[BreachExchange] WannaCry Ransomware Cyberattack Raises Legal Issues
audrey at riskbasedsecurity.com
Thu May 25 19:07:55 EDT 2017
The recent cyberattack highlights the need for firms to engage in proactive
prevention and protection.
Ransomware (malware that encrypts data pending an extortion payment) is a
recurring cyber threat that is growing more pervasive and profitable for
criminals. The most recent attack this month by the WannaCry virus
highlights the potential global impact, speed and acceleration, and scope
of the ransomware problem.
Ransomware as one unique form of cyberattack has been an increasing global
and domestic cybersecurity problem over the last several years. Ransomware
targets have included businesses, hospitals, schools, and even police
departments. Worryingly, some recent forms of ransomware are becoming
more sophisticated and resilient.
Because of the recurring nature of this type of cyberattack, in this
article we offer some steps for proactive prevention and protection and
some thoughts on the legal issues that may arise following these types of
Ransomware like WannaCry is designed to encrypt key data on a user’s
computer or network. The cyberattacker then demands that victims pay a
ransom to have their data or files decrypted or restored.
In the case of WannaCry specifically, the software demands that the victim
pay a ransom of $300 in bitcoins at the time of infection. If the user
doesn’t pay the ransom within three days, the amount doubles to $600. After
seven days without payment, WannaCry is designed to delete all of the
encrypted files and all data will be lost.
The WannaCry virus is designed to spread quickly among computer networks
and exploits a vulnerability in computers operating Microsoft Windows
without a certain security “patch” that Microsoft issued in March 2017.
Recent estimates are that WannaCry quickly spread to more than 150
countries and has affected over 100,000 organizations.
Initial Defense: What You Can Do
Cybersecurity starts with prevention and protection. Common steps a firm
and its employees can take to thwart or mitigate ransomware include the
Offline and Secure Backups
Ransomware demands are premised on the need to recover and restore data
that has been locked up. If offline and unaffected backups exist, the
ransomware demands can be disregarded and are rendered irrelevant.
The backup can be either in the form of an external physical hard drive or
with a secure cloud-computing service provider. With backups, the firm can
erase the data from the infected computers and restore its system from the
backups after a ransomware demand.
Avoiding Links or Phishing Schemes with Attachments Containing Malware
An initial line of cyber defense is to avoid the introduction of malware or
ransomware onto a network or computer to begin with. This is where the
human factor comes in. Many viruses and malware spread by tricking end
users to download them via email based on phishing campaigns, spear
phishing, or spam. The malware could be embedded in an attachment or at a
link contained in an email.
One primary defensive step the firm can take is to train and encourage its
employees to practice vigilance against key cyber risks. Cyber-aware
employees will avoid clicking on links or downloading attachments from
suspicious emails or sources.
Here are some ways to spot a “phishy” email:
Look at the email address of the sender and see if it looks legitimate.
Look for obvious typos and errors in the body of the email.
Hover over hyperlinks and read the name of the website to which they link
Exercise common sense and good judgment when assessing the legitimacy of an
email (i.e., are they asking you to reply with personal or financial
Update Operating Systems, Software, and Patches and Use Antivirus Software
Another key step is ensuring that operating systems, security software, and
patches are up to date for all systems and devices. Software makers
frequently issue security updates for their products. These updates will
often address and “patch up” security vulnerabilities.
Employees should also be reminded to regularly update the software on their
mobile and other devices. While all software should be kept up to date,
updated antivirus software is especially important.
Monitoring and Intrusion Detection
The firm can take steps to detect and block malware through monitoring and
intrusion detection. Monitoring may include analyzing basic network traffic
as well as looking for any anomalous activity on the firm’s network.
Firewalls and intrusion detection systems can help protect against and
provide alerts about unauthorized access or potential cyber threats.
Effective cybersecurity requires a tailored and risk-based approach to
safeguard information and systems. There is no one-size-fits-all
approach. Typically, a layered security approach can protect data
depending on the cyber risks, system, and information. Firms can consider
whether necessary protections are in place as part of its broader
Incident Response Plan That Is Tested
In the event of a cyberattack, the firm can deploy its incident response
plan. This plan typically includes key points of contact and a tailored
response strategy to ensure that the firm can quickly implement appropriate
steps to recover.
In the event of a ransomware demand, a number of technical and legal issues
may arise. A technical team can isolate the infected system, assess the
scope of any damage, take steps to mitigate the cyberattack, and determine
whether a decryption key may exist (low probability but worth considering).
The firm can screen any backups to ensure that they are malware free. The
technical team can work closely with counsel, as noted in the next section,
to address legal issues at all phases including a decision about contacting
law enforcement. A postincident review will be useful to highlight other
security measures and steps to protect the organization.
Common Legal Issues
The facts of each cyber incident must be carefully considered against a
host of potential legal issues. Experienced counsel can guide firms through
these issues as well as the investigation and any legal process. We have
seen a number of common legal issues that may arise during a ransomware or
cyberattack. Issues to consider include the following:
Initial Cyber Investigation under Attorney-Client Privilege
Initially, the firm must carefully assess the nature of the attack and its
scope. There are many initial considerations:
What networks, systems, or data were affected?
Is the cyber incident ongoing or has it been contained?
Has security been restored?
What, if any, data may have been exfiltrated?
Was any data “accessed” or “acquired” or reasonably believed to have been
accessed or acquired?
The answers to these and other related questions will likely take some time
to resolve. Because the answers will likely have legal consequences, it is
highly recommended that any cyber investigation be conducted under
attorney-client privilege. This will allow the firm to obtain frank and
candid legal advice as the facts are emerging.
Determining Any Notification Requirements
Depending on the facts and nature of the data, the cyber incident may
trigger a legal notification requirement. The notifications may be
obligated under contractual requirements or statutes depending on the
industry and jurisdiction of enforcers. Additionally, it is important to
note that there may be different triggering standards for the notification
As an example, in the United States, 52 jurisdictions (including 48 states,
the District of Columbia, Guam, Puerto Rico, and the Virgin Islands) have
enacted some version of a data breach notification law. Under these
laws, notification may be required for any customer whose personally
identifiable information (PII) was acquired or accessed, or reasonably
likely to have been acquired or accessed. While most states require some
form of notice to their residents depending on applicable legal standards,
some states also require notification to public agencies, such as the state
attorney general. Until a uniform federal standard is adopted, the nuances
and variations among these statutes must be reviewed and evaluated.
Response to Government Inquiries and Enforcement Actions
Regulators may seek information regarding a cyber incident. Federal and
state agencies have increased their focus on whether firms have reasonable
cybersecurity protections in place even where a firm is the victim of a
Experienced counsel can assist in responding to these inquiries and in
devising a recommended strategy with which to respond. Government inquiries
may be initiated by federal and state regulators. We are seeing cases
involving concurrent jurisdiction of regulators that may result in
Anticipating Potential Civil Litigation
The firm can consider what specific steps can be taken to avoid or mitigate
potential civil actions, including private rights of action or class
actions regarding a cyber incident. Many states allow for a private right
of action to be filed in order to recover damages. On cybersecurity
matters, there has been substantial activity involving class actions.
Engaging experienced counsel early after the cyber incident may help the
firm recognize potential litigation, and counsel can recommend steps to
anticipate and mitigate costly legal actions.
Contacting Law Enforcement
Another important question involves whether and when to contact law
enforcement. Federal authorities recommend that law enforcement be
contacted when ransomware occurs. The facts of each case must be
carefully considered by the firm. Law enforcement will likely want to
obtain relevant data about the cyber incident that is properly
authenticated under chain of custody protocols. The investigation and
prosecution of the incident by law enforcement may result in public
information and proceedings. Experienced counsel can assist in answering
questions about the criminal justice process and cyber prosecutions.
Information Sharing in the Private and Public Sectors
The sharing of cyber-threat information with others may present issues that
require legal consideration. A number of industries (such as automotive,
aviation, and financial services) have Information Sharing Analysis Centers
(ISACs). The Cybersecurity Information Sharing Act of 2015 was enacted to
establish new protections and foster information sharing by the private
sector to the government to “share cyber threat indicators and defensive
measures.” The circumstances of sharing information under this law
should be carefully considered. Communications with competitors should also
be evaluated to ensure antitrust protections are in place and to avoid
further governmental scrutiny concerning the contact with competitors.
Scope of Cyber-Insurance Coverage
While many firms have cyber insurance, whether it covers ransomware depends
on the terms of the applicable policy. Experienced counsel can review and
provide guidance on any coverage issues.
Cyberattacks such as ransomware are unfortunately becoming more pervasive.
Firms can take a number of steps to prevent and protect themselves against
this form of cyberattack.
When a cyber incident arises, experienced counsel can help identify issues
that may arise, work closely with technical specialists, and make
recommendations for how best to navigate the process. Most important to
firms is the implementation of a strategy that minimizes business
disruptions and permits a return to full business operations as soon as
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