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Tarah Wheeler and Josephine Wolff analyze a recent court decision that the NotPetya attacks are not considered an act of war under the wording of Merck’s insurance policy, and that the insurers must pay the $1B+ claim. Wheeler and Wolff argue that the judge “did the right thing for the wrong reasons..”
The insurance company Ace American has to pay for the losses:
On 6th December 2021, the New Jersey Superior Court granted partial summary judgment (attached) in favour of Merck and International Indemnity, declaring that the War or Hostile Acts exclusion was inapplicable to the dispute.
Merck suffered US$1.4 billion in business interruption losses from the Notpetya cyber attack of 2017 which were claimed against “all risks” property re/insurance policies providing coverage for losses resulting from destruction or corruption of computer data and software.
The parties disputed whether the Notpetya malware which affected Merck’s computers in 2017 was an instrument of the Russian government, so that the War or Hostile Acts exclusion would apply to the loss.
The Court noted that Merck was a sophisticated and knowledgeable party, but there was no indication that the exclusion had been negotiated since it was in standard language. The Court, therefore, applied, under New Jersey law, the doctrine of construction of insurance contracts that gives prevalence to the reasonable expectations of the insured, even in exceptional circumstances when the literal meaning of the policy is plain.
Merck argued that the attack was not “an official state action,” which I’m surprised wasn’t successfully disputed.
Slashdot thread.
As ransomware becomes more common, I’m seeing more discussions about the ethics of paying the ransom. Here’s one more contribution to that issue: a research paper that the insurance industry is hurting more than it’s helping.
However, the most pressing challenge currently facing the industry is ransomware. Although it is a societal problem, cyber insurers have received considerable criticism for facilitating ransom payments to cybercriminals. These add fuel to the fire by incentivising cybercriminals’ engagement in ransomware operations and enabling existing operators to invest in and expand their capabilities. Growing losses from ransomware attacks have also emphasised that the current reality is not sustainable for insurers either.
To overcome these challenges and champion the positive effects of cyber insurance, this paper calls for a series of interventions from government and industry. Some in the industry favour allowing the market to mature on its own, but it will not be possible to rely on changing market forces alone. To date, the UK government has taken a light-touch approach to the cyber insurance industry. With the market undergoing changes amid growing losses, more coordinated action by government and regulators is necessary to help the industry reach its full potential.
The interventions recommended here are still relatively light, and reflect the fact that cyber insurance is only a potential incentive for managing societal cyber risk.They include: developing guidance for minimum security standards for underwriting; expanding data collection and data sharing; mandating cyber insurance for government suppliers; and creating a new collaborative approach between insurers and intelligence and law enforcement agencies around ransomware.
Finally, although a well-functioning cyber insurance industry could improve cyber security practices on a societal scale, it is not a silver bullet for the cyber security challenge. It is important to remember that the primary purpose of cyber insurance is not to improve cyber security, but to transfer residual risk. As such, it should be one of many tools that governments and businesses can draw on to manage cyber risk more effectively.
Basically, the insurance industry incents companies to do the cheapest mitigation possible. Often, that’s paying the ransom.
News article.
Interesting article discussing cyber-warranties, and whether they are an effective way to transfer risk (as envisioned by Akerlof’s “market for lemons”) or a marketing trick.
The conclusion:
Warranties must transfer non-negligible amounts of liability to vendors in order to meaningfully overcome the market for lemons. Our preliminary analysis suggests the majority of cyber warranties cover the cost of repairing the device alone. Only cyber-incident warranties cover first-party costs from cyber-attacks—why all such warranties were offered by firms selling intangible products is an open question. Consumers should question whether warranties can function as a costly signal when narrow coverage means vendors accept little risk.
Worse still, buyers cannot compare across cyber-incident warranty contracts due to the diversity of obligations and exclusions. Ambiguous definitions of the buyer’s obligations and excluded events create uncertainty over what is covered. Moving toward standardized terms and conditions may help consumers, as has been pursued in cyber insurance, but this is in tension with innovation and product diversity.
[..]
Theoretical work suggests both the breadth of the warranty and the price of a product determine whether the warranty functions as a quality signal. Our analysis has not touched upon the price of these products. It could be that firms with ineffective products pass the cost of the warranty on to buyers via higher prices. Future studies could analyze warranties and price together to probe this issue.
In conclusion, cyber warranties—particularly cyber-product warranties—do not transfer enough risk to be a market fix as imagined in Woods. But this does not mean they are pure marketing tricks either. The most valuable feature of warranties is in preventing vendors from exaggerating what their products can do. Consumers who read the fine print can place greater trust in marketing claims so long as the functionality is covered by a cyber-incident warranty.
Good paper on cybersecurity insurance: both the history and the promise for the future. From the conclusion:
Policy makers have long held high hopes for cyber insurance as a tool for improving security. Unfortunately, the available evidence so far should give policymakers pause. Cyber insurance appears to be a weak form of governance at present. Insurers writing cyber insurance focus more on organisational procedures than technical controls, rarely include basic security procedures in contracts, and offer discounts that only offer a marginal incentive to invest in security. However, the cost of external response services is covered, which suggests insurers believe ex-post responses to be more effective than ex-ante mitigation. (Alternatively, they can more easily translate the costs associated with ex-post responses into manageable claims.)
The private governance role of cyber insurance is limited by market dynamics. Competitive pressures drive a race-to-the-bottom in risk assessment standards and prevent insurers including security procedures in contracts. Policy interventions, such as minimum risk assessment standards, could solve this collective action problem. Policy-holders and brokers could also drive this change by looking to insurers who conduct rigorous assessments. Doing otherwise ensures adverse selection and moral hazard will increase costs for firms with responsible security postures. Moving toward standardised risk assessment via proposal forms or external scans supports the actuarial base in the long-term. But there is a danger policyholders will succumb to Goodhart’s law by internalising these metrics and optimising the metric rather than minimising risk. This is particularly likely given these assessments are constructed by private actors with their own incentives. Search-light effects may drive the scores towards being based on what can be measured, not what is important.
EDITED TO ADD (9/11): Boing Boing post.
Krebs on Security is reporting a massive data leak by the real estate title insurance company First American Financial Corp.
“The title insurance agency collects all kinds of documents from both the buyer and seller, including Social Security numbers, drivers licenses, account statements, and even internal corporate documents if you’re a small business. You give them all kinds of private information and you expect that to stay private.”
Shoval shared a document link he’d been given by First American from a recent transaction, which referenced a record number that was nine digits long and dated April 2019. Modifying the document number in his link by numbers in either direction yielded other peoples’ records before or after the same date and time, indicating the document numbers may have been issued sequentially.
The earliest document number available on the site—000000075—referenced a real estate transaction from 2003. From there, the dates on the documents get closer to real time with each forward increment in the record number.
This is not an uncommon vulnerability: documents without security, just “protected” by a unique serial number that ends up being easily guessable.
Krebs has no evidence that anyone harvested all this data, but that’s not the point. The company said this in a statement: “At First American, security, privacy and confidentiality are of the highest priority and we are committed to protecting our customers’ information.” That’s obviously not true; security and privacy are probably pretty low priorities for the company. This is basic stuff, and companies like First America Corp. should be held liable for their poor security practices.
This will complicate things:
To complicate matters, having cyber insurance might not cover everyone’s losses. Zurich American Insurance Company refused to pay out a $100 million claim from Mondelez, saying that since the U.S. and other governments labeled the NotPetya attack as an action by the Russian military their claim was excluded under the “hostile or warlike action in time of peace or war” exemption.
I get that $100 million is real money, but the insurance industry needs to figure out how to properly insure commercial networks against this sort of thing.
I had not heard about this case before. Zurich Insurance has refused to pay Mondelez International’s claim of $100 million in damages from NotPetya. It claims it is an act of war and therefore not covered. Mondelez is suing.
Those turning to cyber insurance to manage their exposure presently face significant uncertainties about its promise. First, the scope of cyber risks vastly exceeds available coverage, as cyber perils cut across most areas of commercial insurance in an unprecedented manner: direct losses to policyholders and third-party claims (clients, customers, etc.); financial, physical and IP damages; business interruption, and so on. Yet no cyber insurance policies cover this entire spectrum. Second, the scope of cyber-risk coverage under existing policies, whether traditional general liability or property policies or cyber-specific policies, is rarely comprehensive (to cover all possible cyber perils) and often unclear (i.e., it does not explicitly pertain to all manifestations of cyber perils, or it explicitly excludes some).
But it is in the public interest for Zurich and its peers to expand their role in managing cyber risk. In its ideal state, a mature cyber insurance market could go beyond simply absorbing some of the damage of cyberattacks and play a more fundamental role in engineering and managing cyber risk. It would allow analysis of data across industries to understand risk factors and develop common metrics and scalable solutions. It would allow researchers to pinpoint sources of aggregation risk, such as weak spots in widely relied-upon software and hardware platforms and services. Through its financial levers, the insurance industry can turn these insights into action, shaping private-sector behavior and promoting best practices internationally. Such systematic efforts to improve and incentivize cyber-risk management would redress the conditions that made NotPetya possible in the first place. This, in turn, would diminish the onus on governments to retaliate against attacks.
Good article about how difficult it is to insure an organization against Internet attacks, and how expensive the insurance is.
Companies like retailers, banks, and healthcare providers began seeking out cyberinsurance in the early 2000s, when states first passed data breach notification laws. But even with 20 years’ worth of experience and claims data in cyberinsurance, underwriters still struggle with how to model and quantify a unique type of risk.
“Typically in insurance we use the past as prediction for the future, and in cyber that’s very difficult to do because no two incidents are alike,” said Lori Bailey, global head of cyberrisk for the Zurich Insurance Group. Twenty years ago, policies dealt primarily with data breaches and third-party liability coverage, like the costs associated with breach class-action lawsuits or settlements. But more recent policies tend to accommodate first-party liability coverage, including costs like online extortion payments, renting temporary facilities during an attack, and lost business due to systems failures, cloud or web hosting provider outages, or even IT configuration errors.
In my new book—out in September—I write:
There are challenges to creating these new insurance products. There are two basic models for insurance. There’s the fire model, where individual houses catch on fire at a fairly steady rate, and the insurance industry can calculate premiums based on that rate. And there’s the flood model, where an infrequent large-scale event affects large numbers of people—but again at a fairly steady rate. Internet+ insurance is complicated because it follows neither of those models but instead has aspects of both: individuals are hacked at a steady (albeit increasing) rate, while class breaks and massive data breaches affect lots of people at once. Also, the constantly changing technology landscape makes it difficult to gather and analyze the historical data necessary to calculate premiums.
BoingBoing article.
New paper: “Policy measures and cyber insurance: a framework,” by Daniel Woods and Andrew Simpson, Journal of Cyber Policy, 2017.
Abstract: The role of the insurance industry in driving improvements in cyber security has been identified as mutually beneficial for both insurers and policy-makers. To date, there has been no consideration of the roles governments and the insurance industry should pursue in support of this public-private partnership. This paper rectifies this omission and presents a framework to help underpin such a partnership, giving particular consideration to possible government interventions that might affect the cyber insurance market. We have undertaken a qualitative analysis of reports published by policy-making institutions and organisations working in the cyber insurance domain; we have also conducted interviews with cyber insurance professionals. Together, these constitute a stakeholder analysis upon which we build our framework. In addition, we present a research roadmap to demonstrate how the ideas described might be taken forward.
Sidebar photo of Bruce Schneier by Joe MacInnis.