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Be ready, be resilient – the opportunities and threats of AI

All Eyes on FIs Podcast: Season 1 – Episode 4

November 22, 2023

A Financial Institutions podcast episode focusing on the benefits of businesses using AI and the regulatory changes and coverage challenges faced by FIs.
Financial, Executive and Professional Risks (FINEX)

AI isn’t new, it has been used to assist us for a long time. So, what has changed? We now deal with the idea of machine learning and being able to predict future outcomes. Businesses, in this case Financial Institutions (FIs) are using the output from these machines to make decisions.

For episode four of All Eyes on FIs our speakers discuss the opportunities and threats FIs face today as AI rapidly evolves.

Benefits of AI for FIs include:

  • Customer behaviour analysis: Helping FIs to identify fraud and therefore helping to prevent future attacks.
  • Compliance and risk management: Monitoring and complying with complex regulations.
  • Internal audits: Improving workflow and efficiency.
All Eyes on FIs—Episode 4: Artificial intelligence (AI)

Risks of using AI for FIs include:

However, there are still multiple risks when using AI which is causing nervousness from FIs, these include operational, reputational and legal risks depending on how it is used and how these flaws can be magnified if the AI is malfunctioning, is hacked or producing biased or unethical outcomes.

Transcript for this episode:

AMIT TYAGI: The tricky part will come is what if the bank says, well, this wasn't our fault. This was the AI tool's fault. We get into an interesting debate about where the liability sits and if you're getting into a debate about where the liability sits, you get into a debate about where the coverage should sit.

SPEAKER: Welcome to "All Eyes on FIs", a podcast series from the WTW Financial Institutions team. Our experts have their eyes on risk management, regulatory changes, and coverage challenges faced by financial institutions of all kinds and sizes, from professional liability, to crime, and everything in between.

MIGUEL CANO: Welcome everybody to episode four of "All Eyes on FIs". My name is Miguel Cano and I am a senior associate broker here at WTW. I focus on management liability and digital asset risks for financial institutions. For today's discussion, we're going to be focusing on artificial intelligence.

We're going to be talking about some of the use cases for financial institutions, the benefits, the risks. Then we'll touch on the regulatory environment and finally, we'll wrap it up with some of the potential implications for insurance policies. Today, I have two amazing individuals who have joined me, first, we have Amit Tyagi. Amit is a partner and solicitor advocate in the London Insurance and Reinsurance group and a member of the firm's cybersecurity team. Amit provides legal advice and incident response management to victims of cyber incidents as well as response to regulatory investigations and defense claims that arise. Amit also regularly advises the insurance market and technology related claims and has a keen interest in what AI means for insurers and insurers. Amit, thank you very much for being here.

Additionally, we have Natalie Reid. Natalie Reid is a graduate analyst here at WTW. She's a part of our financial institutions claims advocacy team, where she focuses on directors and officers, professional liability, and crime claims. Natalie also has a bachelor's degree from Durham University. Natalie, thank you very much as well for being here.

To kick things off, Amit, I want to start off with you and I want to ask you about what you see regarding the types of innovations and use cases that your FI clients are currently exploring or actually implementing with AI technology.

AMIT TYAGI: Thanks, Miguel and thank you both for inviting me on this podcast. I'm very pleased to be here. CMS is one of the largest law firms in the world and while we are privately exploring what the use cases are for AI from a law firm perspective, we're also regularly speaking to our clients about the opportunities and risks created by the use of AI, in particular in the financial institutions space.

What I'd like to do is just quickly kick off with what I mean by AI, because I think there's quite a lot of debate about what that term actually means at the moment. There's so much going around in the news, it's sometimes difficult to separate what people intend by that definition. In my view, it's the use of computer systems or software to perform tasks that normally require human intelligence.

So data analytics, decision making, fraud detection, these are obvious things. But I guess the point I would like to make is artificial intelligence is not a new thing. Businesses, financial institutions have been using technology to make their life easier for a very long amount of time.

I think what's new at the moment and the reason why people are so interested is this leap that's taking place between what I would call relatively controlled electronic systems that are being used to make life easier to the new world of AI that actually learns, machine learning element that learns and predicts what's going to happen in the future, and informing the output, and using the AI's output to make decisions about what's happening within the businesses, the financial institutions that we're speaking to.

Just to give you a couple of very simple examples of where FIs are already using AI. First of all, customer behavior analysis. Now, this can operate in a number of different spheres. So on one level, it can help the financial institution spot things like fraud and if it can help spot fraud, it can help prevent fraud.

So flagging suspicious transactions, reviewing large volumes of data, and predicting the irregularity in the pattern, and understanding where that's come in, and identifying that might be an issue, and it might be a fraud issue. That's obviously one real life use case of AI at the moment.

But of course, it can also be from the other spectrum as well. So we will see the amount of data that's being produced about individuals, about corporate customers being used to effectively analyze what a particular customer is going to do and you can see the use case for this.

Well, a) it should make the customer experience a lot better because if your bank or your financial institution already knows what you're about to do, well, they should be able to do it more efficiently. But of course, if they also know what you're about to do, they may be able to sell or market a product that's more appropriate for that particular individual or that particular business.

Another couple of examples where I'm seeing AI used at the moment is in compliance and risk management. So AI can help financial institutions monitor and comply with complex regulations. Again, they will use tools like natural language understanding, reviewing knowledge graphs, providing feedback on compliance, which will allow the individual, the human at the FI to understand what their risk is and to try and operate against that and of course, what AI will be able to do is monitor and track developments in the real world much swifter than an individual could. And finally, I'm hearing stories about AI being used for internal audits and investigations within financial institutions.

So everything I'm hearing is mainly internal focused at the moment. I don't know if that's a fear about what's happening externally, but those are the things I'm hearing about and it's certainly a great opportunity for financial institutions.

MIGUEL CANO: Thanks for having me. That's pretty incredible and it seems definitely there's potential there to have a lot of impact. I think we should touch on maybe some of the potential risks and maybe, I guess, benefits that come along with implementing these technologies. Do you have any thoughts on that, Amit?

AMIT TYAGI: Yeah, I think as I mentioned at the beginning, I think the use of AI creates an enormous amount of opportunity and potential benefits for businesses. But it also comes with risks. So I think there's a bit give and take in these things. On the benefits side, of course, AI is going to enhance the efficiency, the accuracy, the scalability of data processing, of financial processes, benefits for functions and you can see this translating into quicker decisions on credit scoring.

I talked already about fraud detection. I've talked already about risk management. But ultimately, customer service is the thing that should change. All of these things should enable the FI get to a result quicker and more accurately. If that's right, and I accept it's a big if at this stage, that should ultimately lead to cost savings for that financial institution, which can ultimately be passed on to the customer as well.

And if you think about the customer experience, I think that flags up another clear benefit that I touched on earlier, which is this ability to innovate and differentiate your products as an FI to a specific user. I think there's going to be way more customizable products and financial experience that individual customers, be they individuals or be they corporates will benefit from because of the use of AI in understanding their specific needs and opportunities.

And all of those things feed in, ultimately, to an increased top line for the financial institution. If you're able to generate more revenue because you're selling products that are more accurate and more relevant to your end-user customer, that should impact on the profitability, and lower costs, and lead to a better overall service delivery.

But all of those things do come, as I say, with risks as well and while there are loads of opportunities, what I'm also hearing a lot about is a slight nervousness from FIs to maybe understand what the real risk is behind these things. So just to give you some examples there-- I think, obviously, AI can pose operational, reputational, and legal risks depending on how it's used and all of these risks become magnified if the AI itself is malfunctioning, or it's hacked, or it's producing biased or unethical outcomes. All of the risks that an FI could face, reputational damage, can be magnified significantly because an AI tool may lead to a conclusion that perhaps can't be understood, and can't be explained, and may lead to that damage regardless of the business realizing it's actually doing so and I think that point about trustworthiness and understanding the decision-making process within FIs, I think that's going to be one of the biggest challenges that the use of AI presents to financial institutions because at the moment, I think if a regulator or a customer can't understand why a decision has been made, then I think they're not going to be able to trust it and I don't think that's going to satisfy a lot of regulatory obligations at the moment and if things go wrong, that will erode trust in the business. So I think until there is an ability for the financial institutions to understand and explain how the AI they're using has reached the conclusions and the decisions it's taking, I think that's a bit of a black box and I think that will be an issue that businesses have to deal with.

NATALIE REID: I think that's a very, very important, or a few important points that you've made, Amit, essentially highlighting that AI has been in the insurance industry for some time now but its sophistication and also some AI system errors that can arise can also exacerbate the risks to FIs in their customers and by you mentioning customized AI tools for clients, I'm not sure if I'm reaching here, but we can somewhat argue that there are some client sensitive data in there and from that, I can highlight that from an FI/cyber claims trend perspective, it does show that there's three escalating threats. So from indescending order, we have data breaches, which are malicious and accidental, we also have ransomware and then finally, social engineering. So from what you've said, if there is an error in the system, these are definitely three main AI or cyber threats that FI should actually reflect on when ensuring safeguarding of their clients and themselves. So yeah, I think that's a really, really good point that you've made there, Amit, thank you.

AMIT TYAGI: Yeah, I think the use of this technology is not just in insurance companies it's in banks, it's in asset management and so it'd be interesting to hear how the use of this technology results in different risks, different issues for the insurance industry to become concerned about as well and I think we'll talk a little bit more about that later on.

MIGUEL CANO: Some very thoughtful answers from the both of you so I appreciate that. I think now we want to move on to talk a little bit about what the regulatory environment looks like. So Natalie, I'm going to pass it off to you given that you've got the legal background, you can probably speak about this a lot better with Amit than I certainly could.

NATALIE REID: Yeah, sure I can do. Yeah, I hope we can agree on this, Amit, but there is no jurisdiction that currently has AI-specific legislation regulating machine or artificial intelligence. So for instance, you may see that the UK law relies on various legislation to regulate AI such as, let's say, for instance, Data Protection Act 2018, the Equality Act 2010, etc.

So with this legislative uncertainty, could you potentially touch on some of the approaches that we're seeing regulators explore with regard to AI? And are regulators in the UK, EU, US approaching this differently?

AMIT TYAGI: Yeah, it's a really good question, Natalie and I think first point to make is you're right. I don't think there's any jurisdiction in the world that can point to themselves and say, we've got quite a sophisticated, developed AI regulatory regime. I think all of the regulators around the world are grappling with one fundamental question, about how to regulate the use of AI and that question is, essentially, balancing up the innovation opportunity versus the risk that's created by the use and this is a debate that's raging right now in the UK, in the EU, and in the US in particular and I think there are slightly different approaches that are already being signposted by the different regulators.

So to use those three broad churches, as an example, I think in the UK, we are moving towards a pro-innovation approach to AI regulation. At the moment, there's a government white paper which is literally called a pro-innovation approach to AI regulation working its way through the system and what this has made clear is that the UK government's approach is going to be, let's try and be unprescriptive.

There's going to be a risk based outlook to it, but they are focusing on regulating the most risky applications as they manifest in a specific sector, but they are effectively saying that the existing regulatory framework is the starting point for them to regulate the use of AI going forward.

So for example, for consumer protection, they're still looking at the FCA. For data issues, they'll be looking at the ICO, the FCA, and the PRA. For model risk management, they're looking at the PRA. For operational resilience, they're looking at the PRA and the FCA. They are not envisaging a standalone regulator for AI. They're envisaging the existing regulators taking on an additional remit to make sure the use of AI is regulated correctly in their particular sphere.

Now that to me says that it's going to be a low regulatory environment because you're effectively relying on existing regulations to catch up with where you are at the moment and the UK government has come out and says it sees the opportunity to be a deregulated space in this field and to promote the development of AI technology in the UK. So if you come out and say that's one of your stated intentions, then I think it probably makes sense that you're going to have a low regulatory impact.

If you contrast that to the EU, the EU seems to be mainly focused on the protection of EU citizens and it's fair to say they are going to have a more stringent approach because all AI systems are going to need to be assessed even if it appears that they pose minimal risk.

And the EU is planning to classify AI technologies into three classes, including one which is called an unacceptable risk class and if an AI system is deemed to be an unacceptable risk, they will be banned. And an example of this is if there's a risk of manipulation of the behavior of vulnerable groups.

If there's real time and remote biometric systems being flagged with the system, the EU has come out and said, it's not interested in the AI regime permitting those types of businesses from operating and then it will have high risk companies as well, which negatively or potentially negatively impact the safety of the fundamental human rights.

I think what this says to me is that the EU is going to end up adopting a directive. It's come out and says that there will be a liability directive which will favor the end user rather than the developer of the business. I might be wrong because, obviously, all these things come out in the wash and we need to see what the actual detail looks like but the stated objective of seeking to ensure consumer protection tends to suggest to me that it will be a much more regulatory oversight over AI businesses in the EU.

One thing I will say about the EU is that they've got on with it. So they were talking about potentially having some kind of rule in place by the end of this year. I think that's optimistic but it does look like by the beginning of next year, they will have a plan in place for having some kind of regulatory oversight.

That contrasts quite significantly with the US, where they've only just formulated a bipartisan group to create a commission focusing on how artificial intelligence should be regulated. Again, they're wrestling with the same question. They want to promote innovation, but they want to protect consumers and how they're going to do that is the discussion that's taking place.

My prediction is that I think it will end up being a little bit like data protection regulations around the world, where there will be a patchwork of regulations until there's a Big Bang. So the Big Bang for data protection was the GDPR we all know about that in the EU and then we've seen subsequent legislation come in the US. We've seen it in the Middle East, we've seen it in some Asian countries, which broadly follows the approach taken by the GDPR. My prediction is that because the EU is quite likely to be the first mover on AI, whatever regulations they end up introducing will probably be the regulations that end up being matched by other jurisdictions that come a bit later.

NATALIE REID: You clearly said that you see different approaches from all three jurisdictions and you're also highlighting that from the UK, there may be some low rate-- it might be like a low regulated environment or potentially deregulated space. So do you have any advice or suggestions for companies who are exploring AI and how they might deal with the legislative and regulatory uncertainty?

AMIT TYAGI: Yeah, it's a very, very difficult question. First thing is that, I think, the regulation that does end up being implemented will have an impact on where businesses decide to operate. We see this quite a lot. In low regulatory environments, businesses tend to flock to them because they see that as a lower cost base a lower barrier to entry and there's anecdotal evidence that already the UK is seeing a bit of a flow of AI-related companies because of the promised low regulatory environment.

But how do businesses make sure they comply with the myriad obligations and the patchwork nature of these regulations? And I think the answer is with great difficulty. The analogy I would draw is it's very similar to the ESG regulation that we've seen come in over the last 5 to 10 years. There are different rules in different countries, which doesn't help businesses that tend to be multinational in nature these days and operate in a number of different regulatory environments.

So on one view, the different challenges may create an environment where you have to adopt the lowest risk appetite. Because if you're operating in a number of jurisdictions and you are running the risk of being subject to regulatory oversight by all three types of regulator that we talked about before, well, you're probably going to have to go with the lowest or the highest, depending on how you look at the level of compliance and that will be to make sure that you comply with the strictest level of regulatory oversight.

Subject to that, you may decide to move to a specific area where you think your regulatory oversight would be minimal but I think the problem there comes with extraterritorial effect for legislation, which I'm predicting will be the case very similar to the GDPR, which seeks to operate outside the jurisdiction if it's capturing individuals that are European citizens, I think the AI regulations will go in the same way.

So maybe, for financial institutions, the best practical advice I give is, try and make sure that they align to a set of common standards and try and make sure that there is parallels that can be drawn out of the different regulatory frameworks and try and make sure that things like fairness, accountability, transparency, and explainability are at the forefront because if you can hit those boxes, the chances are that you should be compliant in most of the regulatory environment that's still to come.

But you can't navigate absolutely everything. I think being proactive and adopting a holistic approach to governance, making sure that they have clear policies, processes, and roles in place, and making sure there's a regular dialogue going on about regulation, collaborating with the relevant regulators and stakeholders, and making sure that regulatory framework is being adhered to, that's the only real practical advice I can give you but my prediction is that some companies will prefer to move fast, and break things, and deal with the fallout at the back end. Some will move very slowly and make sure that they are 100% compliant in everything they do, but they will then suffer from innovation and most will sit somewhere in the middle and have to work out what their risk versus reward appetite is.

For financial institutions, because of the risk-based approach that they tend to take to most decisions, my strong guess is that they will err on the side of caution, at least initially, and make sure that they are compliant with all of the regulatory implications that may affect them and that will then see a rise, exactly like we've seen in data protection, exactly like we've seen in cyber of specialist jobs and specialist risk managers in those particular areas.

NATALIE REID: Thank you for that, Amit. That's great advice for the financial institutions in the AI space and I think that, yeah, there's a lot for them to think about before they go ahead and follow through with some regulatory processes or any kind of processes they want to instill into the financial institution to ensure that both the FI and their clients or customers are protected.

So yeah, I think that's very, very important advice that Amit's given. So thank you so much and going on from there, is there any kind of ongoing litigation at the moment out there that you're keeping a close eye on due to the potential implications of AI and its uses?

AMIT TYAGI: Yeah, there are-- I'm a lawyer so I'm obviously interested in things that are happening in the legal world and if you wanted to, you could spend your whole life reading about AI and reading about developments but there's a couple of cases that I'm keeping an eye on just because I think their long-term, wider impact will be really interesting to see how the use of AI, not just by FIs but by all businesses will eventually pan out.

The first one is about intellectual property and it's the GettyImages versus Stability AI, which is a high court claim in England and essentially, GettyImages are claiming that Stability AI has unlawfully copied and processed all of its images. So we all know GettyImages If you google something on the internet and look for a picture, invariably, GettyImages will have one with a watermark on there.

They are alleging that Stability AI has ingested all of this data, which is their intellectual property, and is utilizing it for their AI tool and they are claiming damages as a result of the harm suffered from that conduct. The reason I'm interested in this is because this highlights one of the fundamental questions about the use of AI going forward.

At the moment, these tools are built on open internet knowledge. So they have scraped the internet for all of the intellectual property that's on there but a lot of that intellectual property does belong to someone else and if it's found that it's been illegal for them to use-- and I'm not just picking on Stability AI here, I'm talking about all the AI tools.

If it's held that it was illegal for them to derive their knowledge from the open source information that belongs to someone else, well I think that will have fundamental impact on the ability for these tools to function because they rely on the amount of intellectual data that they're able to ingest. If that becomes stymied or there is a cost to it, either that will slow down progress, or it will increase cost, or it will cause both. So I'm quite interested to see how that case pans out in terms of their ability to use data from other sources.

And then the other case that I'm quite interested in is the class action against OpenAI, which has been launched in America. There's a federal class action lawsuit against OpenAI, the Microsoft company that developed ChatGPT and it's all about misappropriating personal information for training purposes.

The reason I'm interested in this case is to see whether the existing laws are actually fit for purpose and what I mean by that is that the current laws being cited in this class action are all existing laws-- the Computer Fraud and Abuse Act, the Electronic Communications Privacy Act, and lots of state consumer rights and laws, and common law torts.

What I'm interested to see is, is the existing law sufficient to hold companies to account, or even for affected individuals plaintiffs to bring a claim with the right cause of action behind it, or whether we need something more bespoke to AI risks? And this builds into what I was saying about the regulations earlier.

Are we going to see countries needing to develop entirely new regulatory regimes to deal with AI, to deal with claims that come out, to deal with the penalties and sanctions that businesses that misuse AI should face? Or will the existing regulatory framework, will the existing laws in these countries be sufficient? And will it be left to the lawyers and the judges to manipulate the existing law to hold the right individuals to account if things do go wrong? So that's why I'm interested in that particular case and it's a watch this space on both of them.

NATALIE REID: Thank you, and yeah, just going off of that, essentially highlighting that litigation can prompt a change in legislation rather than new legislation then guiding the process or progress of litigation. So I think that's definitely a really, really interesting point to take there. So thank you so much for that and yeah, given that is an insurance broker and we can't help but spend some time talking about insurance and the potential implications of AI to the policies themselves, could I ask you, Miguel, if you could share a bit of insight into how we might see some of the current insurance policies change or be impacted?

MIGUEL CANO: Thanks, Natalie. I would say that in terms of the actual implications, at this point to the policies are-- there really hasn't been any implications as of yet. This technology is changing and evolving really quickly, but it's still really early on. So in terms of claims, there hasn't been many that have arisen and to the extent that there might be a claim related to AI, I think for the most part as of right now, it would be covered and just to give you two examples of this, one could be related to social engineering. So social engineering is something that-- someone sends an email pretending to be the CFO, or someone gives a call pretending to be X individual and then they trick somebody into sending money, essentially phishing and within social engineering, there's typically something called a call back feature, where if you have to send X amount of money from one account to another, typically, the company has to call back and just confirm via voice that this is actually you and you actually meant to send this money.

Well, now, there's technology within AI that can actually replicate and create fake voices for individuals that sound nearly identical and this type of technology can be used to facilitate this type of risk. As it stands right now, if this technology were used to help with these types of risks, most policies will still provide full coverage. There really hasn't been any changes to the language as of yet.

So I think, as of now, for the most part, these types of claims are going to be covered. It will just be interesting to see, if actually claims arise, how carriers will decide to exclude or change their language to potentially limit their losses related to that.

Another quick example could be on the professional liability lines of business. Really, the technology, for the most part right now, isn't being used for professional services. It's more internally. But to the extent that it begins to be used as a natural professional service, so actually replacing a human to actually create and do some service. As it stands right now, there really isn't any exclusionary language that would prevent coverage if there were a claim to arise for the AI committing some type of error in the service that they actually provide.

So implications, as of right now, really are none. If we start to see claims, if we start to see individuals actually start to use the AI technology for these types of events, it's likely that we'll see carriers either start to ask more questions or change their language to either exclude or limit their exposure there.

NATALIE REID: Thank you so much, Miguel and moving from impacts on current insurance policies, I think it would be great to also touch upon future insurance policies. So Amit, this question is to you. How do you think AI can change insurance policies in the future? And do we think the policies will always be fit for purpose or will we essentially need to alter it in future?

AMIT TYAGI: It's a really good question, Natalie and I think I would just echo what Miguel says and at the moment, it's very difficult to see how an existing insurance policy, just using a kind of-- let's use a crime policy as an example, would necessarily need to change overnight because of the use of AI. Just because an employee uses AI to be dishonest doesn't mean the policy shouldn't respond and same for computer fraud.

But I think the really interesting thing is going to be how do the insurance market, and how do regulators , and how do lawmakers deal with AI in the future? And this is why I'm particularly interested in the two cases that I talked about before because I can see a situation where the use of AI becomes so sophisticated, so ingrained in the day-to-day conduct of a business that soon there will be new claims and new risks which will need to be provided for.

So the types of thing I'm talking about is if there is a use of technology AI tool that is so intrinsic to the provision of professional service that it's ultimately considered to be part of the service, that's fine from a primary level. If it goes wrong, the client is still going to sue the bank. The bank's going to seek to recover under the insurance policy.

The tricky part will come is, what if the bank says, well, this wasn't our fault? This was the AI tool's fault. You get into an interesting debate about where the liability sits and if you're getting into a debate about where the liability sits, you get into a debate about where the coverage should sit as well because perhaps the wording of the policy is for there to be a legal liability.

Now, that might be fine because we might just end up using existing wording and we get clarification on where the liability does sit in that sense and so coverage changes. But we might not and there might be a need to develop specific policies that envisage risks that can't be allocated for liability.

So you end up with either strict liability claims or strict liability insurance policies, a bit like a parametric policy. If X happens, then Y is paid out and there doesn't need to be a finding of liability or a specific trigger event that takes place. I'm completely hypothesizing here because I haven't seen this yet.

But I think the point to make is, as the use of this technology grows, and as it becomes ingrained in the provision of professional services in the use, internally, of fraud prevention, well, what additional risks does that create? And where does that come in, in an insurance context? And who will bear the risk? And who will actually pick up the claim when it comes in?

I don't have answers to these questions, but I certainly do predict that policies will look different in the future to either deal directly with AI risks or to deal with new types of claims that we haven't even thought of yet.

MIGUEL CANO: Yeah, that's great, Amit, and just to close things up here, I think that's all the time we have. But Amit, I wanted to thank you, again, for taking the time to be here. Natalie as well, thank you to you for providing your insights.

AMIT TYAGI: Thank you.

NATALIE REID: Thank you.

MIGUEL CANO: And with that, we'll conclude our fourth episode of "All Eyes on FIs". I hope you found this insightful and we'll see you in the next podcast. Thanks very much.

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Podcast host

WTW Senior Associate Broker in the Middle Market Financial Institutions FINEX Global team

Podcast guests

Amit Tyagi
CMS Partner and Solicitor Advocate in the London Insurance & Reinsurance Group and member of the CMS cybersecurity team

Natalie Reid
WTW Graduate Analyst

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