Following recent examinations of SEC-registered investment advisers and broker-dealers, the Securities and Exchange Commission’s (SEC) Office of Compliance Inspections and Examinations (OCIE) published a privacy risk alert on April 16, 2019. OCIE is hoping to remind advisers and broker-dealers about providing compliant privacy and opt-out notices, and adopting and implementing effective policies and procedures for safeguarding customer records and information, under Regulation S-P.

Privacy Notices. During the examinations, OCIE observed advisors and broker-dealers were not providing initial privacy notices, annual privacy notices and opt-out notices to their customers. When these notices were provided, many did not accurately reflect firms’ policies and procedures and/or notify customers of their right to opt out of having their nonpublic personal information shared with nonaffiliated third parties. OCIE’s risk alert, thus, reminds advisors and broker-dealers that Regulation S-P requires that they:

  • provide a clear and conspicuous notice to customers that accurately reflects privacy policies and practices generally no later than when a customer relationship is established,
  • provide a similar notice not less than annually during the continuation of the customer relationship, and
  • deliver a clear and conspicuous notice to its customers that accurately explains the right to opt out of some disclosures of non-public personal information about the customer to nonaffiliated third parties.

Written Policies and Procedures to Safeguard Customer Information. OCIE also observed during these examinations that some advisors and broker-dealers had not adopted written policies and procedures as required under the Safeguards Rule. According to the risk alert, some firms simply:

restated the Safeguards Rule but did not include policies and procedures related to administrative, technical, and physical safeguards.

And, other policies

contained numerous blank spaces designed to be filled in by registrants.

Given the OCIE’s observations, purchasing sample privacy and data and security policies and procedures, perhaps online, without more, would likely be inconsistent with Regulation S-P. Data security compliance is more than simply having a policy document. OCIE explained that written policies and procedures under Regulation S-P must be “reasonably designed to ensure the security and confidentiality of customer records and information, protect against any anticipated threats or hazards to the security or integrity of customer records and information, and protect against unauthorized access to or use of customer records or information that could result in substantial harm or inconvenience to any customer.” Thus, the general approach for advisors and brokers-dealers should be to assess the threats and vulnerabilities to customer records and information, and then craft administrative, physical, and technical policies and procedures to address those threats and vulnerabilities.

OCIE also detailed data security practices that it found troubling under Regulation S-P. Examples include:

  • Personal devices – employees storing and maintaining customer information on their personal laptops without policies and procedures address how to protect the information on those devices.
  • Electronic communications – the absence of policies designed to prevent employees from regularly sending unencrypted emails to customers containing PII.
  • Training and monitoring – a lack of training for employee about encryption, password-protection, and transmission of PII through company-approved methods.
  • Outside vendors – advisors and broker-dealers maintaining policies that required outside vendors to contractually agree to keep customers’ PII confidential, but not following their own policies.
  • PII inventory – not maintaining an inventory of all systems on which PII is maintained leaving advisors and broker-dealers unaware of the categories of customer PII that they maintain, and limiting the ability to adequately safeguard customer information.
  • Incident response plans – plans failed to address role assignments for implementing the plan, actions required to address a cybersecurity incident, and assessments of system vulnerabilities.
  • Departed employees – former employees of advisors and broker-dealers retained access to restricted customer information rights after termination of employment.

Many of the observations noted above are common gaps to data security policies and procedures, particularly for small and medium-sized enterprises in any industry. For advisors and broker-dealers, the consequences of compliance lapses could result in data breaches, enhanced scrutiny by the SEC and OCIE, and reputational harm. Thus, as OCIE suggests following its recent examinations, advisors and broker-dealers should review and update, as needed, their written policies and procedures to mitigate the issues identified by OCIE staff.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.