Incident of the Week: Free iPhone Password Breaker Released

Back in October you may remember our post on Elcomsoft, a Russian software company that came out with program to decrypt common wireless network signals.  Well, they're back this week with a program that will "enable[ ] forensic access" to password-protected backups for Apple iPhone and iPod touch devices.  In other words, if someone obtains access to the computer you use to sync your iPhone they could also get access to "backups containing address books, call logs, SMS archives, calendars, camera snapshots, voice mail and email account settings, applications, Web browsing history and cache."  And while the program is in beta testing, Elcomsoft is even giving the program away for free

The program apparently uses the computing power of the latest generation of video cards to perform a dictionary or "wordlist-based attack" to recover the password needed to unlock the backup files.  This means that if your password can be found in a dictionary or a hacker's wordlist, there is a program out there that will unlock it.  With technology like this out there to decode commercially available encryption schemes, the best protection we may have is to select a sufficiently complex password to defeat wordlist based attacks (and not to use the same password for all your online activities as Twitter's recent incident and Trusteer's recent survey (.pdf) have suggested are rampant problems). 

Doctors and Other Health Care Professionals Challenge Application of FTC Red Flags Rule

The FTC Red Flags Rule faces another likely challenge, based on a January 27, 2010 letter sent to the FTC by the American Medical Association, the American Osteopathic Association, the American Dental Association, and the American Veterinary Medical Association.  In that letter, the four health care organizations requested that the Red Flags Rule not be applied to health care professionals (based on the reasoning of the recent court decision that it does not apply to lawyers).  I assume that if the FTC rejects this request, suit will be filed by these groups, just as the AICPA has filed suit on behalf of accountants to except them from the Red Flags Rules.

Incident of the Week: OIG Reports that the FBI Routinely Circumvented Electronic Communications Privacy Act

A report entitled A Review of the Federal Bureau of Investigation's Use of Exigent Letters and Other Informal Requests for Telephone Records (.pdf) from the Department of Justice Office of the Inspector General (OIG) indicates that between 2003 and 2005, FBI routinely "circumvented the requirements of the Electronic Communications Privacy Act (ECPA)" by using so-called "exigent letters" to obtain telephone call data from telecommunications companies.  The ECPA, 18 USC Sec. 2702, provides that service providers will not provide customer data to government authorities, absent a national security letter signed by the Director of the FBI or a subpoena. 

The 700+ "exigent letters" examined by the OIG became common after the terrorist attacks on September 11, 2001.  In reaction to the attacks, a telecommunications company (referenced as "Company A" in the report) provided a "fraud detection analyst" to the FBI's New York field office to access telephone records in response to subpoenas from the U.S. Attorney's Office.  Apparently, over time the Company A analysts began to provide the requested customer data in response to "placeholder" letters signed by FBI special agents while the grand jury subpoenas were in the process of being obtained.  These letters, which claimed "exigent circumstances" and requested the production of customer data before the submission of a subpoena, became known as "exigent letters."  When the FBI's investigation moved to Washington, D.C., three service providers moved analysts into the FBI's offices to respond to the requests for telephone data covered by the ECPA.  

Observations from the OIG report include:

  • The "concept of using exigent letter originated as a time-saving technique" in the wake of 2001 terror attack, but over the years the embedding of service provider analysts with the FBI "led to a culture in which exigent letters and other even less formal and equally inappropriate requests for information became the [FBI Communication Analysis Unit's] accepted and customer method of conducting business."
     
  • Some letters called for the production of thousands of telephone numbers and customer transaction data.
     
  • OIG concluded that exigent letters were issued and customer records were obtained even though the "circumstances . . . were not exigent," including "media leak investigations . . . and other investigations that did not include exigent or life-threatening circumstances."
     
  • The FBI special agent responsible for signing over 100 exigent letters told OIG investigators "that the communications service providers' employees often gave him exigent letters to sign after he had already been given the requested records -- and he simply signed the letters.  This SSA also said that while he realized the exigent letters inaccurately states that grand jury subpoenas had been submitted, he signed the letter because he 'thought it was all part of the program coming from the phone companies themselves[.]'"
     
  • Another FBI special agent responsible for a large number of the letters told the OIG that the telecommunications analyst from "Company A" informed him about the letters and told him that the letters had been approved by legal counsel.
     
  • When asked, the FBI unit chief described the exigent letters as "standard operating procedure."
     
  • Telecommunications company analysts interviewed by the OIG described pressure from the FBI to accept the "placeholder" exigent letters.  One noted: "personally, it wasn't my place to police the police."
     
  • FBI sought court orders under the Foreign Intelligence Surveillance Act (FISA) using customer data obtained through exigent letters in violation of the ECPA.  Howeveragents mischaracterized how the FBI had obtained the data -- suggesting that the data had been properly produced in response to a national security letter or subpoena.
     
  • OIG "found that numerous, repeated, and significant management failures led to the FBI's use of exigent letters and other informal requests for telephone transactional records over an extended period of time."

Incident(s) of the Week: Recent Updates from Prior Incidents

1.  The FTC Fines Las Vegas Man $35,000 for Dumping Customer Financial Records In Public Dumpster

This week, the FTC finalized a $35,000 settlement with Gregory Navone, the real estate broker who left 40 boxes of customer tax returns, bank statements, consumer reports and other financial records in a public dumpster behind an office building in Las Vegas.  The defendant agreed to the fine, which amounts to $875 per box, as well as a stipulated order (.pdf) requiring him to adopt a comprehensive written information security program.  We first posted on this case a year ago, after the FTC filed its complaint (.pdf). 

In addition to the dumping of consumer financial information, the FTC alleging that Navone had failed to implement physical and electronic security procedures and or take reasonable steps to secure the customer records he stored at home in his garage.  According to the FTC, these activities violated the FTC Act, the Federal Credit Reporting Act (FCRA) and Navone's own information security policy which read:

We take our responsibility to protect the privacy and confidentiality of customer information very seriously.  We maintain physical, electronic, and procedural safeguards that comply with federal standards to store and secure information about you from unauthorized access, alteration and destruction.

(See Complaint (.pdf), Para. 9).  Everyone subject to document destruction laws may want to note this case and keep in mind that $35,000 is the fine imposed on an individual / small business.

 2.  Fight Breaks Out Over Whether Hacker Responsible For Largest Data Breach In History Suffers From "Internet Addiction"

In December, Albert Gonzalez, aka "segvec," "soupnazi" and "j4guar17" pled guilty to charges that he masterminded the theft of over 100 million consumer credit card numbers and other financial information from Heartland Payment Systems, 7-Eleven and other companies.  We posted on his indictment last August and again on his curious role as government informant.  The public recently gained a new window on Gonzalez's soul from filings made by defense attorneys that portray the hacker as an "Internet addicted" youth compelled to commit cybercrime.  Collecting statements from Gonzalez's psychologist, family members and a former girlfriend, the defendant's sentencing memorandum (.pdf) provides an interesting point of view on the life of the hacker:

As a young boy, Gonzalez was an outwardly normal enough kid -- he had friends, engaged in activities, worked alongside his father, received good grades in school, and was part of a warm and loving family which continues to stand by him.  In middle school, things began to change, and by high school Gonzalez had become a different person -- a loner, without friends, who passed up normal teenage activities, including dating, to devote himself to his new-found and rapidly escalating obsession: computers.

*    *    *

Seeking to break Gonzalez of his computer habit, his mother periodically sought to deny him access to his computer or to at least curtail his usage, once putting it in his sister's room.  Rather than be deprived of access to his computer, Gonzalez would go to his sister's room in the middle of the night to use it.  Gonzalez's social contacts narrowed to computer chat rooms where he communicated with others with knowledge of computers and to meetings of other computer-savvy individuals, many of whom were hackers and from whom he learned much that we would, unfortunately, later convert to unlawful purposes.

*    *    *

[B]y [ ] early 2002 -- Gonzalez, age 21, had developed a serious drug and alcohol problem . . . which played a substantial role in the subsequent course of his life.  This is not to say that his substance abuse affected Gonzalez' [sic] ability to tell right from wrong.  It did not, and he knew when he turned to cyber-crime that it was wrong.  What it did do, however, was contribute to his inability to stop himself.  What developed over time was a destructive cycle of using drugs to permit him to stay awake and alert for long hours at the computer but also using them to try to get away from the computer . . . .

*    *    *

Computers . . . had become the center of his life, his raison-d'etre, if you will.  He and his computer in many ways became one: he though in computer-speak instead of normal words, and, when his computer was infected by a virus, [he] referred to the event as if it were he, himself, who had gotten the virus.

Describing Gonzalez as unable to stop his urge to commit cybercrime, defense counsel has asked the Court to sentence him to 15 years in prison, the minimum sentence permitted.  Last week, federal prosecutors renewed their request to have a government psychologist examine Gonzalez to combat the defendant's claim that his "internet addiction" merits leniency within the 15 to 25 year sentencing range. 

Is Your Password Still "123456"? If So, It's Time for a Change

If you or your co-workers use any of the passwords listed below, you are asking to be hacked.  According to a report from the consulting firm Imperva, this list reflects an analysis of some 32 million passwords that an unknown hacker stole in December 2009 from RockYou, a company that makes software for users of social networking sites.  Somewhat shockingly, the password "123456" was used by nearly 1% of all RockYou users; the "top 20" RockYou passwords are reproduced below:   

1.    123456
2.    12345
3.    123456789
4.     Password
5.     iloveyou
6.    princess
7.    rockyou
8.    1234567
9.    12345678
10.   abc123
11.   Nicole
12.   Daniel
13.   babygirl
14.   monkey
15.   Jessica
16.   Lovely
17.   michael
18.   Ashley
19.   654321
20.   Qwerty

Hackers around the world now have this list of 32 million passwords and are using it to make brute force attacks on accounts and networks.  How can you defend yourself?  Change and toughen your passwords, lengthening them and adding a mix of letters and numbers.  If you are trying to defend your company's network, you need to adopt and enforce more rigorous password policies.  Tougher passwords will not make you or your networks hack-proof, but they will put you ahead of the thousands of people who still use "123456."

Connecticut AG Opens New Era in HIPAA Enforcement with Health Net Suit

In the first instance of a state attorney general exercising the new powers granted by the Health Information Technology for Economic and Clinical Health Act ("HITECH Act"), Connecticut Attorney General Richard Blumenthal (and recently announced candidate for the U.S. Senate) filed suit today against Health Net of Connecticut, Inc. for failing to secure private patient medical records and financial information involving 446,000 enrollees in Connecticut and for failing to promptly notify consumers of the security breach.  AG Blumenthal is also seeking a court order to require Health Net to encrypt any protected health information (“PHI”) contained on a portable electronic device.

The AG’s suit stems from events that occurred in May 2009, when he alleges Health Net learned that a portable computer disk drive disappeared from a company office. The disk contained protected health information, Social Security numbers, and bank account numbers for approximately 446,000 of its past and present Connecticut enrollees.  AG Blumenthal further alleges that Health Net failed to promptly notify his office or other Connecticut authorities of this missing information. The missing information is said to include 27.7 million scanned pages of over 120 different types of documents, including insurance claim forms, membership forms, appeals and grievances, correspondence and medical records.  

According to an investigative report by Kroll Inc., a computer forensic consulting firm hired by Health Net, the data was not encrypted or otherwise protected from access and viewing by unauthorized persons or third parties, but rather was viewable through the use of commonly available software. The Connecticut Attorney General alleges that it was not until six months after Health Net discovered the breach that it posted a notice on its website, and then sent letters to consumers on a rolling mailing basis beginning on November 30, 2009.

Accountants Ask Court To Exempt Them From Red Flags Rules

Last week the American Institute of Certified Public Accountants (AICPA) filed papers seeking summary judgment in the lawsuit filed against the Federal Trade Commission  (FTC) to exempt accountants from the FTC's Red Flags Rules.  We first posted on this case in November, when the AICPA filed a complaint asking the federal court in Washington, D.C. to declare that accountants are not subject to the Red Flags Rules.  This followed hot on the heels of the October ruling (.pdf) that lawyers were not required to comply with the Red Flags Rules in a lawsuit filed by the American Bar Association (ABA).  It should be noted that the AICPA's motion will be heard by the same judge that issued the decision in favor of the ABA, Hon. Reggie B. Walton.

Since Judge Walton's preliminary ruling in the ABA case in October, the court published a lengthy opinion (.pdf) explaining his reasoning.  In particular, the decision indicated that lawyers need not comply with the Red Flags rules because the Rules only apply to "financial institutions" and "creditors" and lawyers cannot be classified as such under the Fair and Accurate Credit Transactions Act (the FACT Act or FACTA) or the Equal Credit Opportunity Act (the ECO Act or ECOA).  The FTC has taken the position that lawyers, accountants and anyone else that invoices a customer after services have been provided is extending credit and, which makes them "creditors" under the FACT Act, ECO Act and the Red Flags Rules.  Judge Walton forcefully addressed this position in his opinion in favor of the ABA:

[T]he Commission is essentially taking the position that the period of time between when a service is provided to when a lawyer or law firm invoices a client for the service and the invoice is paid, amounts to a period during which credit was extended if there is any interval of time between the providing of the service and the payment of the invoice. . . This is clearly not what was intended by Congress by its use of the term credit in the ECO Act and its subsequent inclusion of the term in the FACT Act.

The Court further noted that noted that he found it persuasive that there is no evidence that identity theft is an actual problem in the legal profession, one that might necessitate the protections of the Red Flags Rules.

From the record before the Court (or more accurately the lack of a record), the best that can be gleaned is that identity theft in the attorney-client context is only a theoretical problem, especially given the role of state professional codes of conduct and other ethical codes to which attorneys must abide, and the Court cannot conclude that it is an actual problem given the absolute lack of any legislative, regulatory or other evidentiary findings that have been brought to the Court's attention.

The FTC will face the same arguments in the accountants' case.  Will Judge Walton side with the AICPA and rule that accountants, like lawyers, are not subject to the Red Flags Rules as "creditors?"  Or will the Court give the FTC more flexibility to extend the Red Flags Rules outside of the legal profession?  Read the AICPA's papers below and let us know your thoughts.

The FTC's opposition papers are expected next week.

     

Is the FTC "Moving to a Post-Disclosure Era" for Online Consumer Privacy?

Is the FTC moving to a "Post-Disclosure Era," in which consumer online privacy would be regulated in a radically different manner than the status quo?  That was a suggestion made by the chairman of the FTC, Jon Leibowitz, and David Vladeck, chief of the FTC's Bureau of Consumer Protection, during a recent on-the-record discussion about online privacy, reported in the New York Times

For some time, I have been asking the question, "Is Consent Dead, and Should We Even Care?"  Now it appears the FTC is asking the very same question.  According to FTC Chair Leibowitz, companies “haven’t given [online] consumers effective notice, so they can make effective choices” about the privacy of their online information.  Mr. Vladeck similarly views traditional advise-and-consent privacy notice models as dependent upon “the fiction that people were meaningfully giving consent.  The literature is clear” that few people read privacy policies.

What, if anything, will this new way of thinking mean in terms of future regulation of consumer online privacy by the FTC?  More information may be forthcoming at the FTC's next privacy roundtable, to be held on January 28 (and available to the public via webcast).

Incident of the Week: Twitter Used In Sting Operation To Find Out Who Leaked TSA Security Directive

Rumors are circulating that Special Agents from the Transportation Security Administration (TSA) have been posing as a Connecticut blogger on Twitter to find out who leaked airport security screening procedures put in place after the recent attack by the "underwear bomber."  This is a new twist in what some are describing as an overzealous investigation of government documents posted online.

As many of us found out on Christmas Day, a 23 year old Nigerian man identified as Umar Farouk Abdulmutallab apparently ignite an incendiary or explosive device in his lap while he was sitting on Northwest Airlines Flight 253 to Detroit.  While no passengers were harmed, the same cannot be said for the would-be bomber's lap, which combusted.  In reaction to the attack, issued Security Directive 1544-09-06 directing TSA airport officers to pat down 100% of all passengers, "concentrating on upper legs and torso," with the notable exception of heads of state. 

Two days later on December 27, 2009, the TSA Security Directive was posted to the Flying with Fish blog run by Steven Frischling and Chris Elliot's blog at Elliot.org.  TSA was not pleased with this attention.  Apparently, the TSA considered the Security Directive secret, even though it was sent to thousands of airports and airlines around the world and arguably was somewhat obvious to anyone in an airport around Christmas-time.  The agency launched an immediate investigation, sending agents and subpoenas to Frishling's and Elliot's homes (the text of which is available at his blog). 

Frischling ultimately cooperated with the probe, gave them access to his BlackBerry, iPhone and computers and let TSA agents know that his source had contacted him anonymously using a free email service. 

Then an unusual message appeared on blogger Steven Frischling's Twitter account:

To the gentleman who sent Flying With Fish the TSA Security Directive … Thank You! Can you drop me an email?I have a question. Thanks-Fish.

According to sources interviewed by Wired, a TSA agent took possession of Frischling's BlackBerry, typed the Twitter update into the device and then directed Frischling to click on the “send” button to post the message to his Twitter page.  According to Wired's source, this was an attempt to induce the anonymous informer to send Frischling an email and draw him or her out of hiding.  Of course, implicit in this strategy is that the TSA already had or expected to gain access to Frischling's email, as well.  The TSA deny this account.  Other bloggers, such as TechCrunch's Michael Arrington, have pointed the finger at Frischling and have criticized him for caving to government pressure and cooperating in the effort to oust his own confidential source.

No doubt, the TSA is under considerable pressure to heighten its security since early December, when an employee inadvertently posted online the agency's highly classified airport security operating manual.

Texas to Destroy 5.3 Million Illegally Obtained Blood Samples

As part of the settlement of a federal court action, the State of Texas has agreed to destroy more than 5 million blood samples taken from babies without parental consent and stored indefinitely for the purpose of scientific research.  The Texas Department of State Health Services announced earlier this week that it would destroy the samples in connection with the settlement of a federal lawsuit filed in March 2009 by the Texas Civil Rights Project on behalf of five parents of children whose blood was being held for use in research without their consent. 

The parents' complaint alleged that the state’s failure to ask parents for permission to store and possibly use the blood - originally collected lawfully in order to screen for birth defects - violated constitutional protections against unlawful search and seizure. The parents also expressed fears that their children’s private health data could be misused and that the disclosure of that data could lead to discrimination against them later in life.  Under the settlement, the blood samples collected without parental consent must be destroyed by early next year.  State authorities estimated that some 5.3 million samples would be destroyed as part of this process.  The State of Texas also is required to publish a list of all research projects that used the blood specimens.


 

Incidents of the Week: Iranian Cyber Army Targets Twitter & $26 Software Application Intercepts U.S. Military Satelite Feeds In Iraq

1.  Iranian Cyber Army Puts Twitter On Hold

Around 10 pm last night, popular social networking site Twitter, was apparently hacked by a group calling themselves the Iranian Cyber Army.  Iran and Twitter have had a rocky relationship since last summer when Iranian citizens spread the protests over Iranian elections to the popular web site.  During that time, links circulated on Twitter that allowed users to participate in DoS (Denial of Service) attacks on Iranian government websites.  Given the name adopted by Twitter's hackers, it may be no coincidence that the New York Times interview with a U.S. computer security expert in June 2009 described the Twitter DoS attacks as allowing Twitter users to "'become part of the cyber-army,' in Iran."

 

2. $26 Russian Software Has Been Intercepting U.S. Military Drone Video Feeds In Iraq

Ever since Iraq invaded Kuwait in 1990, we laypeople have been introduced to video from U.S. military missiles right before something like a building exploded in fuzzy black and white.  Then came more advanced military drones, remote controlled airplanes, with greater resolution and improved arsenal.  If you have been craving some low res military action, it may only cost you a satellite dish and $26.  Using a $26 software package developed by Russian software company called SkyGrabber, Iraqi insurgents have reportedly been tapping into live video feeds from U.S. drone aircraft.  This news comes from a U.S. official speaking anonymously with the Wall Street Journal who reported that U.S. troops have recovered laptops used by the insurgents with "days and days and hours and hours" of intercepted military video. 

The SkyGrabber software, which allows users to tap into unencrypted satellite connections, apparently has been successfully used against the military feeds because they were (you guessed it) unencrypted.  U.S. military officials commented to CNN that encrypting the signals is problematic because it slows down video transmissions that need to be seen by a number of different operators at the same time.  Query as to whether having your adversaries monitoring your battlefield surveillance will justify adding encryption to the military's systems.  (Just remember when you do that another Russian software application is capable of decoding the WPA encryption standard.) 

Lest we begin criticizing the military too strongly, however, a moment of self-reflection might be worthwhile.  The next time you connect to the Internet using a wireless connection, whether at home or at a coffee shop, ask yourself whether you are taking any precautions to prevent your activity from being intercepted or whether you are just rolling the dice that no one in 100 yards has purchased some software from Russia recently.

 

Is Tougher HIPAA Enforcement Finally On Its Way?

It has been well over a decade since the passage of HIPAA in 1996. HIPAA has caused many changes in the way the business of health care works, including going a long way to create the position of “health information professional.” One area where HIPAA has, as yet, had little impact has been in enforcement. The history of enforcement of HIPAA’s privacy and security rules has been slim and almost none. The changes in behavior that have occurred have been done out of a desire to follow the law, and not due to fear of prosecution or administrative action. 

First and foremost in this regard, I note the recent decision of the Department of Health and Human Services to transfer the authority for enforcement of HIPAA’s security rules to the Office of Civil Rights. The Office of Civil Rights is certainly in a better position to undertake enforcement than CMS. According to my colleague, Tom Barker, the Office of Civil Rights has a field force of 275 investigators that have an annual budget of $40 million. I believe OCR will need to justify that budget and the most visible way to do that is to bring enforcement actions and recover significant penalties. Nevertheless, $40 million does not go as far as it used to, and it certainly is not enough for a broad-based, nationwide enforcement initiative. Instead, I suspect we will start to see incrementally more enforcement actions, higher financial penalties and a few selected audits. 

Also pushing HIPAA enforcement is the HITECH Act, which was passed in February 2009 and much of which will go into effect in February 2010. Through the HITECH Act, HIPAA business associates under HIPAA are now subject to almost the same regulations as HIPAA covered entities. Penalties for HIPAA violations also were increased, and the ability to enforce some rules has been extended to state attorneys general. 

There is one additional factor in the enforcement environment that is little-noticed, but nevertheless is very significant: the general public.

Continue Reading...

HIPAA Breach Notification Made Simple -- Just Fill in the Blanks

The Department of Health and Human Services’ Office of Civil Rights (“OCR”) has tried to make a HIPAA security breach easy to report, with its newly-released online “Notice to the Secretary of HHS of Breach of Unsecured Protected Health Information.” 

The online form is straightforward, featuring pull-down options tied to the new HITECH rules:  it will let you report whether your breach is for more than 500 individuals (or fewer than that), the type and location of the breach, etc.  OCR estimates the form will take 15-30 minutes to complete. 

Interestingly, the form does not require a statement on penalty of perjury from the submitting party, only a statement that I attest, to the best of my knowledge, that the above information is accurate.”  This could be seen to be an attempt to encourage reporting, by not saddling breach reporters with potential liability for making false statements to the government.  However, it would also seem to encourage anonymous reporting, via the use of an alias.

Incident of the Week: Hack of Researchers' Email Triggers "Climategate"

Compared to security breaches that involve credit card and bank account information, other breaches in security often get somewhat shortchanged in the media, notwithstanding the occasional hack of a celebrity cell phone.  The same cannot be said of the purloined emails one hacker posted online that are alleged to the the back and forth between climate change researchers at the University of East Anglia in the United Kingdom which are at the center of new controversy in public debate over climate change.  

In November, an anonymous user posted 160 MB of email, over 1000 pieces of correspondence from the University's Climatic Research Unit (CRU), to a Russian FTP site.  While it remains unclear whether all of the published emails are accurate, Phil Jones, the Director of the CRU at the time of the hack, has stated that at least one of the emails is genuine, but "has been taken completely out of context."  Other emails appear in various forms on a number of websites (see sites here and here).  At the heart of the storm are comments deriding climate change skeptics and a reference to one statistical operation as a "trick."

Climate change naysayers have seized on the opportunity to call into question whether global warming is in fact caused by human activities.  Republican Representative James Sensenbrenner of Wisconsin recently stated that the leaked emails "read more like scientific fascism than scientific process."  Others have described the leak as part of a smear campaign intended to undermine efforts to reform fossil fuel emissions and other environmental standards.  Also useful to note, if not humorous, is RealClimate's observation that:

More interesting is what is not contained in the emails. There is no evidence of any worldwide conspiracy, no mention of George Soros nefariously funding climate research, no grand plan to ‘get rid of the MWP’, no admission that global warming is a hoax, no evidence of the falsifying of data, and no ‘marching orders’ from our socialist/communist/vegetarian overlords. The truly paranoid will put this down to the hackers also being in on the plot though.

The controversy, now dubbed "Climategate," recently led to Phil Jones resignation as Director of the CRU. 

Links:

 

Incident of the Week: U.S. Law Firms and Public Relations Firms Hit By E-mail Attack

Law firms holding sensitive data for their clients are the targets of a new round of organized cyberattacks, federal authorities cautioned this week.  On Tuesday, the FBI warned that U.S. law firms and public relations firms were being targeted by hackers using "spear phishing" attacks -- personalized emails drafted to look like they come from a trusted or reputable source and designed to induce the reader to click an attachment or link that will infect his or her computer with malicious software.  "Hackers exploit the ability of end users to launch the malicious payloads from within the network by attaching a file to the message or including a link to the domain housing the file and enticing users to click the attachment or link." 

While the FBI indicates that it may not be possible to flag the emails attacks themselves, system administrators will be able to detect the malware infection once a computer has been compromised:

Once executed, the malicious payload will attempt to download and execute the file ‘srhost.exe’ from the domain ‘http://d.ueopen.com’; e.g. http://d.ueopen.com/srhost.exe. Any traffic associated with ‘ueopen.com’ should be considered as an indication of an existing network compromise and addressed appropriately.

The FBI has asked that firms that have detected a breach direct incident response notifications to the Department of Homeland Security and U.S. CERT.

FBI unit chief Bradford Bleier commented to the Associated Press: "Law firms have a tremendous concentration of really critical, private information," and infiltrating those computer systems "is a really optimal way to obtain economic, personal and personal security related information." 

Allen Paller, director of research at SANS Institute, told reporters that an attack on a major New York law firm in 2008 has been linked to a group of Chinese hackers.  Paller told the AP that the hackers going after law firms, "often target companies that are negotiating a major international deal -- anything from seeking a patent on a sensitive new technology to opening a plant in another country."  "The best documents to steal are in the law firm that represents that company."

As hackers become more organized and strategic, law firms may need to reassess the risks they face in light of the value of the information they manage for their clients. 

Links:

 

American Institute of Certified Public Accountants Sues FTC to Stop Application of Red Flags Rules to Accountants

First it was the lawyers.  Now it's the accountants.  Less than two weeks after a federal judge in the District of Columbia granted the American Bar Association's (ABA) request that lawyers be excluded from enforcement of the Federal Trade Commission's (FTC) Red Flags Rule, which was followed that same day by an announcement that the FTC was moving the deadline for enforcement of the Red Flags Rule from November 1 to June 1, 2010, the American Institute for Certified Public Accountants (AICPA) has filed a lawsuit in the same court seeking an injunction barring the FTC from enforcing the Red Flags Rule as to accountants.  According to the AICPA's press release, the suit was filed on November 10.  For some reason, the case does not appear on PACER (the electronic system that contains links to court filings in the federal court system), but the AICPA included a link to the complaint on its website.

The AICPA suit seeks declaratory and injunctive relief on the grounds that the FTC exceeded its statutory authority by attempting to impose the Red Flags Rule on AICPA members who, it argues, are already strictly regulated at the state level.  The AICPA makes numerous references to the Court's decision in the ABA suit that the Red Flags Rule may not be applied to lawyers.  As with the ABA lawsuit, the AICPA does not suggest that accountants are just as vulnerable to identity theft as other professionals.

It will be interesting to see how the FTC responds to this new complaint, i.e., whether it will make the same arguments it made in the ABA suit and/or whether it will somehow try to distinguish accountants from lawyers.  It will also be interesting to see if any other large industry groups (such as the American Medical Association) decide to file their own suits.  As we noted in our earlier coverage of the ABA litigation, however, the effect of these suits, if successful, on the burdens of those bringing them is unclear.  Although we are not experts about the duties of accountants, one can imagine that, like lawyers, they will likely be required to take many, if not all, of the same security measures demanded of their clients, because the Red Flags Rule require that companies oversee how their service providers manage customer information and accounts, and because of the duties imposed on service providers by other federal and state laws.

 

 

 

 

 

Massachusetts Regulators Finalizing Information Security Regulations, Keep March 1, 2010 Deadline

According to BNA reporter Martha Kessler, the Massachusetts Office of Consumer Affairs and Business Regulation (OCABR) has filed its final information security regulations and will be making them public this week.  BNA has released what they claim to be the final regulations (.pdf) [also available from BNA here (html)].  The final rules appear to have been tweaked only slightly from the draft regulations issued on August 17, 2009.  In a redline comparison (.pdf) against the last draft, two primary revisions emerge:

  1. Entities affected by the regulations have been expanded to include businesses and individuals that merely store personal information; and
     
  2. A clarification was made to the provision requiring affected businesses to negotiate written contracts with service providers that handle personal information.  The tweaks make clear that the grandfather provision that permits companies to rely on service provider contracts already in place will expire on March 1, 2012.

The March 1, 2010 deadline remains unchanged. 

While the final regulations have not been posted to the OCABR website, many are eagerly awaiting to see if the OCABR also provides additional guidance on how to comply, as Undersecretary Anthony promised at the public hearing on these regulations in September.

UPDATE: On Wednesday, November 4th, the OCABR released the final Massachusetts information security regulations (.pdf) to the public, as predicted.  In its new release, the OCABR also announced the publication of its report on consumer data breaches between 2007 and 2009 (.pdf).  The report indicates that since the Massachusetts data breach notification law (M.G.L. ch. 93H) went into effect in 2007, over 1 million Massachusetts residents have been affected by a noticed breach.  Among the many practices mentioned in the report, the OCABR has warned against: (1) "poor employee handling;" (2) documents sent to the wrong recipient; and (3) not  taking steps to prevent access by terminated employees.

Congressional Aide Shares Secret Ethics List With The World

Last week, it was learned that a secret report of the U.S. House of Representatives Ethics Committee was disclosed -- apparently inadvertently -- by a junior committee staff member.  This staff apparently stored the file on a home computer that also ran a "peer-to-peer" file-sharing service.  Just as peer-to-peer services let you share music and games, they also can give outside users access to other files on your computer, including in this case secret Congressional reports.  The 22-page "Committee on Standards Weekly Summary Report" contained summaries of ethics investigations of dozens of House members and some of their staff.

Although "peer-to-peer" services have caused breaches of sensitive financial, defense-related and personal data from government sites in the past, it seems like the federal government has not learned its lesson (even as it tries to impose Fed Flags rules and the HITECH Act on the private sector).

ALERT: FTC Announces Delay in Red Flags Enforcement Until June 1, 2010

Two days before they were scheduled to go into effect, and on the same day that a federal judge ruled that lawyers should be excluded from enforcement, the Federal Trade Commission (FTC) announced today that it was delaying enforcement of its Red Flags Rule until June 1, 2010.  In the announcement, the FTC stated that the delay was due to "the request of Members of Congress" and highlighted the efforts it has made to provide guidance to covered entities on how to comply with the Rule.  However, the announcement specifically mentioned the October 30, 2009 ruling by District Judge Reggie B. Walton of the U.S. District Court for the District of Columbia (see our coverage here), in which the Court granted the ABA's motion for summary judgment, finding that the FTC may not apply the Rule to attorneys.  According to the announcement, the delay in enforcement "does not affect the separate timeline" of the ABA's lawsuit "and any possible appeals."  Given the timing of the announcement, the most likely explanation for the delay is that the FTC wants to give itself time to appeal the district court's decision in the ABA suit. 

To recap the events leading up to this postponement: in April, the ABA received word that the FTC intended to enforce the FTC's Red Flags Rule, 16 CFR Part 681, against lawyers.  The ABA immediately asked the FTC to extend the May 1, 2009 deadline and the FTC obliged by postponing the deadline until August 1, 2009 (see our post on this topic).  After the ABA publicly called on the FTC and Congress to exempt lawyers from the Red Flags Rule in late June, it filed suit in federal district court on August 27, 2009, leading to the ruling in its favor this morning.

However, as we noted in our post on the district court's ruling, caution may be warranted for attorneys because a number "of federal and state laws demand that companies ensure that customer information is protected "downstream" -- i.e., by consultants, accountants, lawyers and anyone else who is given access to customer records . . . . Under these overlapping obligations [along with the fact that the FTC will almost certainly appeal Judge Walton's decision to the D.C. Court of Appeals] lawyers and law firms who represent regulated businesses may ultimately have little to celebrate as a result of the ruling in favor of the ABA" and the delay in enforcement of the Rule.

Federal Judge Rules That Lawyers Need Not Comply With Red Flags Rules

After hearing argument yesterday, Federal District Judge Reggie B. Walton entered an order (.pdf) this morning granting the American Bar Association's (ABA) request that lawyers be excluded from enforcement of the Federal Trade Commission's (FTC's) controversial Red Flags Rules.  This comes as the legal community steeled itself for the FTC's imminent November 1st enforcement deadline.  The order does not go into detail to explain the Court's decision, but promises a written legal opinion within the next month.

The ABA sued the FTC in August to obtain this relief after lobbying both the FTC and Congress to exempt lawyers from the Red Flags Rules.  News of the judge's ruling spread after the hearing yesterday.  ABA President Carolyn B. Lamm stated "By voiding the FTC’s interpretation of a statute that was clearly not intended to apply to the legal profession, the court has ensured that lawyers stay focused on the mission of their work: providing aid and counsel to the individuals and organizations that need us."  No public comment has been posted by the FTC.

Caution may be warranted here, however.  Lawyers, like many other consultants that handle clients' documents and data, will likely be required to take many, if not all of the same security measures demanded of their clients.  The Red Flags Rules require, among many things, that companies oversee how their service providers manage customer information and accounts (16 CFR Part 681.1(e)(4)).  As a result, lawyer may find themselves complying with the Red Flags Rules because they represent companies that must comply with the Rules, which currently includes financial institutions and a range of businesses. 

It should be noted that a range of federal and state laws demand that companies ensure that customer information is protected "downstream" -- i.e., by consultants, accountants, lawyers and anyone else who is given access to customer records. Many state identity theft regulations, such as the strict Massachusetts regulations promulgated as 201 CMR 17.00, require that companies obtain written certifications that service providers are taking all the same security measures as their clients.  Moreover, financial institutions governed by the Gramm Leach Bliley Act and health care providers covered by HIPAA have similar requirements.  Under these overlapping obligations, lawyers and law firms who represent regulated businesses may have little to celebrate as a result of the ruling in favor of the ABA.