On August 8, 2023, the United States Securities and Exchange Commission (the “SEC” or the “Commission”) announced that 11 Wall Street firms (10 broker-dealer firms and one dually-registered investment adviser) agreed to settle charges for failing to properly maintain and preserve electronic communications relating to firm business. This included text messages and other messages sent

In a February 19th speech at the annual SEC Speaks conference, Stephanie Avakian, Deputy Director of the SEC’s Division of Enforcement, explained what the SEC expects of entities that experience a cyber intrusion and how the SEC decides whether to investigate such entities.

With respect to responding to cyber intrusion, the SEC’s stated expectations are high level and axiomatic. Entities are expected to (1) assess the situation, (2) address the problem and (3) minimize the damage. Ms. Avakian emphasized the importance of quickly involving authorities such as the FBI or Department of Homeland Security.

Ms. Avakian also expressed awareness of the practical impediments to self-reporting cyber intrusions to the SEC. Specifically, entities may be hesitant to do so for fear of triggering an investigation and enforcement action regarding their policies/procedures and implementation thereof. To assuage this concern, Ms. Avakian noted that the SEC’s goals in the cybersecurity area are to prevent hacking, protect customer data and ensure the smooth operation of America’s financial system. In other words, the SEC—at least from a priority standpoint—is on the same side as the entities that may fall prey to a cyber intrusion. In the case of registrants, when investigating cyber intrusions the SEC will focus on whether a registrant had policies and procedures reasonably designed to protect customer data and related remediation action plans. In the case of public companies, the SEC is not looking to second-guess good-faith decisions regarding data privacy, and would likely not bring an enforcement action against a cyber intrusion victim absent a “significant” disclosure issue. Ms. Avakian also pointed out that entities who self-disclose cyber intrusions will be rewarded with cooperation credit.  
Continue Reading SEC Speaks: How the SEC Decides Whether to Investigate Breached Entities

In 2014, we saw some of the largest, most expensive and most highly publicized data breaches in history. Unfortunately, the early forecast for 2015 does not appear to be any better. According to Experian’s 2015 Data Breach Industry Forecast, the risk of experiencing a data breach is higher than ever (almost half of all organizations have suffered at least one security incident in the last 12 months). In the Information Age, it has become increasingly clear that the question is when, not if, a company will have a cybersecurity incident. 

Speaking in June 2014 at a cyber risk conference at the New York Stock Exchange, SEC Commissioner Luis Aguilar emphasized the critical role that directors and officers must play in cybersecurity matters:

Given the significant cyber-attacks that are occurring with disturbing frequency, and the mounting evidence that companies of all shapes and sizes are increasingly under a constant threat of potentially disastrous cyber-attacks, ensuring the adequacy of a company’s cybersecurity measures needs to be a critical part of a board of director’s oversight responsibilities. . . . [B]oards that choose to ignore, or minimize, the importance of cybersecurity oversight responsibility do so at their own peril.

So what should directors and offers do to avoid becoming the “next Target” or the “next Home Depot?” 
Continue Reading Directors and Officers Ignoring Cybersecurity “Do So at Their Own Peril”