Preparing for battle: Cybersecurity incident response for public bodies
COMMENTARY | It may feel impossible to plan for a cyberattack, but public sector organizations can take several steps now to protect themselves, both legally and through policy.
Cybersecurity incidents can be complex and chaotic, and present unique challenges to public entities. While a ransomware event may impact a business’ operations or bottom line, a ransomware event for a local government can challenge public safety and have a ripple effect throughout a community.
Factor in a complex web of compliance obligations — from the Freedom of Information Act to new critical infrastructure incident reporting requirements — and ransomware response in the public sector demands thoughtful planning and lightning-fast decisions throughout the incident.
As an attorney specializing in critical infrastructure cybersecurity incident response, I have led incident response for hundreds of organizations, including local governments, state agencies, public universities and school divisions.
Planning and preparation for cybersecurity incidents have proven critical for successfully navigating events. Though it is impossible to predict the nuances of every incident, below are legal and policy steps an organization can take to prepare for a ransomware event.
Plan for the Worst-Case Scenario
Assume your organization will be named in a class action data breach lawsuit after a ransomware event. Take appropriate steps to protect your investigation before, during and after an incident.
Increasingly, ransomware victims are being met by service of process in a lawsuit or multiple lawsuits. How are plaintiffs (and their lawyers) finding out about incidents? Suppose a ransomware incident results in what the law describes as “access and acquisition” of personally identifiable information (such as names and social security numbers). In that case, an organization must notify the impacted individuals of a data breach.
There is no uniform federal data breach notification law; instead, it is a patchwork quilt of individual notice requirements that vary by state, many of which require notice to the state attorney general’s office.
Some state attorneys general, such as in Maine, post the data breach notification letters they receive online. This practice has given way to a cottage industry of class action plaintiffs’ lawyers who troll these websites and use publicly available letters to encourage class action lawsuits. It’s easy to follow the trail: notification letters posted on an attorney general’s site land as solicitations on a slew of plaintiffs’ attorneys’ websites. The attorneys wait until a victim bites; if and when they do, there is a basis to begin a lawsuit against the organization, often with million-dollar demands depending on the size of the impacted population.
Knowing what can result from these notices, it is critically important to investigate ransomware incidents under attorney-client privilege. This does not mean simply carbon-copying a lawyer on an email’s “CC” line. Instead, engage outside cybersecurity counsel to lead the investigation. Legal counsel should spearhead all details, from quarterbacking the incident response calls to coordinating technical vendors and approving communications. If legal counsel is not engaged, the entire investigation can be subject to discovery in later litigation.
Consider Messaging for Key Constituents
A key element in managing cybersecurity incidents is thoughtful and transparent communications.
The language of incident response is heavily nuanced, particularly in the legal realm. Cringeworthy: a client who calls legal counsel about a ransomware incident, indicating they have already notified the community that they have been “hacked” or had a “breach.”
These words immediately trigger notification obligations, and some states have short fuses on notifying impacted individuals. Instead, internal and external messaging should reflect an ongoing investigation, a commitment that further information will be forthcoming, and the organization’s commitment to protecting individuals with credit monitoring if necessary.
Evaluate Current Policies and Procedures
Assume your policies and procedures will take center stage in an investigation. What do these policies and procedures say, and are they aligned with your organization’s risk profile?
Having reviewed incident response plans for over a decade, I find many with problematic language that can be cited back to a public body in a future lawsuit. An organization should review plan language with counsel to identify potential weaknesses.
Working with legal counsel, you may identify other vulnerabilities in your operations. Consider the information technology department that has repeatedly reported it is understaffed and underequipped without a local government taking action. Statements about these gaps will likely be used against your organization in the future.
Having legal teams review incident response plans and train your technology team can help prevent these plans and communications from being used against your organization.
Translate the Technical Geek Speak
If you are in executive leadership in a public body, receiving requests for technology can be overwhelming. Take time to understand technical vulnerabilities and bolster your defenses.
If your IT department is sounding the warning bell about “end-of-life” legacy systems, it is not necessarily just trying to buy the newest and fanciest equipment; it is likely suggesting that the manufacturer no longer supports your technology and, as such, is no longer patched for malware. Legacy systems leave your organization exposed to cybercriminals. It is like having a house with a door that cannot be locked.
Have candid conversations with your IT department about the organization’s needs and why they are necessary. Prioritize investments to ensure antiquated servers and systems are quickly replaced.
Similarly, while multi-factor authentication can be a headache, it is an excellent protection against cybercriminals. Extending the door metaphor, multi-factor authentication means two keys are required to open the door, not only one. A criminal may be able to steal one key to the house, but stealing the second key in your pocket is more complicated.
Prepare Before the Storm
In the quiet before the storm, public entities can take action to minimize risks related to cybersecurity incidents and protect against potential ransomware events. Engaging outside legal counsel tightens your defenses and allows for privileged consideration of compliance requirements, plan language, and operational vulnerabilities.
Beth Burgin Waller is a principal at Woods Rogers, where she leads the Cybersecurity & Data Privacy Practice. Beth counsels local and state governments, agencies, universities, school systems, and other public organizations in preparation for and in the days after cyber incidents. She may be reached at beth.waller@woodsrogers.com.
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