homepage
Open menu Go one level top
  • Train and Certify
    • Get Started in Cyber
    • Courses & Certifications
    • Training Roadmap
    • Search For Training
    • Online Training
    • OnDemand
    • Live Training
    • Summits
    • Cyber Ranges
    • College Degrees & Certificates
    • NICE Framework
    • DoDD 8140
    • Specials
  • Manage Your Team
    • Overview
    • Security Awareness Training
    • Voucher Program
    • Private Training
    • Workforce Development
    • Skill Assessments
    • Hiring Opportunities
  • Resources
    • Overview
    • Reading Room
    • Webcasts
    • Newsletters
    • Blog
    • Tip of The Day
    • Posters
    • Top 25 Programming Errors
    • The Critical Security Controls
    • Security Policy Project
    • Critical Vulnerability Recaps
    • Affiliate Directory
  • Focus Areas
    • Blue Team Operations
    • Cloud Security
    • Digital Forensics & Incident Response
    • Industrial Control Systems
    • Leadership
    • Offensive Operations
  • Get Involved
    • Overview
    • SANS Community
    • CyberTalent
    • Work Study
    • Instructor Development
    • Sponsorship Opportunities
    • COINS
  • About
    • About SANS
    • Why SANS?
    • Instructors
    • Cybersecurity Innovation Awards
    • Contact
    • Frequently Asked Questions
    • Customer Reviews
    • Press Room
  • Log In
  • Join
  • Contact Us
  • SANS Sites
    • GIAC Security Certifications
    • Internet Storm Center
    • SANS Technology Institute
    • Security Awareness Training
  • Search
  1. Home >
  2. Blog >
  3. Cloak Your Incident Investigation with Confidentiality
370x370_Benjamin-Wright.jpg
Benjamin Wright

Cloak Your Incident Investigation with Confidentiality

September 16, 2015

Summary: When an enterprise investigates a data security incident, it is often wise to involve legal counsel early. Counsel may be able to ensure the details of the investigation are kept confidential by law.

Infosec Law and Politics Are Dangerous.

The law and politics surrounding data security are highly adversarial. Legal and political adversaries have incentive to prove that an enterprise like a corporation or a government agency made a mistake (e.g., suffered a breach).

Plaintiff lawyers these days make a lot of money suing enterprises for breaches of patient or customer data.

And, politicians like state attorneys general attract a lot of media attention by hollering at local companies or healthcare entities that have lost personal data.

There is nothing inherently wrong with lawyers bringing lawsuits or politicians complaining in the media.

But an enterprise does not want to expose itself to these attacks if it can avoid them.

Legal Standards Are Subjective and Open to Interpretation.

No enterprise desires to expose sensitive data that has been entrusted to it. But legally speaking, whether data has been "exposed" in any given situation can be a controversial issue. The enterprise and its infosec team may honestly conclude, after carefully reviewing the facts, that the security of data was not breached.

But an adversary, looking at the same facts, might conclude that a breach did happen.

Alternatively, if the enterprise does announce it had a breach, the adversary might conclude the enterprise handled the breach incorrectly and the adversary might exploit this conclusion to extract money or attract attention.

No enterprise wants to give its adversaries unnecessary ammunition to argue that it made a mistake.

Legal Adversaries Can Disagree with the Enterprise's Interpretation of the Facts.

A case in point is a breach at Lucile Packard Hospital in California. In that case, the hospital saw it had an incident; it conducted an investigation; it reached a conclusion from its investigation; and it acted on its conclusion. The hospital concluded that as of a certain date it had suffered a breach and promptly after that date it gave notice of the breach to patients.

Then an adversary, the California Department of Public Health, disagreed with the conclusion of the hospital's investigation. The CDPH said the hospital knew it had a breach two weeks earlier than the date the hospital determined it had the breach. Therefore, said CDPH, by law the hospital sent the notices out late. The health department tried to fine the hospital $250,000.

The hospital disagreed. The parties eventually settled this disagreement for a mere $1100, and both parties declared victory. (smiley face)

But the lesson of the case is that after an enterprise like a hospital conducts an investigation, an adversary has incentive to review the details of the investigation, and second-guess the analysis and conclusion of the investigation.

For the enterprise, the risk that an adversary will comb back through an internal investigation is dangerous. For Packard Hospital the risk ultimately (after lots of argument) cost only $1100. But in other cases the risk could cost much more.

Data Investigations are Tricky.

Data holders like universities and the Packard Hospital commonly conduct investigations of incidents. At the outset of any particular investigation, they don't know what the conclusion will be. They must collect myriad facts and then evaluate those facts.

In infosec law the evaluation of facts is often not a simple, cut-and-dried exercise. The investigation can face many abstract questions, such as:

A. What is definition of a "breach"? and

B. At what point does the enterprise have enough credible evidence to conclude it did have a breach for which notice must be given?

The Packard Hospital case was all about question B.

Subjective Legal Standards Yield Conflicting Conclusions.

Conclusions to these abstract questions are often governed by subjective standards, such as whether the data subjects were exposed to a significant risk of harm. When standards are subjective, different people can draw contrary conclusions from the same set of facts.

When an enterprise sees an incident, it conducts an internal investigation, gathering and assessing the facts. The investigation might conclude, for example, there is no breach because there is no significant risk of harm to data subjects. So the enterprise may honestly decide not to give notice of breach.

But adversaries like legislators, plaintiff lawyers or a state health department would love to second guess the enterprise. They'd like to review the enterprise's investigation . . . all the nitty, gritty details. And they might conclude that there was a significant risk of harm, there was a breach, and therefore the enterprise should be punished for having a breach and for failing to give notice!

The Enterprise Longs for Confidentiality.

Accordingly, the enterprise has incentive to keep its investigation confidential.

Non_disclosure.JPG

One way to promote confidentiality is to involve a lawyer early in the investigative process. The lawyer may cloak the investigation with legal confidentiality under a doctrine called "attorney work product."

If the details of an investigation qualify as attorney work product, then those details cannot be forced out through a subpoena, a lawsuit or other legal process. That is powerful.

Coordinate with Your Attorney in Advance.

Whether and how attorney-work-product should apply to an investigation is to be decided by the attorney in question. The attorney applies the work product doctrine according to standards of law and professional ethics.

In other words, the message to DFIR folks is this: Get to know your legal department. Talk about the attorney-work-product doctrine. Set procedures for invocation of it, before the next incident investigation arises.

What do you think of this idea?

==

Benjamin Wright is an attorney in private practice. At the SANS Institute, he teaches the Legal 523 course, known as Law of Data Security and Investigations.

Share:
TwitterLinkedInFacebook
Copy url Url was copied to clipboard
Subscribe to SANS Newsletters
Join the SANS Community to receive the latest curated cybersecurity news, vulnerabilities, and mitigations, training opportunities, plus our webcast schedule.
United States
Canada
United Kingdom
Spain
Belgium
Denmark
Norway
Netherlands
Australia
India
Japan
Singapore
Afghanistan
Aland Islands
Albania
Algeria
American Samoa
Andorra
Angola
Anguilla
Antarctica
Antigua and Barbuda
Argentina
Armenia
Aruba
Austria
Azerbaijan
Bahamas
Bahrain
Bangladesh
Barbados
Belarus
Belize
Benin
Bermuda
Bhutan
Bolivia
Bonaire, Sint Eustatius, and Saba
Bosnia And Herzegovina
Botswana
Bouvet Island
Brazil
British Indian Ocean Territory
Brunei Darussalam
Bulgaria
Burkina Faso
Burundi
Cambodia
Cameroon
Cape Verde
Cayman Islands
Central African Republic
Chad
Chile
China
Christmas Island
Cocos (Keeling) Islands
Colombia
Comoros
Cook Islands
Costa Rica
Croatia (Local Name: Hrvatska)
Curacao
Cyprus
Czech Republic
Democratic Republic of the Congo
Djibouti
Dominica
Dominican Republic
East Timor
East Timor
Ecuador
Egypt
El Salvador
Equatorial Guinea
Eritrea
Estonia
Ethiopia
Falkland Islands (Malvinas)
Faroe Islands
Fiji
Finland
France
French Guiana
French Polynesia
French Southern Territories
Gabon
Gambia
Georgia
Germany
Ghana
Gibraltar
Greece
Greenland
Grenada
Guadeloupe
Guam
Guatemala
Guernsey
Guinea
Guinea-Bissau
Guyana
Haiti
Heard And McDonald Islands
Honduras
Hong Kong
Hungary
Iceland
Indonesia
Iraq
Ireland
Isle of Man
Israel
Italy
Jamaica
Jersey
Jordan
Kazakhstan
Kenya
Kingdom of Saudi Arabia
Kiribati
Korea, Republic Of
Kosovo
Kuwait
Kyrgyzstan
Lao People's Democratic Republic
Latvia
Lebanon
Lesotho
Liberia
Liechtenstein
Lithuania
Luxembourg
Macau
Macedonia
Madagascar
Malawi
Malaysia
Maldives
Mali
Malta
Marshall Islands
Martinique
Mauritania
Mauritius
Mayotte
Mexico
Micronesia, Federated States Of
Moldova, Republic Of
Monaco
Mongolia
Montenegro
Montserrat
Morocco
Mozambique
Myanmar
Namibia
Nauru
Nepal
Netherlands Antilles
New Caledonia
New Zealand
Nicaragua
Niger
Nigeria
Niue
Norfolk Island
Northern Mariana Islands
Oman
Pakistan
Palau
Palestine
Panama
Papua New Guinea
Paraguay
Peru
Philippines
Pitcairn
Poland
Portugal
Puerto Rico
Qatar
Reunion
Romania
Russian Federation
Rwanda
Saint Bartholemy
Saint Kitts And Nevis
Saint Lucia
Saint Martin
Saint Vincent And The Grenadines
Samoa
San Marino
Sao Tome And Principe
Senegal
Serbia
Seychelles
Sierra Leone
Sint Maarten
Slovakia (Slovak Republic)
Slovenia
Solomon Islands
South Africa
South Georgia and the South Sandwich Islands
South Sudan
Sri Lanka
St. Helena
St. Pierre And Miquelon
Suriname
Svalbard And Jan Mayen Islands
Swaziland
Sweden
Switzerland
Taiwan
Tajikistan
Tanzania
Thailand
Togo
Tokelau
Tonga
Trinidad And Tobago
Tunisia
Turkey
Turkmenistan
Turks And Caicos Islands
Tuvalu
Uganda
Ukraine
United Arab Emirates
United States Minor Outlying Islands
Uruguay
Uzbekistan
Vanuatu
Vatican City
Venezuela
Vietnam
Virgin Islands (British)
Virgin Islands (U.S.)
Wallis And Futuna Islands
Western Sahara
Yemen
Yugoslavia
Zambia
Zimbabwe

Recommended Training

  • SEC504: Hacker Tools, Techniques, Exploits, and Incident Handling
  • LEG523: Law of Data Security and Investigations

Tags:
  • Digital Forensics and Incident Response

Related Content

Blog
Digital Forensics and Incident Response
January 21, 2021
Things the Community Said About Chris Krebs's CTI Keynote
Chris Krebs Fmr. Director, US Cybersecurity and Infrastructure Security Agency (CISA); Founder, Krebs Stamos Group was the keynote speaker
SANS Institute
read more
Blog
Digital Forensics and Incident Response
January 7, 2021
How You Can Start Learning Malware Analysis
Lenny Zeltser shares a roadmap for getting into malware analysis, with pointers to 10 hours of free recorded content and additional references.
370x370_Lenny-Zeltser.jpg
Lenny Zeltser
read more
Blog
SUMMIT_Free_SANS_2021_Summits_Teaser.jpg
Digital Forensics and Incident Response, Cyber Defense Essentials, Industrial Control Systems Security, Purple Team, Blue Team Operations, Penetration Testing and Ethical Hacking, Cloud Security, Security Management, Legal, and Audit
November 30, 2020
Good News: SANS Virtual Summits Will Be FREE for the Community in 2021
They’re virtual. They’re global. They’re free.
Emily Blades
read more
  • Register to Learn
  • Courses
  • Certifications
  • Degree Programs
  • Cyber Ranges
  • Job Tools
  • Security Policy Project
  • Posters
  • The Critical Security Controls
  • Focus Areas
  • Blue Team Operations
  • Cloud Security
  • Cybersecurity Leadership
  • Digital Forensics
  • Industrial Control Systems
  • Offensive Operations
Subscribe to SANS Newsletters
Join the SANS Community to receive the latest curated cybersecurity news, vulnerabilities, and mitigations, training opportunities, plus our webcast schedule.
United States
Canada
United Kingdom
Spain
Belgium
Denmark
Norway
Netherlands
Australia
India
Japan
Singapore
Afghanistan
Aland Islands
Albania
Algeria
American Samoa
Andorra
Angola
Anguilla
Antarctica
Antigua and Barbuda
Argentina
Armenia
Aruba
Austria
Azerbaijan
Bahamas
Bahrain
Bangladesh
Barbados
Belarus
Belize
Benin
Bermuda
Bhutan
Bolivia
Bonaire, Sint Eustatius, and Saba
Bosnia And Herzegovina
Botswana
Bouvet Island
Brazil
British Indian Ocean Territory
Brunei Darussalam
Bulgaria
Burkina Faso
Burundi
Cambodia
Cameroon
Cape Verde
Cayman Islands
Central African Republic
Chad
Chile
China
Christmas Island
Cocos (Keeling) Islands
Colombia
Comoros
Cook Islands
Costa Rica
Croatia (Local Name: Hrvatska)
Curacao
Cyprus
Czech Republic
Democratic Republic of the Congo
Djibouti
Dominica
Dominican Republic
East Timor
East Timor
Ecuador
Egypt
El Salvador
Equatorial Guinea
Eritrea
Estonia
Ethiopia
Falkland Islands (Malvinas)
Faroe Islands
Fiji
Finland
France
French Guiana
French Polynesia
French Southern Territories
Gabon
Gambia
Georgia
Germany
Ghana
Gibraltar
Greece
Greenland
Grenada
Guadeloupe
Guam
Guatemala
Guernsey
Guinea
Guinea-Bissau
Guyana
Haiti
Heard And McDonald Islands
Honduras
Hong Kong
Hungary
Iceland
Indonesia
Iraq
Ireland
Isle of Man
Israel
Italy
Jamaica
Jersey
Jordan
Kazakhstan
Kenya
Kingdom of Saudi Arabia
Kiribati
Korea, Republic Of
Kosovo
Kuwait
Kyrgyzstan
Lao People's Democratic Republic
Latvia
Lebanon
Lesotho
Liberia
Liechtenstein
Lithuania
Luxembourg
Macau
Macedonia
Madagascar
Malawi
Malaysia
Maldives
Mali
Malta
Marshall Islands
Martinique
Mauritania
Mauritius
Mayotte
Mexico
Micronesia, Federated States Of
Moldova, Republic Of
Monaco
Mongolia
Montenegro
Montserrat
Morocco
Mozambique
Myanmar
Namibia
Nauru
Nepal
Netherlands Antilles
New Caledonia
New Zealand
Nicaragua
Niger
Nigeria
Niue
Norfolk Island
Northern Mariana Islands
Oman
Pakistan
Palau
Palestine
Panama
Papua New Guinea
Paraguay
Peru
Philippines
Pitcairn
Poland
Portugal
Puerto Rico
Qatar
Reunion
Romania
Russian Federation
Rwanda
Saint Bartholemy
Saint Kitts And Nevis
Saint Lucia
Saint Martin
Saint Vincent And The Grenadines
Samoa
San Marino
Sao Tome And Principe
Senegal
Serbia
Seychelles
Sierra Leone
Sint Maarten
Slovakia (Slovak Republic)
Slovenia
Solomon Islands
South Africa
South Georgia and the South Sandwich Islands
South Sudan
Sri Lanka
St. Helena
St. Pierre And Miquelon
Suriname
Svalbard And Jan Mayen Islands
Swaziland
Sweden
Switzerland
Taiwan
Tajikistan
Tanzania
Thailand
Togo
Tokelau
Tonga
Trinidad And Tobago
Tunisia
Turkey
Turkmenistan
Turks And Caicos Islands
Tuvalu
Uganda
Ukraine
United Arab Emirates
United States Minor Outlying Islands
Uruguay
Uzbekistan
Vanuatu
Vatican City
Venezuela
Vietnam
Virgin Islands (British)
Virgin Islands (U.S.)
Wallis And Futuna Islands
Western Sahara
Yemen
Yugoslavia
Zambia
Zimbabwe
  • © 2021 SANS™ Institute
  • Privacy Policy
  • Contact
  • Twitter
  • Facebook
  • Youtube
  • LinkedIn