In 2023, the Securities and Exchange Commission (SEC) significantly tightened its cybersecurity regulations for publicly traded companies. This move, aimed at enhancing investor protection and ensuring market transparency, responds to the increasing prevalence of cyber threats and their potential to disrupt business operations and financial stability.
New Rules for Incident Disclosure
The SEC's updated regulations require companies to disclose cybersecurity incidents within four days of determining their material impact. Companies must swiftly evaluate the scope and severity of any cyberattack, including the nature and amount of data compromised and the potential business, legal, or regulatory impacts. The goal is to provide timely and accurate information about incidents that could affect a company's financial health or market performance.
Case Studies: Clorox, Prudential Financial, and UnitedHealth
Recent cyber incidents involving Clorox, Prudential Financial, and UnitedHealth offer insights into how companies handle these new requirements.
Clorox: In August 2023, Clorox faced a major cyberattack that disrupted its automated order processing system, leading to significant delays and product shortages. This disruption is expected to cost the company between $57 million and $65 million in fiscal year 2024, largely for IT recovery and professional services. Additionally, Clorox’s Chief Information Security Officer (CISO) left the company following the attack, which revealed long-standing security issues that had previously been flagged in audits.
Prudential Financial: In February 2024, Prudential Financial reported a cyber breach involving unauthorised access to its infrastructure, affecting administrative and user data. The breach, linked to the ALPHV ransomware group, compromised the personal information of 36,545 individuals. Prudential took a proactive approach by disclosing the incident to the SEC before determining its material impact, indicating a possible new trend toward early transparency.
UnitedHealth: UnitedHealth’s subsidiary, Change Healthcare, experienced a significant cyberattack that compromised millions of patient records and disrupted prescription and claims processing. Initially attributing the attack to a nation-state, UnitedHealth focused on restoring operations without immediately assessing its materiality. The incident has led to substantial financial repercussions, including at least 24 lawsuits and potential costs up to $1.6 billion. Following the disclosure, UnitedHealth’s stock price dropped by nearly 15%.
Key Takeaways for Risk Management
These examples highlight several important lessons for companies under the new SEC regulations:
1. Visibility and Accountability: Companies must continuously oversee their digital assets and promptly address security vulnerabilities. Ignorance is no longer a viable defence, and businesses must be able to explain the details of any breaches.
2. Transparency and Proactive Measures: Transparency is crucial. Companies should adopt conservative and proactive cybersecurity policies and be prepared to update disclosures with more detailed information as it becomes available.
3. Information Sharing: Sharing information about cyber breaches and effective security strategies benefits all sectors. This collaborative approach enhances overall security practices and accelerates the adoption of best practices across the industry.
The SEC’s new cybersecurity regulations shift towards more stringent oversight, pushing the growing need for robust cybersecurity measures to protect market stability and investor interests. As companies adjust to these requirements, the experiences of Clorox, Prudential Financial, and UnitedHealth provide valuable lessons in effective risk management and transparency.
Among other things, the guidelines mandate that a "material" cybersecurity event be reported to the SEC within four days of its classification as such. The SEC states that they were meant to give investors timely and “decision-useful” cybersecurity information; nevertheless, experts point out that several of the early disclosures only included rudimentary breach details, raising significant concerns that remain unaddressed.
According to Scott Kimpel, a partner at Hunton Andrews Kurth, "Some of these disclosures, I think, are question-begging." "They just provide us with superficial, newsworthy details about the occurrence.
Companies must assess an incident's materiality "without unreasonable delay following discovery and, if the incident is determined material, file an Item 1.05 Form 8-K generally within four business days of such determination," according to SEC regulations.
The incident's "material impact or reasonably likely material impact," as well as its material features of nature, scope, and chronology, must all be disclosed.
"Norms have not yet been established because we're early in the process," stated Richard Marcus, head of information security at cloud-based risk management startup AuditBoard. Therefore, Companies ask themselves, "How much can I get away with here? What exactly are my stockholders hoping to get? I believe that businesses are benchmarking against each other quite a bit."
Without mentioning any particular businesses, Kimpel claimed that some have submitted puzzling incident disclosures, in which they discuss a breach that hasn't yet had a major impact on their business operations and might or might not ultimately have a material impact on their financial situation.
According to Kimpel, one argument is that these businesses might be disclosing a breach that they considered significant from a "qualitative" as opposed to a "quantitative" standpoint. Financial injury is one type of qualitative material impact, he said, while reputational harm and the possibility of future legal or regulatory problems are among the "almost endless list of possibilities" that make up quantitative material consequences.
Except for smaller reporting companies, all covered firms had to abide by the revised breach disclosure requirements as of December 18. As of June 5, smaller reporting organizations will have to comply with them.
Microsoft revealed in an Item 1.05 Form 8-K filing in January that a "nation-state associated threat actor" had obtained access to and exfiltrated data from a "very small percentage" of employee email accounts, comprising staff members in the company's legal, cybersecurity, and senior leadership teams, among other departments.
Among the businesses that have used similar language in breach disclosures submitted to the SEC following the new cybersecurity regulations are HP Enterprise and Prudential Financial.
As the Wall Street Journal reported in January, Microsoft notified the SEC of the breach even though, at the time of its regulatory filing, the company's investigation had not revealed any consequences that would have exceeded the agency's material damage criteria. The corporation stated, "But because the law is so new, we wanted to make sure we honor the spirit of the law," as stated in the Journal article.
According to Kimpel, SEC filings may create investor confusion when businesses disclose breaches that don't seem to be as serious as they claim, sometimes without explaining their actions.
Due to rise in breaches among its members and on its systems, the Security and Exchange Commission (SEC) is thinking how it can tackle the problem of cyber threats.
The SEC suggested new amendments in March to supervise how investment firms and public companies under its purview should strengthen their IT security management and incident reporting.
Throughout the years, SEC's disclosure regime has advanced to highlight evolving risks and investor needs.
Today, cybersecurity is an emerging risk with which public issuers increasingly must contend. Investors want to know more about how issuers are managing those growing risks. A lot of issuers already provide cybersecurity disclosure to investors. I think companies and investors alike would benefit if this information were required in a consistent, comparable, and decision-useful manner, said SEC Chair Gary Gensler.
In July, the SEC thrashed JP Morgan & Co, UBS and online stock-trader TradeStation with having deficient customer identity programs, all these programs have violated the Identity Red Flag rules, or regular S-ID between between January 2017 and October 2019.
Regulation S-ID aims to protect investors from identity threat risks. All the three financial organizations have agreed to: 1.Cease and desist from violations in future, 2. Getting censored, 3. Pay fines of $1.2 Million, $925,000, and $425,000, respectively.
Besides these commitments, the SEC's proposed amendments will need the financial institutions to provide current report regarding material cybersecurity cases and periodic reporting to give updates about earlier reported cybersecurity incidents.
“proposed rule defines a cybersecurity incident as an unauthorized occurrence on or conducted through a registrant’s information systems that jeopardizes the confidentiality, integrity, or availability of a registrant’s information systems or any information residing therein.” Under the new rule, it considered "information systems" in a broad sense, especially when the financial firm made use of a cloud- or host based systems.
"The proposal also would require periodic reporting about a registrant’s policies and procedures to identify and manage cybersecurity risks. The registrant’s board of directors' oversight of cybersecurity risk, and management’s role and expertise in assessing and managing cybersecurity risk and implementing cybersecurity policies and procedures."
Navistar International Corporation, a maker of United States trucks and military vehicles confirmed that it was hit by a cyberattack recently which resulted in data theft. In form 8-K filing with SEC (Security and Exchange Commission) this Monday, the company said that the company came to know about an attack on its IT systems on May 20, 2021. Navistar took immediate actions to limit the impact of the cyberattack and has launched an investigation with various cybersecurity and foreign agencies. Due to the attack, Navistar has strengthened its cybersecurity infrastructure and data protection, saying all of its systems are fully functional.