The REvil ransomware-as-a-service operation now picks up the phone to add a threatening personal touch to its exploits: “Calling gives a very good result. We call each target as well as their partners and journalists—the pressure increases significantly.” According to a published March 16, 2021 interview with a representative of REvil – also known as Sodinokibi, the group has “big plans for 2021.”
Probably the more interesting point made by this REvil representative was the answer to the following question: “Do your operators target organizations that have cyber insurance?” The answer is not much of a surprise: “Yes, this is one of the tastiest morsels. Especially to hack the insurers first—to get their customer base and work in a targeted way from there. And after you go through the list, then hit the insurer themselves.” This is the first confirmation from an actual ransomware gang that they target cyber insurance policyholders.
Articles from the Associated Press and ProPublica years earlier suggest that cyber insurers were inadvertently driving up ransomware attacks but neither outlet provided any hard facts to back up their supposition. Indeed, a leading broker took the natural counterpoint: “[A]lthough no one wants to support cyber criminals, organizations are forced to weigh the option of paying ransoms against the risk of operational disruptions that could last weeks or months and cost far more.”
It was never hard to imagine, however, that buying cyber insurance actually places a target on those companies who buy it and do not likely have the security resources necessary to stop ransomware gangs – especially given carriers may be inadvertently providing a roadmap to their house. Indeed, last year one major cyber insurer was purportedly targeted by the Maze ransomware gang. And, as of March 2021, there were at least two ongoing investigations involving attacks on major cyber insurers. Unless things change, it will only get worse for insurers and brokers given they are the new holders of the crown jewels.
One tactic that can impede the current claims challenge facing the industry is building on what was recently begun by AIG – a thought leader in this space for over two decades. In January 2021, AIG became the first lead cyber insurer to require ransomware co-insurance across the board – mandating that insureds share in paying a ransom payment. Following this lead, the larger markets began hardening on price and their underwriting requirements. Other markets immediately began to take advantage – only temporarily repairing the holes in the dike. As pointed out by Inside P&C: “The retrenchment of capacity and continued upward pricing pressure also continues a reordering of the market in which some of the largest names in US cyber insurance cede market share to upstart InsurTechs.”
Despite the fact cyber insurer MGAs are heavily funded and are now grabbing as much market share as they can, they still use paper backed by the largest reinsurers in the world – who frankly probably care more about their own profits rather than the market growth strategies of unrelated companies. In other words, any retrenchment may also eventually hit the MGAs when treaties get renegotiated.
This is not K&R coverage where lives are typically at stake. Once the ransomware gangs recalibrate knowing there is no available insurance payment, the incidents will resemble earlier times, namely demands that are less frequent and for lower amounts. These threat actors want to go in and out as fast as possible given they know that the data itself likely has very little real value on the Dark Web – it’s the urgent threat of release that has exploitive value. If there is no expeditious insurance payment, the actual value of the target diminishes.
Insurance dollars are actually better spent helping insureds bolster their security rather than the coffers of criminals – especially because even with a payment there is no guarantee that data would be properly decrypted or that a Dark Web release or sale would not take place. There is much that can be done to assist insureds improve their risk profile and better avoid ransomware exploits. Some very basic steps include developing trusted partner relationships with vendors and law enforcement before an incident takes place; retaining a security expert to evaluate the current readiness profile; providing consistent education and training of staff; and developing or updating a Business Continuity Plan.
On a more technical level, full and incremental backups should be consistently performed like your company’s life depended on it; weak passwords of service accounts should be removed; system logs should be maintained and monitored; employee access to sensitive data and information limited; operating systems and applications timely patched; users with admin privileges evaluated to ensure passwords are strong and secure; system safeguards such as Windows Defender Credential Guard deployed; port connections monitored and unnecessary ones removed, etc., etc., etc. The relevant protocols all have a common goal – harden security sufficiently so that the bear decides to run after the slower runner. If everyone ends up becoming a fast runner, the hungry bear will eventually tire of the chase and just eat something else for food.
With a robust cyber insurance policy in place, most every resource necessary to assist a ransomware victim is already available to an insured. By focusing on these other valuable first-party coverages, improving an insured’s risk management profile, and curtailing ever increasing payouts to criminals, the industry will continue with its meteoric rise.
The day before the Colonial Pipeline ransomware attack went public, global insurer AXA announced it would cease writing cyber-insurance policies in France that reimburse policyholders for ransomware extortion payments. This is hopefully the start of a much larger trend.
On February 16, 2021, The Sedona Conference (TSC) – a nonpartisan, nonprofit research and educational institute “dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation and intellectual property rights”, released its final “Commentary on a Reasonable Security Test“. TSC is well known for previously helping Courts around the country determine the proper contours of e-discovery.
The Sedona Conference Reasonable Security Test consists of “B2 – B1 < (P x H)1 – (P x H)2” where B represents the burden, P represents the probability of harm, H represents the magnitude of harm, subscript 1 represents the controls (or lack thereof) at the time the information steward allegedly had unreasonable security in place, and subscript 2 represents the alternative or supplementary control. 22 SEDONA CONF. J.at 360.
TSC’s Commentary should be carefully studied for numerous reasons, including the fact TSC applies it to actual recent enforcement actions and provides solid arguments for its judicial application. No different than its highly cited e-discovery initiatives, this new TSC approach may very well be relied on by courts tackling the important question of what constitutes reasonable security in the context of a data breach litigation or enforcement action.
On January 28, 2021, the National Cybersecurity Alliance encouraged individuals this Data Privacy Day to “Own Your Privacy” by “holding organizations responsible for keeping individuals’ personal information safe from unauthorized access and ensuring fair, relevant and legitimate data collection and processing.” Indeed, the NCSA recognizes “[p]ersonal information, such as your purchase history, IP address, or location, has tremendous value to businesses – just like money.”
The NCSA “data as money” perspective is not a new concept. In fact, it was hoped that Data Privacy Day 2016 would usher in a system for consumers to easily monetize their private data – a hope that has yet to materialize five years later. Still, in the same way a bank protects money, there can be no adequate privacy without adequate security.
Richard Clarke – a security advisor to four U.S. presidents, properly recognized in 2014: “Privacy and security are two sides of the same coin.” The ransomware epidemic of 2020 should inform everyone why Data Privacy Day 2021 solidly places privacy and security on the same level. There can be little respect for the privacy rights of consumers – whether monetized or not, without an adequate effort at securing such data. Some companies such as Microsoft – last year’s champion of Data Privacy Day, recognize the need to continually push the security envelope in order to properly protect consumer privacy rights. Accordingly, these companies go the extra distance and often work hand-in-hand with law enforcement to take down online criminal enterprises such as Emotet.
Going forward in 2021, companies safeguarding consumer data must recognize that the lines have blurred between nation state APT attacks – focused on the slow espionage of large companies, and criminal enterprises looking for quick financial hits. For example, the lateral movement hallmarks of an APT attack are now routinely used during Ryuk ransomware exploits. Moreover, the recent SolarWinds Orion Platform exploit highlights the need to focus on supply chains when protecting consumer data.
Focused security efforts would quickly stop being left on corporate “to do” lists if there was an applicable federal law in place for companies nationwide – not just the hybrid privacy/security state laws now applicable to only some companies. Unfortunately, despite high hopes in 2019, there was little bipartisan push for a federal privacy law these past few years. That dynamic might change in 2021.
Former California Attorney General Kamala Harris’s 2012 annual privacy report opens with the words: “California has the strongest consumer privacy laws in the country.” During her tenure, California enjoyed “a constitutionally guaranteed right to privacy, over seventy privacy-related laws on the books, and multiple regulatory agencies set up to enforce these laws.” As the new year progresses, the current Vice President may very well prod Congress for the sort of California “privacy pride” she once enjoyed on a state level. Given the current one-party rule, there is certainly no longer any excuse available to politicians looking to continue kicking the “federal privacy law can” around Capital Hill.
A recent phase of the ongoing two-pronged cyber war between Russia/Iran/North Korea and China against the United States has taken an ugly turn. The Russian faction has launched various sophisticated ransomware attacks against healthcare providers and hospital systems across the United States.
Taking into consideration the old adage: “If you fail to plan, you plan to fail,” healthcare providers and hospital systems should immediately seek out specialized cybersecurity experts who are currently fighting this battle before it is too late.
By way of background, Uber sustained a data breach in September of 2014 that was investigated by the FTC in 2016. Uber designated its CSO – Joseph Sullivan, to provide testimony regarding the incident. Within ten days of providing testimony to the FTC, Sullivan received word Uber was breached again but rather than update his testimony before the FTC he allegedly tried very hard to conceal the incident from the FTC. Indeed, Sullivan allegedly went so far as to concoct a bug bounty program cover story and asked the hackers to sign an NDA as a condition of their getting $100,000 in bitcoin.
The Special Agent’s supporting affidavit swears that “there is probable cause to believe that the defendant engaged in a cover-up intended to obstruct the lawful functions and official proceedings of the Federal Trade Commission. . . . It is my belief that SULLIVAN further intended to spare Uber and SULLIVAN negative publicity and loss of users and drivers that would have stemmed from disclosure of the hack and data breach.”
In other words, a CSO allegedly spared his employer “negative publicity and loss of users” by inaccurately describing an incident and failing to disclose it in timely manner. Even though the alleged conduct of Uber’s former CSO may have pushed the needle into the red zone, there are also potential arguments in his favor. In coming up with one such counterargument, several Forrester analysts suggest: “Sullivan did not inform the FTC during the sworn investigative hearing because he couldn’t have: Sullivan learned of the 2016 breach 10 days later. To inform the FTC, Sullivan would have needed to reach out and inform them about a separate, new, but similar breach. There’s also some confusion as to whether Sullivan was under any legal obligation to do so.”
Whatever happens in this particular case, the fact remains CISOs sometime inadvertently play too close to the edge. The underpinnings of an incident are whatever they are – no one can or should ever try to morph them into something different. Good legal and IT counsel will mitigate loss and certain exposures but only with the assistance of CISOs and CSOs who recount events rather than fabricate them. Not surprisingly given no company is immune to a breach, it’s only the cover-up that will ever hurt and not the incident itself.
On April 30, 2020, ZDNet reported that there have been more than 1,000 SEC filings over the past 12 months listing ransomware as a risk factor – with more than 700 in 2020 alone. These filings include annual reports (10K and 20F), quarterly reports (10Q), and registration forms (S1).
Even the most sophisticated technology companies now insert the word “ransomware” into their Risk Factors section. SeeAlphabet, Inc., Form 10-Q, dated April 28, 2020, at 50 (“The availability of our products and services and fulfillment of our customer contracts depend on the continuing operation of our information technology and communications systems. Our systems are vulnerable to damage, interference, or interruption from terrorist attacks, natural disasters or pandemics (including COVID-19), the effects of climate change (such as sea level rise, drought, flooding, wildfires, and increased storm severity), power loss, telecommunications failures, computer viruses, ransomware attacks, computer denial of service attacks, phishing schemes, or other attempts to harm or access our systems.”).
As reported by ZDNet, companies as varied as American Airlines, McDonald’s, Tupperware, and Pluralsight also list ransomware as a potential risk to their business.
By inserting the word “ransomware” into a Risk Factors section, reporting companies may have elevated the relevant standard for companies who do not reference ransomware. By way of background, in October 2011, the SEC began planting cyber risk disclosure seeds when it issued non-binding disclosure guidance regarding cybersecurity risks and incidents. Back in 2011, the SEC wrote: “Although no existing disclosure requirement explicitly refers to cybersecurity risks and cyber incidents, a number of disclosure requirements may impose an obligation on registrants to disclose such risks and incidents.” Seven years later, this non-binding guidance became binding.
On February 26, 2018, the SEC issued binding guidance that recognizes: “Companies face an evolving landscape of cybersecurity threats in which hackers use a complex array of means to perpetrate cyber-attacks, including the use of stolen access credentials, malware, ransomware, phishing, structured query language injection attacks, and distributed denial-of-service attacks, among other means.” By expressly listing ransomware two years ago in its Statement, the SEC was making it quite clear that the current threat landscape includes the risk of ransomware and that directors and officers have to address this likely risk.
More to the point, the Statement and Guidance on Public Company Cybersecurity Disclosures instructs “that the development of effective disclosure controls and procedures is best achieved when a company’s directors, officers, and other persons responsible for developing and overseeing such controls and procedures are informed about the cybersecurity risks and incidents that the company has faced or is likely to face.”
Not surprisingly, the failure to disclose a prior ransomware attack would also be actionable. SeeSEC Statement at 14 (“In meeting their disclosure obligations, companies may need to disclose previous or ongoing cybersecurity incidents or other past events in order to place discussions of these risks in the appropriate context. For example, if a company previously experienced a material cybersecurity incident involving denial-of-service, it likely would not be sufficient for the company to disclose that there is a risk that a denial-of-service incident may occur.”).
If ransomware incidents were avoided altogether, however, there would be no liability attached to associated filings no matter what was communicated to the market. Moreover, even when attacks were not avoided, little disclosure risk would exist if the company applied best practices to avoid such an incident and provided an accurate accounting of what took place when an incident did take place. To that end, deploying proactive approaches considered state-of-the-art when dealing with ransomware risk will naturally mitigate against any potential SEC disclosure risk.
On April 17, 2020, it was reported that researchers at Finland’s Arctic Security found “the number of networks experiencing malicious activity was more than double in March in the United States and many European countries compared with January, soon after the virus was first reported in China. ”
Lari Huttunen at Arctic Security astutely pointed out why previously safe networks were now exposed: “In many cases, corporate firewalls and security policies had protected machines that had been infected by viruses or targeted malware . . . . Outside of the office, that protection can fall off sharply, allowing the infected machines to communicate again with the original hackers. “
Tom Kellerman – a cybersecurity thought leader, distills it this way: “There is a digitally historic event occurring in the background of this pandemic, and that is there is a cybercrime pandemic that is occurring.”
During our Cyber Pandemic, companies recognizing and properly addressing the potential damage caused by threat actors will not only survive minor short-term hits to their bottom line caused by paying outside resources, they will likely be the ones coming on top after both Pandemics subside. There is definitely a light at the end of the tunnel for those willing to take the ride – just continue using trusted vehicles to get you there.
When implementing COVID-19 business continuity plans, companies should take into consideration security threats from cybercriminals looking to exploit fear, uncertainty and doubt – better known as FUD. Fear can drive a thirst for the latest information and may lead employees to seek online information in a careless fashion – leaving best practices by the wayside.
According to Reinsurance News, there has already been “a surge of coronavirus-related cyber attacks”. Many phishing attacks “have either claimed to have an attached list of people with the virus or have even asked the victim to make a bitcoin payment for it.” Not all employees are accustomed to the risks from a corporate-wide work from home (WFH) policy given the previous lack of intersection between work and personal computers.
One cyber security firm released information outlining these WFH risks. And, another security provider offers a common-sense refresher: “If you get an email that looks like it is from the WHO (World Health Organization) and you don’t normally get emails from the WHO, you should be cautious.” In addition to recommendations made by security consultants, there are privacy-forward recommendations that will necessarily mitigate against phishing exploits. For example, WFH employees should be steered towards privacy browsers such as Brave and Firefox to avoid fingerprinting and search engines such as Duckduckgo for private searches. A comprehensive listing of privacy-forward online tools is found at PrivacyTools.IO.
Criminals have already exploited the current FUD by creating very convincing COVID-19-related links. As reported by Brian Krebs, several Russian language cybercrime forums now sell a “digital Coronavirus infection kit” that uses the Hopkins interactive map of real-time infections as part of a Java-based malware deployment scheme. The kit only costs $200 if the buyer has a Java code signing certificate and $700 if the buyer uses the seller’s certificate.
At a very basic level, WFH employees should be reminded not to click on sources of information other than clean URLs such as CDC.Gov or open unsolicited attachments even if they appear coming from a known associate. Now that banks, hotels, and health providers are sending emails alerting their clients of newly-implemented COVID-19 procedures, it is especially easy to succumb to spear phishing exploits – which is the hallmark of state-sponsored groups. As recently reported, government-backed hacking groups from China, North Korea, and Russia have begun using COVID-19-based phishing lures to infect victims with malware and gain infrastructure access. These recent attacks primarily targeted users in countries outside the US but there should be little doubt more groups will focus on the US in the coming weeks. Until ramped up testing demonstrates that the COVID-19 risk has passed, companies are well advised to focus some of their security diligence on these targeted attacks.
The CDC reports in its latest published statistics there were 802,583 reported cases of COVID-19 and 44,575 associated deaths. Without a doubt, this pandemic is certainly much worse that the Swine Flu pandemic as previously reported by the CDC. Moreover, the current “panic pandemic” certainly shows no indications of subsiding.
On April 30, 2020, it was reported Tonya Ugoretz, deputy Assistant Director of the FBI Cyber Division, stated the FBI’s Internet Crime Complaint Center (IC3) is currently receiving between 3,000 and 4,000 cybersecurity complaints daily – IC3 normally averages 1,000 daily complaints.
UPDATE: May 6, 2020
On May 5, 2020, a joint alert from the United States Department of Homeland Security Cybersecurity and Infrastructure Security Agency and the United Kingdom’s National Cyber Security Centre warned of APTs targeting healthcare and essential services.
The alert warned of “ongoing activity by APT groups against organizations involved in both national and international COVID-19 responses.” This May 5, 2020 alert follows an April 8, 2020 Alert that warned in broader terms of malicious cyber actors exploiting COVID-19.
APTs are conducted by nation-state actors given the level of resources and money needed to launch such an attack. Moreover, they generally take between eight and nine months to plan and coordinate before launching. It is particularly disheartening that these recent attacks include those launched by state-backed Chinese hackers known as APT 41. As one cybersecurity firm points out in a recently-released white paper: “APT41’s involvement is impossible to deny.”
Distilled to its essence, the uncovered APT41 attacks mean that before COVID-19 was even on US shores, Chinese state-actors were planning attacks targeting the healthcare and pharmaceutical sectors. One can only hope the cyberattacks were not coordinated alongside the spread of the virus – a virus that only became public months after a coordinated attack would have been first planned.
The apparent reason for the large fine was the fact that “in 2010, [the Office for Civil Rights (OCR)] investigated URMC concerning a similar breach involving a lost unencrypted flash drive and provided technical assistance to URMC. Despite the previous OCR investigation, and URMC’s own identification of a lack of encryption as a high risk to ePHI, URMC permitted the continued use of unencrypted mobile devices.”
As with most OCR enforcement actions, there is typically an industry wide message with each large fine – in this case there are two, namely the failure to encrypt will simply no longer be tolerated and once given a pass by OCR be sure not to waste it.
UPDATE: December 3,
In keeping with its apparent practice of announcing HIPAA violation resolutions in clusters, on November 7, 2019, OCR announced a $1.6 million penalty against the Texas Health and Human Services Commission for violations of the Privacy and Security Rules had between 2013 and 2017. The primary breach occurred when “an internal application was moved from a private, secure server to a public server and a flaw in the software code allowed access to ePHI without access credentials.” OCR also determined that in addition to the impermissible disclosure, there was a failure “to perform an accurate, thorough, and enterprise-wide risk analysis that meets the requirements of45 C.F.R. § 164.308(a)(l)(ii)(a) [Security Rule].” Interestingly, the OCR applied its new civil money penalty caps published in April.
And, on November 27, 2019, OCR revealed its enforcement settlement with a hospital network that sent bills to patients containing “the patient names, account numbers, and dates of service” of 577 other patients. Sentara Hospitals – based in Virginia and North Carolina, did not think such information was protected health information (PHI) and only notified the 8 patients where there was also a disclosure of treatment information. Given that Sentara “persisted in its refusal to properly report the breach even after being explicitly advised of their duty to do so by OCR”, it was stuck with a $2.175 million penalty. Given that PHI has been interpreted to include healthcare payment information linked to a specific individual, Sentara was obviously taking a chance when it ignored OCR’s advice. On the other hand, protected health information is expressly defined to mean “individually identifiable health information” so there was at least a colorable argument that payment information – even if related to the provision of healthcare, is not “health information” in any direct sense. 45 CFR § 160.401.
Providing some year-end advice that should also not be disregarded, on December 2, 2019, OCR released its Fall 2019 Cybersecurity Newsletter focusing on ransomware and how covered entities and business associates should apply the Security Rule as a mitigation tool against this threat.
These latest announcements were clustered to push one primary message, namely do not disregard explicit counsel from OCR given that when it comes to the OCR it most certainly holds a grudge when ignored. In addition, CE’s and BA’s are well advised to deploy an enterprise-wide risk analysis that determines whether there are out-facing vulnerabilities that should be patched. And finally, as shown by the significant amount assessed against the University of Rochester Medical Center, future disregard of encryption as a risk mitigation tool will likely lead to enhanced penalties going forward.