The Merchants Strike Back?

David Navetta has a thought-provoking article over on InformationLawGroup that begins:

With the recent news of several restaurants teaming up to sue point-of-sale system provider Radiant Systems (a copy of the complaint can be found here) for failing to comply with the PCI Standard, it appears that some merchants may be in a mood to strike back in the aftermath of a payment card security breach. This lawsuit comes in the wake of a couple lawsuits against payment card security assessor Savvis for allegedly failing to properly validate a processors’ Visa CISP compliance (admittedly in this case it is the merchant bank suing the assessor, but a similar cause of action could exist for a merchant if its assessor makes a mistake in verifying PCI compliance). While two instances certainly don’t indicate a trend, they do indicate a potential route that merchants may consider to deflect liability arsing out of a payment card security breach.

It is possible that we will see more lawsuits by merchants against service providers, payment processors, and application/point-of-sale system providers in the coming months and years. Part of the reason is that the PCI regulatory system imposes a form of “strict liability” on merchants that suffer a security breach. Fines, penalties and the availability of recovery processes are contingent (in part) on whether or not a merchant was PCI-compliant at the time of the breach (see e.g. Visa’s ADCR). Thus, when a Qualified Incident Response Assessor (“QIRA”) comes in after a credit card breach to do an audit one of its main tasks (if not its primary goal) is to ascertain whether the merchant was PCI-compliant.

Lost in the shuffle sometimes, however, is the issue of “causation.” The question that is not being asked is whether or not PCI compliance would have prevented the breach, or whether the lack of PCI-compliance was the cause of the breach. In other words would PCI-compliance have made a difference. In some cases the answer is obvious. For example, if a merchant is holding onto sensitive authentication information, clearly PCI compliance (which requires the deletion of such data after a transaction) would have precluded a payment card breach. In other situations, however, the answer might not be as clear cut.

Read more here.

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