Navigating Cyber Incident Reporting: Understanding the FBI's Guidance on SEC Filings and National Security

Introduction
In the evolving landscape of cybersecurity, the interplay between regulatory compliance and national security has become increasingly significant. The FBI's recent guidance on delaying the disclosure of cyber incidents to the U.S. Securities and Exchange Commission (SEC) underscores this delicate balance. This article delves into the nuances of this guidance, providing clarity for companies grappling with these complex requirements.

The New SEC Rules
In June, the SEC approved new rules requiring companies to promptly disclose "material" cybersecurity incidents. Additionally, companies must annually report their cybersecurity risk management, strategy, and governance to the SEC. These rules aim to enhance transparency and investor protection in the face of rising cyber threats.

The Challenge of Reporting
The requirement to report incidents in 8-K filings within four business days presents a challenge, especially when such disclosures could potentially compromise national security or public safety. Recognizing this, the FBI has issued guidance offering a pathway for companies to request a delay in these disclosures under specific circumstances.

FBI's Role in Delay Requests
The FBI's guidance is instrumental for companies seeking to navigate these reporting requirements while considering national security implications. The agency is responsible for collecting delay request forms from companies and forwarding viable requests to the Justice Department. This process ensures that requests for delay are thoroughly vetted, balancing regulatory compliance with national security interests.

Criteria for Delay
The key criterion for a delay is the potential threat to national security or public safety. The U.S. Attorney General plays a critical role in determining whether a company's disclosure of a cyber incident would pose such a threat. This determination is not taken lightly and involves careful consideration of the specific circumstances surrounding each incident.

Implications for Companies
For companies, this guidance offers a clear procedure to follow when they believe a cyber incident report could jeopardize national security. It encourages early engagement with law enforcement, particularly the FBI, to assess the situation and seek advice on the reporting process.

Conclusion
The FBI's guidance on delaying SEC cyber incident reporting is a significant development in cybersecurity compliance. It highlights the importance of balancing regulatory obligations with national security, ensuring that companies can respond effectively to cyber threats without inadvertently compromising critical national interests. As cyber threats continue to evolve, such guidance will be crucial for companies navigating the complex landscape of cybersecurity reporting and compliance.