Understanding the Board’s Role in Cybersecurity

March 7th, 2016

cybersecurity-3-7-16.pngUnfortunately, despite the recent prevalence of cyberattacks and data breaches, many businesses neglect cybersecurity or, if they do pay attention, view cybersecurity as a technical issue for senior management. However commonplace lax oversight of cybersecurity may be in other sectors of the economy, bank directors cannot afford to neglect or delegate responsibility for cybersecurity—bank boards must be actively involved.

Regardless of size, no bank is completely safe from a cyberattack. Every bank should assume that a cyberattack will occur and, when it does, at least one defense will fail. Hackers constantly test cybersecurity defenses, transform their attack methodology, and exploit weaknesses, which, all too often, are the access points used by third-party vendors providing critical services.

Banks are expected to take steps to prevent intrusions, prepare for the possibility of cyberattack, and have processes in place to resume business continuity. Bank examiners look to see if a bank has an integrated system of technology, processes and practices employed to protect networks, computers and data from attack. Bank examiners also look to see whether the board, as the driver of governance controls, is actively involved with senior management in development of a robust approach to cyber risk. Poor cybersecurity measures and lax board oversight can result in a bad IT exam, which, in turn, can negatively affect a bank’s management component rating (even though cybersecurity falls under the IT component). Worse still, a poor cybersecurity review may also negatively affect a bank’s safety and soundness rating.

As with many complex issues facing banks, the board must take steps to ensure that it is well advised regarding technological issues and has a thorough understanding of the bank’s inherent risk environment. A good first step is to make the Federal Financial Institution Examination Council’s (FFIEC) Cybersecurity Assessment Tool a part of the bank’s governance framework. The assessment tool is a two-part repeatable process review that helps banks identify their risks and evaluate cybersecurity maturity. The first part gauges the bank’s inherent risk profile, which identifies risks and threats (both internal and external), corresponding to the activities, services and products offered by the bank. The second part – the cybersecurity Maturity review – tests the maturity of the bank’s cybersecurity program, including board involvement and oversight of that program.

The board is ultimately responsible for cybersecurity, but it is not necessary that each director have a detailed technical understanding of the underpinnings of cybersecurity safeguards. Many boards appoint a board-level IT committee to take the lead on cybersecurity. Regulators expect the IT committee to own primary responsibility for the bank’s IT strategic plan, including making the board comfortable that the IT strategic plan aligns with the bank’s business strategy. As part of that process, the IT committee can incorporate the FFIEC assessment tool into its review and approval of bank IT policies, management of information security systems, training of other board members and bank management, and approval of IT budgets. Most importantly, because the IT committee is responsible for running periodic independent testing to monitor compliance, the assessment tool can be used to aid the IT committee in holding management accountable for identifying, measuring, monitoring and mitigating IT risks. Boards lacking an IT committee must work closely with senior management to tackle all of the tasks normally delegated to the IT committee and may want to consider hiring an outside consultant to advise the board on cybersecurity technologies and best practices.

The regulators have indicated that cybersecurity is going to be a key topic for exams during 2016. Federal regulators have also directed examination staff to incorporate the assessment tool into their review of bank cybersecurity and risk management. While there have been no reported civil money penalties to date related to a bank’s failure to adequately ensure cybersecurity, it is only a matter of time before examiners resort to supervisory and enforcement powers to ensure that banks adequately address cybersecurity risk. Moreover, as the scope of liability for cybersecurity risk grows, banks can be sure that insurance companies, plaintiffs’ attorneys and activist shareholders will scrutinize bank boards’ oversight of cybersecurity.

Proactive integration of the assessment tool into a bank’s governance and risk oversight framework will put the board in a better position to demonstrate satisfactory compliance on these points during an exam, help avoid any downgrade to the institution’s exam rating, and mitigate exposure to the bank and its customers from inevitable cyberattacks.

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Zayne is an associate in the McLean office of Hunton & Williams LLP where his practice focuses on the corporate and regulatory representation of commercial banks, holding companies, and other financial institutions. His practice involves matters related to strategic business planning, acquisition transactions, and regulatory compliance.