There has been a rapid increase in collaboration between fintechs and other technology firms and more traditional payment service providers (PSPs) such as banks, merchant acquirers, and money transmitters. While fintechs and technology firms are often seen as direct competitors of traditional PSPs, in a market driven by innovation, both sides of the market increasingly consider collaboration a mutually beneficial way to play to each participating firm’s strengths. For more traditional PSPs, the technologies that a fintech or technology firm develops can help enhance and streamline, and in some cases modernize, the services provided to customers. For a fintech or technology firm, partnering with a PSP can provide an efficient and effective way to expand into the payment services market, particularly for customers who are more inclined to use traditional PSPs.
Regulators are monitoring these developments with growing interest and with an eye to potential risks to customers and markets as well as their ability to supervise regulated firms and their operations. This post highlights a number of EU/UK regulatory issues that fintechs, technology companies, and PSPs should consider when collaborating with one another.
The U.S. Departments of State, the Treasury and Homeland Security and the Federal Bureau of Investigation issued a joint advisory (the Advisory) on April 15, 2020, discussing the threat to the international community posed by cyberattacks linked to the Democratic People’s Republic of Korea (North Korea), in particular highlighting concerns for the financial services sector. North Korea has been subjected to comprehensive international sanctions implemented to pressure its government to denuclearize. The U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) has implemented additional unilateral sanctions in response to other North Korean activities, including cyberattacks, human rights violations and money laundering. In addition to broad prohibitions on trade with North Korea, U.S. sanctions bar domestic financial institutions from conducting or facilitating any significant transaction in connection with trade with North Korea or on behalf of any person whose property has been blocked under executive orders imposing sanctions on North Korea. Foreign financial institutions risk secondary sanctions for engaging in the same. (more…)
The COVID-19 global pandemic presents unique legal and practical challenges for businesses across all industries, including with respect to ongoing relationships with vendors and suppliers – whether this relates to information security, privacy compliance, business continuity and contractual issues, such as in relation to force majeure.
In this webinar, we will highlight some of the key issues companies are facing when dealing with supply chain and vendor contracts, and how their concerns can be mitigated.
Join OneTrust DataGuidance and Sidley for a webinar discussing COVID-19 and European and U.S. cybersecurity and cyber risk insurance issues.
The COVID-19 global pandemic presents unique legal and practical challenges for companies across all industries, including with respect to cybersecurity risks and protections. There are increased cyber vulnerabilities from insider and external threat actors, including cyber attacks on individuals and companies.
In this webinar, we will highlight the dynamic and evolving cybersecurity threats companies face as a result of the pandemic, and the global legal implications of a cyber breach in this new environment – and how they can reduce these risks, and effectively respond to a cyber incident.
The COVID-19 crisis has created significant cybersecurity risks for organizations across the world, particularly arising from remote working, scams and phishing attacks, and weakened information governance controls. These risks warrant attention by legal counsel and information security officers in light of potentially significant adverse legal, financial and reputational consequences that could arise – all while the organization is dealing with effects of a global pandemic.
In addition to identifying the cybersecurity risks, we also consider key measures that organizations can consider adopting to reduce such risks, including measures recommended by the UK’s National Cybersecurity Centre (NCSC), EU’s Agency for Cybersecurity (ENISA) and the US Federal Bureau of Investigation. The speed at which the COVID-19 crisis has evolved has meant that many organizations have not been able to deploy effective risk-reducing measures in a timely manner.
Social distancing imperatives and the resulting surge in remote work polices have led to increased demand for the use of electronic signatures in commercial transactions. Although the method of execution is just one factor to consider when determining the validity and enforceability of a contract, electronic signatures — when appropriately deployed — can provide a convenient replacement for manual wet-ink signatures in many transactions. The U.S. Electronic Signatures in Global and National Commerce Act (E-SIGN), as well as the widespread adoption at the state level of the Uniform Electronic Transactions Act (UETA) or comparable electronic signature laws, provide that electronic signatures and electronic records cannot be denied legal effect, validity or enforceability solely because they exist in electronic form. As workforces suddenly shift to remote operations with siloed employees lacking access to typical office services, yet still facing the same business needs and time demands, companies are reevaluating their electronic signature and records policies and technologies.
On January 31, 2020, the Department of Defense released its latest version of the Cybersecurity Maturity Model Certification (“CMMC”) for defense contractors. Under the CMMC plan, DOD contractors will be required to obtain a cybersecurity rating from Level 1 through Level 5. Self-certification will not be permitted. Given the significant investment of industry resources the CMMC may require, the DOD eased some concerns by announcing that it would roll out the CMMC program out in stages. A new Defense federal Acquisition Regulation Supplement (“DFARS”) clause is expected in the spring of 2020, and CMMC requirements are anticipated to be included in certain limited Requests for Information released starting June 2020. Ultimately, all DOD contracts will include a minimum cybersecurity requirement by 2026. (more…)
The U.S. Securities and Exchange Commission’s Office of Compliance Inspections and Examinations (OCIE) released a report on Cybersecurity and Resiliency Observations based on practices seen in prior exams. OCIE published the overview of practices to help market participants when considering “how to enhance cybersecurity preparedness and operational resiliency,” while acknowledging that there is not a “one-size fits all” approach. The report links cybersecurity to resiliency and business continuity planning, explicitly merging two concepts on which the OCIE has previously focused into a single topic.
With issues around the collection and handling of personal data becoming the focus of increased scrutiny among regulators, policymakers, and consumers, interest has continued to grow among organizations to better understand and address privacy risk. Seeking to support innovation in the market and to accommodate the increasingly global nature of data processing ecosystems, the National Institute of Standards and Technology (“NIST”) released Version 1.0 of the NIST Privacy Framework: A Tool for Improving Privacy through Enterprise Risk Management (“NIST Privacy Framework”) on January 16, 2020. The recent publication aims to outline an adaptable approach to privacy risk for organizations of all sizes by providing a “framework for privacy management, not just a checklist of tasks.”
The NIST Privacy Framework is a voluntary tool intended to assist organizations in managing privacy risks that may arise due to system, product, or service operations that involve personal data, or in connection to new regulatory regimes such as the California Consumer Privacy Act (“CCPA”) and the European Union’s General Data Protection Regulation (“GDPR”). As noted in the Executive Summary, the NIST Privacy Framework is intended to “enable better privacy engineering practices that support privacy by design concepts and help organizations protect individuals’ privacy.” Notably, the Federal Trade Commission (“FTC”), recognized by many as the U.S. government’s top privacy watchdog, had applauded the preliminary draft of the NIST Privacy Framework in Fall 2019 – indicating that the finalized publication could potentially serve as a credible benchmark for organizations seeking to address privacy risk across the data processing lifecycle.
The U.S. Securities and Exchange Commission’s (SEC) Office of Compliance Inspections and Examinations (OCIE) and the Financial Industry Regulatory Authority (FINRA) recently published their examination priorities (together, the Examination Priorities) for the 2020 calendar year.1 In general, the 2020 Examination Priorities continue recurring themes from recent prior years.
OCIE’s 2020 Examination Priorities for broker-dealers and investment advisers include the protection of retail investors (including compliance with new standard of care requirements and interpretations), cyber and information security risks, anti-money laundering compliance, firms engaging in the digital asset space and the provision of electronic investment advice.
FINRA’s 2020 Examination Priorities for member firms include those generally identified by OCIE for registered broker-dealers, as well as cash management and bank sweep programs, initial public offerings, liquidity management, trading authorizations and order routing and vendor display rule requirements, among others.
This post summarizes selected aspects of the Examination Priorities that may be of particular interest to broker-dealers and investment advisers. As always, firms should use the 2020 Examination Priorities to review their compliance and supervisory procedures carefully and make any necessary revisions. Firms also should be prepared to explain their compliance and supervisory policies in these areas in their upcoming SEC and/or FINRA examinations, as applicable, and provide documentation of relevant reviews.