Part 248-Regulation S-P: Privacy of Consumer Financial Information and Safeguarding Personal Information

Federal RegisterMar 13, 2008

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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 248

[Release Nos. 34-57427; IC-28178; IA-2712; File No. S7-06-08]

RIN 3235-AK08

Part 248—Regulation S-P: Privacy of Consumer Financial Information and Safeguarding Personal Information

AGENCY:

Securities and Exchange Commission.

ACTION:

Proposed rule.

SUMMARY:

The Securities and Exchange Commission (“Commission”) is proposing amendments to Regulation S-P, which implements certain provisions of the Gramm-Leach-Bliley Act (“GLBA”) and the Fair Credit Reporting Act (“FCRA”) for entities regulated by the Commission. The proposed amendments would set forth more specific requirements for safeguarding information and responding to information security breaches, and broaden the scope of the information covered by Regulation S-P's safeguarding and disposal provisions. They also would extend the application of the disposal provisions to natural persons associated with brokers, dealers, investment advisers registered with the Commission (“registered investment advisers”) and transfer agents registered with the Commission (“registered transfer agents”), and would extend the application of the safeguarding provisions to registered transfer agents. Finally, the proposed amendments would permit a limited transfer of information to a nonaffiliated third party without the required notice and opt out when personnel move from one broker-dealer or registered investment adviser to another.

DATES:

Comments must be received on or before May 12, 2008.

ADDRESSES:

Comments may be submitted by any of the following methods:

Electronic Comments

• Use the Commission's Internet comment form (

http://www.sec.gov/rules/proposed.shtml

); or

• Send an e-mail to

rule-comments@sec.gov.

Please include File Number S7-06-08 on the subject line; or

• Use the Federal eRulemaking Portal (

http://www.regulations.gov

). Follow the instructions for submitting comments.

Paper Comments

• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.

All submissions should refer to File Number S7-06-08. This file number should be included on the subject line if e-mail is used. To help us process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (

http://www.sec.gov/rules/proposed.shtml

). Comments are also available for public inspection and copying in the Commission's Public Reference Room, 100 F Street, NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. All comments received will be posted without change; we do not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly.

FOR FURTHER INFORMATION CONTACT:

Catherine McGuire, Chief Counsel, or Brice Prince, Special Counsel, Office of the Chief Counsel, Division of Trading and Markets, (202) 551-5550; or Penelope Saltzman, Acting Assistant Director, or Vincent Meehan, Senior Counsel, Office of Regulatory Policy, Division of Investment Management, (202) 551-6792, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549.

SUPPLEMENTARY INFORMATION:

The Commission today is proposing amendments to Regulation S-P

under Title V of the GLBA,

the FCRA,

the Securities Exchange Act of 1934 (the “Exchange Act”),

the Investment Company Act of 1940 (the “Investment Company Act”),

and the Investment Advisers Act of 1940 (the “Investment Advisers Act”).

17 CFR part 248. Unless otherwise noted, all references to rules under Regulation S-P will be to Part 248 of the Code of Federal Regulations (17 CFR 248).

15 U.S.C. 6801-6827.

15 U.S.C. 1681w.

15 U.S.C. 78a.

15 U.S.C. 80a.

15 U.S.C. 80b.

Table of Contents

I. Background

A. Statutory Requirements and Current Regulation S-P Mandates

B. Challenges Posed by Information Security Breaches

II. Discussion

A. Information Security and Security Breach Response Requirements

B. Scope of the Safeguards and Disposal Rules

C. Records of Compliance

D. Exception for Limited Information Disclosure When Personnel Leave Their Firms

III. General Request for Comments

IV. Paperwork Reduction Act

V. Cost-Benefit Analysis

VI. Initial Regulatory Flexibility Analysis

VII. Consideration of Burden on Competition and Promotion of Efficiency, Competition and Capital Formation

VIII. Small Business Regulatory Enforcement Fairness Act

IX. Statutory Authority

X. Text of Proposed Rules and Rule Amendments

I. Background

A. Statutory Requirements and Current Regulation S-P Mandates

Subtitle A of Title V of the GLBA requires every financial institution to inform its customers about its privacy policies and practices, and limits the circumstances in which a financial institution may disclose nonpublic personal information about a consumer to a nonaffiliated third party without first giving the consumer an opportunity to opt out of the disclosure.

In enacting the legislation, Congress also specifically directed the Commission and other federal financial regulators to establish and implement information safeguarding standards requiring financial institutions subject to their jurisdiction to adopt administrative, technical and physical information safeguards.

The GLBA specified that these standards were to “insure the

security and confidentiality of customer records and information,” “protect against any anticipated threats or hazards to the security or integrity” of those records, and protect against unauthorized access to or use of those records or information, which “could result in substantial harm or inconvenience to any customer.”

See

15 U.S.C. 6802(a) and (b). The GLBA and Regulation S-P draw a distinction between “consumers” and “customers.” A “consumer” is defined in Section 3(g)(1) of Regulation S-P to mean an individual who obtains a financial product or service that is to be used primarily for personal, family, or household purposes.

See

17 CFR 248.3(g)(1). A “customer” is defined in Section 3(j) of Regulation S-P as a consumer who has a continuing relationship with the financial institution.

See

17 CFR 248.3(j). The distinction between customer and consumer determines the notices that a financial institution must provide. Pursuant to Sections 4 and 5 of Regulation S-P, a financial institution must provide

customers

with an initial notice describing the institution's privacy policies when a customer relationship is formed and at least annually throughout the customer relationship. In contrast, if a

consumer

is not a customer, a financial institution must only provide a notice if it intends to share nonpublic personal information about the consumer with a nonaffiliated third party (outside of certain exceptions).

See

17 CFR 248.4 and 248.5.

The GLBA directed the Commission, the Federal Trade Commission (“FTC”) and state insurance authorities to implement the safeguarding standards by rule.

See

15 U.S.C. 6805(b)(2). The GLBA directed the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation (“FDIC”) and the Office of Thrift Supervision (collectively, the “Banking Agencies”) and the National Credit Union Administration (“NCUA”) to implement the safeguarding standards by regulation or by guidelines.

See

15 U.S.C. 6805(b)(1).

15 U.S.C. 6801(b).

In response to these directives, we adopted Regulation S-P in 2000.

Section 30(a) of Regulation S-P (the “safeguards rule”) requires institutions to safeguard customer records and information,

while other sections of the regulation implement the notice and opt out provisions of the GLBA.

The safeguards rule currently requires institutions to adopt written policies and procedures for administrative, technical, and physical safeguards to protect customer records and information. The safeguards must be reasonably designed to meet the GLBA's objectives.

This approach provides flexibility for institutions to safeguard customer records and information in accordance with their own privacy policies and practices and business models. The safeguards rule and the notice and opt out provisions currently apply to brokers, dealers, registered investment advisers, and investment companies.

See Privacy of Consumer Financial Information (Regulation S-P)

, Exchange Act Release No. 42974, Investment Company Act (“ICA”) Release No. 24543, Investment Advisers Act (“IAA”) Release No. 1883 (June 22, 2000), 65 FR 40334 (June 29, 2000). Pursuant to the GLBA directive, Regulation S-P is consistent with and comparable to the financial privacy rules adopted by other federal financial regulators in 2000.

See

FTC,

Privacy of Consumer Financial Information

, 65 FR 33646 (May 24, 2000); Banking Agencies,

Privacy of Consumer Financial Information

, 65 FR 35162 (June 1, 2000); and NCUA,

Privacy of Consumer Financial Information; Requirements for Insurance

, 65 FR 31722 (May 18, 2000).

See also

description and comparison of these reports at

http://infotech.aicpa.org/Resources/System+Security+and+Reliability/System+Reliability/Principles+of+a+Reliable+System/.

We request comment on the proposed specific standards for safeguarding personal information.

• Would these standards provide sufficient direction to institutions? Are there particular standards that should be more or less prescriptive? For example, should institutions be required to designate an employee or employees to coordinate the information security program by name, or should institutions be permitted to make these designations by position or office?

• Would additional standards be appropriate or are certain standards unnecessary? Should the proposed standards be modified to more closely or less closely resemble standards prescribed by the Banking Agencies or the FTC? For the securities industry, are there any other standards that a well-designed information security program should address? Are there any other standards that would provide more flexibility to covered institutions?

• We also invite comment on the proposed requirement that entities assess the sufficiency of safeguards in place, to control reasonably foreseeable risks. Should the rules include more detailed standards and specifications for access controls? Should the requirement specify factors such as those identified in the Banking Agencies' guidance regarding authentication in an Internet banking environment or include policies and procedures such as those in the Banking Agencies and the FTC's proposed or final “red flag” requirements?

For example, should we require that covered institutions implement multifactor authentication, layered security, or other controls for high-risk transactions involving access to customer information or the movement of funds to third parties? Should we require that covered institutions include in their information security programs “red flag” elements

that would be relevant to detecting, preventing and mitigating identity theft in connection with the opening of accounts or existing accounts, or in connection with particular types of accounts associated with a reasonably foreseeable risk of identity theft? Should we require that covered institutions adopt policies and procedures for evaluating changes of address followed closely by an account change or transaction, or for processing address discrepancy notices from consumer reporting agencies? If the rule were to include more detailed standards and specifications for access controls, how should these apply to business conducted by telephone?

See

Authentication Guidance, Proposed Red Flag Guidance, and Final Red Flag Rules,

supra

note 23. The Authentication Guidance has been credited with helping to curtail online banking fraud, but has been characterized as not adequately addressing authentication in the context of telephone banking.

See

Daniel Wolfe,

How New Authentication Systems are Altering Fraud Picture,

Amer. Banker (Dec. 26, 2007).

• Commenters are invited to discuss the proposed definition of “substantial harm or inconvenience.” Are there circumstances that commenters believe would create substantial harm or inconvenience to individuals that would not meet the proposed definition? If so, how should the definition be revised to address these circumstances?

• Commenters are invited to discuss the proposed requirements for written documentation of compliance with the proposed safeguarding provisions.

• Commenters are invited to discuss the proposed definition of “service provider.” They also are invited to discuss whether, if the proposed amendments are adopted, they should include or be accompanied by guidance on the use of outside evaluations of third-party service providers. For example, should the Commission provide guidance similar to that provided by the FFIEC on the appropriate use of SAS 70 reports in evaluating the information safeguards of service providers?

The FFIEC provided the following guidance on the use of SAS 70 reports in the oversight of third-party service providers (“TSPs”) by financial institutions regulated by FFIEC member agencies:

Financial institutions should ensure TSPs implement and maintain controls sufficient to appropriately mitigate risk. In higher-risk relationships the institution by contract may prescribe minimum control and reporting standards, obtain the right to require changes to standards as external and internal environments change, and obtain access to the TSP for institution or independent third-party evaluations of the TSP's performance against the standard. In lower risk relationships the institution may prescribe the use of standardized reports, such as trust services reports or a Statement of Auditing Standards 70 (SAS 70) report.

* * * * *

Financial institutions should carefully and critically evaluate whether a SAS 70 report adequately supports their oversight responsibilities. The report may not provide a thorough test of security controls and security monitoring unless requested by the TSP. It may not address the effectiveness of the security process in continually mitigating changing risks. Additionally, the SAS 70 report may not address whether the TSP is meeting the institution's specific risk mitigation requirements. Therefore, the contracting oversight exercised by financial institutions may require additional tests, evaluations, and reports to appropriately oversee the security program of the service provider.

FFIEC,

FFIEC IT Examination Handbook, Information Security Booklet—July 2006,

at 77, 78 (available at

http://www.ffiec.gov/ffiecinfobase/booklets/information_security/information_security.pdf

2. Data Security Breach Response

Because of the potential for harm or inconvenience to individuals when a data security breach occurs, we are proposing that information security programs include procedures for responding to incidents of unauthorized access to or use of personal information. These procedures would include notice to affected individuals if misuse of sensitive personal information has occurred or is reasonably possible. The procedures would also include notice to the Commission (or for certain broker-dealers, their designated examining authority

) under circumstances in which an individual identified with the information has suffered substantial harm or inconvenience or an unauthorized person has intentionally obtained access to or used sensitive personal information. The proposed rules that would require prompt notice of information security breach incidents to individuals, as well as the Commission or designated examining authorities, are intended to facilitate swift and appropriate action to minimize the impact of the security breach.

A broker-dealer's designated examining authority is the self-regulatory organization (“SRO”) of which the broker-dealer is a member, or, if the broker-dealer is a member of more than one SRO, the SRO designated by the Commission pursuant to 17 CFR 240.17d-1 as responsible for examination of the member for compliance with applicable financial responsibility rules (including the Commission's customer account protection rules at 17 CFR 240.15c3-3).

The data security breach response provisions of the proposed amendments include elements intended to provide firms in the securities industry with detailed standards for responding to a breach so as to protect against unauthorized use of compromised data. The proposed standards would specify procedures a covered institution's information security program would need to include. These procedures would be required to be written to provide clarity for firm personnel and to facilitate Commission and SRO examination and inspection. The proposed standards are intended to ensure that covered institutions adopt plans for responding to an information security breach incident so as to minimize the risk of identity theft or other significant investor harm or inconvenience from the incident. These proposed procedures also are intended to be consistent with security breach notification guidelines adopted by the Banking Agencies.

See

Banking Agencies' Incident Response Guidance,

supra

note 23.

Under the proposed amendments, institutions subject to the rule would be required to have written procedures to:

(i) Assess any incident involving unauthorized access or use, and identify in writing what personal information systems and what types of personal information may have been compromised;

See

proposed paragraph (a)(4)(i) of Section 30.

(ii) Take steps to contain and control the incident to prevent further unauthorized access or use and document all such steps taken in writing;

See

proposed paragraph (a)(4)(ii) of Section 30.

(iii) Promptly conduct a reasonable investigation and determine in writing the likelihood that the information has been or will be misused after the institution becomes aware of any unauthorized access to sensitive personal information;

and

See

proposed paragraph (a)(4)(iii) of Section 30.

(iv) Notify individuals with whom the information is identified as soon as possible (and document the provision of such notification in writing) if the institution determines that misuse of the information has occurred or is reasonably possible.

See

proposed paragraph (a)(4)(iv) of Section 30. Notification could be delayed, however, if an appropriate law enforcement agency determines that notification will interfere with a criminal investigation and requests in writing a delay in notification. We propose to require notification of individuals only if misuse of the compromised information has occurred or is reasonably possible to avoid requiring notification in circumstances in which there is no significant risk of substantial harm or inconvenience. If covered institutions were required to notify individuals of every instance of unauthorized access or use, such as if an employee accidentally opened and quickly closed an electronic account record, individuals could receive an excessive number of data breach notifications and become desensitized to incidents that pose a real risk of identity theft.

We propose to define the term, “sensitive personal information,” to mean “any personal information, or any combination of components of personal information, that would allow an unauthorized person to use, log into, or access an individual's account, or to establish a new account using the individual's identifying information,” including the individual's Social Security number, or any one of the individual's name, telephone number, street address, e-mail address, or online user name, in combination with any one

of the individual's account number, credit or debit card number, driver's license number, credit card expiration date or security code, mother's maiden name, password, personal identification number, biometric authentication record, or other authenticating information.

This definition is intended to cover the types of information that would be most useful to an identity thief, and to which unauthorized access would create a reasonable possibility of substantial harm or inconvenience to an affected individual.

See

proposed paragraph (d)(10) of Section 30.

The amendments also would require an institution to provide notice to the Commission as soon as possible after the institution becomes aware of any incident of unauthorized access to or use of personal information in which there is a significant risk that an individual identified with the information might suffer substantial harm or inconvenience, or in which an unauthorized person has intentionally obtained access to or used sensitive personal information.

This requirement would allow Commission and SRO investigators or examiners to review the notices to determine if an immediate investigative or examination response would be appropriate. In this regard, it is crucial that institutions respond promptly to any follow-up requests for records or information from our staff or the staff of the designated examining authority.

Under the proposed amendments, a prompt response in accordance with existing Commission guidance on the timely production of records would be particularly important in circumstances involving ongoing misuse of sensitive personal information.

See

proposed paragraph (a)(4)(v) of Section 30.

See generally

15 U.S.C. 21(a) (investigative requests); 17 CFR 240.17a 4(j) (examinations of broker-dealers); 17 CFR 275.204-2(g) (examinations of investment advisers).

The regulatory notification requirement in the Banking Agencies' guidance requires a report to the appropriate regulator as soon as possible after the institution becomes aware of an incident involving unauthorized access to or use of sensitive customer information.

Our proposed notice requirement differs from the Banking Agencies' approach in that it would require notice to the Commission (or a designated examining authority) when an incident of unauthorized access to or use of personal information poses a significant risk that an individual identified with the information might suffer substantial harm or inconvenience, or in which an unauthorized person has intentionally obtained access to or used sensitive personal information. The proposed notice requirement is intended to avoid notice to the Commission in every case of unauthorized access, and to focus scrutiny on information security breaches that present a greater potential likelihood for harm. We believe that this approach would help conserve institutions', as well as the Commission's, administrative resources by allowing minor incidents to be addressed in a way that is commensurate with the risk they present. The information to be included in the notice would allow the Commission or a broker-dealer's designated examining authority to evaluate whether any legal action against a would-be identity thief or other action is warranted in light of the circumstances. A broker-dealer, other than a notice-registered broker dealer, would be required to notify the appropriate designated examining authority on proposed Form SP-30. An investment company or registered investment adviser or transfer agent would be required to notify the Commission on proposed Form SP-30.

See

Banking Agencies' Incident Response Guidance,

supra

note 23, at 70 FR 15740-15741 (concluding that the Banking Agencies' standard for notification to regulators should provide an early warning to allow an institution's regulator to assess the effectiveness of an institution's response plan, and, where appropriate, to direct that notice be given to customers if the institution has not already done so).

We anticipate that this form could be downloaded from our Web site and would be required to be filed electronically with the Registrations Branch in the Office of Compliance Inspections and Examinations. While broker-dealers generally would file the form with their designated examining authority rather than the Commission, investment advisers that are dually registered with the Commission as broker-dealers also would file with the Commission and indicate their dual-registrant status on the form.

Proposed Form SP-30 would require the institution to disclose information that the Commission (or the designated examining authority) needs to understand the nature of the unauthorized access or misuse of personal information and the institution's intended response to the incident.

Accordingly, in addition to identifying and contact information for the covered institution, the form would request a description of the incident, when it occurred and what offices or parts of the registrant's business were affected. The form also would require disclosure of any third-party service providers that were involved, the type of services provided and, if the service provider is an affiliate, the nature of the affiliation. This information would help examiners to assess the information security policies and procedures of the service provider. In addition, the form would require a description of any customer account losses.

See

proposed Form SP-30. Information submitted to the Commission on the form would be accorded confidential treatment to the extent permitted by law.

See,

e.g.

, 17 CFR 200.83. We realize that the full amount of losses may not be known at the time an information security breach is discovered, but we would expect covered institutions to make a good faith effort to complete the proposed form to the extent possible.

Under the proposed amendments, if a covered institution determined that an unauthorized person had obtained access to or used sensitive personal information, and that misuse of the information had occurred or was reasonably possible, the institution also would be required to provide notification, in a clear and conspicuous manner, to each individual identified with the information.

The proposed requirements for notices to individuals are intended to give investors information that would help them protect themselves against identity theft. They also are intended to be consistent with similar requirements in the Banking Agencies' Incident Response Guidance.

See

proposed paragraph (a)(5) of Section 30.

See

Banking Agencies' Incident Response Guidance,

supra

note 23.

The notices to affected individuals that would be required by the proposed amendments would have to:

(i) Describe the incident and the type of information that was compromised, and what was done to protect the individual's information from further unauthorized access or use;

See

proposed paragraphs (a)(5)(i) and (a)(5)(ii) of Section 30.

(ii) Include a toll-free telephone number or other contact information for further information and assistance from the institution;

See

proposed paragraph (a)(5)(iii) of Section 30.

(iii) Recommend that the individual review account statements and immediately report any suspicious activity to the institution;

and

See

proposed paragraphs (a)(5)(iv) and (a)(5)(v) of Section 30.

(iv) Include information about FTC guidance regarding the steps an individual can take to protect against identity theft, a statement encouraging the individual to report any incidents of identity theft to the FTC, and the FTC's Web site address and toll-free telephone number for obtaining identity theft guidance and reporting suspected incidents of identity theft.

See

proposed paragraph (a)(5)(vi) of Section 30.

We request comment on the proposed specific standards relating to incidents of unauthorized access to or misuse of personal information.

• Commenters are invited to discuss the proposed requirements for procedures for responding to incidents of unauthorized access to or use of personal information. Are there any particular steps that may not be necessary, or not necessary in all situations? Are there any other steps that could be taken in response to a security breach that also should be required in some or all situations?

• We request comment on the proposed provisions regarding procedures for notifying the Commission (or a broker-dealer's designated examining authority) of incidents in which an individual identified with compromised information has suffered substantial harm or inconvenience, or an unauthorized person has intentionally obtained access to or used sensitive personal information.

• For example, should firms be required to provide notice only if the information compromised in an incident is identified with a certain number of individuals? Should the rule include a numerical or other threshold for when notice to the Commission (or to a broker-dealer's designated examining authority) is required? If so, how would a threshold work for smaller institutions that may be far more likely than larger institutions to meet the threshold? Will the proposed standard provide a sufficient early warning to the Commission, or should the Commission broaden the circumstances under which notices would be required to be provided to the Commission (or to a broker-dealer's designated examining authority), such as the standard adopted by the Banking Agencies? Commenters should explain their views.

• Is the proposed definition of “sensitive personal information” sufficient? Are there particular types of information that should or should not be included?

• We request comment on proposed Form SP-30. Is the form easy to understand and use? For example, is the form clear, or would additional guidance, such as instructions or further explanation of particular questions or terms be helpful? Would it be easier or more cost-effective for firms if the rule specified the information they are required to provide rather than provide a form? Would the form be more useful if it were in a tabular format? Commenters should be specific regarding changes they believe should be made to the content or format of the proposed form.

• Similarly, we invite comment on the proposed provisions regarding procedures for notifying individuals of incidents of unauthorized use or access if an institution determines that an unauthorized person has obtained access to or used the information and that misuse of sensitive personal information has occurred or is reasonably possible. Is the information in the proposed notice to individuals appropriate? Is there additional information that institutions should include, or information, proposed to be included, that should be eliminated? Is the proposed threshold for notice appropriate? If not, are there alternative thresholds for notice to individuals that would be more appropriate? If so, commenters should explain their views.

• Commenters are invited to discuss the proposed requirements for written documentation of compliance with the proposed incident response provisions.

B. Scope of the Safeguards and Disposal Rules

1. Information Covered by the Safeguards and Disposal Rules

The Commission adopted the safeguards and disposal rules at different times under different statutes—respectively, the GLBA and the FACT Act—that differ in the scope of information they cover. As noted above, Regulation S-P implements the GLBA privacy provisions governing requirements for notice and opt out before an institution can share certain information with nonaffiliates and for safeguarding information. The regulation's notice and opt out provisions limit institutions from sharing “nonpublic personal information” about consumers and customers as defined in the GLBA and in Regulation S-P, with nonaffiliated third parties.

As required under the GLBA, the safeguards rule requires covered institutions to maintain written policies and procedures to protect “customer records and information,”

which is not defined in the GLBA or in Regulation S-P. The disposal rule requires institutions to properly dispose of “consumer report information,” a third term, which Regulation S-P defines consistent with the FACT Act provisions.

Each of these terms includes a different set of information, although the terms include some of the same information.

Each term also does

not

include some information that, if obtained by an unauthorized user, could permit access to personal financial information about an institution's customers. We preliminarily believe that in order to provide better protection against the unauthorized disclosure of this personal financial information, the scope of information protected by both the safeguards rule and the disposal rule should be broader. Broadening the scope of information covered by the safeguards and disposal rules would more appropriately implement Section 525 of the GLBA. Section 525 directs the Commission to revise its regulations as necessary to ensure that covered institutions have policies, procedures, and controls in place to prevent the unauthorized disclosure of “customer financial information.” Section 521 of Title V of the GLBA prohibits persons from obtaining or requesting a person to obtain, customer information by making false or fraudulent statements to an officer, employee, agent, or customer of a financial institution.

In furtherance of these prohibitions, the GLBA directs the Commission and the other federal financial regulators to review their regulations and to revise them as necessary to ensure that financial institutions have policies, procedures and controls in place to prevent the unauthorized disclosure of “customer financial information” and to deter and detect the activity described in Section 521.

Applying both the safeguards and disposal rules to a consistent set of information also could reduce any burden that may have been created by the application of the safeguards and disposal rules to different information.

See

15 U.S.C. 6802(a), (b). “Nonpublic personal information” is generally defined in the GLBA and Regulation S-P as encompassing personally identifiable financial information, as well as any list, description, or other grouping of consumers (and publicly available information pertaining to them) derived using any personally identifiable financial information that is not publicly available, subject to certain exceptions.

See

15 U.S.C. 6809(4); 17 CFR 248.3(t) and 248.3(u).

See supra

note 12 for a discussion of the notice and opt out provisions.

See

17 CFR 248.30; 15 U.S.C. 6801(b)(1).

17 CFR 248.30(b)(2). Section 628(a)(1) of the FCRA directed the Commission to adopt rules requiring the proper disposal of “consumer information, or any compilation of consumer information, derived from consumer reports for a business purpose.” 15 U.S.C. 1681w(a)(1). Regulation S-P uses the term “consumer report information” and defines it to mean a record in any form about an individual “that is a consumer report or is derived from a consumer report.” 17 CFR 248.30(b)(1)(ii). “Consumer report” has the same meaning as in Section 603(d) of the Fair Credit Reporting Act (15 U.S.C. 1681(d)). 17 CFR 248.30(b)(1)(i).

See

Disposal Rule Adopting Release,

supra

note 15, at 69 FR 71323 n.13.

See

15 U.S.C. 6821(a), (b).

See

15 U.S.C. 6825.

See

David Annecharico, Note,

Online Transactions: Squaring the Gramm-Leach-Bliley Act

Privacy Provisions With the FTC Fair Information Practice Principles

, 6 N.C. Banking Inst. 637, 662 (2002), available at

http://www.unc.edu/ncbank/Articles%20and%20Notes%20PDFs/Volume%206/DavidAnnecharico%5Bpp637-664%5D.pdf

(“To require financial institutions to treat the security of consumer information on par with customer information may be cost effective and efficient. It could merely mean storing consumer information within the already mandated secure storage systems that are being used to store customer information.”).

Accordingly, we propose to amend the safeguards and disposal rules so that both protect “personal information,” and to define that term to encompass any record containing either “nonpublic personal information” or “consumer report information.”

As noted above, each of these terms is defined in Regulation S-P.

The term “consumer report information” would continue to mean any record about an individual, whether in paper, electronic or other form, that is a consumer report or is derived from a consumer report, as well as a compilation of such records, but not including information that does not identify individuals, such as aggregate information or blind data.

The proposed amendments would leave the meaning of the term “consumer report” unchanged from the definition set forth in Section 603(d) of the FCRA.

Section 603(d) defines “consumer report” in general as encompassing communications of information by a consumer reporting agency bearing on a consumer's creditworthiness, credit standing, reputation or particular other factors used in connection with establishing the consumer's eligibility for credit or insurance, or for employment purposes or other authorized purposes, subject to certain exclusions.

Proposed paragraph (d)(8) of Section 30.

See

17 CFR 248.3(t)(1) (definition of “nonpublic personal information”); 17 CFR 248.30(b)(ii) (definition of “consumer report information”).

See

proposed paragraph (c)(4) of Section 30 and current paragraph (b)(ii) of Section 30 (definition governing current disposal requirements).

See

proposed paragraph (d)(3) of Section 30.

See

15 U.S.C. 1681a(d).

In addition to nonpublic personal information and consumer report information, “personal information” also would include information identified with any consumer, or with any employee, investor, or securityholder who is a natural person,

in paper, electronic or other form, that is handled by the institution or maintained on the institution's behalf.

Thus, for example, the definition would include records of employee user names and passwords maintained by a brokerage firm, and records about securityholders maintained by a transfer agent. We believe safeguarding employee user names and passwords promotes information security because unauthorized access to this information could facilitate unauthorized access to a firm's network and its clients' personal information.

Safeguarding information about investors and securityholders, such as maintained by registered transfer agents, is necessary to protect investors who may, directly or indirectly, do business with the Commission's regulated entities even though they may not be “consumers” or “customers” of those entities as those terms are defined for purposes of Regulation S-P.

We also propose to make a conforming change to the definition of “personally identifiable financial information” by including within the definition information that is handled or maintained by a covered institution or on its behalf, and that is identified with any consumer, or with any employee, investor, or securityholder who is a natural person.

We preliminarily believe that this change would be appropriate in the public interest and for the protection of investors because it would help protect information identified with an investor who may not be a “consumer” or “customer” of a covered institution.

This element of the definition would exclude information identified only with persons other than natural persons, such as corporations. The GLBA limits the protections provided under subtitle A of the privacy provisions to “consumers,” who are

individuals

who obtain from a financial institution financial products or services to be used for personal, family or household purposes. 15 U.S.C. 6809(9). The FACT Act defines a “consumer” to mean an individual. 15 U.S.C. 1681a(c).

See

proposed paragraph (d)(8) of Section 30.

See supra

note 17 and accompanying text.

As discussed

supra

at note 7, Regulation S-P defines the terms “consumer” and “customer” at 17 CFR 248.3(g) and 248.3(j), respectively.

See

proposed new paragraph (u)(1)(iv) of Section 3. The proposed amendments also would include technical, conforming changes to references to Section 30 in Sections 1(b) and 2(b) of Regulation S-P.

To better protect investors” and securityholders' information from unauthorized disclosure, the proposed amendments would apply the safeguards and disposal rules to nonpublic personal information or consumer report information that is identified with any individual consumer, employee, investor or securityholder and handled or maintained by or on behalf of the institution. The proposal to include personal information and consumer report information about employees of covered institutions is intended to reduce the risk that a would-be identity thief could access investor information by impersonating an employee or employing “social engineering” techniques or bribery.

Including consumer report information within the definition of “personal information” (to which the safeguards rule would apply) would be consistent with the congressional intent behind making consumer report information subject to the disposal requirements set forth in the FACT Act.

Furthermore, the proposed scope of protection appears to be consistent with the practices of many covered institutions that currently protect employee information, consumer report information, and nonpublic personal information about consumers and customers in the same manner.

The disposal rule was intended to reduce the risk of fraud or related crimes, including identity theft, by ensuring that records containing sensitive financial or personal information are appropriately redacted or destroyed before being discarded.

See

108 Cong. Rec. S13,889 (Nov. 4, 2003) (statement of Sen. Nelson).

Based on our staff's informal discussions with industry representatives about Regulation S-P issues, as well as the estimated costs and benefits of the proposed amendments we believe that many covered institutions currently protect both kinds of information in the same way out of prudence and for reasons of operational efficiency.

See infra

section V.B.

We invite comment on the proposed definition of “personal information.”

• Should the safeguards rule extend to consumer report information that is not nonpublic personal information?

• Should the disposal rule extend to nonpublic personal information that is not consumer report information?

• To what extent do institutions currently take the same measures in disposing of consumer report information, customer records and information, nonpublic personal information about consumers and customers, and information other than consumer report information that is identified with employees, investors, or securityholders who are not consumers or customers? To the extent that measures are different, what is the basis for those differences?

• Is the proposed definition of “personal information,” which includes all records containing either consumer report information or nonpublic personal information, broad enough to encompass the information that needs to be protected? If not, how should we expand the definition? Are there any aspects of the proposed definition that, in the context of the information security requirements discussed below, may be over-inclusive with regard to particular types of entities? If so, how should we tailor the definition?

• The proposed definition of “personal information” encompasses

information identified with any consumer, or with any employee, investor, or securityholder who is a natural person. Are there any other persons whose information should be protected under the safeguards rule, or should the safeguards rule cover only information identified with individuals who are customers of a financial institution?

• Should the proposed definition of “personal information” be expanded to include information identified with non-natural persons, such as corporate clients? Commenters should explain their views.

2. Institutions Covered by the Safeguards Rule

As discussed above, the safeguards rule currently applies to brokers, dealers, registered investment advisers, and investment companies. The disposal rule currently applies to those entities as well as to registered transfer agents. We propose to extend the safeguards rule to apply to registered transfer agents.

These institutions, like those currently subject to both the safeguards and disposal rules, may maintain personal information such as Social Security numbers, account numbers, passwords, account balances, and records of securities transactions and positions. Unauthorized access to or misuse of such information could result in substantial harm and inconvenience to the individuals identified with the information. The proposed amendments thus would require that covered institutions that may receive personal information in the course of effecting, processing or otherwise supporting securities transactions must protect that information by maintaining appropriate safeguards in addition to taking measures to properly dispose of the information.

Registered transfer agents may maintain sensitive personal information about investors, the unauthorized access to or use of which could cause investors substantial inconvenience or harm. Therefore, we preliminarily believe that extending the safeguards rule to registered transfer agents would be appropriate in the public interest and for the protection of investors.

The term “transfer agent” would be defined by proposed paragraph (d)(14) of Section 30 to have the same meaning as in Section 3(a)(25) of the Exchange Act (15 U.S.C. 78c(a)(25)).

As discussed below, we also propose to extend the disposal rule to associated persons of broker-dealers, supervised persons of registered investment advisers, and associated persons of registered transfer agents.

The proposed definition of “personal information” would include information about individual investors maintained by registered transfer agents even though transfer agents typically do not have consumers or customers for purposes of Regulation S-P because their clients generally are not individuals, but are the companies in which investors, including individuals, hold shares.

Under Section 17A of the Exchange Act (15 U.S.C. 78q-1) the Commission has authority to prescribe rules and regulations for transfer agents as necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of Title I of the Exchange Act.

The proposed amendments also would limit the scope of broker-dealers covered by the safeguards rule to brokers or dealers other than those registered by notice with the Commission under Section 15(b)(11) of the Exchange Act.

Notice-registered broker-dealers must comply with the privacy rules, including rules requiring the safeguarding of customer records and information, adopted by the CFTC.

Excluding notice-registered broker-dealers from the scope of the Commission's safeguards rule would clarify that both sets of rules do not apply to notice-registered broker-dealers, and that the CFTC would have primary responsibility for oversight of those broker-dealers in this area.

Proposed paragraph (a)(1) of Section 30.

See

15 U.S.C. 78

(b)(11). The Commodity Futures Modernization Act of 2000 established a system of notice registration under which trading facilities and intermediaries that are already registered with either the Commission or the CFTC may register with the other agency on an expedited basis for the limited purpose of trading security futures products. Under the substituted compliance provision in Section 2(b) of Regulation S-P (17 CFR 248.2(b)), CFTC-regulated futures commission merchants and introducing brokers that are registered by notice with the Commission and in compliance with the financial privacy rules of the CFTC are deemed to be in compliance with Regulation S-P, except with respect to Regulation S-P's disposal rule (currently 17 CFR 248.30(b)). Notice-registered broker-dealers are already excluded from the scope of the disposal rule.

See

17 CFR 160.30.

We seek comment on the proposed scope of the safeguards rule.

• Should registered transfer agents be subject to the safeguards rule? To what extent are registered transfer agents expected to possess, or lack, the type of information that could be used to commit identity theft or otherwise cause individuals substantial harm or inconvenience?

Are there special issues that registered transfer agents might have in implementing or meeting the requirements of the safeguards rule?

Such information could include address and account information used to disseminate shareholder communications and dividend and interest payments, as well as information collected pursuant to Rule 17Ad-17 under the Exchange Act (17 CFR 240.17Ad-17), which requires transfer agents registered with the Commission to use taxpayer identification numbers or names to search databases for addresses of lost securityholders.

• Should the Commission propose to extend the safeguards and disposal rules to self-regulatory organizations or other types of institutions in the securities industry? If so, which ones?

• Should notice-registered broker-dealers be excluded from the scope of the proposed amended safeguards rule? If not, why not?

3. Persons Covered by the Disposal Rule

As noted above, the disposal rule currently applies to broker-dealers, investment companies, registered investment advisers and registered transfer agents. We propose to extend the disposal rule to apply to natural persons who are associated persons of a broker or dealer, supervised persons of a registered investment adviser, and associated persons of a registered transfer agent.

As noted above, we have become concerned that some of these persons, who may work in branches far from the registered entity's main office, may not dispose of sensitive personal financial information consistent with the registered entity's disposal policies. The proposal is intended to make persons associated with a covered institution directly responsible for properly disposing of personal information consistent with the institution's policies.

See

proposed paragraph (b)(1) of Section 30. The term “associated person of a broker or dealer” would be defined by proposed paragraph (d)(1) of Section 30 to have the same meaning as in Section 3(a)(18) of the Exchange Act (15 U.S.C. 78c(a)(18)). The term “supervised person of an investment adviser” would be defined by proposed paragraph (d)(13) of Section 30 to have the same meaning as in Section 202(a)(25) of the Investment Advisers Act of (15 U.S.C. 80b-2(a)(25)). We are proposing to include “supervised” persons of an investment adviser, rather than “associated” persons in order to include all employees, including clerical employees, of an investment adviser who may be responsible for disposing of personal information.

See

15 U.S.C. 80b-2(a)(17) (defining term “person associated with an investment adviser” not to include associated persons whose functions are clerical or ministerial). This approach is intended to cover the same range of employees as investment advisers, broker-dealers, and registered transfer agents. The term “associated person of a transfer agent” would be defined by proposed paragraph (d)(2) of Section 30 to have the same meaning as in Section 3(a)(49) of the Exchange Act (15 U.S.C. 78c(a)(49).

An additional proposed extension to the scope of the disposal rule is discussed below.

See infra

section II.B.

• We request comment on the proposed extension of the scope of the disposal rule to apply to natural persons who are associated with broker-dealers, supervised persons of registered investment advisers, or who are associated persons of registered transfer agents.

• Are there alternative ways of helping to ensure that these persons would follow the covered institution's disposal policies and properly dispose of personal information?

C. Records of Compliance

We further propose to amend Regulation S-P to require institutions subject to the safeguards and disposal rules to make and preserve written records of their safeguards and disposal policies and procedures. We also propose to require that institutions document that they have complied with the elements required to develop, maintain and implement these policies and procedures for protecting and disposing of personal information, including procedures relating to incidents of unauthorized access to or misuse of personal information. These records would help institutions assess their policies and procedures internally, and help examiners to monitor compliance with the requirements of the amended rules. The periods of time for which the records would have to be preserved would vary by institution, because the requirements would be consistent with existing recordkeeping rules, beginning with when the records were made, and, for records of written policies and procedures, after any change in the policies or procedures they document.

Broker-dealers would have to preserve the records for a period of not less than three years, the first two years in an easily accessible place. Registered transfer agents would have to preserve the records for a period of not less than two years, the first year in an easily accessible place. Investment companies would have to preserve the records for a period not less than six years, the first two years in an easily accessible place. Registered investment advisers would have to preserve the records for five years, the first two years in an appropriate office of the investment adviser. We believe that these proposed recordkeeping provisions, while varying among covered institutions, would all result in the maintenance of the proposed records for sufficiently long periods of time and in locations in which they would be useful to examiners. Moreover, we do not believe that shorter or longer maintenance periods would be warranted by any difference between the proposed records and other records that covered institutions currently must maintain for these lengths of time. We also believe that conforming the proposed retention periods to existing requirements would allow covered institutions to minimize their compliance costs by integrating the proposed requirements into their existing recordkeeping systems.

See

proposed paragraph (c) of Section 30.

See

17 CFR 240.17a-4(b); 240.17Ad-7(b); 270.31a-2(a)(4)-(6); 275.204-2(e)(1).

We request comment on the proposed requirements for making and retaining records.

• Are the proposed periods of time for preserving the records appropriate, or should certain records be preserved for different periods of time?

• Would the costs associated with preserving records for periods of time consistent with covered institutions' other recordkeeping requirements be less than they would be if all institutions were required to keep these records for the same period of time?

D. Exception for Limited Information Disclosure When Personnel Leave Their Firms

Finally, we propose to amend Regulation S-P to add a new exception from the notice and opt out requirements to permit limited disclosures of investor information when a registered representative of a broker-dealer or a supervised person of a registered investment adviser moves from one brokerage or advisory firm to another. The proposed exception is intended to allow firms with departing representatives to share limited customer information with the representatives' new firms that could be used to contact clients and offer them a choice about whether to follow a representative to the new firm. At many firms, representatives develop close professional and personal relationships with investors over time. Representatives at such firms likely remember the basic contact information for their clients or have recorded it in their own personal records. Some firms discourage departing representatives from soliciting clients to move to another firm, while others do not. At any firm, departing representatives may have a strong incentive to transfer as much customer information as possible to their new firms, and it has been brought to our attention that, at some firms, information may have been transferred without adequate supervision, in contradiction of privacy notices provided to customers, or potentially in violation of Regulation S-P.

See, e.g.

In re NEXT Financial Group, Inc.

supra

note 16.

The proposed exception is designed to provide an orderly framework under which firms with departing representatives could share certain limited customer contact information and could supervise the information transfer.

The proposed exception would permit one firm to disclose to another only the following information: the customer's name, a general description of the type of account and products held by the customer, and contact information, including address, telephone number and e-mail information.

We propose to include this particular information as it would be useful for a representative seeking to maintain contact with investors, but appears unlikely to put an investor at serious risk of identity theft. It also is the type of information an investor would expect a representative to remember. Broker-dealers and registered investment advisers seeking to rely on the exception would have to require their departing representatives to provide to them, not later than the representative's separation from employment, a written record of the information that would be disclosed pursuant to the exception, and broker-dealers and registered investment advisers would be required to preserve such records consistent with the proposed recordkeeping provisions of Section 30.

This condition is intended

to help ensure that firms relying on the exception are appropriately accounting for the information they are disclosing in connection with departures of their representatives.

In 2004, certain large broker-dealers entered into a protocol under which signatories agreed not to sue one another for recruiting one another's registered representatives, if the representatives take only limited client information to another participating firm. The initial signatories, Citigroup Global Markets/Smith Barney, Merrill Lynch, and UBS Financial Services, were joined more recently by Raymond James, Wachovia Securities and others.

We understand that, under the protocol, the information that a departing representative may take to another firm is limited to each client's name, address, a general description of the type of account and products held by the client, and the client's phone number and e-mail address. This information may be used at the representative's new firm only by the representative, and only for the purpose of soliciting the representative's former clients.

We further understand that there may be some confusion in the securities industry regarding what information may be disclosed to a departing representative's new firm consistent with the limitations in Regulation S-P, and that at times these limitations may cause inconvenience to investors. NASD (now consolidated into FINRA) issued guidance to its member firms regarding the permissible and impermissible use of “negative response letters” for bulk transfers of customer accounts and changes in the broker-dealer of record on certain types of accounts (

see

NASD NtM 04-72 (Oct. 2004); NtM 02-57 (Sept. 2002)). More recently, FINRA issued guidance relating to Regulation S-P in the context special considerations firms should use to supervise recommendations of newly associated registered representatives to replace mutual funds and variable products).

See

FINRA, Regulatory Notice 07-36, available at

http://www.finra.org/web/groups/rules_regs/documents/notice_to_members/p036445.pdf

. However, our staff reports that scenarios involving representatives moving from one firm to another continue to create uncertainty regarding firms' obligations under Regulation S-P.

See

proposed paragraph (a)(8)(i) of Section 15.

See

proposed paragraph (a)(8)(iii) of Section 15 and proposed paragraph (c) of Section 30. For purposes of the proposed exception, the term “representative” would be defined to mean a natural person associated with a broker or dealer registered with the Commission, who is registered or approved in compliance with 17 CFR 240.15b7-

1, or a supervised person of an investment adviser as defined in Section 202(a)(25) of the Investment Advisers Act.

See

proposed paragraph (a)(8)(iv) of Section 15.

Most firms seeking to rely on the proposed exception would not need to revise their GLBA privacy notices because they already state in the notices that their disclosures of information not specifically described include disclosures permitted by law, which would include disclosures made pursuant to the proposed exception and the other exceptions provided in Section 15 of Regulation S-P.

The exception would be subject to conditions that are designed to limit the potential that the information would result in identity theft or other abuses. The shared information could not include any customer's account number, Social Security number, or securities positions.

A representative would not need this type of information to contact investors, although it would be useful to an identity thief, and an investor probably would not expect a representative to remember it. In addition, a representative could solicit only an institution's customers that were the representative's clients. This condition recognizes that an investor might expect to be contacted by a representative with whom the investor has done business before, but not by another person at the representative's new firm.

See

proposed paragraph (a)(8)(ii) of Section 15.

See

proposed paragraph (a)(8)(i) of Section 15 (permitting a representative to solicit customers to whom the representative personally provided a financial product or service on behalf of the institution).

As noted above, the proposed exception is designed to facilitate the transfer of client contact information that would help broker-dealers and registered investment advisers offer clients the choice of following a departing representative to a new firm. At firms that choose to rely on it, the proposed exception also should reduce potential incentives some representatives may have to take information with them secretly when they leave. By specifically limiting the types of information that could be disclosed to the representative's new firm, the proposed amendments are designed to help firms safeguard more sensitive client information. This limitation also would clarify that a firm may not require or expect a representative from another firm to bring more information than necessary for the representative to solicit former clients. Because the proposed exception is designed to promote investor choice, provide legal certainty, and reduce potential incentives for improper disclosures, we preliminarily believe that it would be necessary or appropriate in the public interest, and is consistent with the protection of investors.

The proposed exception would not limit the disclosure of additional information to a new firm pursuant to a customer's consent or direction.

It also would not preclude the disclosure of additional information required in connection with the transfer of a customer's account.

Depending on its business organization, its policies regarding departing representatives and the circumstances of a representative's departure, a firm could choose to rely on existing exceptions rather than the proposed new exception.

The proposed exception is designed to allow firms that choose to share limited contact information to do so. The proposed exception would not, however, affect firm policies that prohibit the transfer of any customer information other than at the customer's specific direction.

For example, if an investor chooses to move his or her business to the representative's new firm, he or she may consent to having the original firm disclose additional information about the customer's account to the representative's new firm without the firm first having to provide the customer with an opt out.

See

17 CFR 248.15(a)(1).

If an investor requests or authorizes the transfer of his or her account from the representative's old firm to the representative's new firm, the old firm may disclose additional information as necessary to effect the account transfer.

See

17 CFR 248.14(a)(1) and 248.14(b)(2)(vi)(B). The exception also would not preclude the disclosure of additional information about the investor if the firm has provided the investor with a privacy notice describing the disclosure and given the investor a reasonable opportunity to opt out of the disclosure, and the customer has not opted out.

See

17 CFR 248.10. Thus, covered institutions that wish to disclose an investor's nonpublic personal information to a departing representative's new firm without relying on the proposed new exception or without first obtaining consent from the investor to the disclosure or to an account transfer could revise their privacy notices to describe disclosures the firm would make in the context of a representative's move to another broker-dealer or registered investment adviser.

See

17 CFR 248.14, 248.15.

We have chosen to propose this approach as opposed to an alternative approach that would require all firms to include specific notice and opportunity to opt out of this information sharing in their initial and annual privacy notices. Under this alternative, a broker-dealer or registered investment adviser's privacy notice would have to provide specific disclosure regarding the circumstances under which the broker-dealer or adviser would share customer information with another firm when a registered representative or supervised person leaves. We have chosen this approach because, as indicated earlier, many representatives develop close professional and personal relationships with investors. They are likely to remember basic contact information for their clients or have recorded it in their own personal records, and investors would expect representatives to have this information. This type of limited contact information is unlikely to put investors at serious risk of identity theft. Also, we believe that a description of disclosures to a departing representative's new firm would be difficult to distinguish from the description of disclosures made for the purpose of third-party marketing and would further complicate already complex privacy notices.

• Commenters are invited to discuss the proposed new exception. Would it permit the transfer of contact information so as to promote investor choice and convenience? Would it foreclose the transfer of particularly sensitive information that, if misused, could lead to identity theft? Should the transfer of customer contact information be conditioned on the broker-dealer or registered investment adviser receiving the information certifying to the sharing institution that it complies with the safeguards and disposal rules?

• We also invite commenters to share their views on the likely effect of the proposed new exception on competition in recruiting broker-dealer and investment adviser representatives. Are there alternative approaches that would both protect investor information and not unduly restrict the transfer of representatives from one firm to another?

• We seek comment on potential alternative approaches, including requiring specific disclosure. Are investors, particularly new clients to a firm, likely to understand disclosures about information that would be given to a departing representative's new firm in initial or annual privacy notices?

100

Should the availability of the proposed exemption be conditioned on providing investors with specific disclosure regarding whether a covered institution would disclose personal information in connection with a representative's departure?

100

We expect that if the Banking Agencies, the FTC and the Commission were to adopt the proposed model privacy form,

see

Interagency Model Privacy Form Proposal,

supra

note 12, the description of the disclosure to a nonaffiliated firm could be included on page 2 of the proposed form in the section defining nonaffiliates.

• The proposed exception would permit broker-dealers and registered investment advisers to transfer limited

information to other broker-dealers and registered investment advisers without first providing notice and opt out. Should we make the proposed exception available for information transferred to other types of financial institutions where a departing representative may go? For example, should we permit broker-dealers and registered investment advisers to rely on the exception to share information with investment advisers that are not registered with the Commission?

• Commenters are invited to express their views on the proposed exemption's condition that a departing representative of a covered institution relying on this exemption could solicit only the institution's customers that were the representative's clients.

III. General Request for Comments

We request comment on all aspects of the proposed amendments to Regulation S-P. We particularly urge commenters to suggest other provisions or changes that could enhance the ways in which securities industry participants protect personal information. We encourage commenters to provide empirical data, if available, to support their views.

IV. Paperwork Reduction Act

Certain provisions of the proposed amendments contain “collections of information” requirements within the meaning of the Paperwork Reduction Act of 1995 (“PRA”).

101

The Commission is submitting these amendments to the Office of Management and Budget (“OMB”) for review and approval in accordance with the PRA.

102

The title for the collections of information is “Information security programs for personal information; records of compliance.” The safeguards and disposal rules we propose to amend contain currently approved collections of information under OMB Control No. 3235-0610, the title of which is, “Rule 248.30, Procedures to safeguard customer records and information; disposal of consumer report information.”

103

The Commission is proposing to amend Regulation S-P's safeguards and disposal rules, 17 CFR 248.30(a) and (b), pursuant to Sections 501, 504, 505, and 504 of the GLBA,

104

Sections 17, 17A, 23, and 36 of the Exchange Act,

105

Sections 31(a) and 38 of the Investment Company Act,

106

and Sections 204 and 211 of the Investment Advisers Act.

107

Regulation S-P sets forth the Commission's safeguards rule for institutions covered by the regulation. Among other things, the safeguards rule requires covered institutions to adopt administrative, technical, and physical information safeguards to protect customer records and information. Regulation S-P also contains the Commission's disposal rule, which requires institutions to properly dispose of consumer report information possessed for a business purpose by taking reasonable measures to protect against unauthorized access to or use of the information in connection with its disposal.

101

44 U.S.C. 3501-3520.

102

44 U.S.C. 3507(d) and 5 CFR 1320.11.

103

The paperwork burden imposed by Regulation S-P's notice and opt-out requirements, 17 CFR 248.1 to 248.18, is currently approved under a separate OMB control number, OMB Control No. 3235-0537. The proposed amendments would not affect this collection of information.

104

15 U.S.C. 6801, 6804, 6805 and 6825.

105

15 U.S.C. 78q, 78q-1, 78w, and 78mm.

106

15 U.S.C. 80a-30(a), 80a-37.

107

15 U.S.C. 80b-4, 80b-11.

The proposed amendments are designed to ensure that covered institutions maintain a reasonable information security program that includes safeguarding policies and procedures that are more specific than those currently required, including policies and procedures for responding to data security breach incidents, for notifying individuals for whom the incidents pose a risk of identity theft, and for reporting certain incidents to the Commission (or to a broker-dealer's designated examining authority) on proposed Form SP-30. The amendments also would broaden the scope of information and the types of institutions and persons covered by the safeguards and disposal rules. Finally, the amendments would create a new exception from Regulation S-P's notice and opt-out requirements for disclosures of limited information in connection with the departure of a representative of a broker-dealer or registered investment adviser. Firms choosing to rely on the exception would be required to keep records of the information disclosed pursuant to it.

The hours and costs associated with these collections of information would consist of reviewing the proposed amendments, collecting and searching for existing policies and procedures, conducting a risk assessment, developing and recording information safeguards appropriate to address risks, training personnel, and adjusting written safeguards on an ongoing basis. Institutions would also have to respond appropriately to incidents of data security breach as may occur on an ongoing basis. If misuse of information has occurred or is reasonably possible, this would include notifying affected individuals. If there is a significant risk that an individual identified with the information might suffer substantial harm or inconvenience, or any unauthorized person has intentionally obtained access to or used sensitive personal information, this would also include notifying the Commission or an appropriate designated examining authority as soon as possible on proposed Form SP-30. Certain of these collections of information also would require disclosure, reporting, and recordkeeping burdens, as analyzed below.

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless a currently valid OMB control number is displayed. Responses to these collections of information would not be kept confidential.

108

The collections of information would be mandatory, and would have to be maintained by broker-dealers for not less than three years, the first two years in an easily accessible place, by registered transfer agents for a period of not less than two years, the first year in an easily accessible place, by investment companies for a period not less than six years, the first two years in an easily accessible place, and registered investment advisers would have to preserve the records for five years, the first two years in an appropriate office of the investment adviser.

108

Information submitted to the Commission on proposed Form SP-30 would be kept confidential to the extent permitted by law.

See supra

note 55.

Information Security and Security Breach Response Requirements

The proposed amendments contain collections of information requirements related to the more specific standards we are proposing for safeguarding personal information, including standards for responding to data security breaches. We believe these proposed collections of information are necessary to help prevent and address security breaches and designed to ensure that covered institutions maintain a reasonable information security program pursuant to the statutory requirements. Covered institutions would have to document in writing steps they would be required to take to develop, implement, and maintain a comprehensive information security program. We estimate that there would be 12,432 respondents to this information collection.

109

Of these

covered institutions, we estimate that 5,862 are smaller institutions and 6,570 are larger institutions.

110

109

This estimate includes 6,016 broker-dealers, 4,733 investment companies representing portions of 813 fund complexes, 77 business development companies, 9,860 registered investment advisers, and 501 registered transfer agents. As discussed in

more detail in the cost-benefit analysis below, the staff estimates that 56 percent of these 17,267 institutions, or 9,670 institutions, have one or more affiliates. The staff estimates, for purposes of this analysis, that each of the affiliated institutions has one corporate affiliate. The staff estimates that these affiliated institutions are likely to bear these paperwork burdens on an organization-wide basis, rather than being incurred by each institution. Based on these estimates, the staff estimates there would be 12,432 respondents to this information collection. (17,267 − (9,670 ÷ 2) = 12,432) These estimates are discussed in more detail in the cost-benefit analysis,

see infra

note 149 and accompanying text.

110

See infra

note 154 and accompanying text.

Based on limited inquiries of covered institutions, the staff estimates that the amount of time smaller institutions would devote to initial compliance with the proposed amendments would range from 2 to 80 hours with a midpoint of 41 hours.

111

This estimate reflects the following burden hours: 1 hour for the board of directors to designate an information security program coordinator; 1 hour for the program coordinator to review the amendments; 4 hours to assess risks and review procedures; 10 hours to review, revise and implement new safeguards (including any data breach notification procedures); 8 hours to test the effectiveness of the safeguards controls and procedures; 7 hours to train staff; and 10 hours to review service providers' policies and procedures and revise contracts as necessary to require them to maintain appropriate safeguards. The staff estimates that initially it would cost smaller institutions approximately $18,560 to comply with the proposed amendments.

112

Amortized over three years, the estimated annual hourly burden would be 14 hours at a cost of approximately $6,187.

111

The staff estimate uses the midpoint of the range of hours, although the average number of burden hours could be higher or lower. Our estimates are based on staff contacts with several institutions regarding their current safeguarding and disposal policies and procedures as well as the potential costs of the proposed amendments. Because the staff was able to discuss these issues with only a small number of very large institutions, and our estimates in this analysis are based largely on this information, our estimates may be much higher or lower than the range of actual current costs related to compliance with Regulation S-P and the range of potential costs associated with the proposed amendments.

112

This estimate is based on a cost of $2,000 for one hour of the board of directors' time (at $2,000/hour) and $16,560 for 40 hours of a program coordinators' time (at $414/hour). Staff believes that the program coordinator would be a senior executive of the institution, such as a chief compliance officer of an investment adviser. For purposes of this PRA analysis, the staff is using salaries for New York-based employees which tend to be higher than the salaries for comparable positions located outside of New York. This conservative approach is intended to capture unforeseen costs and to account for the possibility that a substantial portion of the work would be undertaken in New York. The salary information is derived from data compiled by the Securities Industry and Financial Markets Association. The Commission staff has modified this information to account for an 1,800-hour work year and multiplied by 5.35 to account for bonuses, firm size, employee benefits, and overhead.

See

Securities Industry and Financial Markets Association,

Report on Management and Professional Earnings in the Securities Industry

(2007); Securities Industry and Financial Markets Association,

Report on Office Salaries in the Securities Industry

(“SIFMA Earnings Reports”).

The staff estimates that the amount of time larger institutions would devote to initial compliance with the proposed amendments would range from 40 hours to 400 hours with a midpoint of 220 hours.

113

This estimate reflects the following burden hours: 2 hours for the board of directors to designate an information security program coordinator; 2 hours for the program coordinator to review the amendments; 42 hours to assess risks and review procedures; 60 hours to review, revise and implement new safeguards (including any data breach notification procedures); 60 hours to test the effectiveness of the safeguards controls and procedures; 34 hours to train staff; and 20 hours to review service providers policies and procedures and revise contracts as necessary to require them to maintain appropriate safeguards. The staff estimates that larger institutions would spend approximately $172,732 to comply with the proposed amendments initially.

114

Amortized over three years, the estimated annual hourly burden would be 73 hours at a cost of approximately $57,577.

113

The staff estimate uses the midpoint of the range of hours, although the average number of burden hours could be higher or lower.

114

This estimate is based on a cost of $4,000 for 2 hours of board of directors' time (at $2,000/hour) and $168,732 for 218 hours of a group of compliance professionals' time (at $774/hour). The staff believes that this group of compliance professionals would include the program coordinator at a rate of $414 per hour, an in-house attorney at a rate of $295 per hour, and an administrative assistant at a rate of $65 per hour.

See

SIFMA Earnings Reports,

supra

note 112. In total, we estimate that this group of compliance professionals would cost the larger institution $758 per hour. $414 + $295 + $65 = $774.

On an annual, ongoing basis the staff estimates that the amount of time smaller institutions would devote to ongoing compliance with the safeguards and disposal rules, as they are proposed to be amended, would range from 12 hours to 40 hours per year with a midpoint of 26 hours per year. This estimate reflects the following burden hour estimates: 5 hours to regularly test or monitor the safeguards' key controls, systems, and procedures; 3 hours to augment staff training; 3 hours to provide continued oversight of service providers; 3 hours to evaluate and adjust safeguards; 10 hours to respond appropriately to potential incidents of data security breach, including investigating the breach and, as necessary, notifying affected individuals; and 2 hours to notify the Commission or a designated examining authority as soon as possible on proposed Form SP-30, in the event there is a significant risk that an individual identified with the information might suffer substantial harm or inconvenience or an unauthorized person has intentionally obtained access to or used sensitive personal information.

115

We believe that most institutions investigate data security breaches as a matter of good business practice to protect their business operations and the sensitive information they have about employees and clients. Nevertheless, we have estimated additional burden hours because the proposed rule specifies certain elements of the investigation and the notice to affected individuals. We also believe that an institution would have gathered all the information that would have to be disclosed in Form SP-30 in the course of these investigations of data security breaches. Thus, staff estimates for the Form SP-30 collection of information burden reflect only the time it would take to draft the information on the form. Staff estimates that smaller institutions would spend an additional $10,764 per institution per year in connection with these burdens.

116

115

We estimate that each covered institution that has developed and adopted and is maintaining safeguarding policies and procedures will experience some form of breach of data security each year.

See, e.g.

, Deloitte & Touche LLP and Ponemon Institute LLC, Enterprise@Risk: 2007 Privacy & Data Protection Survey (Dec. 2007),

http://www.deloitte.com/dtt/cda/doc/content/us_risk_s%26P_2007%20Privacy10Dec2007final.pdf

(last visited Dec. 19, 2007) (85% of surveyed privacy and security professionals experienced a reportable breach within the past 12 months). These data security breaches may range from minor breaches (such as an individual who accidentally sees data that he or she does not have authority to view) to more serious breaches. Accordingly, we have estimated that each of these institutions would experience a data security breach that would require notice to the Commission (or a designated examining authority) each year. We understand that the nature of security breaches will vary widely within and among institutions, and that this estimate may be much higher than the actual reporting that would be required under the proposed rule.

116

This estimate is based on the following calculation: 26 hours per smaller institution per year × $414 per hour = $10,764.

The staff also estimates that the amount of time larger institutions would

devote to ongoing compliance with the proposed amendments would range from 32 hours to 100 hours with a midpoint of 66 hours per year. This estimate reflects the following burden hour estimates: 12 hours to regularly test or monitor the safeguards' key controls, systems, and procedures; 9 hours to augment staff training; 9 hours to provide continued oversight of service providers; 10 hours to evaluate and adjust safeguards; 20 hours to respond appropriately to potential incidents of data security breach, including investigating the breach and, as necessary, notifying affected individuals; and 6 hours to notify the Commission or a designated examining authority as soon as possible on proposed Form SP-30, in the event there is a significant risk that an individual identified with the information might suffer substantial harm or inconvenience or an unauthorized person has intentionally obtained access to or used sensitive personal information.

117

Staff believes that larger institutions are likely to have more complex business operations and data systems and may experience more sophisticated security attacks than smaller institutions. As a result, staff anticipates that larger institutions are more likely to conduct more complicated investigations that require more detailed explanations on proposed Form SP-30. Staff estimates therefore that larger institutions would take more time to perform investigations and to complete the questions on proposed Form SP-30.

118

The staff estimates that larger institutions would spend approximately an additional $51,084 per institution per year.

119

117

See supra

note 115.

118

We recognize that the time it takes to perform an investigation of a data security breach and to complete Form SP-30 may vary significantly depending on the nature, size and complexity of an institution's business operations as well as the nature and size of the security breach. Accordingly, the actual time it may take a particular institution to investigate the breach and complete Form SP-30 may vary significantly from staff estimates.

119

This estimate is based on the following calculation: 66 hours × $774 = $51,084.

Given the estimates set forth above, we estimate that the weighted average initial burden for each respondent would be approximately 136 hours

120

and $100,036.

121

We also estimate that the weighted average ongoing burden for each respondent would be approximately 47 hours

122

and $32,072.

123

120

This estimate is based on the following calculation: ((5,862 smaller institutions × 41 hours) + (6,570 larger institutions × 220 hours) ÷ 12,432 total institutions = 135.60 hours.

121

This estimate is based on the following calculation: ((5,862 smaller institutions × $18,560) + (6,570 larger institutions × $172,732)) ÷ 12,432 total institutions = $100,036.03.

122

This estimate is based on the following calculation: ((5,862 smaller institutions × 26 hours) + (6,570 larger institutions × 66 hours)) ÷ 12,432 total institutions = 47.14 hours.

123

This estimate is based on the following calculation: ((5,862 smaller institutions × $10,764) + (6,570 larger institutions × $51,084)) ÷ 12,432 total institutions = $32,072.12.

Scope of the Safeguards and Disposal Rules

The amendments also would broaden the scope of information and of the entities covered by the safeguards and disposal rules. These amendments do not contain collections of information beyond those related to the information security and security breach response requirements, analyzed above.

Records of Compliance

The proposed amendments would require that written records required under the disposal and safeguards rules be maintained and preserved by broker-dealers for not less than three years, the first two years in an easily accessible place, by registered transfer agents for a period of not less than two years, the first year in an easily accessible place, by investment companies for a period not less than six years, the first two years in an easily accessible place, and registered investment advisers would have to preserve the records for five years, the first two years in an appropriate office of the investment adviser. Covered institutions are already required pursuant to other Commission rules to maintain and preserve similar records in the same manner, and we do not believe that the currently approved collections of information for these rules would change based on the proposed amendments.

124

See

17 CFR 240.17a-4(b); 240.17Ad-7(b); 270.31a-2(a)(4)-(6); 275.204-2(e)(1).

Exception for Limited Information Disclosure When Personnel Leave Their Firms

The proposed amendments would create a new exception from Regulation S-P's notice and opt out requirements that would permit limited disclosures of investor information when a registered representative of a broker-dealer or supervised person of a registered investment adviser moves from one brokerage or advisory firm to another. This exception would require that the departing representative provide the broker, dealer, or registered investment adviser he or she is leaving with a written record of the permissible information that would be disclosed under this exception. Broker-dealers and registered investment advisers also would be required to retain a record of that information consistent with existing record retention requirements. All broker-dealers and registered investment advisers maintain records of their customers and clients, including relevant contact information and type of account. Thus, we estimate that allowing a departing representative to make a copy of this information and requiring the broker-dealer or registered investment adviser to retain a record of that information would not result in an additional measurable burden to the firm.

We request comment on whether these estimates are reasonable. Pursuant to 44 U.S.C. 3506(c)(2)(B), the Commission solicits comments in order to: (i) Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (ii) evaluate the accuracy of the Commission's estimate of the burden of the proposed collections of information; (iii) determine whether there are ways to enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the collections of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology.

Members of the public may direct to us any comments concerning the accuracy of these burden estimates and any suggestions for reducing these burden hours. Persons wishing to submit comments on the collection of information requirements of the proposed amendments should direct them to the Office of Management and Budget, Attention Desk Officer of the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Room 10102, New Executive Office Building, Washington, DC 20523, and should send a copy to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090 with reference to File No. S7-06-08. OMB is required to make a decision concerning the collections of information between 30 and 60 days after publication of this release; therefore a comment to OMB is best assured of having its full effect if OMB receives it within 30 days after the publication of this release. Requests for materials submitted to OMB by the Commission with regard to these collections of information should be in writing, refer to File No. S7-06-08, and be submitted to the Securities and Exchange Commission, Public Reference

Room, 100 F Street, NE., Washington, DC 20549.

V. Cost-Benefit Analysis

The Commission is sensitive to the costs and benefits imposed by its rules. We have identified certain costs and benefits of the proposed amendments and request comment on all aspects of this cost-benefit analysis, including identification and assessment of any costs and benefits not discussed in this analysis. We seek comment and data on the value of the benefits identified. We also welcome comments on the accuracy of the cost estimates in each section of this analysis, and request that commenters provide data so we can improve these cost estimates. In addition, we seek estimates and views regarding these costs and benefits for particular covered institutions, including registered transfer agents, as well as any other costs or benefits that may result from the adoption of these proposed amendments.

As discussed above, the proposed rule amendments are designed to enhance covered institutions' information security policies and procedures as well as their ability to protect personal information. Under Regulation S-P, covered institutions have been required to safeguard customer records and information since 2001 and to dispose properly of consumer report information since 2005. The proposed amendments would modify Regulation S-P's current safeguards and disposal rules to: (i) Require more specific standards under the safeguards rule, including standards that would apply to data security breach incidents; (ii) broaden the scope of information and the types of institutions and persons covered by the rules; and (iii) require covered institutions to maintain written records of their policies and procedures and their compliance with those policies and procedures. The proposed amendments also would create a new exception from Regulation S-P's notice and opt-out requirements that would not unduly restrict the transfer of representatives from one broker-dealer or registered investment adviser to another while protecting customer information.

A. Costs and Benefits of More Specific Information Security and Security Breach Standards

As noted, since 2001 broker-dealers, investment companies, and registered investment advisers have been required to adopt policies and procedures reasonably designed to insure the security and confidentiality of customer records and information, protect against anticipated threats or hazards, and protect against unauthorized access to or use of customer records and information.

125

The proposed rule amendments would require more specific standards for safeguarding personal information, including standards for responding to data security breaches. The amendments would require covered institutions to develop, implement, and maintain a comprehensive “information security program” for protecting personal information and for responding to unauthorized access to or use of personal information that would have to be appropriate to the institution's size and complexity, the nature and scope of its activities, and the sensitivity of the personal information involved. The information security program would have to include seven safeguarding elements, as described above in section II.A. Our proposed amendments also would specifically require that institutions' information security programs include procedures for responding to incidents of unauthorized access to or use of personal information. We believe that these proposed amendments would be consistent with safeguarding guidance and rules issued by the Banking Agencies and the FTC.

126

125

See

15 U.S.C. 6801; 17 CFR 248.30(a). The Commission also required that safeguarding policies and procedures be in writing by July 1, 2005.

See

Disposal Rule Adopting Release,

supra

note 15.

126

See supra

note 23 and accompanying text.

1. Benefits of More Specific Information Security and Security Breach Standards

We anticipate that the proposed amendments would benefit covered institutions and investors by providing specific standards for policies and procedures to safeguard investor information, boosting investor confidence and mitigating losses due to security breach incidents, helping to ensure that information security programs are actively managed and regularly updated, and reducing the compliance burden for institutions in the event of a data security breach incident.

One benefit of the proposed information security and security breach standards would be to provide firms in the securities industry with detailed standards for the policies and procedures that a well-designed information security program should include. As already noted, a significant increase in reported information security breaches involving covered institutions, including increasingly sophisticated identity theft attacks directed at the securities industry, have altered the risk environment and brought to our attention the vulnerability of certain of our institutions' information security policies and procedures.

127

We are concerned that some Commission-regulated institutions may not regularly reevaluate and update their safeguarding programs to deal with these increasingly sophisticated methods of attack. As a result, our staff has devoted increased attention to this area.

127

See supra

notes 16-19 and accompanying text.

The current rule's reasonable design standard has permitted institutions flexibility to implement safeguarding policies and procedures tailored to their own privacy policies and practices and their varying business operations. While many institutions have appropriate safeguards in place, some institutions, including some smaller institutions, may have had difficulty keeping up with the changes in the threat environment. Setting out a more specific framework for institutions' continuing obligation to protect customer information, may ease institutions' burden in interpreting our expectations of safeguarding policies and procedures that are “reasonably designed,” while retaining much of the current rule's flexibility.

We believe the proposed amendments would be consistent with the Commission's initial statutory mandate under the GLBA to adopt, in 2000, final financial privacy regulations that are consistent and comparable with those adopted by other federal financial regulators.

128

As noted above, after our adoption of Regulation S-P's safeguards rule, the FTC and the Banking Agencies issued regulations with more detailed standards applicable to the institutions they regulate.

129

The Banking Agencies also issued guidance for their institutions on responding to incidents of unauthorized access to or use of customer information.

130

Our proposed amendments include safeguarding elements consistent with the regulatory provisions of these other agencies that Commission-regulated institutions would have to address in their safeguarding policies and procedures.

131

128

See

Section 504(a) of the GLBA (15 U.S.C. 6804(a)).

129

See supra

note 23 and accompanying text.

130

Id.

131

When the FTC adopted its safeguards rule, it stated that an entity that demonstrated compliance with the Banking Agencies' or NCUA's safeguarding standards also would satisfy the FTC rule. The FTC stated, however, that it would not automatically recognize an institution's compliance with other safeguards rules (including Regulation S-P) as satisfying the FTC Safeguards Rule. The FTC stated

that it made this decision because “such other rules and law do not necessarily provide comparable protection in terms of the safeguards mandated, data covered, and range of circumstances to which protection apply.”

See Standards for Safeguarding Customer Information

, 67 FR 36484 (May 23, 2003), at text accompanying and following nn.28-33. Compliance with other Regulation S-P provisions, however, currently satisfies other FTC privacy requirements. Thus, we expect that making the safeguarding provisions of Regulation S-P comparable to the FTC's requirements would benefit institutions by, for example, permitting state-registered investment advisers to satisfy the FTC standards by complying with the Commission's safeguards rule, which was drafted to address investment advisory business models.

Covered institutions would benefit from having specific standards that are consistent and comparable to those already adopted by the Banking Agencies and the FTC in other ways. For example, covered institutions that have banking affiliates may have already developed policies and procedures consistent with the Banking Agencies' guidance that are applied to all affiliates of the bank. If they do not have the same policies and procedures, these covered institutions would be able to apply the banking affiliate's policies and procedures to the securities businesses with few changes. More specific safeguarding standards also could increase investor confidence in institutions and help mitigate losses that can result from lax safeguarding policies and procedures. Incidents of identity theft have affected a large number of Americans and are difficult and expensive for victims to deal with and correct.

132

Moreover, there is at least anecdotal evidence that the wave of widely-reported incidents of data security breaches have played a role in discouraging a significant number of individuals from conducting business online.

133

The proposed amendments could benefit investors and increase their confidence by providing firms with detailed standards for the processes that a well-designed information security program should include. This could result in enhanced protection for the privacy of investor information, and could decrease incidents of identity theft, thereby mitigating losses due to identity theft and other misuses of sensitive information. We also believe that the increased protection that could result from the proposed amendments could benefit institutions, which frequently incur the costs of fraudulent activity.

134

Thus, if only a small number of security breach incidents were averted because the proposed amendments were adopted, there still could be a significant cost savings to individuals and institutions.

135

132

In 2003 the FTC reported that up to 10 million Americans had been victimized by identity theft over a 12-month period and that these thefts cost businesses and consumers over $52 billion.

See

FTC, Identity Theft Survey Report (Sept. 2003), available at

http://www.ftc.gov/os/2003/09/synovatereport.pdf

133

A July 2005 study found that 48 percent of consumers avoided making purchases on the Internet because they feared their personal information may be stolen.

See

Cyber Security Industry Alliance, Internet Voter Survey, at 9 (June 2005),

https://www.csialliance.org/publications/surveys_and_polls/CSIA_Internet_Security_Survey_June_2005.pdf

(last visited Nov. 6, 2007).

134

In most cases, financial institutions do not impose the losses associated with fraudulent activity on consumers.

See, e.g.

, Testimony of Oliver I. Ireland, on Behalf of the Financial Services Coordinating Council, H.R. 3997, the “Financial Data Protection Act of 2005,” Before the Subcomm. on Financial Institutions and Consumer Credit, House Comm. on Financial Services (Nov. 9, 2005), available at

http://www.sia.com/testimony/2005/ireland11-9-05.html

135

One research institution has estimated that the average cost of a data security breach incident per institution is $1.4 million.

See

Ponemon Institute, LLC, 2006 Annual Study: Cost of a Data Breach (Oct. 2006),

http://download.pgp.com/pdfs/Ponemon2-Breach-Survey_061020_F.pdf

(last visited Nov. 6, 2007). In addition, some investigations into data breach incidents have been reported to cost as much as $5 million.

See

Daniel Wolfe, Security Watch, Amer. Banker (Apr. 4, 2007).

As noted above, we are concerned that some institutions do not regularly reevaluate and update their safeguarding programs. Requiring covered institutions to designate in writing an employee or employees to coordinate their information security programs should foster clearer delegations of authority and responsibility, making it more likely that an institution's programs are regularly reevaluated and updated. Having an information security program coordinator also could contribute to an institution's ability to meet its affirmative and continuing obligation under the GLBA to safeguard customer information.

136

If, for example, elements of a covered institution's information security program were not maintained on a consolidated basis, but were dispersed throughout an institution, we believe having a responsible program coordinator or coordinators should facilitate the institution's awareness of these elements, as well as enable it to better manage and control risks and conduct ongoing evaluations.

136

See

15 U.S.C. 6801(a).

We expect that the proposed framework for the initial and ongoing oversight of institutions' information security programs—in the form of formal risk assessments, periodic testing or monitoring of key controls, systems, and procedures, staff training, and relevant evaluations and adjustments—would help to ensure that information security programs are appropriately updated along with relevant changes in technology, new business arrangements, changes in the threat environment, and other circumstances. Finally, the proposed amendment that would require covered institutions to take reasonable steps to select and retain service providers that are capable of maintaining appropriate safeguards and would require service providers by contract to implement and maintain appropriate safeguards should help to ensure that sensitive personal information is protected when it leaves the institution's custody, while still permitting institutions the flexibility to select appropriate service providers.

The proposed requirement that information security programs include specific procedures for responding to incidents of unauthorized access to or use of personal information is designed to benefit investors and institutions. The requirement would benefit investors who receive notice of an information security breach pursuant to an institution's incident response procedures by allowing those investors to take precautions to the extent they believe necessary.

137

The procedures also would benefit institutions by establishing a national data breach notification requirement for covered institutions.

138

Currently at least 39 states have enacted statutes requiring notification of individuals in the event of a data security breach.

139

This patchwork of overlapping and sometimes inconsistent regulation has created a difficult environment for financial institutions' compliance programs. However, many of the state statutes contain exemptions for entities regulated by federal data security breach regulations.

140

Accordingly, the proposed amendments could benefit covered institutions by significantly reducing the number of requirements with which covered institutions must

comply.

141

As noted, the banking regulators published similar data breach notification guidance in 2005.

142

137

Often victims of identity theft are unaware of the crime until they are denied credit or employment, or are contacted by a debt collector for payment on a debt they did not incur.

See

Identity Theft Task Force, Combating Identity Theft, A Strategic Plan, p. 3 (Apr. 2007), available at

http://www.idtheft.gov/reports/StrategicPlan.pdf.

138

Establishing national standards for data breach notification requirements was a recommendation of the Identity Theft Task Force.

Id.

at p. 35.

139

See

Government Accountability Office, Personal Information: Data Breaches Are Frequent, but Evidence of Resulting Identity Theft Is Limited; However, the Full Extent Is Unknown (Jun. 4, 2007) at p. 2, and National Conference of State Legislatures, State Security Breach Notification Laws (as of Dec. 1, 2007),

http://www.ncsl.org/programs/lis/cip/priv/breachlaws.htm

(last visited Dec. 10, 2007).

140

See, e.g.

, Crowell & Moring LLP, State Laws Governing Security Breach Notification (last updated Apr. 2007),

http://www.crowell.com/pdf/SecurityBreachTable.pdf

(last visited Dec. 10, 2007).

141

Under the proposed amendments, for example, using proposed Form SP-30 would satisfy an institution's obligations to notify the Commission or the appropriate designated examining authority. Because many state laws have exceptions from breach notification requirements for institutions subject to federal breach notification requirements, this would streamline institutions' current reporting obligations to numerous state authorities.

142

See

Interagency Guidance on Response Programs for Unauthorized Access to Customer Information and Customer Notice, 70 FR 15736 (Mar. 29, 2005), available at

http://www.occ.treas.gov/consumer/Customernoticeguidance.pdf.

The guidance supplements the Interagency Guidelines Establishing Standards for Safeguarding Information which was renamed the Interagency Guidelines Establishing Information Security Standards.

We request comment on available metrics to quantify these benefits and any other benefits the commenter may identify. In particular, we request comment reflecting institutions' experiences in safeguarding customer information and addressing the security breach incidents discussed above. Commenters are also requested to identify sources of empirical data that could be used for the metrics they propose.

2. Costs of More Specific Information Security and Security Breach Standards

Some institutions would likely incur additional costs in reviewing, implementing, and maintaining more specific information security and security breach standards. Institutions could incur additional costs in reviewing current safeguarding policies and procedures and designing and implementing new ones, if necessary, on an initial basis. Institutions also could incur additional costs on an ongoing basis to maintain up-to-date information security programs and to respond appropriately to any data security breach incidents.

According to Commission filings, approximately 6,016 broker-dealers, 4,733 investment companies comprising portions of 813 fund complexes,

143

77 business development companies, 9,860 registered investment advisers, and 501 registered transfer agents, or 17,267 covered institutions, would be required to comply with the proposed amendments' more specific information security and security breach standards.

144

As noted, broker-dealers, investment companies, and registered investment advisers have been required to have reasonably designed safeguarding policies and procedures since 2001. In addition, transfer agents have been required to have information security safeguards since 2003, in accordance with the FTC Safeguards Rule.

145

We estimate that 56 percent of all covered institutions, or 9,670 institutions, have one or more financial affiliates (whether these institutions are regulated by the Commission or other federal financial regulators).

146

We estimate that each of the affiliated institutions has one corporate affiliate. Based on limited inquiries of covered institutions, we believe that these affiliated institutions are likely to have developed safeguarding policies and procedures on an organization-wide basis, rather than each affiliate developing policies and procedures on its own.

147

We also believe that the affiliate that developed the affiliated organization's safeguarding policies and procedures is also responsible for maintaining these policies and procedures. We therefore estimate that one-half of the covered affiliated institutions, or 4,835 institutions, have developed, documented, and are maintaining safeguarding policies and procedures, while the other half instead use the policies and procedures developed, documented, and maintained by their affiliate.

148

Accordingly, we estimate that 12,432 covered institutions have developed and adopted safeguarding policies and procedures and are maintaining these policies and procedures in accordance with the current rule.

149

143

Although the circumstances for every investment company vary, we believe that in general the costs of complying with the proposed rule amendments would be incurred on a per fund complex basis and not on a per fund basis because almost all investment companies are externally managed by affiliated organizations and independent contractors, who, if the proposals are adopted, are likely to review and implement the amended rules on behalf of all of the investment companies they manage.

See, e.g.

, Investment Company Institute, A Guide to Understanding Mutual Funds, at 16, Sept. 2006, available at

http://www.ici.org/pdf/bro_understanding_mfs_p.pdf

(last visited Dec. 3, 2007). Thus, throughout this cost-benefit analysis we estimate the costs of compliance on a per fund complex basis.

144

This estimate is based on the following calculation: 6,016 + 813 + 77 + 9,860 + 501 = 17,267.

145

See supra

note 23.

146

The estimate that 56 percent of registrants have an affiliate is based upon statistics reported as of December 3, 2007 on Form ADV, the Universal Application for Investment Adviser Regulation, which contains specific questions regarding affiliations between investment advisers and other persons in the financial industry. We estimate that other institutions subject to the safeguards rule would report a rate of affiliation similar to that reported by registered investment advisers. The estimate that 9,670 institutions have an affiliate is based on the following calculation: 17,267 × 0.56 = 9,669.52.

147

See supra

note 109.

148

This estimate is based on the following calculation:

9,670 ÷ 2 = 4,835.

149

This estimate is based on the following calculation:

(17,267 − 9,670) + 4,835 = 12,432.

We expect that these institutions' current costs to maintain safeguarding policies and procedures in compliance with the Commission's safeguards rule vary greatly depending upon the size of the institution, its customer base, the complexity of its business operations, and the extent to which the institution engages in information sharing. Thus, for example, we estimate that small investment advisers with fewer than 10 employees require more limited safeguarding policies and procedures to address a limited scope of information transfer, storage, and disposal. We believe that larger broker-dealers or fund complexes, by contrast, are more likely to have and maintain a more extensive set of information safeguarding policies and procedures, corresponding to these institutions' more complex business activities and information sharing practices.

Of the covered institutions, we estimate that 7,030 registered investment advisers have 10 or fewer employees.

150

We estimate that 942 broker-dealers and investment company complexes are small institutions, and are likely to have no more than 10 employees.

151

Based on Commission filings, we also estimate that 170 transfer agents are smaller institutions that are likely to have no more than 10 employees. We therefore estimate that 8,142 institutions, out of 17,267 covered institutions, are smaller institutions that are likely to have no more than 10 employees.

152

We believe that the institutions that have developed and adopted safeguarding policies and procedures are as likely to be smaller institutions with no more than 10 employees as the total population of covered institutions.

153

Therefore, of 12,432 covered institutions that we estimate have developed and adopted and are maintaining safeguarding policies and procedures, we estimate for purposes of this analysis that 5,862 institutions are smaller institutions,

while 6,570 institutions are larger institutions.

154

150

See

Investment Adviser Association, Evolution Revolution, A Profile of the Investment Adviser Profession (2006), available at

http://www.nrs-inc.com/ICAA/EvRev06.pdf.

151

As noted below, 915 broker-dealers and 238 investment companies, representing 27 fund complexes, are small entities.

152

This estimate is based on the following calculation:

7,030 + 942 + 170 = 8,142 smaller institutions.

153

8,142 ÷ 17,267 = 0.4715.

154

12,432 × 0.4715 = 5,861.88; 12,432 − 5,862 = 6,570.

Based on conversations with representatives of covered institutions, and information collected from limited inquiries of covered institutions, we estimate that smaller institutions are currently spending between $5,000 and $1,000,000 per year to comply with the safeguards and disposal rules.

155

We also estimate that larger institutions are spending between $200,000 and $10,000,000 per year to comply with the safeguards and disposal rules. These estimates include costs for dedicated personnel, maintaining up-to-date policies and procedures, enforcing various safeguarding requirements (such as “clean desk” requirements), hiring contractors to properly dispose of sensitive information, developing and enforcing access procedures, ongoing staff training, monitoring and reviewing compliance with safeguarding standards, and computer encryption. These estimates also include current spending to comply with state data security breach statutes.

156

155

See supra

note 111.

156

These estimates also include transfer agents' current spending to comply with the FTC Safeguards Rule. As noted, the proposed amendments would apply to every broker or dealer other than a notice-registered broker or dealer, every investment company, and every investment adviser or transfer agent registered with the Commission.

See

proposed paragraph (a)(1) of Section 30.

We expect that most covered institutions have information security programs in place that would be consistent with the proposed amendments.

157

We do not have a reliable basis for estimating the number of institutions that would incur additional costs or the extent to which those institutions would have to enhance their policies and procedures, including documentation of the information safeguard program and its elements. Accordingly, we have estimated the range of additional costs that individual firms could incur. We seek comment on the number of firms that have information safeguard programs that would satisfy the proposed amendments, the number of firms that would have to enhance their programs, the extent of those enhancements, and the costs of enhancement.

157

This belief is consistent with the analysis of the Office of the Comptroller of the Currency and Office of Thrift Supervision when they adopted the Banking Agencies Safeguard Guidelines in 2001. At that time they stated with respect to the institutions they regulated, that “most if not all institutions already have information security programs in place that are consistent with the Banking Agencies' Security Guidelines. In such cases, little or no modification to an institution's program will be required.”

See

Banking Agencies' Security Guidelines,

supra

note 23. The statement was made in the analysis of whether the Guidelines would constitute “a significant regulatory action” for purposes of Executive Order 12866, which includes an action that would have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The Board and the FDIC did not prepare an analysis under Executive Order 12866.

If the proposed amendments were adopted, covered institutions could incur costs to supplement their current information security programs in some or all of the following ways. First, the institution would be required to review and, as appropriate, revise its current safeguarding policies and procedures, including their data security breach procedures and disposal rule procedures, to comply with the more specific requirements of the proposed amendments. Initially this would require the institutions to: (i) Designate an employee or employees as coordinator for the information security program; (ii) identify in writing reasonably foreseeable security risks that could result in the unauthorized access or compromise of personal information or personal information systems; (iii) review existing or design new safeguards to control these risks; (iv) train staff to implement the safeguards; and (v) test the effectiveness of the safeguards' key controls, including access controls, controls to detect, prevent and respond to incidents of unauthorized access to or use of personal information. Second, an institution also would be required to review its service providers' information safeguards and determine whether its service providers are capable of maintaining appropriate safeguards for personal information, document this finding, and enter into contracts with the service providers to implement and maintain appropriate safeguards.

Third, an institution would be required to review existing safeguarding procedures relating to data security breach incidents. Initially, this could include: (i) Assessing current policies and procedures for responding to data breach incidents; and (ii) designing and implementing written policies and procedures to assess, control, and investigate incidents of unauthorized access or use of sensitive personal information, as well as policies and procedures to notify individuals and the Commission or a broker-dealer's designated examining authority, if necessary.

Fourth, to comply with these amendments on an

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