LEG523: Law of Data Security and Investigations

Overview

Section 1 is an introduction to cyber and data protection law. It serves as the foundation for discussions during the rest of the course. We will survey the general legal issues that must be addressed in establishing best information security practices, then canvass the many new laws on data security and evaluate cybersecurity as a field of growing legal controversy. The course section will cover computer crime and intellectual property laws when a network is compromised, as well as emerging topics such as honeypots. We will look at the impact of future technologies on law and investigations in order to help students factor in legal concerns when they draft enterprise data security policies. For example, students will debate what the words of an enterprise policy would mean in a courtroom. This course section also dives deep into the legal question of what constitutes a "breach of data security" for such purposes as notifying others about it. The course day includes a case study on the drafting of policy to comply with the Payment Card Industry Data Security Standard (PCI). Students will learn how to choose words more carefully and accurately when responding to cybersecurity questionnaires from regulators, cyber insurers, and corporate customers.

Overview

Cybersecurity and digital forensic professionals constantly deal with records and evidence, so they need a practical understanding of e-discovery and policies on the retention and destruction of data. Section 2 of the course places great emphasis on the law of evidence and records management. It teaches the necessity to apply a "legal hold" or "litigation hold" on records when controversy emerges. It helps technical and legal professionals learn to speak the same language as they assess how to find records and possibly disclose them in litigation or investigations.

New privacy laws around the world, such as the California Consumer Privacy Act, demand that data be deleted under the so-called right-to-be-forgotten doctrine. But data deletion conflicts with other legal demands, such as the need to retain data to prove (maybe years later) that a consumer was treated fairly in a commercial transaction. Section 2 illuminates this increasingly common conflict. It teaches students how to manage the conflict within their enterprises.

Recognizing that investigators, like incident responders, collect and manage evidence that may later be needed in court or arbitration, this section teaches how the law evaluates digital evidence. It also introduces electronic contracting methods, in preparation for the extended discussion of technology contracts in the next course section. Students learn that effective contracting today requires thoughtful decisions on the policy for the retention of records like electronic mail and text messages.

Law and technology are changing quickly, and it is impossible for professionals to comprehend all the laws that apply to their work. But they can comprehend overarching trends in law, and they can possess a mindset for finding solutions to legal problems. A key goal of this section is to equip students with the analytical skills and tools to address technology law issues as they arise, both in the United States and around the world. Section 2 devotes much attention to European data protection laws. The analysis puts the General Data Protection Regulation (GDPR) into a historical context so that students can better understand how the new regulation is being interpreted. (See Benjamin Wright's white paper on the GDPR.)

The course is chock full of actual court case studies dealing with privacy, computer records, digital evidence, electronic contracts, regulatory investigations, and liability for shortfalls in security. The purpose of the case studies is to draw practical lessons that students can take back to their jobs and apply immediately.

Overview

Section 3 focuses on the essentials of contract law sensitive to the current requirements for security. Compliance with many of the new data security laws requires contracts. Because IT pulls together the products and services of many vendors, consultants, and outsourcers, enterprises need appropriate contracts to comply with Gramm-Leach-Bliley, HIPAA, GDPR, PCI-DSS, data breach notice laws, and other regulations.

This course section provides practical steps and tools that students can apply to their enterprises and includes a lab on writing contract-related documents relevant to the students''professional responsibilities. (The lab is an optional, informal "office hours" discussion with the instructor at the end of the day when the course is delivered live.) You will learn the language of common technology contract clauses and the issues surrounding those clauses, and become familiar with specific legal cases that show how different disputes have been resolved in litigation.

Recognizing that enterprises today operate increasingly on a global basis, the course teaches cases and contract drafting styles applicable to a multinational setting.

Contracts covered include agreements for software, consulting, nondisclosure, outsourced services, cyber insurance, penetration testing, and private investigation services (such as cyber incident response). Special attention is given to cloud computing issues. Students also learn how to exploit the surprising power of informal contract records and communications, including cybersecurity questionnaires and requests for InfoSec assurances.

Overview

Information security professionals and cyber investigators operate in a world of ambiguity, rapid change, and legal uncertainty. To address these challenges, this course section presents methods to analyze a situation and then act in a way that is ethical, defensible, and reduces risk. Lessons will be invaluable to the effective and credible execution of any kind of investigation, be it internal, government, consultant related, a security incident, or any other. The lessons also include methods and justifications for maintaining the confidentiality of an investigation, especially invocation of the doctrines of attorney-client privilege and attorney work product.

Section 4 surveys insider fraud and other misbehaviors with an emphasis on the role of technology in the commission, discovery, and prevention of that fraud. It teaches cyber managers and auditors practical and case-study-driven lessons about the monitoring of employees and employee privacy.

IT is often expected to "comply" with many mandates, whether stated in regulations, contracts, internal policies, or industry standards (such as PCI-DSS). This course section teaches many broadly applicable techniques to help professionals establish that they and their organizations are in fact in compliance, or to reduce risk if they are not in perfect compliance. The course draws lessons from models such as the Sarbanes-Oxley Act and European Union guidelines for imposing fines under the GDPR.

As cybersecurity professionals take on more responsibility for controls throughout an enterprise, it is natural that they worry about fraud, which becomes a new part of their domain. Section 4 covers what fraud is, where it occurs, what the law says about it, and how it can be avoided and remedied.

Scattered through the course are numerous descriptions of actual fraud (or "insider threat") cases involving technology. The purpose is to acquaint the student with the range of modern business crimes, whether committed by executives, employees, suppliers, or whole companies. More importantly, Section 4 draws on the law of fraud and corporate misconduct to teach larger and broader lessons about legal compliance, ethical hacking, and proper professional conduct in difficult case scenarios.

Further, this course section will show students how to conduct forensic investigations involving social, mobile, and other electronic media. Students will learn how to improve the preservation and interpretation of digital evidence, such as evidence of a breach or other cyber event.

Overview

Knowing some rules of law is not the same as knowing how to deal strategically with real-world legal problems. Section 5 is organized around extended case studies in security law: break-ins, investigations, piracy, extortion, rootkits, phishing, botnets, espionage, and defamation. The studies lay out the chronology of events and critique what the good people did right and what they did wrong. The goal is to learn to apply principles and skills to address incidents in your day-to-day work.

The section includes an in-depth review of legal responses to the major security breaches at TJX, Target, and Home Depot, Freddie Mac, and others. It looks at how to develop a bring-your-own-device (BYOD) policy for an enterprise and its employees.

The skills learned are a form of crisis management, with a focus on how your enterprise will be judged in a courtroom, by a regulatory agency, or in a contract relationship. Emphasis will be on how to present your side of a story to others, such as law enforcement, Internet gatekeepers, or the public at large, so that a security incident does not turn into a legal and political fiasco.

In addition to case studies, the core material will include tutorials on relevant legislation and judicial decisions in such areas as privacy, negligence, contracts, e-investigations, computer crime, and active countermeasures.

LEG523 is increasingly global in its coverage. Although this section refers to a number of US-based stories, legal issues and the roles of government authorities outside the United States will also be examined.

At the end of Section 5 the instructor will discuss a few sample questions to help students prepare for the GIAC exam associated with this course (GLEG).