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The California Attorney General continued its series of public forums regarding the California Consumer Privacy Act (CCPA), with forums last week in Riverside (January 24, 2019) and
Los Angeles (January 25, 2019). As in the previous forums, there were a significant number of attendees, but few elected to speak publicly regarding their views on the Act. You can read our reports on the public forums held earlier this month in San Francisco and San Diego.

Lisa Kim, Deputy Attorney General for the AG’s Privacy Unit, provided opening remarks at both forums and identified the areas of the AG’s rulemaking on which speakers should focus their comments, specifically those areas of the Act that call for specific AG rules.  Ms. Kim encouraged interested parties to provide written comments and proposed regulatory language during this pre-rulemaking phase. Consistent with the prior forums, she noted that the AG’s office would be listening, and not responding, to comments made in Riverside and Los Angeles.

Of note, the presentation slides made available at the forum (and available here) state that the AG anticipates publishing proposed rules in Fall 2019,and that after that there will be a period for public comment and additional public hearings.

Continue Reading California AG Hosts Two More Public Forums on CCPA in Riverside and Los Angeles

In anticipation of preparing rules to implement the California Consumer Privacy Act, the California Attorney General recently announced six public forums that he will host in January and February 2019 across California.  On January 8, 2019, the AG hosted the first of these forums in San Francisco.  The following provides an overview of the forum and the comments made at the forum.

Overview of the January 8, 2019, San Francisco Forum 

Stacey Schesser, the Supervising Deputy Attorney General for the AG’s Privacy Unit, provided opening remarks.  Ms. Schesser confirmed that the AG’s office is at the very beginning of its rulemaking process.  Although the AG’s office will solicit formal comments after it prepares proposed rules, the AG is interested in receiving detailed written comments from the public with proposed language during this informal period.

These forums appear to be designed to inform the AG’s rulemaking and potentially streamline the process, by allowing public input before rules are drafted.  In this regard, Ms. Schesser clarified that she and other AG representatives in attendance at the San Francisco forum were there only to listen to the public comments and would not respond to questions or engage with speakers.  As a result, if the remaining forums follow a similar approach, it is unlikely that the forums will elicit meaningful intelligence regarding the AG’s anticipated approach to, or the substance of, the anticipated rulemaking.

Continue Reading California Attorney General Holds First California Consumer Privacy Act Public Forum

Computer laptop with ransomware malware virus key icon on red display background. Vector illustration technology data privacy and security concept.

The global WannaCry ransomware attack should be a wake up call for all companies about the threat ransomware poses. While WannaCry was one of the first highly publicized attacks in which ransomware was weaponized and used against numerous companies at once, there will undoubtedly be future attacks.  Companies can take proactive steps to reduce their chances of being hit by the next ransomware attack, and our team is working with companies around the world to help them be more resilient in light of these evolving threats.

Here are some key steps you can take to help your company protect itself from the next attack:

  1. Make sure software patches are routinely applied.
  2. If possible, only use supported operating systems and other software.
  3. Utilize antimalware and antivirus software tools and services.
  4. Back up your critical data.
  5. Train your employees on how to spot phishing emails.
  6. Create a cross-functional incident response plan.
  7. Practice responding to a ransomware attack in a table top exercise to be able to hit the ground running when this type of event occurs.
  8. Establish or enhance relationships with law enforcement and other critical partners.

In addition, we’ve compiled several resources to help you prepare for and respond to a ransomware incident:

GettyImages-538899668-600pxWith corporate data security breaches on the rise, the New York State Department of Financial Services (NYDFS) has adopted rules requiring financial institutions to take certain measures to safeguard their data and inform state regulators about cybersecurity incidents. Intended to thwart future cyberattacks and protect consumers, those “Cybersecurity Requirements for Financial Services Companies” (the “Cybersecurity Rule” or “Rule”) finally took effect on March 1, 2017. The NYDFS has released guidance on how to follow the Rule, it comes in the form of frequently asked questions (FAQs) and a summary of key compliance dates. Although the guidance is apparently intended to assist covered financial institutions as the clock ticks towards the first of the Rule’s phased compliance deadlines less than six months away, the guidance is unlikely to make the implementation challenges many financial institutions will face any less daunting.

The Cybersecurity Rule requires that covered financial institutions, among other things, adopt detailed programs, policies and procedures to protect Information Systems (which are defined to include essentially any computer or networked electronic system) and certain sensitive business and consumer information (“Nonpublic Information”) from cybersecurity threats.

The Rule is narrower and less prescriptive than the original proposal from September 2016 (and largely the same as the second proposal from December 2016). Nonetheless, covered financial institutions now have less than six months to establish compliance with the first of the Cybersecurity Rule’s requirements. This means covered financial institutions will quickly need to: (1) assess the current state of their information security programs and what modifications may be required based on the specific policies and controls required by the Rule; and (2) consider the new processes that may need to be created to meet the Rule’s reporting, recordkeeping and certification requirements. Continue Reading N.Y.’s New Cybersecurity Regulations: What Financial Services Companies Need to Know

A close-up on an abstract design of a display, which is warning about a cyber attack. Multiple rows of hexadecimal code are interrupted by red glowing warning text. Part of the display is reflected on a shiny surface. The image can represent a variety of threats in the digital world: data theft, data leak, security breach, intrusion, etc...

Is your company prepared to respond to a data security breach? For many companies, even reading this question causes some anxiety. However, being prepared for what seems like the inevitable—a security breach—can be the difference between successfully navigating the event or not. While we still hear some companies say, “That would never happen to our company!” a significant breach can happen to any company.

In light of this and the close scrutiny that the high-profile breaches reported over the past year have received, many companies have taken the opportunity to consider their preparedness and ability to respond quickly and decisively to such an incident. We have prepared for our readers who are in-house attorneys or privacy officers the following checklist highlighting some steps that companies may consider taking so that they can be better prepared in the event that a significant breach incident occurs.

  1. Make Friends With Your IT/IS Department.

It is important to be familiar with your company’s risk tolerance and approach to information security in order to develop an understanding of your company’s security posture. The time to explore these issues isn’t after a breach has happened, so ask your colleagues in your company’s information technology or information security departments the basic questions (e.g., What’s DLP?) and the tough questions (e.g., Why haven’t we addressed the data security concerns raised in last year’s audit?). You would rather learn, for example, that your company does not encrypt its laptops before one is stolen. Continue Reading Preparing for a Data Security Breach: Ten Important Steps to Take

Ransomware is a type of malware that prevents or limits users from accessing their system. This type of malware forces its victims to pay the ransom through certain online payment methods in order to grant access to their systems, or to get their data back. Some ransomware encrypts files (called Cryptolocker).

The news has been filled this year with reports of ransomware attacks against companies and government agencies, including even law enforcement. Ransomware refers to a type of malware that encrypts or otherwise restricts access to a machine or device. As part of the attack, the attacker will demand that the victim pay a ransom in order to receive the encryption key or otherwise recover access to the compromised machine.

The reality is that ransomware attacks have been proliferating against all types of companies and organizations. Ransomware is a profitable business for underground circles, and we expect to see continued targeting. Because these attacks may be isolated to a single machine, they frequently do not impact a company’s business continuity or result in a noticeable service disruption. In response to an infection, companies may be able to obtain the technical assistance needed to defeat the attack. Free online resources exist that will identify which ransomware infected your system and provide victims with known decryption keys. In other cases, companies may determine that the data loss is not significant and/or that backups exist, allowing them to rebuild the computer by reformatting the hard drive and reinstalling a clean operating system, applications and data. In other cases though, companies pay the ransom.

Ransomware attackers frequently use many of the same tools and tactics, such as spear phishing, as do other hackers. Unlike many hackers, however, ransomware attackers are not focused on stealing data that can be sold or used for illicit purposes (e.g., credit card information and trade secrets). Instead, ransomware is about economic extortion. The attackers prevent a company from being able to access its own system or data, and they make a demand. Usually, they want money, but that could change. Imagine a hacker who holds data and systems hostage in return for the company’s releasing a public statement, making a divestiture or a arranging for a senior executive’s departure? The distinction between routine malware and ransomware is important to manage the scope of the threat. While some companies may not maintain data that is of value to cyber thieves (although that is becoming less and less the case, as evidenced by the proliferation of W-2 tax information phishing attacks), every company is a potential target of a ransomware attack. Continue Reading 5 Questions to Help Prepare for a Ransomware Attack

Not to be outdone by Florida, California has yet again amended its data security breach law and again in groundbreaking (yet confusing) fashion. On September 30, 2014, California Governor Brown signed into law a bill (“AB 1710”) that appears to impose the country’s first requirement to provide free identity theft protection services to consumers in connection with certain data security breaches. The law also amends the state’s personal information safeguards law and Social Security number (“SSN”) law. The amendments will become effective on January 1, 2015.

Free Identity Theft Protection Services Required for Certain Breaches

Most significantly, AB 1710 appears to amend the California breach law to require that a company offer a California resident “appropriate identity theft prevention and mitigation” services, at no cost, if a breach involves that individual’s name and SSN, driver’s license number or California identification card number. Specifically, AB 1710 provides, in pertinent part, that if a company providing notice of such a breach was “the source of the breach”:

an offer to provide appropriate identity theft prevention and mitigation services, if any, shall be provided at no cost to the affected person for not less than 12 months, along with all information necessary to take advantage of the offer to any person whose information was or may have been breached.

The drafting of this requirement is far from clear and open to multiple readings. In particular, the use of the phrase “if any” can be read in multiple ways. For example, the phrase “if any” can be read to modify the phrase “appropriate identity theft prevention and mitigation services.” Under this reading, the law would impose an obligation to provide free identity theft protection services if any such services are appropriate. The phrase “if any,” however, could be read to modify the “offer” itself. Under this alternate reading, the law would provide that if a company intends to offer identity theft protection services, those services must be at no cost to the consumer. It is difficult to know how the California Attorney General (“AG”) or California courts will interpret this ambiguity. One thing is clear: until the AG or courts opine, the standard will remain unclear.

The drafting of the requirement also is not clear in other ways. For example, the statute does not specify what type of services would qualify as “appropriate identity theft prevention and mitigation services.” For example, would a credit monitoring product alone be sufficient to meet the requirement? Or would the law require something in addition to credit monitoring, such as an identity theft insurance element?

Nonetheless, state AGs historically have encouraged companies to provide free credit monitoring to consumers following breaches. In addition, even though not legally required, free credit monitoring has become a common practice, particularly for breaches involving SSNs and also increasingly for high-profile breaches. Nonetheless, California appears to be the first state to legally require that companies offer some type of a free identity theft protection service for certain breaches.

AB 1710 is particularly notable in its approach. First, the offer of free identity theft protection services will only be required for breaches involving SSNs, driver’s licenses or California identification card numbers. In this regard, an offer of free identity theft protection services will not be required for breaches involving other types of covered personal information, such as payment card information or usernames and passwords. This approach endorses a position that many companies have long held—that credit monitoring is appropriate only when the breach creates an actual risk of new account identity theft (as opposed to fraud on existing accounts). In addition, the offer of free identity theft protection services will only be required for a period of one year (as opposed to, for example, two years). The length of the offer of free credit monitoring has always been an issue of debate, and California has now endorsed a position that a one-year offer is sufficient.

Continue Reading Breaking Old Ground: California Again Amends Data Security Breach Law

When most Americans think of drones, they think of unmanned, often weaponized aircraft that are used by governments in areas of conflict for intelligence or combat purposes.  However, the proverbial sky is the limit on the potential commercial use of drones.  For example, in a December 2013 60 Minutes interview, Jeff Bezos, the founder of Amazon.com, described his company’s efforts to develop GPS-programmed, autonomous drones (or in his words, “octocopters”) to serve as “delivery vehicles” to provide half-hour delivery of your future Amazon order.  Although there will be hurdles to the widespread commercial adoption of drones as the Federal Aviation Administration works out the regulatory issues surrounding the licensing and use of drones in our airspace, our not-too-distant future could involve a world in which drones are literally buzzing above our heads.

Drones are, among other things, unmanned, light, easy to deploy and relatively cheap.  As a result, companies could use drones for numerous purposes, including scientific research and exploration, monitoring livestock or gas pipelines, remote troubleshooting of technology, finding lost shipments or even as a substitute for the Super Bowl blimp.  Because of advances in camera, video and audio technology (and the decreasing cost of that technology), however, drones could also be used to collect and communicate massive amounts of information about individuals and their everyday lives.  Imagine a company taking its drones out for a spin on a Saturday morning in your town to conduct market research, observing how the average person mows the lawn, when the average person goes to grab coffee or how many bags of groceries the average person leaves with from the supermarket.  Or, imagine a company flying a drone around its factory or retail location to monitor when its employees go on break or what end-caps its customers gravitate to or avoid.  As is true with many new technologies, drones raise complex and often troubling privacy issues (remember your first cell phone…it didn’t have a camera or location services, right?). Continue Reading Next Generation State Privacy Law: Regulating the Commercial Use of Drones

On December 11, 2013, the Federal Financial Institutions Examination Council (FFIEC) issued final guidance for financial institutions relating to their use of social media (the “Guidance”).  With its release, the FFIEC adopts its January 2013 proposed guidance in substantially the same form.  (Socially Aware’s overview of the proposed guidance is available here.)

Financial institutions should expect that the federal banking agencies, Consumer Financial Protection Bureau and National Credit Union Administration (the agencies that comprise the FFIEC) will require supervised institutions to incorporate the Guidance into their efforts to address risks associated with the use of social media and to ensure that institutional risk management programs provide effective oversight and controls related to such use.  As a result, financial institutions should consider the appropriateness of their social media risk management programs and should be cognizant of potential technical compliance traps that could result from the use of social media to interact with consumers about products governed by consumer financial protection laws, such as the Truth in Lending Act.

Changes to the Proposed Guidance

Although adopted in substantially the same form as the proposed guidance, the Guidance does attempt to address some concerns raised by commenters.  For example, the FFIEC clarifies that compliance should not be viewed as a “one-size-fits-all” process and that institutions should tailor their approach based on their size, complexity, activities and third-party relationships.  Additionally, the Guidance clarifies that stand-alone messages sent through traditional email and text channels will not be considered social media.  Nonetheless, the Guidance cautions that the term “social media” will be viewed broadly by the agencies.

While the FFIEC attempted to clarify a financial institution’s obligations with respect to service providers involved in the institution’s social media activities, the Guidance provides limited specific considerations.  For example, the Guidance directs institutions to “perform due diligence appropriate to the risks posed by the prospective service provider” based on an assessment of the third party’s policies, including the frequency with which these policies have changed and the extent of control the financial institution may have over the policies.

Another area where the FFIEC attempted to clarify its expectations is the extent to which a financial institution would be required to monitor consumer communications on Internet sites other than those maintained by the institution (“Outside Sites”).  While the preamble to the Guidance notes that “financial institutions are not expected to” monitor Outside Sites, the Guidance provides that the public nature of social media channels may lead to increased reputational risk, and that compliance considerations may arise if, for example, a consumer raises a dispute through social media.  Further, the Guidance states that institutions are still expected to make risk assessments to determine the appropriate approach to monitoring and responding to communications made on Outside Sites.  The Guidance also continues to state that, based on the risk assessments, institutions will need to consider the need to “monitor question and complaint forums on social media sites” to review and, “when appropriate,” address complaints in a timely manner.

Compliance Considerations

The cornerstone of the Guidance continues to be the expectation that a financial institution will maintain a risk management program through which it identifies, measures, monitors and controls risks related to its use of social media.  The Guidance provides that a financial institution’s risk management program should include the following components:

  • A governance structure so that social media use is directed by the institution’s board of directors or senior management.
  • Policies and procedures regarding the institution’s use of social media, compliance with applicable consumer protection laws and regulations, and methodologies to address risks from online postings, edits, replies and retention.
  • A risk management process for selecting and managing third-party relationships for social media use.
  • An employee training program incorporating the policies and procedures, and informing employees of appropriate work and non-work uses      of social media (including defined “impermissible activities”).
  • An oversight process for monitoring information posted to proprietary social media sites administered by the financial institution or contracted third party.
  • Audit and compliance functions to ensure compliance with internal policies and applicable laws, regulations and the Guidance.
  • Parameters for reporting to the institution’s board of directors or senior management to enable periodic evaluation of the effectiveness of the social media program and whether the program is achieving its stated objectives.

Moreover, the Guidance continues by focusing on identifying potential risks related to a financial institution’s use of social media, including risk of harm to consumers.  In particular, the Guidance identifies potential risks within three broad categories: (1) compliance and legal risk; (2) reputational risk; and (3) operational risk.  While the Guidance catalogs the many risks presented by the use of social media, the focus is on the risks associated with compliance with consumer protection requirements, including:

  • Fair Lending Laws:  While it focuses on an institution’s compliance with time frames for adverse action and other notices required by the federal fair lending laws and regulations, the Guidance also highlights possible compliance traps if a financial institution fails to carefully consider whether the institution’s social media use is consistent with applicable law.  For example, the Guidance highlights that, where applicable, the Fair Housing Act would require mortgage lenders who maintain a Facebook page to display the Equal Housing Opportunity Logo.
  • Truth in Lending Act/Regulation Z:  The Guidance highlights that the Regulation Z advertising requirements would apply to relevant advertisements made through social media.  Credit card issuers in particular will be familiar with Regulation Z’s disclosure requirements for advertisements that include trigger terms and reference deferred interest promotions, and should be cognizant of the application of these requirements in social media advertisements.
  • Truth in Savings Act/Regulation DD:  Like the considerations for compliance with Regulation Z, the Guidance highlights that Regulation DD also contains special advertising requirements for use of trigger terms such as “bonus”  and “APY,” and further notes that depository institutions can ensure compliance with the federal disclosure requirements by including a link to the additional information required to be provided to the consumer.  
  • Deposit Insurance and Share Insurance:  The Guidance reminds institutions that they are required to comply with the advertising requirements for deposit insurance in non-social media advertisements and displays.

The FFIEC having finalized its Guidance, financial institutions will need to carefully review their social media policies and practices in light of the Guidance.  Indeed, even companies that are not financial institutions may find the Guidance to reflect emerging best practices for minimizing risk in using social media to promote products and services.

With the explosive growth of social media, consumers increasingly expect to be able to interact online with the companies from which they buy goods and services. As a result, financial institutions have begun to explore the use of social media, both to strengthen relationships with existing customers and to attract new ones. Financial institutions, however, have proceeded with extreme caution in using social media, in large part due to uncertainty as to the application of financial laws and regulations to social media and, to the extent they are applicable, how a financial institution can comply.

In response to industry requests for guidance on the use of social media, on January 23, 2013, the Federal Financial Institutions Examination Council (FFIEC) requested public comment on proposed guidance (“Proposed Guidance”) for financial institutions relating to the use of social media. The Proposed Guidance is intended to help financial institutions understand potential risks associated with the use of social media and to communicate the expectations of the agencies that make up the FFIEC for how financial institutions should manage these risks. The Proposed Guidance, however, largely does not address how a financial institution may comply with any particular requirement when using social media.

The following provides an overview of the Proposed Guidance, which may be found here. Comments on the Proposed Guidance must be submitted to the FFIEC by March 25, 2013.

Background on the FFIEC

The FFIEC is a formal interagency body that is authorized to prescribe uniform principles, standards and report forms for the examination of financial institutions by the federal banking agencies, the National Credit Union Administration (NCUA) and the Bureau of Consumer Financial Protection (CFPB) (collectively, the “Agencies”). Historically, banks were the main type of financial institutions to be the focus of FFIEC supervisory guidance; however, the Dodd-Frank Act expanded the membership of the FFIEC to include not only the federal banking agencies and the NCUA, but also the CFPB. As a result, FFIEC guidance now extends to any person supervised by the CFPB, including many types of non-bank financial institutions, such as mortgage brokers, payday lenders, consumer reporting agencies and debt collectors.

The Proposed Guidance

The Proposed Guidance is intended to help financial institutions understand potential risks associated with their use of social media, including compliance, reputation and operational risks, and to communicate the Agencies’ expectations for how financial institutions should manage these risks. Although the Proposed Guidance clarifies that, if finalized, it would not impose additional obligations on financial institutions, the Agencies each intend to issue any final guidance as supervisory guidance to the institutions that they supervise. As a result, financial institutions subject to the Agencies’ supervisory authority will be expected to use the guidance in their efforts to ensure that their risk management practices adequately address the risks associated with their use of social media, including those outlined in the finalized guidance.

“Social Media” Defined

The Proposed Guidance casts a wide net in defining “social media” as any “form of interactive online communication in which users can generate and share content through text, images, audio, and/or video.” From the Agencies’ perspective, it is social media’s interactive nature that distinguishes it from other online media. The Proposed Guidance includes the following non-exhaustive examples of media that the Agencies believe to fall within the definition:

  • micro-blogging sites (e.g., Facebook and Twitter);
  • forums, blogs, customer review websites and bulletin boards (e.g., Yelp);
  • photo and video sites (e.g., Flickr and YouTube);
  • professional networking sites (e.g., LinkedIn);
  • virtual worlds (e.g., Second Life); and
  • social games (e.g., FarmVille).

Risk Management Programs

A cornerstone of the Proposed Guidance is the expectation that a financial institution will maintain a risk management program through which it identifies, measures, monitors and controls risks related to its use of social media. The Proposed Guidance provides that a financial institution’s risk management program should include the following seven components:

  • A governance structure with clear roles and responsibilities whereby the institution’s board or senior management directs how the use of social media contributes to the institution’s strategic goals and that establishes controls and ongoing risk assessments.
  • Policies and procedures regarding the use and monitoring of social media and compliance with applicable consumer protection laws.
  • An employee training program regarding the institution’s policies and procedures for official, work-related use of social media, and potentially for other uses of social media, including defining impermissible activities.
  • An oversight process for monitoring information posted to proprietary social media sites administered by, or on behalf of, the financial institution.
  • A due diligence process for selecting and managing third-party service provider relationships in connection with social media.
  • Audit and compliance functions to ensure ongoing compliance with internal policies and applicable law.
  • Parameters for reporting to the institution’s board or senior management that will enable periodic evaluations of the social media program.

As in other areas of financial law and regulation, the expectation would be that the size and complexity of a financial institution’s risk management program would be commensurate with the breadth of the institution’s involvement in social media. For example, a financial institution that relies heavily on social media should have a more detailed program than a financial institution that uses social media only in a limited manner. Nonetheless, the Proposed Guidance indicates that a financial institution that does not use social media should still be prepared to address the potential for negative comments or complaints related to the institution that may arise within social media and also to provide guidance for employee use of social media.

Risk Areas Generally

The majority of the Proposed Guidance focuses on identifying potential risks related to a financial institution’s use of social media, including risk of harm to consumers. In particular, the Proposed Guidance identifies potential risks within three broad categories: (1) compliance and legal risk; (2) reputational risk; and (3) operational risk. While the Proposed Guidance catalogs the many risks presented by the use of social media, the focus is on the risks associated with compliance with consumer protection requirements. Nonetheless, the lengthy identification of risk areas would put financial institutions on notice of the broad scope of their responsibilities with respect to the use of social media.

Compliance and Legal Risk Areas

Compliance and legal risk relates to the risks associated with the failure to comply with laws, rules, regulations, prescribed practices, internal policies and procedures, and ethical standards and the related exposure to enforcement actions and/or private rights of action. The Proposed Guidance cautions that these risks are “particularly pertinent” for an emerging medium like social media where a financial institution’s policies and procedures may not have kept pace with changes in the marketplace.

Although a financial institution would be expected to ensure that it periodically evaluates and controls its use of social media to ensure compliance with all applicable legal obligations, the Proposed Guidance identifies examples of more than 15 federal laws where a financial institution may be exposed to compliance and legal risk. These examples are broken down into five general categories: (1) privacy; (2) deposit and lending products; (3) payment systems; (4) anti-money laundering; and (5) community reinvestment. Of note, none of these includes any exception regarding the use of social media. As a result, the Proposed Guidance cautions that, to the extent a financial institution uses social media to engage in covered activity (e.g., advertising a credit product), it would be required to comply with any applicable legal requirement that may relate to that covered activity.

We highlight below certain compliance risks identified in the Proposed Guidance that may be relevant to many financial institutions:

Privacy

  • A financial institution using social media should clearly disclose its privacy policies where required by the Gramm-Leach-Bliley Act.
  • A financial institution maintaining its own social media site should ensure that it maintains and follows policies restricting access to the site to users 13 or older in a manner consistent with the Children’s Online Privacy Protection Act.
  • A financial institution should consider whether any unsolicited communication sent to consumers via social media complies with the limitations of the CAN-SPAM Act and the Telephone Consumer Protection Act.

Deposit and Lending Products

  • A lender should ensure that its use of social media does not violate the Equal Credit Opportunity Act prohibition on making statements in advertising that would discourage, on a prohibited basis, a reasonable person from applying for credit.
  • A lender that advertises credit products in any form of social media communication should ensure that it does so in a manner that complies with Regulation Z’s advertising requirements.
  • A debt collector must comply with Fair Debt Collection Practices Act limitations when conducting covered activities through social media, including, for example, being cognizant that that any social media communication does not disclose the existence of a debt or harass or embarrass consumers about their debts (e.g., a debt collector writing about a debt on a Facebook wall).

Payment Systems

  • A financial institution using social media to facilitate an electronic fund transfer for a consumer should consider whether it is required by Regulation E to, for example, provide any required disclosures to the consumer.

Anti-Money Laundering

  • Financial institutions should be aware of emerging areas of Bank Secrecy Act and anti-money laundering risk in connection with social media, including, for example, the fact that virtual world Internet games and digital currencies present a high risk for money laundering and terrorist financing and should be monitored accordingly.

Community Reinvestment

  • A depository institution subject to the Community Reinvestment Act should ensure that its policies and procedures for its own social media properties address the appropriate monitoring of public comments.

Reputational Risk Areas

For purposes of the Proposed Guidance, reputational risk relates to the risks arising from negative public opinion. A financial institution engaged in social media activities would be expected to be sensitive to and properly manage the reputational risks that may arise from its social media activities. The Proposed Guidance provides a number of considerations for financial institutions related to reputational risk in the context of social media use, including that a financial institution should:

  • have appropriate policies in place to monitor and address in a timely manner the fraudulent use of its brand, such as through phishing or spoofing attacks;
  • have procedures to address risks associated with members of the public posting confidential or sensitive information (e.g., an account number) on the institution’s social media page or site;
  • weigh the risks and the benefits of using a third party to conduct social media activities, including, for example, the ability of a financial institution to control content on a site owned or administered by a third party; and
  • consider the feasibility of monitoring question and complaint forums on social media sites to ensure that customer inquiries, complaints or comments are addressed in a timely and appropriate manner.

Operational Risk Areas

For purposes of the Proposed Guidance, operational risk relates to the risk of loss resulting from inadequate or failed processes, people or systems. These include the risks posed by a financial institution’s use of information technology, including social media. In light of the vulnerability of social media platforms, the Proposed Guidance indicates that a financial institution should ensure that its internal controls designed to protect its information technology systems and to safeguard customer information from malicious software adequately address social media usage. And, in a related point, a financial institution’s incident response program should extend to security incidents involving social media.

 *          *          *          *

If the FFIEC finalizes the Proposed Guidance, financial institutions should expect that the Agencies will independently issue the finalized guidance as supervisory guidance to the institutions that they supervise. In such a case, financial institutions will be expected to use the guidance as part of their efforts to address the risks associated with the use of social media and to ensure that their risk management programs provide effective oversight and controls related to the use of social media. Until final guidance is in place, it is important for financial institutions to be cognizant of and consider the extent of their usage of social media and the risks associated with that use and whether existing controls address the types of risks identified in the Proposed Guidance. Finally, financial institutions may also wish to consider whether they will provide comments to the FFIEC on the Proposed Guidance, including, for example, identifying any technological or other impediments to compliance with otherwise applicable law when using social media.