A Fight Brews After Retailers Demand From Congress Better, Stronger, And Consistent Data Breach Laws
The National Retail Federation and 43 other retail associations sent a letter dated November 6, 2014 to Congressional leaders in House and Senate demanding laws that promote stronger data security, eliminate exemptions to certain industries from data breach notification laws, and provide consistent data breach notification rules.
There are currently 47 different breach notification laws across the states. The makes for a complicated, patchwork of state laws that retailers must navigate when informing affected shoppers about data breaches. The laws vary in defining the data elements to be protected, data formats, the methods of notification, and when affected consumers must be notified by.
The retail associations' letter to Congress (Adobe PDF) stated:
"Organized groups of criminals, often based in Eastern Europe, have focused on U.S. businesses, including financial institutions, technology companies, manufacturing, retail, utilities and others. These criminals devote substantial resources and expertise to breaching data protection systems... Given the breadth of these invasions, if Americans are to be adequately protected and informed, any legislation to address these threats must cover all of the types of entities that handle sensitive personal information. Exemptions for particular industry sectors not only ignore the scope of the problem, but create risks criminals can exploit. Equally important, a single federal law applying to all breached entities would ensure clear, concise and consistent notices to all affected consumers regardless of where they live or where the breach occurs."
The letter cited current banking practices:
"... the recently reported data breaches have taught us, it is that any security gaps left unaddressed will quickly be exploited by criminals. For example, the failure of the payment cards themselves to be secured by anything more sophisticated than an easily-forged signature makes the card numbers particularly attractive to criminals and the cards themselves vulnerable to fraudulent misuse. Better security at the source of the problem is needed. The protection of American’s sensitive financial information is not an issue on which sacrificing comprehensiveness makes any sense at all."
The letter described the threats retailers face data breaches at banks and payment processors:
"... some recent examples are instructive. This summer, it was reported that JPMorgan Chase had suffered a data security breach... affecting 83 million accounts that had been accessed online or through mobile devices. The criminals involved reportedly took over computers around the world... Given the sophistication of the attack, even months after initial disclosure, it is not clear whether the bank’s system is free of the hackers involved. It has also been reported that nine other banks suffered similar data breaches and there is evidence that there is a focused effort to breach financial institutions by these criminals... Despite all that reporters have uncovered to date, however, financial regulators have not required financial institutions to provide the same detailed notice to their customers as is required of other businesses under law... it was revealed in September that over 100 account subscribers to Apple’s widely-used iCloud service had suffered a series of targeted attacks that ultimately led to the unlawful acquisition of sensitive photographs stored on the iCloud servers. Merchants have also been attacked by criminals employing sophisticated and previously unseen tools to steal payment card numbers. Payment card data has been targeted by criminals in data breaches at every type of entity that handles such data – from financial institutions to retailers, card processors, and telecommunications providers."
The letter also cited a key industry study about where data breaches occurred:
"The Verizon Data Breach Investigations Report is the most comprehensive summary of these types of threats. The 2014 report (examining 2013 data) determined that there were 63,437 data security incidents reported by industry, educational institutions and governmental entities last year and that 1,367 of those had confirmed data losses. Of those, the financial industry suffered 34%, public institutions (including governmental entities) had 12.8%, the retail industry had 10.8%, and hotels and restaurants combined had 10%."
The Online Trust Alliance supports the retailer associations' letter with calls for better, stronger, consistent data breach laws. The American Bankers Association and several financial services groups responded with their own letter (Adobe PDF) to Congress dated November 12, 2014. The banking groups' letter said the retail associations' letter was:
"... inaccurate and misleading, and recommends solutions that leave consumers vulnerable to enhanced risk of data breaches... As evidenced by the massive breaches at Target, Home Depot, Michaels, Neiman Marcus, Jimmy Johns, Staples, Dairy Queen and others, retailers are being targeted by cyber criminals. While merchants and financial institutions are both the targets of these attacks, a key difference is that financial institutions have developed and maintain robust internal protections to combat criminal attacks and are required by Federal law and regulation to protect this information and notify consumers when a breach occurs that will put them at risk. In contrast, retailers are not covered by any Federal laws or regulations that require them to protect the data and notify consumers when it is breached."
Given the frequency and large size of data breaches, in my opinion, both groups have failed at adequately protecting consumers' sensitive personal and financial information. Neither is in a position to criticize the other.
The financial groups' letter cited "Strong Federal Oversight and Examination" and:
"Financial institutions on their own are aggressively implementing new systems and leading the development of new technologies like tokenization to combat the ever-changing criminal threat."
Banks may lead the way upon defending against external threats, but seem to have failed miserably against internal threats. Several examples illustrate my point. Banks have settled lawsuits about data breaches, settled lawsuits about residential mortgage back securities abuses, paid massive amounts ($128 billion and counting) in settlement payments and fines where terms are often kept secret and payments are tax deductible, and failed to solve their growing ethics problem where young bankers feel they must break the law to get ahead. Nobody forced banks to violate laws resulting in these lawsuits, settlements, and fines.
Rather than fight, both groups should stay focused on their shoppers and account holders: collaborate on better data security. Otherwise, they both look silly; like children at the dinner table arguing over who gets the last slice of chocolate cake.
View the full text of the retail associations' letter to Congress (Adobe PDF). Download the 2014 Verizon Dat Breach Investigations Report. Learn more about hacking attacks against Apple iCloud services.