Ep. 9: Incident Response and the Legal Landscape

Cybersecurity is not an IT problem to solve—it's a business risk to manage. In the Managing Cyber Risk podcast series, Mark Sangster, Vice President and Industry Security Strategist with eSentire, and Cybercrime Magazine’s Hillarie McClure lead conversations with cybersecurity experts, using the dollars-and-cents language of the C-suite to expose the issues, challenges and pitfalls which are often obscured by ones and zeroes.

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Consider a nightmare scenario in the corporate world: your company’s services have been shut down by a ransomware attack, with the attackers demanding millions of dollars to decrypt your systems. What’s more, they claim to have stolen gigabytes of sensitive and proprietary information, and they’re threatening to publish. It’s likely that this is the worst day of your professional life.

Now, the most important question becomes: how should you and your team respond to this cybersecurity incident?

In episode nine of our Managing Cyber Risk podcast, Mark Sangster, Vice President and Industry Security Strategist, and John Irvine, Vice President of Digital Forensics, join Cybercrime Magazine’s Hillarie McClure to discuss the extremely specialized field of Incident Response (IR) and share countless insights, such as:

• Legal implications to the decisions you make when investigating and recovering from a cybersecurity incident.
• Technical investigation and recovery efforts are only a fraction of the incident response.
• Incident response happens while emotions are running high.
• The most effective responses are planned in advance.

There are serious legal implications to the decisions you make when investigating and recovering from a cybersecurity incident

The immediate aftermath of a cybersecurity incident is a hectic, high-pressure time. Staff are rushing to restore services at the same time as trying to understand what happened and the full extent of the intrusion.

Unfortunately, the fast-paced attempts to recover can expose the organization to additional legal risk (i.e., from regulatory and governing bodies) and can erase any hope of pursuing an insurance claim or building a legal case against the perpetrators.

Mark recalls from experience that many clients (unknowingly) destroy all the evidence if they have an MSP. “They’d rip the [hard] drives out, they’d pop in new ones, they’d pull from images, they’d try to restore what they could—and they end up in a dumpster, they go past a magnet, and they’re destroyed—and then they make an insurance claim, and they realize you wiped out everything that demonstrated that this actually happened.”

John adds that “Legal defensibility is really important in an investigation because you don’t know where things are going to end up. Sure, it might be an overseas attacker…but might not.”

During an investigation, it’s essential to follow the safe practices and principles to ensure that evidence of a cybercrime is properly collected, documented, and traceable throughout its entire lifecycle—from documenting the initial investigation to creating a final report that’s admissible in court.

In a litigious world, it’s about demonstrating reasonable care and your duty of care, that you understood the risks and obligations, and that you took the right actions.

The technical investigation and recovery efforts are only a fraction of the incident response

Many of decisions made in the boardroom during a cybersecurity crisis are not technical decisions. Instead, you’re answering questions like:

• Should we pay the ransom?
• Do we call in law enforcement? If so, which agency?
• Do we need to notify a regulator?
• Do we need to disable additional services?
• Should we release a statement? What should it say?

While IR investigations provide comprehensive information that you will need to make informed decisions, organizations still struggle to translate the technical information into business-oriented terminology that executive leaders can understand and act upon.

Incident response requires incredibly specialized expertise

Incident response and the overlapping field of digital forensics are highly specialized domains—not something you want to try to learn during a crisis.

These skills are necessary to gather a complete, high-fidelity, 360 degree view of the situation to enable rapid response and recovery. A full investigation also helps you to understand the extent of the damage. In some cases, the investigation reveals that sensitive data wasn’t touched, which means that the cybersecurity incident might not need to be reported to regulators.

Plus, just because incident response is technical in nature, it’s no less of an investigation than any other crime: collect data, ask questions, interview various individuals, and go where the investigation takes you.

John proudly notes that, “Our team almost completely hails from federal, state and local law enforcement”, which allows them to bring critical skills and experience into every incident response occurrence.

Incident response happens while emotions are running high

Finding out that your organization has fallen victim to cybercrime, racing against the clock to assess the damage, thinking about the business and legal consequences, being forced into making high-stakes decisions that will shape the trajectory of your recovery…you name it.

The immediate aftermath of a cybersecurity incident can be an incredibly emotional time. Unfortunately, this can often lead to rash decisions.

There’s a huge difference between wargaming, table-topping, and whiteboarding versus dealing with uncertainty amidst a major threat to your business in real-time. That’s not to suggest that incident response planning isn’t imperative, just that planning alone isn’t enough.

Therefore, working with experienced cybersecurity practitioners is critical because they introduce calm, stability and guidance during a highly emotional time.

The most effective responses are planned well in advance

When it comes to incident response, preparation is paramount. In Mark’s words, “You don’t want to be figuring out where the emergency exits are while the building is on fire.”

The reality is that most companies will have to deal with a malicious event or even a full-blown cybersecurity incident.

The prudent approach to risk management is to accept this unwelcome truth and prepare your organization by having an IR provider on retainer, developing a cybersecurity Incident Response and Management plan, and proactively working with law enforcement agencies.

While many people think of law enforcement agencies as reactive, they are very proactive and can assist with IR planning, conducting tabletop exercises, training, securing executive buy-in, etc. In fact, law enforcement agencies work extensively with industry associations and chambers of commerce to reach small and medium-sized businesses.

Of course, the added benefit of establishing these relationships ahead of time means you know exactly who to call in the event of a cyberattack. Mark advises, “When it comes to contacting law enforcement, contact them before these things happen. Have a name, have them come in, and have them talk to you about what this looks like ahead of time.”

Beyond simply planning, be sure to test your capabilities.

John notes that, “Far too often in doing this work, we find that when somebody goes to restore their backups for the first time, they don’t work and that’s not the time you want to find that out.”

We’ll leave the closing words to John, “Security is hard and doing incident response is hard. It’s a specialized business—don’t be afraid to call in some third-party support. Unless your business is in the business of doing incident response, you’re experts in something else. So, make sure when you do have an incident happen, that you bring in somebody that can really help tie that up for you.”

Learn more about incident response and digital forensics

Listen to the full Incident Response and the Legal Landscape episode of the Managing Cyber Risk podcast series as John Irvine, Mark Sangster, and Hillarie McClure discuss digital forensics, incident response, protecting evidence once there's been a breach, and much more.