Why Incident Response Reports Are No Longer Private After a Business is Hacked

Until recently, companies that got hacked could keep their incident response reports private under attorney-client privilege. However, that’s about to change.

Why Incident Response Reports Are No Longer Private After a Business is Hacked

Capital One’s data breach may have ended privileged incident response reports

In 2019, a software engineer from Seattle hacked into a Capital One server and gained access to personal information pertaining to more than 100 million people. Openly boasting about her exploit, she reportedly stole 140,000 Social Security numbers and 80,000 bank account numbers. The software engineer had worked for Amazon Web Services where the Capital One database was hosted.

The cause for the data breach was a misconfigured firewall. It’s unclear how the firewall was misconfigured, but it could have been a simple oversight. Had Capital One employed a third-party solution on its AWS servers, like a Next Generation Firewall, the incident may have been avoided. Next Gen firewalls detect threats in real-time and use a growing database of known attacks as a reference for threat indicators.

Since Capital One failed to protect consumer data, they are now at the center of a host of lawsuits. Multiple lawsuits – including more than 60 class actions – have been filed against Capital One for failing to safeguard consumers’ personal information with appropriate data security measures.

As part of the litigation, Capital One is being asked to hand over information that was formally considered privileged.

Capital One must hand over their incident response report

When a company experiences a data breach, they usually create an incident response report that describes all the measures taken to mitigate and stop the effects of the breach. According to Cyberscoop, Capital One’s contractor, Mandiant, compiled an incident response report that is expected to detail “engagement activities, results and recommendations for remediation” as a result of the 2019 data breach. Capital One expected that this report would remain privileged, but a judge thinks otherwise.

In May 2020, a Virginia District Court judge ruled that Capital One must provide plaintiffs’ attorneys with a copy of their incident response report from a 2019 data breach. This ruling could pave the way for similar rulings in the future and is a dire warning to corporations to step up their game concerning data security.

Why incident response reports have been kept privileged

Large corporations prefer to keep incident response reports private because the details could give plaintiffs information to justify seeking a higher payout. Naturally, corporations want to mitigate the financial impact of a data breach lawsuit. Thanks to strict data protection regulations, some corporations are already required to pay hefty fines and want to pay consumers as little as possible.

Corporations should use this situation to their advantage

Rather than be afraid, corporations should use the Capital One data breach situation to their advantage. Namely, this is a great opportunity to increase data security measures to protect personal information. Top-of-the-line, high-tech cybersecurity is no longer an option but a requirement for any business that stores personal data belonging to customers.

Should incident response reports remain privileged?

Under current legal doctrine, incident response reports should remain privileged. However, this surprise ruling in Virginia is cause for reconsideration. For years, corporations have been employing poor data security measures that have caused harm to millions of people across the world. When incident response reports remain privileged, nobody really knows the whole story regarding security and personnel failures. That’s not fair to consumers.

Between a long string of ransomware attacks, data breaches, and relentless bricking, it’s clear that corporations aren’t motivated to increase security measures. Declaring incident response reports as unprivileged has the potential to act as a deterrent for businesses that try to get by with minimal security measures.

Businesses can learn from Capital One’s incident response report

If Capital One’s incident response report becomes part of the court proceedings, it will eventually be made public. This means businesses can use the information to their advantage and learn from Capital One’s mistakes.

It costs money to employ high-level data security measures. However, high-tech data security should be a standard part of every corporation’s IT budget. Data security might be an expense when tax time rolls around, but it’s actually an investment in customer relationships.

Customers shouldn’t have to worry about if or when their personal data will be posted on the dark web for hackers to exploit. They should know the companies they do business with care about protecting them – even if it costs a little more.

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Online Threat Alerts Security Tips

Pay the safest way

Credit cards are the safest way to pay for online purchases because you can dispute the charges if you never get the goods or services or if the offer was misrepresented. Federal law limits your liability to $50 if someone makes unauthorized charges to your account, and most credit card issuers will remove them completely if you report the problem promptly.

Guard your personal information

In any transaction you conduct, make sure to check with your state or local consumer protection agency and the Better Business Bureau (BBB) to see if the seller, charity, company, or organization is credible. Be especially wary if the entity is unfamiliar to you. Always call the number found on a website’s contact information to make sure the number legitimately belongs to the entity you are dealing with.

Be careful of the information you share

Never give out your codes, passwords or personal information, unless you are sure of who you're dealing with

Know who you’re dealing with

Crooks pretending to be from companies you do business with may call or send an email, claiming they need to verify your personal information. Don’t provide your credit card or bank account number unless you are actually paying for something and know who you are sending payment to. Your social security number should not be necessary unless you are applying for credit. Be especially suspicious if someone claiming to be from a company with whom you have an account asks for information that the business already has.

Check your accounts

Regularly check your account transactions and report any suspicious or unauthorised transactions.

Don’t believe promises of easy money

If someone claims that you can earn money with little or no work, get a loan or credit card even if you have bad credit, or make money on an investment with little or no risk, it’s probably a scam. Oftentimes, offers that seem too good to be true, actually are too good to be true.

Do not open email from people you don’t know

If you are unsure whether an email you received is legitimate, try contacting the sender directly via other means. Do not click on any links in an email unless you are sure it is safe.

Think before you click

If an email or text message looks suspicious, don’t open any attachments or click on the links.

Verify urgent requests or unsolicited emails, messages or phone calls before you respond

If you receive a message or a phone call asking for immediate action and don't know the sender, it could be a phishing message.

Be careful with links and new website addresses

Malicious website addresses may appear almost identical to legitimate sites. Scammers often use a slight variation in spelling or logo to lure you. Malicious links can also come from friends whose email has unknowingly been compromised, so be careful.

Secure your personal information

Before providing any personal information, such as your date of birth, Social Security number, account numbers, and passwords, be sure the website is secure.

Stay informed on the latest cyber threats

Keep yourself up to date on current scams by visiting this website daily.

Use Strong Passwords

Strong passwords are critical to online security.

Keep your software up to date and maintain preventative software programs

Keep all of your software applications up to date on your computers and mobile devices. Install software that provides antivirus, firewall, and email filter services.

Update the operating systems on your electronic devices

Make sure your operating systems (OSs) and applications are up to date on all of your electronic devices. Older and unpatched versions of OSs and software are the target of many hacks. Read the CISA security tip on Understanding Patches and Software Updates for more information.

What if You Got Scammed?

Stop Contact With The Scammer

Hang up the phone. Do not reply to emails, messages, or letters that the scammer sends. Do not make any more payments to the scammer. Beware of additional scammers who may contact you claiming they can help you get your lost money back.

Secure Your Finances

  • Report potentially compromised bank account, credit or debit card information to your financial institution(s) immediately. They may be able to cancel or reverse fraudulent transactions.
  • Notify the three major credit bureaus. They can add a fraud alert to warn potential credit grantors that you may be a victim of identity theft. You may also want to consider placing a free security freeze on your credit report. Doing so prevents lenders and others from accessing your credit report entirely, which will prevent them from extending credit:

Check Your Computer

If your computer was accessed or otherwise affected by a scam, check to make sure that your anti-virus is up-to-date and running and that your system is free of malware and keylogging software. You may also need to seek the help of a computer repair company. Consider utilizing the Better Business Bureau’s website to find a reputable company.

Change Your Account Passwords

Update your bank, credit card, social media, and email account passwords to try to limit further unauthorized access. Make sure to choose strong passwords when changing account passwords.

Report The Scam

Reporting helps protect others. While agencies can’t always track down perpetrators of crimes against scammers, they can utilize the information gathered to record patterns of abuse which may lead to action being taken against a company or industry.

Report your issue to the following agencies based on the nature of the scam:

  • Local Law Enforcement: Consumers are encouraged to report scams to their local police department or sheriff’s office, especially if you lost money or property or had your identity compromised.
  • Federal Trade Commission: Contact the Federal Trade Commission (FTC) at 1-877-FTC-HELP (1-877-382-4357) or use the Online Complaint Assistant to report various types of fraud, including counterfeit checks, lottery or sweepstakes scams, and more.
  • Identitytheft.gov: If someone is using your personal information, like your Social Security, credit card, or bank account number, to open new accounts, make purchases, or get a tax refund, report it at www.identitytheft.gov. This federal government site will also help you create your Identity Theft Report and a personal recovery plan based on your situation. Questions can be directed to 877-ID THEFT.

How To Recognize a Phishing Scam

Scammers use email or text messages to try to steal your passwords, account numbers, or Social Security numbers. If they get that information, they could get access to your email, bank, or other accounts. Or they could sell your information to other scammers. Scammers launch thousands of phishing attacks like these every day — and they’re often successful.

Scammers often update their tactics to keep up with the latest news or trends, but here are some common tactics used in phishing emails or text messages:

Phishing emails and text messages often tell a story to trick you into clicking on a link or opening an attachment. You might get an unexpected email or text message that looks like it’s from a company you know or trust, like a bank or a credit card or utility company. Or maybe it’s from an online payment website or app. The message could be from a scammer, who might

  • say they’ve noticed some suspicious activity or log-in attempts — they haven’t
  • claim there’s a problem with your account or your payment information — there isn’t
  • say you need to confirm some personal or financial information — you don’t
  • include an invoice you don’t recognize — it’s fake
  • want you to click on a link to make a payment — but the link has malware
  • say you’re eligible to register for a government refund — it’s a scam
  • offer a coupon for free stuff — it’s not real

About Online Threat Alerts (OTA)

Online Threat Alerts or OTA is an anti-cybercrime community that started in 2012. OTA alerts the public to cyber crimes and other web threats.

By alerting the public, we have prevented a lot of online users from getting scammed or becoming victims of cybercrimes.

With the ever-increasing number of people going online, it important to have a community like OTA that continuously alerts or protects those same people from cyber-criminals, scammers and hackers, who are every day finding new ways of carrying out their malicious activities.

Online users can help by reporting suspicious or malicious messages or websites to OTA. And, if they want to determine if a message or website is a threat or scam, they can use OTA's search engine to search for the website or parts of the message for information.

Help maintain Online Threat Alerts (OTA).

Why Incident Response Reports Are No Longer Private After a Business is Hacked