Cyber-Insurance

Cyber-Insurance in the United States

Cyber-insurance is an insurance product used to protect businesses from
Internet-based risks, and more generally from risks relating to information
technology infrastructure and activities. Risks of this nature are typically
excluded from traditional commercial general liability policies. Coverages
provided by cyber-insurance policies may include first-party coverage against
losses such as data destruction, extortion, theft, hacking, and denial of service
attacks; liability coverage indemnifying companies for losses to others caused,
for example, by errors and omissions, failure to safeguard data, or defamation;
and other benefits including regular security audits, post-incident public
relations and investigative expenses, and criminal reward funds.

The Benefits of Cyber-Insurance

Cyber-insurance increases cyber-security by encouraging the adoption of best
practices. Insurers will require a level of security as a precondition of coverage,
and companies adopting better security practices often receive lower insurance
rates. This helps companies to internalize both the benefits of good security and
the costs of poor security, which in turn leads to greater investment and
improvements in cyber-security.

The security requirements used by cyber-insurers are also helpful. With
widespread take-up of insurance, these requirements become de facto standards,
while still being quick to update as necessary. Since insurers will be required to
pay out cyber-losses, they have a strong interest in greater security, and their
requirements are continually increasing.

As well as directly improving security, cyber-insurance is enormously beneficial
in the event of a large-scale security incident. Insurance provides a smooth
funding mechanism for recovery from major losses, helping to businesses to
return to normal and reducing the need for government assistance.

Finally, insurance allows cyber-security risks to be distributed fairly, with higher
premiums for companies whose expected loss from such risks is greater. This
avoids potentially dangerous concentration of risk while also preventing freeriding.

Advantages over Governmental Regulation

Cyber-insurance has a number of advantages over governmental regulation as a
means for improving cyber-security. First and foremost, government standardsetting
is simply not suitable for a rapidly evolving area such as cyber-security.
Standards produced by organized bodies are based on compromise, and
government involvement in the process stifles innovation further. Closely
related to this is the threat of regulatory capture attendant with any system of
governmental regulation.

Positive reinforcement is generally the more effective behavior modification
technique, as individuals naturally prefer reward to punishment. Fear of legal
sanctions can force companies to maintain a set of minimum standards, as cyberinsurance
does, but unlike cyber-insurance it does not provide any incentive to
do better. Governmental regulation results in an emphasis on meeting basic
minimum standards, whereas insurance results in companies striving to adopt –
and improve upon – best practices. Finally, because the risk is global, United
States regulations alone cannot effectively manage it. However, worldwide
regulation is impractical because international organizations move even more
slowly than national governments. Widespread use of cyber-insurance will
produce better security than a system of governmental regulation and standardsetting.

Problems with the Market for Cyber-Insurance

Despite the benefits of cyber-insurance, the market for cyber-insurance is
adversely affected by a number of problems.

First and foremost, insurers are afraid of a “cyber-hurricane‟ – a major disaster
resulting in great number of claims. Cyber-hurricanes represent an uncertain
risk of very large losses, and as such are very difficult for insurers to plan for.
Because computer systems are interdependent and standardized, they tend to be
especially vulnerable to correlated losses of this nature. This fear increases
insurance premiums, because insurers naturally focus on worst-case estimates of
the expected loss from such an event so that they can maintain underwriting
profitability.

In addition, “cyber-hurricanes‟ raise a barrier to entry to the insurance market,
because an insurer may be wiped out if a major event occurs before they have
built up sufficient cash reserves. Prices for private market reinsurance for cyberinsurers
is extremely high as the fear of a “cyber-hurricane” is felt most by the
reinsurance community.

Second, because cyber-insurance is a relatively new area, insurers are hampered
by a lack of actuarial data with which to calculate premiums. In addition to
increasing price, a lack of data leads to problems with the risk analysis
undertaken by companies when deciding whether insurance against a particular
risk is worthwhile. A lack of data also makes cyberinsurance
appear less desirable to companies, while simultaneously increasing
the price of cyber-insurance. .

Legislative Solutions

Given the public policy benefits that come with widespread adoption of cyberinsurance
and the current obstacles to the widespread creation and adoption of
cyber-insurance, the federal government should act in order to help counteract
the current market failure in the cyber-insurance market. The federal
government has a number of measures at its disposal that it may use to improve
the market for cyber-insurance, and by doing so help shore up domestic and
international cyber-security.

Federal Purchasing Power

The federal government can promote the use of cyber-insurance with its strong
position in the marketplace, by requiring government contractors and subcontractors
to carry cyber-insurance. This would directly stimulate the cyberinsurance
market by increasing demand for cyber-insurance. Further down the
line, companies carrying cyber-insurance to meet federal contracting
requirements would be able to use their insurance as a selling point when
bidding on private contracts, leading to further uptake of cyber-insurance by
their competitors to nullify this advantage.

Precedent for this action may be found in the Federal Acquisition Regulations,
which require government contractors “to provide insurance for certain types of
perils.”

The principal advantage of this approach is that it would directly increase the
adoption of cyber-insurance, and thereby improve cyber-security, while
imposing an additional regulatory burden that is truly minimal.
In addition, the magnitude of the federal government‟s purchasing power means
that the effects of this action would most likely spill over into private
contracting, leading to further increases in coverage rates and security.

Cyber Safety Act

The federal government can promote cyber-security efforts by creating a Cyber
Safety Act that provides safe harbors or other limitations on cyber-security
liability, contingent on reasonable efforts to conform to best practices. Liability
would be generally capped at the amount of insurance purchased and there
would be requirements to purchase adequate amount of insurance. This would
provide a powerful incentive to adopt effective security measures. It would also
make the regular security evaluations associated with cyber-insurance especially
valuable. Precedent for this action may be found in the Support Anti-Terrorism
by Fostering Effective Technologies Act of 2002, which provides limitations on
liability and damages for claims against sellers of anti-terrorism technologies
arising out of the use of anti-terrorism technologies, contingent on having
liability insurance.

A cyber-Safety Act would increase the supply of the liability component of
cyber-insurance and reduce its premium cost by reducing uncertainty and
potential cost. There is no cost to the taxpayer associated with this action.

Encourage Information-Sharing

The federal government can promote the sharing of cyber-security information
by establishing an antitrust exemption to allow insurers to pool data on
vulnerabilities and attacks. This would allow insurers and risk managers to
create better actuarial models for cyber-risks, reducing insurance premiums and
making cyber-insurance more attractive to companies, and therefore increasing
the adoption of cyber-insurance. Precedent for this approach may be found in
the Year 2000 Information and Readiness Disclosure Act of 1998, which
provides a limited exemption from federal antitrust law and the Freedom of
Information Act for the sharing of vulnerability information related to the Year
2000 bug.

This action would result in the production of a comprehensive and
detailed compilation of cyber-security information at no cost to the taxpayer. By
reducing the uncertainties currently associated with cyber-risks, it would tend to
drive down the supply cost of cyber-security insurance and reinsurance, leading
to lower prices and increased coverage rates. Insurance companies are best
placed to compile this data, and already require policyholders to report cyberattacks.
This action would help to reduce the current under-reporting problem at
no cost.

Federal Government as a Reinsurer

The federal government can increase the supply of cyber-insurance by providing
reinsurance to cyber-insurance companies for a limited time. This would
increase the adoption of cyber-insurance by reducing prices, with price reduction
caused both by decreased supply cost and increased competition in the cyberinsurance
market.

Precedent for this action may be found in the Terrorism Risk Insurance Act of
2002, which for a limited period provides compensation for insurers who suffer
sufficiently large losses resulting from designated acts of terrorism, subject to
recoupment through risk-spreading premiums on other insurance products. This
action solves the most important problem with the cyber-insurance market, the
fear of a cyber-hurricane‟. With this obstacle lifted, supply and adoption of
cyber-insurance will increase. In addition, the availability of guaranteed
reinsurance with large limits may allow insurers to offer large amounts of cyberinsurance
coverage to companies who require it. By the time the reinsurance
program ends, insurance companies will have built up sufficient reserves to cope
with a “cyber-hurricane‟ unaided. If no covered risk materializes during the
time period covered by the reinsurance program, this action has no cost to the
taxpayer. In the event that a covered risk does materialize, the taxpayer would
be able to recover at least some of their costs.

Insurance Underwriting

Standards of Due Care for Network Security Risk

It has been said that the insurance industry is in a uniquely motivated to
understand and communicate to its insureds what are the standards of due care
appropriate for the management of network security. The reason for this is
simple. Only the insurance industry has “skin in the game”. That is to say, in
the event of a loss it is the insurance company that will pay, excess of any selfinsured
retention, any damages to third parties as well as reimburse the
policyholder for any loss of business and additional expense associated with the
event.

The exact tools and metrics used by a cyber-insurance carrier is proprietary to
that carrier and might differ from carrier to carrier. However, much of the
criteria used is generally common among carriers and is known to the industry.

Cyber-insurance carriers must seek to understand:

  • The frequency or likelihood of a loss event will occur to a particular company,
  • The frequency or likelihood that such an event will cause damage to the
    company or to others for which the company is legally liable,
  • The severity or insured cost of such a loss event should it occur, and
    finally.
  • What steps of prevention and/or mitigation a company employs to either
    avoid (largely impossible) or reduce (definitely possible) any of the above
    in the point before.

To do this, carriers use a number of tools including an application for insurance,
an online security assessment (based mostly on ISO 27001), telephone call
between the carrier’s technical expert and the company’s CISO and, if deemed
necessary, an on-site security assessment. Any previously conducted network
assessment or regulatory review is also analyzed by the underwriters.

Typically, an underwriting analysis will include a review of the following:

  • General risk exposure of the industry and business activities,
  • General risk exposure of the size of the company,
  • Loss History,
  • Years in business,
  • Financial condition
  • Extent of use of outsourced network security services
  • Dependency on third parties networks
  • In depth analysis of network security pursuant to standards such as ISO 27001

Each of the above can now be discussed.

General risk of exposure based on company industry and size and business
activities

The general risk exposure based on industries focuses on industries that have
one or more of three characteristics:

  • the extent and type of data used,
  • the extent of dependency of network systems in a company’s daily operations, and
  • the extent the company is subject to regulation.

For this reason, industries such as financial institutions and healthcare and retail which employ highly sensitive data are generally considered to be of a higher exposure industry.
These industries are expected to have higher levels of network security best
practices and those that do not can fail to obtain insurance. A review is made of
a company’s business activities activities. How dependent are their on their
systems. What is their systems used for? (e.g. communications only, order
taking, inventory, data exchange, etc.) The more central the use of their systems
to their business activities the greater the exposure. Finally, since larger
companies tend to have larger losses arising from the same errors, large
companies usually command higher premium levels than smaller companies.

Loss History, Years in Business and Financial Condition

Underwriters will inquire as to the extent of prior computer attacks. This is
usually done after a dollar threshold of damages since all companies suffer
attacks on a daily basis. Substantial prior losses will result in an increased
intensity of questioning on what steps the company has taken to reduce such
losses in the future. Failure to respond adequately to these questions will result
in a lack of insurability with the carrier recommending the adoption of certain
actions or recommending a third party to conduct a formal network assessment
before any underwriting decision can be made. In general, younger businesses
are deemed to be more inexperienced and thus more likely to have losses than
older businesses. Finally, an underwriter will review a company’s financial
condition (balance sheet, income statement, cash flow statement). Underwriters
understand that companies in poor financial condition tend to “cut corners” with
security often being one of the corners cut.

Third Party Exposure and Outsourcing

Underwriters recognize that our economy is based on the interdependence of
networked computers. As a practical matter, a company’s systems can be
endangered by the systems of others that it is connected with. Underwriters
inquire into what due diligence a company has made into the quality of the
networks of its partners/distributors/etc systems. Company who have
successfully made such assessments will enjoy lower premiums that those who
do not.

Underwriters also recognize outsourcing of network security. Outsourcing can
raise or lower a company’s premium. Underwriters will look at the country
where the outsourced services are too recognizing that certain countries pose
greater risk than others. Small companies will be expected to outsource
generally and will be penalized if they represent that they do all IT work
internally. In contrast, large companies will be expected to have robust internal
IT specialists including a chief information security officer with experience.
Membership in information sharing organizations is encouraged.

Network security quality

The most sizable premium credits and debits are reserved for the underwriter’s
analysis of the quality of the company’s network security. While there is some
difference between underwriters, most will use methods following the standards
illustrated in ISO 27001. This assessment will take one or more forms: Written
application for insurance, Online security assessment, Telephone calls between
the underwriter’s technology expert and the company’s CISO and On-site
security assessments. Technology, process and people will be reviewed.
Among the issues that might be looked at are:

  • Incident Response,
  • Business Continuity and Disaster Recovery Plans, (very important)
  • Vulnerability and Security Event Management,
  • Data Retention and Protection, (very important)
  • Vendor and Service Provider Management
  • Software Security Development
  • Network Security Design
  • Identity and Access Management (very important)
  • Cyber Regulation and Law Compliance (very important)
  • Security Training

Source: Larry Clinton

Cyber-Insurance: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Cyber-Insurance. This part provides references, in relation to Cyber-Insurance, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Cyber-Insurance by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Cyber-Insurance and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Cyber-Insurance or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Cyber-Insurance and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Cyber-Insurance. Finding these decisions can be challenging. In many cases, researchers about Cyber-Insurance should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Cyber-Insurance when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

*This resource guide is updated frequently. However, if you notice something is wrong or not working, or any resources that should be added, please notify us in any of the "Leave a Comment" area.

2 thoughts on “Cyber-Insurance”

  1. This author requires government contractors to carry cyber-insurance. Doing this
    would improve cyber-security among government contractors, with a chance
    that private industry would adopt a similar requirement, resulting in high cyberinsurance
    coverage rates and a corresponding increase in cyber-security
    generally. The regulatory burden of added by such a requirement would be
    minimal, and the cost to the taxpayer would most likely be low.

  2. One of the solutions is, thererefore, to establish an antitrust exemption to promote the sharing of information
    and data relating to cyber-security. This actuarial data would allow the risks and
    benefits of a particular cyber-insurance policy to be calculated more accurately,
    allowing insurers to charge lower premiums and allowing and making cyberinsurance
    more attractive to risk managers. There would be no associated cost
    to the taxpayer.

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