Preventing And Dealing With Cyber Attacks And Data Breaches. Arnold & Porter LLP Lockheed Martin WMACCA February 12, 2014

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1 Preventing And Dealing With Cyber Attacks And Data Breaches Arnold & Porter LLP Lockheed Martin WMACCA February 12, 2014

2 Charles A. Blanchard Arnold & Porter LLP Formerly General Counsel, U.S. Air Force Ken L. Chernof Arnold & Porter LLP Business Litigation Practice Leader Sean P. Bamford Lockheed Martin Information Systems & Global Solutions Assistant General Counsel 1

3 Charles A. Blanchard is a partner in Arnold & Porter LLP s Washington, D.C. office, and is a member of the Government Contracts and National Security practices. Chuck works with clients in the contracting and national security communities, drawing upon his experience in government and private practice, providing unique insights into doing business with the federal government. Prior to joining Arnold & Porter, Mr. Blanchard served as General Counsel and Chief Ethics Officer for the U.S. Air Force ( ). In this role, he provided oversight and guidance for legal advice provided by more than 2,600 Air Force military and civilian lawyers worldwide. 2

4 Kenneth L. Chernof is a partner in Arnold & Porter LLP s Washington, D.C. office, and head of the business litigation group. His practice is centered on defending leading business clients, particularly consumer products or services corporations, in multistate class actions and government litigation and investigations, and he applies a "bring order out of chaos" approach to each matter by devising creative litigation and non-litigation strategies. He has particular experience advising clients on the potential impact of civil litigation resulting from data breaches and mitigating associated risks, and in defending class action data breach litigation. Mr. Chernof's successes include federal jury and bench trials, federal and state appeals, and mediations and AAA arbitrations. 3

5 Sean P. Bamford is Assistant General Counsel of Lockheed Martin s Information Systems & Global Solutions. Sean supports Lockheed Martin s federal Cybersecurity line of business, and specializes in government contracts and international trade. Prior to joining Lockheed, he was Senior Counsel at Hewlett-Packard where he handled business counseling for all phases of IT government contracting. 4

6 In this age of seamless global commerce and instant communication, more individuals, companies, institutions, and even governments are reliant on electronic networks and information systems than ever before... In recent years, we ve seen clear, and alarming, advances in the sophistication and commercialization of crimes involving electronic networks. And the staggering volume of money being stolen online today has the potential to threaten not only the security of our nation but the integrity of our government, the stability of our economy, and the safety of our people. U.S. Attorney General Eric Holder (June 9, 2011) 5

7 In living with this new normal, businesses and government alike should develop and test their cybersecurity incident response plans and continuously monitor the networks under the assumption they ve been breached If we thought that doing cybersecurity in a world of wired desktops was hard, now we re going to do it in a world where your coffee maker, your car and your refrigerator are also a threat vector That makes the problem just that much more difficult. Special Assistant to the President and Cybersecurity Coordinator, Michael Daniel (January 29, 2014) 6

8 Today s Agenda Before a breach After a breach Compliance Day 1 Preparedness Week 1 Beyond 7

9 Cyber Threats: Many different flavors Data breaches Hacking Mischief and data destruction Botnets Dedicated Denial of Service (DDOS) attacks Corporate espionage Foreign economic espionage/ National security 8

10 Cyber Threats: Many different impacts All companies Publicity/reputation Damage to business Loss of trade secrets Fines from regulators Civil litigation Criminal prosecution Government Contractors Investigations Agency: IG, OCR Enforcer: FTC, AGs Congress Contractual penalties Debarment or virtual debarment 9

11 Sources of Government Contractor s Obligations Contract terms Agency regulations Federal privacy laws State privacy laws State Security Breach Notification Laws 10

12 Government Contractors: Two Specific Threats Data breaches of personally identifiable information of consumers, employees and others Data breaches of technical information about government programs 11

13 Privacy Requirements Applicable to Government Contractors The Privacy Act of 1974 Federal Information Security Management Act of 2002 (FISMA) OMB Regulations

14 NIST Guidance 13

15 Department of Defense Department of Defense Privacy Program, DoD R. Applicable to contractors Administrative or disciplinary action for data theft, loss, or compromise Data breach reporting requirements Rules of conduct amendment

16 Department of Defense: Latest Developments New Contract Requirements Adequate security Must meet or exceed NIST standards New Reporting Requirements Must report within 72 hours Must preserve images of affected IT system DoD may request all damage assessment information 15

17 Department of Defense: Latest Developments Supply Chain- Section 806 Interim Rule Addresses the impact of IT supply chain risk in certain types of procurements related to national security systems (Covered Procurements). Covers national security systems (NSS). Both Government and contract systems covered DoD officials my exclude certain sources for information technology, whether acquired as a service or a supply, or to direct DoD contractors to exclude certain sources as subcontractors. DoD may limit disclosure of exclusion decisions and makes those decisions unreviewable in bid protests. Flows down to Commercial-Item subcontractors Broader Impact Should a contractor consider not purchasing product from a company that has been excluded under the implementing regs. of Section 806 even where it does not providing supply or services related to NSSs. 16

18 Department of Defense: Violation Consequences Contract breach Suspension Debarment 17

19 Forthcoming Cyber Security Regulations NIST CyberSecurity Framework FAR Basic Safeguarding Contractor Information Systems New contract clauses for the safeguarding of information Applies to all information generated for the Government. Agency specific regulations

20 Day Zero Before the Breach Things to consider Know your contractual and regulatory obligations Train Employees Establish and implement a written data breach response policy that: Centralizes cybersecurity oversight (regulatory compliance, reporting, etc.); Creates an incident response team 19

21 Day Zero Before the Breach (Cont d) Establish a privacy plan Map locations of critical data; Limit access to information on a need to know basis; Separate duties (security checks and balances); Have a data retention policy(keep up-to-date) 20

22 Day Zero Before the Breach (Cont d) Implement appropriate electronic (keep up-todate) and physical security (mitigation controls to prevent and detect unauthorized access-protect data at rest and in motion); Consider segregating government technical information from other IT systems; Conduct regular risk assessments/privacy audit (purpose- Identifying system vulnerabilities and possible attack vectors); 21

23 Day Zero Before the Breach (Cont d) Address trade secret/proprietary information issues before a breach to ensure seamless compliance with DoD requests Insurance 22

24 Mitigate the Threat from Within Best Practices - Common Sense Guide to Mitigating Insider Threats (4th Edition), Carnegie Mellon University (December 2012) Consider threats from insiders and business partners in enterprise-wide risk assessments. 2. Clearly document and consistently enforce policies and controls. 3. Incorporate insider threat awareness into periodic security training for all employees. 4. Beginning with the hiring process, monitor and respond to suspicious or disruptive behavior. 5. Anticipate and manage negative issues in the work environment. 6. Know your assets. 7. Implement strict password and account management policies and practices. 8. Enforce separation of duties and least privilege. 9. Define explicit security agreements for any cloud services, especially access restrictions and monitoring capabilities. 10. Institute stringent access controls and monitoring policies on privileged users. 11. Institutionalize system change controls. 12. Use a log correlation engine or security information and event management (SIEM) system to log, monitor, and audit employee actions. 13. Monitor and control remote access from all end points, including mobile devices. 14. Develop a comprehensive employee termination procedure. 15. Implement secure backup and recovery processes. 16. Develop a formalized insider threat program. 17. Establish a baseline of normal network device behavior. 18. Be especially vigilant regarding social media. 19. Close the doors to unauthorized data exfiltration 23

25 FTC Guidance 24

26 Incident Response Plan Flowchart Team Support Law firms, vendors, PR, and Gov. Relations Follow the plan 25

27 When breach occurs Day 1 Week 1 Beyond 26

28 Initial Stages Lots of questions Veracity of allegation Extortion Reputation Whose fault? Notification obligations Civil/criminal exposure How to investigate? Security of information technology system Business impact Is it over? 27

29 Initial Stages Exposure Class action litigation Damages (real or imaginary) Statutory penalties Costs of litigation, compliance, settlement Officers and directors responsibilities Potential SEC disclosure obligations Liability as custodian of victim s property? Victim notification requirements Insurance coverage & notification Criminal exposure? 28

30 Day 1 Execute on the incident response plan IMMEDIATELY Know what you know, but more importantly, know what you don t know Convene key players Identify and comply with agency notice requirements Law enforcement Take any emergency containment actions 29

31 Week 1 Continue to cooperate with law enforcement Continue to cooperate with agency staff Continue to contain breach Investigate Have counsel retain forensic experts, conduct investigation Determine extent of breach Impacted individuals Impacted data Avoid the hydra Organize collection, retention of documents Privilege issues Subsequent remedial measures Avoid temptation to say more than you need to 30

32 Victim Notification 50 different states Differing laws regarding whether, when, who and how to notify victims HIPAA HITECH Act Possible Federal legislation Would preempt state laws 31

33 Other Notice Requirements Contract based SEC Insurance Carrier 32

34 Special Issues IG or other agency investigation Congressional testimony 33

35 Civil Litigation Plaintiffs bar Individual actions Class actions Venue 34

36 Common Defendants Health insurance companies, hospitals, medical businesses Financial institutions E-Commerce vendors Telecom/wireless businesses Any consumer facing company Government contractors The Government as Co-Defendant 35

37 Common Claims Claims Statutory Federal State Common law Negligence Breach of contract Others Damages, civil penalties, and injunctive relief 36

38 Typical Litigation Flow Stage Class actions filed Early settlement talk MDL process Motions practice Class certification Broad discovery Summary Judgment Trial 37

39 Key Pressure Points For Defendants Publicity Concerns Customer Relations Business Deals Governmental Pressures Debarment/Business Impacts Class Certification Monetary exposure Evidence of injury Statutory penalties Litigation expense For Plaintiffs Lack of injury Or proof of injury Class certification Litigious defendant 38

40 Settlement Terms Credit monitoring Credit restoration Internet monitoring Damage fund Process Proof Caps Cy pres fund Attorneys fees Injunctive Relief 39

41 Shareholder Litigation Shareholder demands Investigation Derivative Litigation Key Issues Negligence v. breach of fiduciary duty Need to protect privilege Interplay with underlying litigation and remediation 40

42 Summary Plan ahead Review policies and practices and make sure defensible Understand contractual and regulatory obligations Assume a breach will occur Have a plan and execute on it 41

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