Little sympathy for merchants in disputes over PCI violations

Retailers facing hefty penalties from banks for violations of credit-card security standards get little sympathy from experts, who say merchants are often lax when it comes to security.

The question of merchant compliance to the PCI DSS standard arose this week with a Wired report on sports apparel retailer Genesco filing a $13 million lawsuit against Visa. The first-of-its-kind complaint challenges the payment card industry’s process for penalizing merchants.

The suit says that penalties from banks processing credit-card payments occur even when there is no evidence that card data has been stolen. As a result, the process amounts to an unfair business practice.

While not commenting on the merits of Genesco’s suit, experts said that retailers in general have been sloppy in their handling of credit-card security, which is why the PCI Security Standards Council was established. The council is responsible for the Payment Card Industry Data Security Standard (PCI DSS).

“Generally, the card brands do not levy these type of fines unless there’s an egregious non-compliance problem and a data breach,” Forrester Research analyst John Kindervag said on Wednesday. “As a former QSA (qualified security assessor), someone who did this for a living, ultimately this is all about money.”

“I don’t know about this plaintiff, but a lot of companies don’t want to spend any money protecting credit cards, and that’s why PCI came about.” ()

[Also see: PCS DSS compliance cuts breach risk, report says]

Gartner analyst Anton Chuvakin said he does not believe Genesco has a good case. “To me this suit, as I’m reading it, is unlikely to succeed.”

The reason: Genesco acknowledged that hackers broke into its network in 2010, but did not steal any stored data, therefore there was no violation of the PCI DSS. However, because the hackers installed a packet sniffer on the retailer’s network, they could have intercepted unencrypted card data in transit to the banks processing payments, namely Wells Fargo and Fifth Third Financial.

Genesco claims the sniffer captured no data, something Chuvakin is skeptical of.

“Criminals targeted data as it was being transmitted, and very likely successfully stole it,” he said. Visa likely noticed fraudulent charges on credit cards originating from Genesco and collected their fines from the processing banks, which in turn drew the money from the retailer’s account under an indemnification clause in the merchant’s contract with the banks.

The National Retail Federation said it believes credit-card companies are using merchants as a piggybank.

“Retailers have serious, long-held concerns that the card companies use these seemingly arbitrary guidelines to deplete merchants’ bank accounts,” the NRF said in a statement. “Some have even questioned if the system is a method not of preventing abuse, but designed for compensating the financial services industry for flaws in their fraud-prone card systems.”

Retailers do have their sympathizers. “The best outcome for the industry would be for this lawsuit to lead to the creation of an independent governing body that would assess PCI compliance to the set guidelines,” said Torsten George, vice president of worldwide marketing, products and support for security vendor Agiliance.

However, Chuvakin and Kindervag said such an independent body is not warranted. “It’s a business arrangement,” Kindervag said. “If you don’t want to deal with PCI, then don’t take credit cards in your business.”

The only other case similar to Genesco’s is a lawsuit filed last year by Utah restaurant owners against US Bank, which the restaurateurs claim wrongfully seized money from their merchant accounts, Wired reports.

The seizure occurred after Visa and MasterCard imposed fines, claiming the restaurant owners failed to secure their network, which led to fraudulent credit-card charges. The case is still pending.