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Legal Update

DOJ Releases Updated Cyber Incident Response Guidance for Private Sector Entities

1 November 2018
Mayer Brown Legal Update

On September 27, 2018, the Computer Crime and Intellectual Property Section (“CCIPS”) of the Criminal Division in the US Department of Justice (“DOJ”) released a revised version of its Best Practices for Victim Response and Reporting of Cyber Incidents. Although primarily targeted to “smaller organizations and their legal counsel,” this guidance on preparing for and responding to cyber incidents may be helpful to private sector entities of all sizes. It expands on guidance issued by CCIPS in April 2015 and is intended to “help organizations prepare a cyber incident response plan and, more generally, to better equip themselves to respond effectively and lawfully to a cyber incident.” The updated guidance addresses new topics, including the impact of the Cybersecurity Information Sharing Act of 2015 (“CISA”) and working with external support such as cyber incident response firms.

Organized according to the chronology of cyber incident preparation, response and recovery, the revised guidance provides advice under four overarching headings:

  1. Steps to Take Before a Cyber Intrusion or Attack Occurs
  2. Responding to a Cyber Incident: Executing Your Incident Response Plan
  3. What Not to Do Following a Cyber Incident
  4. What to Do After a Cyber Incident Appears to Be Resolved

Below we outline the revised guidance and discuss the new material that the DOJ has added to incorporate information learned from companies that have responded to cyber incidents.

Steps to Take Before a Cyber Intrusion or Attack Occurs

The first section of the DOJ’s guidance focuses on steps that companies should take to prepare for and mitigate the damage associated with a cyber incident. These steps are as follows:

  1. Educate Senior Management About the Threat
  2. Identify Your “Crown Jewels”
  3. Have an Actionable Plan in Place … Now!
  4. Engage with Law Enforcement Before an Incident
  5. Have Appropriate Workplace Policies in Place
  6. Institute Basic Cybersecurity Procedures
  7. Procure Appropriate Cybersecurity Technology and Services Before an Incident Occurs
  8. Have Appropriate Authorization in Place to Permit Network Monitoring
  9. Ensure Your Legal Counsel Is Familiar with Technology and Cyber Incident Management
  10. Establish Relationships with Private and Public Cyber Information-Sharing and Analysis Organizations

Many of these topics—such as the identification of an organization’s informational “crown jewels,” implementation of incident response plans, and engagement with law enforcement—were addressed by the April 2015 guidance. However, the updated guidance builds on these and other discussions significantly. For example, the 2015 guidance discussed the value of having “ready access to the technology and services that [a company] will need to respond to a cyber incident”; the updated guidance expands on this by highlighting specific issues and benefits associated with retaining cybersecurity incident response firms and cloud storage services. In addition, building on the recommendation in the 2015 guidance to implement real-time network monitoring in a lawful manner, the updated guidance offers more detail on the applicable legal framework, including the role of CISA in “provid[ing] private entities with broad authority to conduct cybersecurity monitoring of their own networks, or a third party’s networks with appropriate consent.” (See our Legal Update.) Relatedly, the updated guidance provides an expanded discussion of information sharing, acknowledging historic private sector concerns with such sharing and highlighting how CISA and other federal guidance address some of those concerns, including with respect to federal antitrust laws.

The DOJ has also added completely new sections. For example, the updated guidance addresses the increasingly prevalent topic of oversight of cybersecurity programs by senior management and boards of directors, stating that “an organization’s senior management, board of trustees, and any other governing body responsible for making resource decisions and setting priorities should be aware of how cyber threats can disrupt an organization, compromise its products, impair customer confidence and relations, and otherwise cause costly damage.” The guidance recommends “regular briefings” and “[c]yber incident preparedness exercises” as possible strategies for satisfying this evolving governance expectation.

The guidance also devotes new sections to actions that can help prevent cyber intrusions. In a section on “[a]ppropriate [w]orkplace [p]olicies,” the DOJ recommends that organizations “adopt internal policies and rules that will help ensure that [] personnel are familiar with the incident response plan” and establish employee policies to mitigate insider threats, such as by ensuring that credentials are quickly disabled for terminated employees. In a separate, new section on instituting basic cyber hygiene, the DOJ encourages organizations to “adopt and maintain commonsense cybersecurity practices.” Examples of such practices include the use of a “reasonable patch management program,” “access controls and network segmentation” and “password management programs.” This advice expands the focus of the DOJ’s guidance from incident response to include general prescriptions for cybersecurity preparedness and the implementation of an information security program.

Responding to a Cyber Incident: Executing Your Incident Response Plan

The next section of the DOJ’s guidance provides a step-by-step approach to responding to a cyber incident. The recommended steps are:

  1. Make an Initial Assessment
  2. Implement Measures to Minimize Continuing Damage
  3. Record and Collect Information
  4. Notify

The revised guidance takes these overarching topics from the 2015 guidance and expands the discussion, adding subsections to address additional concerns. For example, the updated guidance supplements the first step’s focus on data collection activities with new advice for collaborating with incident response firms. The guidance advises companies to choose a provider that can employ “forensically sound methods of evidence collection” and data preservation techniques to ensure that information remains usable as evidence in a potential prosecution related to an attack. The guidance also discusses companies’ legal concerns about disclosing forensic reports drafted by such firms following an incident. Specifically, the guidance describes the value of sharing such documents with law enforcement and suggests strategies for mitigating associated risks, such as by sharing a summary, creating an excerpted version or providing only technical data.

The updated guidance also includes an expanded discussion of incident notification. It notes that “[a] victim of a cyber incident can receive assistance from federal agencies that are poised to investigate the incident, help mitigate its consequences, and help prevent future incidents.” In this vein, the guidance now includes a new section that highlights the “[b]enefits of [c]ontacting [l]aw [e]nforcement.” Building on the prior guidance, the DOJ describes incident response services provided by the FBI’s Cyber Action Teams. Notably, the DOJ also discusses how CISA has “made cooperating with law enforcement simpler by addressing common concerns about legal impediments to sharing information with the government.” Specifically, “CISA authorizes nonfederal entities to voluntarily share ‘cyber threat indicators’ and ‘defensive measures’ with law enforcement for a cybersecurity purpose, notwithstanding any other provision of law.”

What Not to Do Following a Cyber Incident

In this section, the revised guidance identifies certain actions that companies should not take in their response to a cyber incident. For example, the DOJ advises private sector entities against using a compromised system to communicate about an ongoing investigation or containment effort. The guidance also encourages companies not to “hack” into or damage third-party networks in responding to an incident. In 2015, the DOJ stated that attempting to gain unauthorized access to third-party networks “is likely illegal, under U.S. and some foreign laws, and could result in civil and/or criminal liability.” The revised guidance maintains this position, stating that such activity “may violate federal law and possibly also the laws of many states and foreign countries, if the accessed computer is located abroad. A violation of those laws could result in civil and criminal liability.” The updated guidance provides additional information about the potential unintended consequences of “hacking back,” such as “targeting an unwitting, innocent victim whose system is being exploited by the perpetrator” and violating third-party privacy rights. It also notes that such activity could interfere with ongoing law enforcement investigations, such as by leading a perpetrator to “change tactics or modify operations if he or she detects a hack back attempt.”

What to Do After a Cyber Incident Appears to Be Resolved

Finally, the updated guidance contains a new section addressing post-incident activities, including monitoring for “new signs of re-infection or compromise” by intruders. In addition, the DOJ advises companies to take steps to prevent future incidents, such as by “addressing shortcomings in [] security practices, acquiring resources to better secure [] systems, and fortifying relationships with law enforcement and other key response organizations.”

Conclusion

This guidance represents an evolution in the DOJ’s approach to private sector engagement on cybersecurity challenges. It was released in tandem with a cybersecurity roundtable discussion that “included many of the nation’s leading private-sector practitioners in the field of data breach response and representatives from premier cybersecurity and incident response firms in the country.”1 Since the establishment of the Cybersecurity Unit within CCIPS and the release of the first version of the DOJ’s cyber incident response guidance, “the Department [has] continue[d] to exchange ideas with and look to the private sector’s expertise and insight about how to improve cooperation between law enforcement agencies and data breach victims.” The DOJ views its updated guidance as part of this ongoing effort and as a resource for private sector entities to use in preparing for and responding to cyber incidents, especially when evaluating the risks and benefits of law enforcement engagement.

1 Press Release, DOJ, Justice Department Hosts Cybersecurity Industry Roundtable (Sept. 28, 2018), https://www.justice.gov/opa/pr/justice-department-hosts-cybersecurity-industry-roundtable.

Authors

  • Rajesh De
    Partner
    T +1 202 263 3366
  • Marcus A. Christian
    T +1 202 263 3731
  • Joshua M. Silverstein
    T +1 202 263 3208
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