Tony Dearsley, Head of Computer Forensics and Orion Wisness, Disclosure Services Consultant at Kroll Ontrack
Email has become the corporate memory
Why should legal or other professionals involved in the financial world worry about backup tapes? Surely backup tapes are to do with data storage and something for the IT department to worry about – and haven’t they gone out of fashion anyway now that the cloud has taken off?
This seems like a reasonable response, until an investigation or litigation is on the horizon. Then suddenly historic data becomes potential evidence and where and how it is stored, and how accessible it is, becomes mission critical.
As the court noted in Earles v Barclays Bank Plc, ‘‘It’s not realistic to expect human beings to remember with any reliability what they said three years ago about run of the mill business transactions.’’ For most companies email has become their ‘‘corporate memory’’ and it is usually permanent and retrievable. Email is often targeted in civil litigation because it provides immediate insight into the events that gave rise to a dispute and key documents are usually attached to emails. Email is always targeted in regulatory investigations such as the highly publicised investigations into alleged manipulation by banks of LIBOR and FOREX rates. It is also indispensable where there are allegations of wrong doing such as insider trading, bribery and corruption, misappropriation of client assets, data theft, fraud, and serious cartel activities). Since investigations and litigation often examine events in the past and due to limits in the size of mail boxes, relevant data has often been archived to tape. Backup tapes are therefore a source of evidence and always need to be considered when searching for electronic evidence
If tapes hold potentially valuable evidence and litigation is on the horizon then the legal obligation to preserve evidence needs to be considered as well. If evidence is missing you run the risk of losing a case and / or facing fines or other penalties from the court for not complying with your obligations to produce relevant evidence.
To have and to hold or face the wrath of the court
The question of preservation is very pertinent to companies facing ediscovery or litigation. All organisations need to evaluate systems and processes before the EU commission arrives on their doorsteps or a disclosure obligation in litigation arises. The reality of modern business is that everyday information is lost and this conflicts with litigation hold and preservation duties.
In Earles v Barclay Bank Plc,[ii] the central issue in dispute was factual—whether the Bank was instructed to make certain transfers either orally or by email. The Bank did not take steps to preserve phone and email records after litigation was anticipated. Telephone records and other documents recording instructions were not produced during pre-trial disclosure, which was described as a “gross omission.” An email account for a Bank employee was also not disclosed. The court noted that it was a “lame excuse” to say that he had retired, since steps should have been taken to retrieve electronic information from other back-up sources. The judge was critical of the way in which the Bank conducted its disclosure of documents, and stated that evidence should have been retained. As a direct consequence of its failure to efficiently disclose electronic documents that would have otherwise negated the need for trial procedures, the judge ordered a reduction of fifty per cent in the costs recoverable by the Bank.
The preservation process is, however, very challenging for companies. Serious problems have arisen as companies have tried to adhere to the preservation standard set out in the Zubulake v.UBS Warburg LLC litigation.[iii] According to Zubulake, if the duty to preserve is in any way bypassed, through accident or otherwise, that constitutes negligence per se and mandates sanctions. In more recent US cases such as Chin v. Port Authority of New York & New Jersey[iv] this trend has been reversed by applying a case-by-case approach, in which failure to preserve documents is one of multiple factors in the determination of whether to issue sanctions. Some of the changes currently being proposed to the federal rules of court in the U.S. are designed to address the challenges modern companies coping with big data face when addressing preservation. Under a proposed amendment to the preservation rules, in all but very exceptional cases in which a failure to preserve information “irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation” sanctions could only be employed if the court finds that the failure to preserve was wilful or in bad faith and that it caused substantial prejudice in the litigation. Accordingly, a negligence standard for sanctions relating to the destruction of evidence is explicitly rejected.
Even though the UK has not seen many preservation rulings, the issues experienced in the US are likely to become more prominent. Challenges around preservation are already arising in relation to some of the litigation surrounding the LIBOR investigation and other financial investigations. Banks and financial services companies in the UK do need to be prepared to put litigation hold policies in place and to have thought through the practicalities of preserving evidence stored on tapes when legal action is contemplated. This does not necessarily mean stopping the recycling of backup tapes if that would be impractical and disproportionately expensive but it does mean taking steps to agree with other parties on reasonable preservation parameters and steps to prevent the destruction of potentially relevant data
The tapes have not all disappeared into the cloud
Generally speaking, tape seems to be favoured by companies for long time archiving solutions and storage on disk and in the cloud for routine backups. An archive is created for long term storage of corporate communications and documents, often for a period of five to seven years or even longer depending on legal requirements, whereas a backup is created so that data, and therefore a business, may be restored in the event of a critical systems failure.
Structured archiving is not a mature discipline and is often based upon an ad hoc solution, for example, it may consist of retaining a copy of every routine month-end backup, kept at a specialist storage provider or in-house. Alternatively, it may comprise a targeted backup of specific information conducted every week, month, quarter, year (or even all of these options). Whichever approach is taken you will end up with a lot of tapes in storage.
Challenges retrieving data from tapes
There is a risk that a bank of financial institution will not be able to access the data on their tapes as quickly as they would like to when they need to, for example, when a regulator is asking for information.
Over the last seven years tape technology has continued to change and there are at least 20 physical formats of tape still in use, all of which require the appropriate hardware. Given the frequency of technology refreshes, it is highly unlikely that tapes from seven years ago can be read in your current solution. To add to this complication there are probably 20 software solutions used to write to the tapes, each with its own format. So you may be looking at choosing between 400 combinations of hardware and software to access the data. Having the correct equipment and knowledge of the software used is essential (and the latter is often missing due to a fragmented or incomplete approach to retention).
Of course, once you have the tapes and before selecting a recovery option, you need to identify which tapes go together as spanned sets. Very often tapes are not labelled or catalogued in any way or the catalogues and other tape lists, encryption keys and passwords used to secure data have been mislaid. Because it is not always necessary to restore all tapes in a collection it is can be extremely cost effective to work with external forensic specialists to catalogue the tapes and select only those required for restoration.
The expertise needed to respond to legal requests
Requests in litigation cases and from regulatory bodies and other investigators can be demanding and have stringent deadlines. So when the request arrives and you have 15 years of tapes to consider, what are you going to do? Hopefully the request will relate to a specific time period, but if you cannot identify the relevant tapes you may have to investigate all of them, causing delay in the response to the regulator and even the impression of non-cooperation.
Let us take a request for email for six data custodians in say 2007 and 2008 for a specific project. There are 24 monthly backups comprising five tapes each month; a potential restore and extraction of 120 tapes. In the case of Exchange server backups you need to know which server each individual was on and what the retention period was for deleted email at that time.
Many organisations do not implement email retention policies so the need for mailbox management by the individual is limited, thus there can be a very large amount of duplication of email across the time periods. It may be possible to examine one month’s tapes and from there determine a strategy for restoring others. Certainly when faced with these issues we have in some instances been able to mitigate the restores to three-monthly periods, which is 15 tapes instead of 120.
The starting point for handling any data that is on tapes is therefore to look at a company’s document retention policy and actual habits. Typically there is a need for an investigation into the tapes themselves and negotiation about the scope of the discovery request before any data is restored. This is essential if costs are to be contained and proportionate when weighed up against what is at stake.
Technology to cut through the data
The latest LTO6 tapes can contain a massive 6.25 terabytes of data and the prospect of trawling through enormous volumes of data looking for evidence is daunting. In the era of big data, there are fortunately sophisticated technologies that help companies target the data they need in legal proceedings. Data filtering technologies have been around for some time and rely on key word searching and other criteria to help reduce the huge universe of data to a manageable and relevant subset for review and production. Significant advances have also been made in document review technology. Companies and their lawyers can now leverage technology assisted review (TAR) to separate relevant data from irrelevant data more quickly and efficiently than review teams that consist only of humans, saving significant time and costs.
You can always bank on a good plan
Tapes are often a key part of any banking investigation or litigation. How to handle them should be considered not only in a bank’s risk management and information retention policy but also in a bank’s litigation response plan and in any subsequent case strategy. It also makes sense to keep a finger on the pulse of the latest technologies available and to consider whether these should be brought in-house or whether discovery needs should be out-sourced to experts.
-  EWHC 2500 (Mercantile).
-  EWHC 2500 (Mercantile).
- There were five Zubulake cases. See Zubulake v.UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. May 13, 2003) (Zubulake I); Zubulake v.UBS Warburg, 2003 WL 21087136 (S.D.N.Y. May 13, 2003) (Zubulake II) (addressing issues unrelated to e-discovery); Zubulake v.UBS Warburg, 216 F.R.D. 280 (S.D.N.Y. July 24, 2003) (Zubulake III);Zubulake v UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. Oct. 22, 2003) (Zubulake IV); Zubulake v.UBS Warburg, 2004 WL 1620866 (S.D.N.Y. July 20, 2004) (Zubulake V).
- Chin v. Port Auth. of New York & New Jersey, 2012 WL 2760776 (2d Cir. July 10, 2012
The Psychology Behind a Strong Security Culture in the Financial Sector
By Javvad Malik, Security Awareness Advocate at KnowBe4
Banks and financial industries are quite literally where the money is, positioning them as prominent targets for cybercriminals worldwide. Unfortunately, regardless of investments made in the latest technologies, the Achilles heel of these institutions is their employees. Often times, a human blunder is found to be a contributing factor of a security breach, if not the direct source. Indeed, in the 2020 Verizon Data Breach Investigations Report, miscellaneous errors were found vying closely with web application attacks for the top cause of breaches affecting the financial and insurance sector. A secretary may forward an email to the wrong recipient or a system administrator may misconfigure firewall settings. Perhaps, a user clicks on a malicious link. Whatever the case, the outcome is equally dire.
Having grown acutely aware of the role that people play in cybersecurity, business leaders are scrambling to establish a strong security culture within their own organisations. In fact, for many leaders across the globe, realising a strong security culture is of increasing importance, not solely for fear of a breach, but as fundamental to the overall success of their organisations – be it to create customer trust or enhance brand value. Yet, the term lacks a universal definition, and its interpretation varies depending on the individual. In one survey of 1,161 IT decision makers, 758 unique definitions were offered, falling into five distinct categories. While all important, these categories taken apart only feature one aspect of the wider notion of security culture.
With an incomplete understanding of the term, many organisations find themselves inadvertently overconfident in their actual capabilities to fend off cyberthreats. This speaks to the importance of building a single, clear and common definition from which organisations can learn from one another, benchmark their standing and construct a comprehensive security programme.
Defining Security Culture: The Seven Dimensions
In an effort to measure security culture through an objective, scientific method, the term can be broken down into seven key dimensions:
- Attitudes: Formed over time and through experiences, attitudes are learned opinions reflecting the preferences an individual has in favour or against security protocols and issues.
- Behaviours: The physical actions and decisions that employees make which impact the security of an organisation.
- Cognition: The understanding, knowledge and awareness of security threats and issues.
- Communication: Channels adopted to share relevant security-related information in a timely manner, while encouraging and supporting employees as they tackle security issues.
- Compliance: Written security policies and the extent that employees adhere to them.
- Norms: Unwritten rules of conduct in an organisation.
- Responsibilities: The extent to which employees recognise their role in sustaining or endangering their company’s security.
All of these dimensions are inextricably interlinked; should one falter so too would the others.
The Bearing of Banks and Financial Institutions
Collecting data from over 120,000 employees in 1,107 organisations across 24 countries, KnowBe4’s ‘Security Culture Report 2020’ found that the banking and financial sectors were among the best performers on the security culture front, with a score of 76 out of a 100. This comes as no surprise seeing as they manage highly confidential data and have thus adopted a long tradition of risk management as well as extensive regulatory oversight.
Indeed, the security culture posture is reflected in the sector’s well-oiled communication channels. As cyberthreats constantly and rapidly evolve, it is crucial that effective communication processes are implemented. This allows employees to receive accurate and relevant information with ease; having an impact on the organisation’s ability to prevent as well as respond to a security breach. In IBM’s 2020 Cost of a Data Breach study, the average reported response time to detect a data breach is 207 days with an additional 73 days to resolve the situation. This is in comparison to the financial industry’s 177 and 56 days.
Moreover, with better communication follows better attitude – both banking and financial services scored 80 and 79 in this department, respectively. Good communication is integral to facilitating collaboration between departments and offering a reminder that security is not achieved solely within the IT department; rather, it is a team effort. It is also a means of boosting morale and inspiring greater employee engagement. As earlier mentioned, attitudes are evaluations, or learned opinions. Therefore, by keeping employees informed as well as motivated, they are more likely to view security best practices favourably, adopting them voluntarily.
Predictably, the industry ticks the box on compliance as well. The hefty fines issued by the Information Commissioner’s Office (ICO) in the past year alone, including Capital One’s $80 million penalty, probably play a part in keeping financial institutions on their toes.
Nevertheless, there continues to be room for improvement. As it stands, the overall score of 76 is within the ‘moderate’ classification, falling a long way short of the desired 90-100 range. So, what needs fixing?
Towards Achieving Excellence
There is often the misconception that banks and financial institutions are well-versed in security-related information due to their extensive exposure to the cyber domain. However, as the cognition score demonstrates, this is not the case – dawdling in the low 70s. This illustrates an urgent need for improved security awareness programmes within the sector. More importantly, employees should be trained to understand how this knowledge is applied. This can be achieved through practical exercises such as simulated phishing, for example. In addition, training should be tailored to the learning styles as well as the needs of each individual. In other words, a bank clerk would need a completely different curriculum to IT staff working on the backend of servers.
By building on cognition, financial institutions can instigate a sense of responsibility among employees as they begin to recognise the impact that their behaviour might have on the company. In cybersecurity, success is achieved when breaches are avoided. In a way, this negative result removes the incentive that typically keeps employees engaged with an outcome. Training methods need to take this into consideration.
Then there are norms and behaviours, found to have strong correlations with one another. Norms are the compass from which individuals refer to when making decisions and negotiating everyday activities. The key is recognising that norms have two facets, one social and the other personal. The former is informed by social interactions, while the latter is grounded in the individual’s values. For instance, an accountant may connect to the VPN when working outside of the office to avoid disciplinary measures, as opposed to believing it is the right thing to do. Organisations should aim to internalise norms to generate consistent adherence to best practices irrespective of any immediate external pressures. When these norms improve, behavioural changes will reform in tandem.
Building a robust security culture is no easy task. However, the unrelenting efforts of cybercriminals to infiltrate our systems obliges us to press on. While financial institutions are leading the way for other industries, much still needs to be done. Fortunately, every step counts -every improvement made in one dimension has a domino effect in others.
Has lockdown marked the end of cash as we know it?
By James Booth, VP of Payment Partnerships EMEA, PPRO
Since the start of the pandemic, businesses around the world have drastically changed their operations to protect employees and customers. One significant shift has been the discouragement of the use of cash in favour of digital and contactless payment methods. On the surface, moving away from cash seems like the safe, obvious thing to do to curb the spread of the virus. But, the idea of being propelled towards an innovative, digital-first, cashless society is also compelling.
Has cashless gone viral?
Recent months have forced the world online, leading to a surge in e-commerce with UK online sales seeing a rise of 168% in May and steady growth ever since. In fact, PPRO’s transaction engine, has seen online purchases across the globe increase dramatically in 2020: purchases of women’s clothing are up 311%, food and beverage by 285%, and healthcare and cosmetics by 160%.
Alongside a shift to online shopping, a recent report revealed 7.4 million in the UK are now living an almost cashless life – claiming changing payment habits has left Britons better prepared for life in lockdown. In fact, according to recent research from PPRO, 45% of UK consumers think cash will be a thing of the past in just five years. And this UK figure reflects a global trend. For example, 46% of Americans have turned to cashless payments in the wake of COVID-19. And in Italy, the volume of cashless transactions has skyrocketed by more than 80%.
More choice than ever before
Whilst the pandemic and restrictions surrounding cash have certainly accelerated the UK towards a cashless society, the proliferation of local payment methods (LPMs) in the UK, such as PayPal, Klarna and digital wallets, have also been a key driver. Today, 31% of UK consumers report they are confident using mobile wallets, such as Apple Pay. Those in Generation Z are particularly keen, with 68% expressing confidence using them.
As LPM usage continues to accelerate, the use of credit and debit cards are likely to decline in the coming years. Whilst older generations show an affinity with plastic, younger consumers feel less secure around its usage. 96% of Baby Boomers and Generation X confirmed they feel confident using credit/debit cards, compared to just 75% of Generation Z.
Does social distancing mean financial exclusion?
As we hurtle into a digital age, leaving cash in the rearview, there are ramifications of going completely cashless to consider. We must take into consideration how removing cash could disenfranchise over a quarter of our society; 26% of the global population doesn’t have a traditional bank account. Across Latin America, 38% of shoppers are unbanked, and nearly 1 in 5 online transactions are completed with cash. While in Africa and the Middle East, only 50% of consumers are banked in the traditional sense, and 12% have access to a credit card. Even here in the UK, approximately 1.3 million UK adults are classed as unbanked, exposing the large number of consumers affected by any ban on cash.
Even when shopping online – many consumers rely on cash-based payments. At the checkout page, consumers are provided with a barcode for their order. They take this barcode (either printed or on their mobile device) to a local convenience store or bank and pay in cash. At that point, the goods are shipped.
There are also older generations to consider. Following the closure of one in eight banks and cashpoints during Coronavirus, the government faced calls to act swiftly to protect access to cash, as pensioners struggled to access their savings. Despite the direction society is headed, there are a significant number of older people that still rely on cash – they have grown up using it. With an estimated two million people in the UK relying on cash for day to day spending, it is important that it does not disappear in its entirety.
Supporting the transition away from cash
Cashless protocols not only restrict access to goods and services for consumers but also limit revenue opportunity for merchants. While 2020 has provided the global economy with one great reason to reduce the acceptance of cash, the payments industry has billions of reasons to offer multiple options that cater to the needs of every kind of shopper around the world.
Whilst it seems younger generations are driving LPM adoption, it is important that older generations aren’t forgotten. If online shops fail to offer a variety of preferred payment methods, consumers will not hesitate to shop elsewhere. With 44% of consumers reporting they would stop a purchase online if their favourite payment method wasn’t available – this is something merchants need to address to attract and retain loyal customers.
UnionPay increases online acceptance across Europe and worldwide with Online Travel Agencies
- UnionPay International today announces that two of Europe’s leading travel companies, Logitravel and Destinia, have started accepting UnionPay.
- This acceptance will enable users of the groups’ travel websites to make purchases using UnionPay payment methods.
The acceptance partnerships between the OTAs and UnionPay began in July 2020 for customers across 13 European countries and another 90 countries and regions worldwide. The European countries covered by the agreements include the UK, Germany, France, Italy, Spain, Portugal, Norway, Denmark, Sweden, Austria, Switzerland, Hungary and Ireland. The brands covered by these acceptances include Logitravel.com and Destinia.com which together deliver more than 8.5 million worldwide travel bookings each year covering flights, hotels, holidays, car hire and other experiences.
With over 8.4 billion cards issued in 61 countries and regions worldwide, UnionPay has the world’s largest cardholder base and is the preferred payment brand for many Chinese and Asian expatriates and students based in Europe, as well as an increasing number of global customers. These cardholders are also particularly attractive to the two OTAs. Despite the impact of Covid-19, Logitravel and Destinia expect to see the demand for travel across the European continent as well as that between Europe and Asia return to growth in the coming years. They are now placing significant focus on offering more payment options and smoother payment services to meet this demand.
The partnerships incorporate UnionPay’s ExpressPay and SecurePlus technology, which will ensure seamless transactions for the customers, contained within a single process through the relevant websites. UnionPay’s technology also provides for the requirement to authenticate transactions under the EU regulation Payment Services Directive 2 (PSD2) ensuring that sites will be compliant as soon as the relevant countries apply the requirements.
Wei Zhihong, UnionPay International’s Market Director, said: “This is a major partnership with two of Europe’s leading online travel companies. Logitravel and Destinia are brands which have been at the forefront of e-commerce for many years and we are very excited to be working with them to extend their reach to new audiences. This highlights the work that we have carried out in ensuring that our technology provides effective solutions for the biggest e-commerce sites both in Europe and around the world. We look forward to announcing many more similar agreements in the near future.”
Jesús Pons, Chief Financial Officer at Logitravel Group said: “UnionPay has always been on our radar, and since travel has become a crucial part of its development, Logitravel felt it important to develop this important partnership. It really was an obvious decision for Logitravel since both companies share a passion for e-commerce and emphasising the payment experience for their customers.”
Ricardo Fernández, Managing Director at Destinia Group said: “We believe that this is the beginning of a really strong relationship. Our discussions with UnionPay in reaching this partnership have demonstrated their understanding of the needs of major online merchants and their ability to deliver the highest quality systems. We look forward to working together on further partnership as we move forward.”
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