SEC Proposal to Amend Data Breach Regulations

by Doug Pollack

The Securities and Exchange Commission (SEC) is proposing amendments to the Gramm-Leach-Bliley Act (GLBA) and the Fair Credit Reporting Act (FCRA) that would create more specific requirements for safeguarding information and responding to information security breaches.

"Under the proposed amendments, if a covered institution determined that an unauthorized person had obtained access to or used sensitive personal information, and that misuse of the information had occurred or was reasonably possible, the institution also would be required to provide notification, in a clear and conspicuous manner, to each individual identified with the information."

The amendments are currently open for comment. If they go through in substantially their current form, the SEC will be requiring public companies to analyze each data breach for the risk of exposure of personal information, and then, if their determination is that the risk of unauthorized access is "reasonably possible", notify all individuals affected by the data breach.

Currently, there are no federal regulations that require notification of individuals affected by a corporate data breach. There are however numerous states that have notification laws with varying provisions.

It would be a very positive step for all of us if there are federal laws and regulations that would ensure that those affected by data breaches are notified on a timely basis and provided with useful, instructive information. All too often, individuals (millions of them each year) are notified of a data breach in such as way that it causes them great concern, but provides them with little help.

More on Experian vs. Lifelock

by Doug Pollack

There is a growing amount of legal commentary emerging in the discussion surrounding the Experian vs. LifeLock lawsuit. This week, Peter Bronson from The Union.com published an article titled "Business Law Bulletin: Experian vs. LifeLock Heats Up".

Relative to the false and misleading advertising issue, Mr. Bronson notes that:

"According to Experian's lawsuit, at least one Lifelock ad claims that the company's services make it virtually impossible for identity thieves to strike, but that fraud alerts are only effective against those particular types of fraud that require accessing a credit report. In other words, says Experian, Lifelock cannot protect against such forms of identity theft as an undocumented worker using someone's Social Security number to obtain a job; or against unauthorized use of a credit card."

It is interesting to see a credit bureau that advertises their credit monitoring services as a means to help deter identity theft relentlessly (who hasn't seen the FreeCreditReport.com ads on TV?) make the case for the inherent limitations in this area.

Mr. Bronson goes on to point out the ambiguities with LifeLock's famous $1 million guarantee:

"Lifelock does offer a $1 million guarantee that if a customer's identity is compromised, Lifelock will help restore the customer's credit standing and pay the cost of doing so. However, Lifelock's web site states that the guarantee comes into effect when a customer's identity is compromised "due to a failure or defect in our Service", a phrase that seems open to more than one interpretation. (If the service offers protection against only certain types of identity theft, does the guarantee only cover those specific types?)"

This is the first instance where I've seen someone dig into the specifics of this guarantee. The "service defect" provision certainly provides LifeLock with a get-out-of-jail-free card. Not to mention, given that it is the financial institutions who provide most of the financial fraud protection, how valuable really is a $1 million guarantee other than as a marketing gimic. I guess we'll all find out as this lawsuit unfolds.

Putting LifeLock to the Test

by Doug Pollack

Right on the heels of the lawsuit filed by Experian against LifeLock, the self-proclaimed leader in identity theft protection, which asserts that LifeLock uses deceptive advertising and misleading claims in advertising their service, as well as illegal means of setting fraud alerts on behalf of their customers, now a CBS news report by Jim Benemann has put LifeLock to the test, along with two other companies, Debix and TrustedID, that rely on credit bureau fraud alerts or freezes for protecting their customers.

It seems that based on this test, these products do not prevent identity theft as you might be led to believe based on LifeLock's advertising. So on to the test. The first thing he did was have three of his colleagues, Tom, Jillian, and Kristine, each sign up for one of the three services. Then...

"With their permission, CBS4's Jim Benemann took all of Tom, Jillian and Kristine's personal information including their social security numbers and dates of birth. Using that information, Benemann applied for the same major credit card in each of their names. The only little thing he changed was the address. Benemann asked for those credit cards to be mailed to his home address. Essentially, he stole Kristine's, Tom's and Jillian's identities.

The three testers weren't worried. They all figured they would get that phone call telling them that someone was applying for credit in their name and they would put a stop to it immediately. Tom waited, Jillian waited and Kristine waited close to their phones. They waited 24 hours, then 48 hours and then a week. Not one of them got a phone call from any creditor even though they had paid companies for credit protection."

It is worth noting, that a fraud alert can easily be placed by an individual for free, just by contacting the credit bureau. Unfortunately services like these make the fraud alert seem like a "silver bullet" for preventing identity theft. As this test proves, nothing could be further from the truth. The reporter goes on to note:

"And remember Kristine who signed up with LifeLock? A little more than a week after Benemann applied for a credit card in her name, that card arrived, mailed to him, at his home address. And that had Kristine all the more interested in finding out about LifeLock's $1 million guarantee...Here is what LifeLock had to say:

'The credit card companies have a contract with the credit bureaus that say they must honor fraud alerts. The fact that they chose not to is proof that the fraud alerts are not bulletproof. The good news is that this is where the LifeLock $1 million guarantee is most effective. LifeLock is not a credit monitoring service but a protection service in the event a fraud alert proves to be ineffective.' "

Having said that, LifeLock didn't clarify how they then provide "protection" for the victim of ID theft. In the past, LifeLock had outsourced victim recovery services to other companies. It would be instructive to know what they do for their victims today.

Experian vs. LifeLock Lawsuit

VS.
by Doug Pollack

The Red Tape Chronicles yesterday reported on a recently-filed lawsuit by Experian, a major US credit bureau, against Lifelock. This lawsuit represents the first "shot across the bow" for vendors of credit services that rely on placing continuous fraud alerts on consumer accounts with the credit bureaus.

About.com's identity theft site defines a fraud alert as a "flag that is put on your credit report through the consumer reporting agencies. This flag establishes that as part of any credit approval process, you need to be notified."

Lifelock's consumer service, which they tout as providing guaranteed protection against identity theft, relies solely on the setting of fraud alerts to provide consumers with the stated protection. The Experian lawsuit brings into question the efficacy of fraud alerts as a means to prevent identity theft.

The Red Tape Chronicles article highlights that a key assertion of the lawsuit is that LifeLock is using deceptive advertising practices and making misleading claims in order to persuade consumers to subscribe to their service. The article notes that the "credit bureau Experian is suing the identity theft prevention firm LifeLock, accusing it of deception and fraud in its familiar advertising campaign, which includes a spot in which CEO Todd Davis reveals his Social Security number and then brags about the effectiveness of the company’s protections. In the lawsuit, filed in U.S. District Court on Feb. 13, Experian contends that LifeLock's advertising is misleading and that the firm is breaking federal law in the way it goes about protecting consumers."

The Experian lawsuit also brings into question the legality associated with firms placing fraud alerts on behalf of consumers. The Red Tape Chronicles article notes that "Experian contends that LifeLock's chief ID theft prevention tool -- the placing of continuous fraud alerts on consumers' credit files – is illegal because, under the Fair Credit Reporting Act, fraud alerts can only be requested by the individual consumer or an individual acting on behalf of the consumer."

ID Safeguards provides corporations and consumers with identity theft services. Among these services are those that assist victims of identity theft with recovery of their identities taking a "fully managed" approach to recovery. Coincidentally, the company has handled identity theft recovery efforts for numerous LifeLock members who became victims of identity theft, despite the placement of fraud alerts by LifeLock.

The fact that LifeLock members do fall victim to identity theft should not be surprising. Fraud alerts do not prevent an identity thief from co-opting and using one of your credit cards. They also don't prevent someone from using your social security number to work. They further don't prevent thieves from signing up for utilities of telecommunications services using your identity. And they don't stop someone from using your personal information to get access to health care services.

Fraud alerts also don't prevent inquires for credit from showing up on a victims credit report. These "little dings" can have a detrimental effect on an person's credit score. Fraud alerts do have their place in dealing with a threat to your financial identity, but they are not a silver bullet and certainly are not a guarantee that individuals won't fall victim to identity theft.

The Indirect Costs of a Data Breach

by Doug Pollack

A recently published article in E-Commerce Times concerning the costs of corporate data breaches titled The Cost of ID Theft, Part 2: Fixing the System written by Andrew Burger, highlights the staggering economic impact of the increasing number of data breaches by America's corporations.

The article notes a statistic from the Ponemon Institute that pegs the average cost of a data breach at $197 per record compromised.

"The stakes are already quite high when it comes to data loss: According to Gartner and the Ponemon Institute, the loss of a single record -- not financial fraud -- is around (US)$197. If you take the extremely conservative estimate from the same research that said that in 2007, 127 million records were lost, you get around $25 billion in direct losses noted Uriel Maimon, senior researcher for security firm RSA."

Ponemon further explores these costs, finding that around two-thirds of the cost of the data breach is associated with the loss of customers or reduction of corporate reputation.

"The cost of lost business is likely to be larger and more significant than actual cash losses and expenses related to remediation, however. The average customer churn for businesses surveyed that had suffered a breach was 2.67 percent, noted Kevin Bocek, director of product marketing for encryption firm PGP."

With this in mind, companies should plan as part of their data breach response plans to explicitly focus on elements of their response that will engender customer goodwill. While this may seem difficult to achieve in such circumstances, every opportunity to reach out and touch your customers creates an opportunity to increase retention and brand loyalty.

Are You Well Protected?

by Doug Pollack

As we look forward to what is in store for us in 2008, The Identity Theft Resource Center is projecting an increase in both the number of security breaches and incidents of identity theft.

With this as a backdrop, we've developed a set of recommendations for people to protect themselves. As part of our ID Self-Defense Academy, a component of our subscription services member website, this Self-Defense Checklist includes both common sense suggestions that you are likely to be familiar with, as well as others that are new this year given the evolution in the use of the internet and computers in identity theft.

Some of the items you may not have thought about include using a "wipe" utility on your computer hard drive to make sure all of your information is permanently erased before disposing of the computer, and checking the annual earnings statement that you receive each year from the social security administration for any discrepancies in earnings or work history.

The complete checklist follows.

Self-defense Checklist

Protect Yourself At Home

• Switch to a mailbox with a lock.
• When you're away from home, place a hold on your mail (online at www.usps.com or with a Hold Mail form at the post office).
• Use a cross-cut shredder to shred documents containing financial or other personal information.
• Secure important documents in a safety deposit box or a fire-proof safe hidden at home.
• Stop newspaper delivery and garbage service if you're leaving town.
• Set up lights on timers to make your home look occupied when you're away.
• Have a neighbor you trust keep an eye on your home, and leave a number where you can be reached.
• Immediately notify the post office and anyone you do business with if you change your address.
• Place outgoing mail in a post office mail slot or hand it to a postal worker instead of leaving it at your home mailbox for pick-up.
• Review your credit card, bank account, and cell phone statements regularly to make sure there are no unauthorized charges.

Protect Your Computer and Internet Access

• Protect your computer with a password.
• Never provide personal information in response to an unsolicited e-mail.
• Avoid viruses and other scams by frequently updating your browser and e-mail software.
• Use and regularly update your firewall and anti-virus/anti-spyware software.
• Change your passwords often, and use letter and number combinations that are difficult to guess.
• Never have your computer remember your password.
• Don't respond to instant messaging from unfamiliar users, and avoid instant message offers.
• To ensure the authenticity of e-mail requests for personal information, type the company's Web site URL directly into your browser instead of clicking on a link in the e-mail. (The real destination of the link may be different than the URL that you see.)
• Don't ever send personal or financial information via e-mail.
• Don't open e-mail attachments or download files from strangers.
• Before doing business with any company, ask for and verify its name, street address, and phone number.
• Choose an Internet Service Provider and browser that use filtering software to limit spam in your e-mail inbox.
• Never respond to email asking for your help in getting money out of a foreign country.
  Encrypt your wireless network as soon as you set it up.
• When using Ebay, Craigslist, or other sites linking buyers and sellers, use PayPal for transactions. Don't ever wire money via wire service, and don't accept cashier checks or money orders, as these can be forged.
• Review your credit card, bank account, and cell phone statements regularly to make sure there are no unauthorized charges.

Protect Yourself On the Road

• Carry only the credit cards and checks you absolutely need when traveling.
  Keep identification and credit cards in a secure wallet or purse on your person (and out of pickpockets' reach) where you can keep an eye on them.
• Make photocopies of the fronts and backs of your credit cards, driver's license, and passport and store the copies someplace other than your wallet in case of theft.
• Program the toll-free numbers for your credit card companies into your mobile phone in case of theft.
• Never leave valuables, phones, receipts, or other papers containing financial or personal information in your car, even if it is locked (and always lock it).
• Keep receipts in a safe place until you can cross-shred or safely store them at home.
• Always keep your mobile phone in a secure place on your person to avoid losing it. Activate the lock feature when it's not in use so that it can't be used and any stored information can't be accessed if it is stolen.
• If you must discuss personal or financial information over the phone, do so in your hotel room or another private place where you won't be overheard.
• Avoid downloading attachments from your e-mail account onto a computer other than your own. Erase your browsing history and discard any personal files in the computer's trash or recycling bin, then empty it before logging off.
• Never enter or access personal information from a public-access computer or one in a hotel business center, as these can be fitted with hard-to-see key loggers that record your information.
  Be sure to eject any personal CDs, DVDs, or jump drives at the end of a session on a computer that isn't your own.
• Especially after you travel, dealing with merchants you don't know, remember to review your credit card, bank account, and cell phone statements regularly to make sure there are no unauthorized charges.

Data Breaches Reach Record Levels in 2007

by Doug Pollack

According to a December 30, 2007 AP article written by Mark Jewell, the trend in data breaches continues on the upswing. He reported that:

"The loss or theft of personal data such as credit card and Social Security numbers soared to unprecedented levels in 2007, and the trend isn't expected to turn around anytime soon as hackers stay a step ahead of security and laptops disappear with sensitive information."

This of course is bad news for consumers who have also experienced meteoric rates of identity theft in 2007. It has been estimated that over 9MM US citizens fell victim to identity theft in 2007. If you're counting, this averages out to one every three seconds. And the growing adoption of new technologies such as wireless internet and devices by businesses and consumers, provides new ways for technically-savvy criminals to circumvent data security measures.

"With wireless data transmission more common, hackers increasingly are expected to target what many experts see as a major vulnerability. Eavesdroppers appear to be learning how to bypass security safeguards faster than ever, said Jay Tumas, the head of Harvard University's network operations, at a recent conference for information security professionals."

Research Groups estimate that between 50MM and 80MM records of personal information were breached during 2007. These breaches were caused both by hackers whose intent is to steal and exploit this personal data, as well as by unintentional human error such as in the loss or misplacement of a laptop computer with sensitive personal data residing on its hard drive.

Predictions by industry groups suggest that breach numbers reported will continue to rise given a growing trend requiring disclosure of breaches and notification of affected individuals by organizations that experience a data breach.