as are necessary to prevent unauthorized access” to customers’ personally identifiable information. This proclamation, combined with the enlistment of the FCC’s new cyber lawyer/computer scientist wunderkind to lead that agency’s cyber efforts, places another burly cop on the cyber beat.

The Securities and Exchange Commission (SEC) will be patrolling the securities and financial services industries. Through its Office of Compliance Inspections and Examinations (OCIE), the SEC is assessing cyber preparedness in the securities industry, including investment firms’ ability to protect broker-dealer and investment adviser customer information. It has commenced at least one enforcement action based on the agency’s “Safeguards Rule” (Rule 30(a) of Regulation S‑P), which applies the privacy provisions in Title V of the Gramm-Leach-Bliley Act (GLBA) to all registered broker-dealers, investment advisers, and investment companies. With criminals hacking into networks and stealing customer and other information from financial services and other companies, expect more SEC investigations and enforcement actions in 2016.

Moving to the Department of Defense (DoD), new rules, DFARS clauses, and regulations (e.g., DFARS subpart 204.73, 252.204–7012, and  32 CFR § 236) are likely to prompt the DoD Inspector General and, perhaps, the Defense Contracting Auditing Agency (DCAA) to examine whether certain defense contractors have the required security controls in place.  Neither the DoD nor its auditors have taken action to date.  But don’t mistake a lack of overt action for a lack interest (or planning).  It would come as no surprise if, by this time next year, the DoD has launched its first cyber-regulation mission, be it by the False Claims Act, suspension and debarment proceedings, or through terminations for default.

In addition to these cyber guardians, other federal agencies suiting up for cyber enforcement include:

  • The Consumer Financial Protection Board’s (CFPB) growing Cybersecurity Program Management Office;
  • The Department of Energy’s (DOE) Office of Electricity Delivery and Energy Reliability, examining the security surrounding critical infrastructure systems;
  • The Office of Civil Rights (OCR) of the U.S. Department of Health and Human Services, addressing healthcare providers and health insurers’ compliance with health information privacy and security safeguard requirements; and
  • The Food and Drug Administration, examining the cybersecurity for networked medical devices containing off-the-shelf (OTS) software.

But these are just some of the federal agencies poised for action.   State regulators are imposing their own sector-specific cyber security regimes as well.   For example, the State of California’s Cybersecurity Task Force, New York’s Department of Financial Services, and Connecticut’s Public Utility Regulatory Agency are turning their attention toward cyber regulation. We believe that other states will join the fray in 2016.

At this relatively early stage of standards and practices development, the National Institute of Standards and Technology (NIST) 2014 Cyber Security Framework lays much of the foundation for current and future systems, conduct, and practices. The NIST framework is a “must read.” NIST, moreover, has provided additional guidance earlier this year in its June 2015 NIST Special Publication 800-171, Protecting Controlled Unclassified Information in Nonfederal Information Systems and Organizations.  While addressing security standards for nonfederal information systems (i.e., government contractors’ information systems), it also provides important guidance for companies who do not operate within the government contracts sphere.  Ultimately, this 2015 NIST publication may serve as an additional general standard against which regulators (and others) may assess institutional cybersecurity environments in 2016 – and beyond.

But for now, the bottom line is that in 2016 companies now must add to its list of actual or potential cyber risks and liability, the hydra-headed specter of multi-sector, multi-tiered government regulation – and regulators.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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