China’s legislature approved its Cybersecurity Law this past November, solidifying China’s regulatory regime for cyberspace and potentially disrupting foreign companies that use or provide telecommunications networks in China. The law takes effect June 1, 2017, and reflects China’s desire for “cyber-sovereignty” (regulating the Internet in China according to national laws, despite the global nature of the World Wide Web). As the Chinese Communist Party (CCP) faces pressure from slowing economic growth and foreign influence, the Cybersecurity Law is one in a series of laws the Chinese government has implemented recently to uphold state security.
Significant Provisions of the Law
Though the wording of the law is vague, it formalizes many current practices and aims to consolidate cybersecurity authority under the Cybersecurity Administration of China. While the government is expected to offer more clarification on the law through implementation rules, how the law is played out in practice will be the ultimate indicator of the law’s severity. These three aspects of the law have the greatest potential to affect multinational companies (MNCs) doing business in China, according to an NACD analysis:
1. Data localization: Article 37 of the law is one of the most contentious and requires that “critical information infrastructure” (CII) operators store personal information and other important data they gather or generate in mainland China to be storedin mainland China. CII operators must have government approval to transfer this data outside the mainland if it’s “truly necessary.” The definition of CII is a catch-all, including public communication and information services, power, traffic, water, finance, public service, electronic governance, in addition to any CII that would impact national security if data were compromised.
Impact: The broad applicability of the CII definition raises the concern that any company using a telecommunications network to operate or provide services in China would be required to store data in mainland China, possibly even affecting those that store data to clouds with servers located outside mainland China.
2. Support for Chinese security authorities: Article 28 requires “network operators” to provide technical support to security authorities for the purposes of upholding national security and conducting criminal investigations. Network operators are broadly defined as those that own or administer computer information networks or are network service providers, which may include anyone operating a business over the Internet or networks.
Impact: The loose definition of “technical support” creates the concern that MNCs will be required to grant Chinese authorities access to confidential information, compromising private information and intellectual property that may be shared with state-owned competitors. Although not stated in the final version of the law, there is also the possibility that companies may be required to provide decryption assistance and backdoor access to authorities upon request.
3. Certified network equipment and products: For network operators, Article 23 indicates that “critical network equipment” and “specialized network security products” must meet national standards and pass inspection before they can be sold or supplied in China. A catalogue providing more specification on these types of products will be released by the government administrations handling cybersecurity. Under Article 35, CII operators are also required to undergo a “national security review” when purchasing network equipment or services that may affect national security.
Impact: Chinese companies and government agencies have historically relied on computer hardware and software manufactured by foreign companies, although this is now shifting in favor of domestic IT products. Opportunities for hacking and espionage put China at risk of losing sensitive information to foreign governments or companies, and China has already started conducting reviews of the IT security products used by the central levels of government. This provision of the Cybersecurity Law demonstrates China’s resolve to mitigate this risk and may pose a significant barrier to foreign IT equipment manufacturers selling products in China.
How Directors Can Prepare
China’s Cybersecurity Law has been criticized by the foreign business community, and, depending on the law’s implementation, it may make doing business in China for MNCs not only more complex but also riskier. Tom Manning, a China specialist at the University of Chicago Law School and director of Dun & Bradstreet, CommScope, and Clear Media Limited, advises boards to consider the effect of the Cybersecurity Law in the greater context of China’s rise: “The Chinese economy is increasingly more self-sufficient. Domestic companies are growing stronger and are more capable, while multinational companies are finding it more difficult to compete.”
Manning suggests boards conduct an overall China risk assessment, with the Cybersecurity Law as the focal point. While some companies may determine the risk of doing business in China is too high, Manning says, others might decide they need to invest more in China to be profitable. Ultimately, creating alliances with domestic firms, who have a greater influence over the government’s implementation of the law, may be key. “Leading domestic companies have a stake in seeing a better definition of the law, and their interests aren’t unaligned with multinational companies,” Manning says. “Chinese Internet companies can explain to the government how the law will affect their business models and be more effective in doing so than Western companies.”
Although how the law will be enforced remains to be seen, boards can consider the following questions when evaluating the impact of China’s Cybersecurity Law:
Are we storing information generated or gathered in mainland China on servers in mainland China? Do we need to create separate IT systems for China-specific data? Are we reliant on cross-border data transfers, and how would we approach this need with the Chinese government?
What is our risk exposure stemming from the potential loss of intellectual property or encryption information as a result of this law? How would our business be affected should our Chinese competitors gain access to this information?
For computer hardware or software manufactures, are we willing to share our source code with the Chinese government?
For technology firms, how does the law alter the playing field for our company to compete in China against domestic firms?
What additional investments do we need to make in order to comply with this law?
Robotic process automation (RPA) is among the hottest topics in today’s enterprise. RPA simplifies business processes by mimicking human actions and automating repetitive tasks without altering existing infrastructure and systems. Nearly every day, we hear stories of organizations streamlining operations and optimizing costs with RPA.
Why is this technology gaining such attention? Because it has the potential to make enterprise-wide business transformation a reality.
As directors continue to rethink and address their organization’s strategy, RPA should be considered as one component of an array of emerging technologies that are changing the game. These solutions include artificial intelligence, cognitive computing, and machine learning. Many call this the Fourth Industrial Revolution, and for good reason. Nearly half (47%) of US jobs could be impacted by computerization, according to a 2016 report authored by Oxford University and Citibank.
Sitting on the sidelines is no longer an option. Robotics technology has moved beyond proof of concept, and the business benefits are increasingly clear and attainable. In a recent example, EY worked with the Robotics Center of Excellence for a major U.S. bank to scale robotics on a global level. Results included a significant reduction in full-time employees (FTEs) across back- and middle-office business processes and decreased runtimes for automated processes. Leading organizations will focus on the long game, planning for scale, speed and pace of adoption on the automation journey.
Boards will play an important role in helping organizations seize automation’s full advantages—reduced redundancies, improved accuracy, speed to market, and the ability to free human staff for high-value work. Vigilant corporate governance will help promote the establishment of a robust operating model and provide oversight of controls and risk management. From the highest levels, the enterprise must successfully manage changes in technology, processes, and people to seize opportunity while enhancing risk management.
The Need for Strategic Vision
Boards looking to enhance oversight of corporate strategy in response to these disruptive forces can learn from the industry’s early successes and failures.
Despite industry promises of rapid, low-cost success, automation is not a one-size-fits-all journey. The board must guide leadership to make certain that a robust operating model exists for leveraging the best-fit technologies to meet the organization’s needs.
The operating model must adapt to support a hyper-agile implementation approach. EY recently worked with the C-suite of a leading financial services corporation to design a centralized automation strategy. This strategy established a common framework to support its federated environment. Ensuring that the company has adopted the right operating model is key to accelerating technology adoption and streamlining change management to succeed in an environment that is continually evolving.
The automation journey should also be results-driven, with an emphasis on return on investment. For one global insurer, EY developed a proof-of-value to explore opportunities to automate labor-intensive back-office processes. The results helped management make an informed decision based on tangible outputs. When implemented, robotics cut the cost to deliver high-frequency tasks in half. If properly designed, the automation journey can be self-funding using a laddered process, with the cost savings realized on initial programs used to fund successive initiatives. This contrasts with the enterprise-wide implementation model common with many legacy solutions.
A robust operating model can also help mitigate risk. For example, because many automation solutions are engineered to work with current enterprise software, the operating model must account for changes in an organization’s software layer. If changes are made without considering the automation tools, they can quickly crash important processes.
The Human Equation
Along with planning for the technology changes, boards must foresee the human elements of transformation and embrace the workforce of the future.
It is not uncommon for today’s powerful RPA technology to reduce the number of humans needed on a data-intensive process from 50 people to five. A robot costs approximately one-third the price of an offshore FTE and as little as one-fifth the price of an onshore FTE, according to the Institute for Robotic Process Automation. Boards must think strategically about a company’s entire workforce mix—from where people are located to who (or what) performs specific roles.
Yes, the opportunity for cost optimization exists. But forward-thinking companies will seize the advantages of reallocating and retraining people currently in rote functions to higher-value tasks that generate business insight. The board should set clear expectations for managing human capital beyond layoffs—to leverage people to gain a competitive advantage.
The bottom line is that workforce transformation enabled by automation is coming quickly. In fact, it’s already happening. The boards that realize this soonest and come prepared to lead management on a journey that optimizes both technology and people will position their organizations to win in the long run.
Anthony Caterino is vice chair and regional managing partner of the Financial Services Organization at EY. Steve Klemash is a leader in the EY Center for Board Matters in the Americas.
While technical defenses might help stave off some attempted hacks, sooner or later a company will become a victim of cybercrime, and a contingency plan for communicating about the aftermath of an attack is critical for any organization. RANE recently reached out to several experts for their advice to companies for managing the flow of information and maintaining control of an organization’s reputation in the event of a breach.
The Initial Response
Ann Walker Marchant
“There’s a lot to gain or lose when you approach the equity you’ve built in your brand—and trustworthiness is part of the value of your brand,” says Ann Walker Marchant, CEO of The Walker Marchant Group. After a breach, an organization’s leadership must keep in mind all of the people who have placed trust in the brand. The impacted enterprise must convey that it is “willing to do whatever it takes to ensure you minimize risk to them,” she adds.
“You have to understand that it’s most important you’re communicating with your own people internally,” Christopher Winans, executive vice president and general manager at Hill+Knowlton Strategies, argues. Organizations should not allow internal stakeholders to learn about a crisis from external sources. “When your own people are finding out through press reports, it harms confidence within your [entire organization].”
“With a cybersecurity breach, you often don’t know what’s been compromised, at least at the very beginning,” Walker Marchant explains. Often, the best bet is to expect the worst. “You’ve got to assume they’ve got everything and act accordingly without appearing to create fear and panic with your internal and external audiences,” while simultaneously dealing with pressure from various audiences and stakeholders, Walker Marchant said.
Reaching Out to Regulators
A client update published by Debevoise & Plimpton LLP, titled “How to Disclose a Cybersecurity Event: Recent Fortune 100 Experience,” states that Fortune 100 companies disclosed 20 “incidents of major data breaches or cybersecurity events between January 2013 through the third quarter of 2015.” Most of the affected organizations made initial public announcements via news reports instead of a current report on Form 8-K. Debevoise & Plimpton notes that companies that did go the Form 8-K route “most often did so where the breach involved customer financial information.” Organizations, the report’s authors add, “should also be mindful of selective disclosure issues and their obligations under Regulation FD.”
Debevoise & Plimpton also warns against the risk of disclosing incomplete information regarding a breach, noting that “the ‘known’ facts may represent a small piece of the cybersecurity risk mosaic, which can require significant forensic research to assemble.” Potential inaccuracies in any disclosure represent yet another risk for organizations.
Subsequent reporting of updated cyber risk factors were largely contingent upon how breaches were initially disclosed in periodic corporate reports. In annual reports that come after a material breach, the Debevoise & Plimpton report notes, many corporations “view their annual report as an opportunity to update and tailor risk factors more generally, and the occurrence of an intervening cybersecurity event provides fodder for such fine tuning.”
Differing Perspectives Within an Organization
Caution is important, although any delay in responding in a timely manner also presents a risk for targeted enterprises. At the outset of planning the response, Winans adds, “It is better to tell your constituencies what you don’t know than it is not to tell them anything.”
However, there are often conflicting viewpoints of how to act in the immediate aftermath. “The tech guys will weigh in and say the best thing the company can do is get a hold of the FBI and find all the things in the network that are screwed up so they can take action to fix it,” says Steven Bucci, a visiting fellow for special operations and disaster management at The Heritage Foundation. “But you’d be hard pressed to find any lawyers to give their leaders that advice; instead, they’ll say it will hurt the company’s bottom line, it’ll hurt the company’s stock, and it could open up the organization to claims by competitors. While all of that, frankly, is true, that leaves the organization as vulnerable as they were before the breach—and probably also in violation with the Securities and Exchange Commission, as well as open to potential lawsuits from customers or clients.”
Still, it’s understandable that a cautious approach may appeal to many who don’t want to create panic, or those who are simply conflicted over the best course of action, Walker Marchant says. On the other hand, any delay in crafting a measured public response can result in harm to an organization’s brand equity. “Stakeholders will want to know who knew what, when, and why didn’t you tell us?”
Winans says that a clear organizational response plan that involves upper management is crucial before a crisis. “The very first thing you need to do is create a team, a coordinating committee, that is made up of all the functional parts of the company—the C-suite, the CEO or COO. Ideally, it’s got to be the leader of the company that takes charge of the situation, and you have to have people from HR, legal, operations, IT and investor relations.” For a company that answers to a variety of regulators, it’s even more important to get people in different roles together.
“That’s a team that needs to meet every day,” Winans adds. And before an actual breach takes place, that same team should be practicing how they will respond to a worst-case scenario. Winans proposes a “flight school.” “We set up people to actually play out an actual scenario,” he says. “The whole thing is designed to feel like an actual crisis.”
Lessons of a Real World Response
The Sony Pictures hack is an instance where the company was a little more forthcoming, at least with law enforcement, because they had no idea who could be penetrating their systems so extensively. Nevertheless, they suffered serious criticism and ridicule for how poorly they guarded their network.
“Exactly what the breach entailed wasn’t clear at the very beginning,” Walker Marchant says. “It was death by a thousand knife wounds because it was that trickle-down approach, because every day was something different.” Lists of salaries, copies of unreleased films, and sensitive e-mail from senior leadership were also part of the data theft. Still, Bucci argues that “while they did get beat up pretty badly,” in the end “they got through it faster and with far more sympathy from the public by saying, ‘We got hammered.’”
As recent examples of flawed responses by organizations following cyber breaches highlight the risks of incomplete or inaccurate information, boards have one clear warning: Doing nothing is not an option. The age of instant communications and 24/7 media coverage ensures that very little in the cybersecurity universe can reliably remain under wraps for long—lessons that others have already learned the hard way.
“I think the biggest mistake is deluding yourself that you can contain this and no one will find out,” Winans says. “The fact is that very often the worst thing that can happen to a company isn’t a crisis situation. It’s how they respond to it.”
About the Experts
Steven Bucci is a Visiting Fellow for Special Operations and Disaster Management, as well as primary instructor in leadership, at The Heritage Foundation.
Debevoise & Plimpton LLPis a premier law firm with market-leading practices, a global perspective and strong New York roots.
Ann Walker Marchant is recognized as a preeminent strategist and counselor with more than 20 years of experience developing and leading wide-ranging initiatives for the White House and Fortune 100 brands.
Christopher Winans, executive vice president and general manager at Hill+Knowlton Strategies in New York, has 22 years of experience in journalism, 10 of those at The Wall Street Journal.
RANE is an information services and advisory company serving the market for global enterprise risk management. Learn more at www.ranenetwork.com.