United States: How And Why To Pick A Forensic Firm Before The Inevitable Occurs

A forensic investigation by a security firm often does (and should) drive decision-making in response to an incident. Because the work of a security firm usually drives the critical path of a response, companies can become better prepared to respond quickly and effectively to potential incidents by identifying and onboarding a security firm before an incident arises.

If a company becomes aware of a potential incident that requires help from a computer security firm, the notification clock may have already started running. Companies that are unprepared for this scenario sometimes hit the panic button—they want a forensic firm on-site to help immediately, and they turn to Google searches, calling peers for references, or the "local" IT firm that helped them with a project once. Even when they make a good choice, they still have to negotiate a master services agreement and statement of work. There is less negotiating leverage and sometimes even less willingness to attempt to seek favorable terms in an emergency situation like this. Many firms will not deploy resources until they have a signed agreement. And it is not unusual for it to take three to five days for the parties to negotiate a final agreement. Companies facing the difficult task of attempting to complete a forensic investigation and provide notification within 30 days of first awareness of the potential incident (especially if the mailing vendor needs all mailing deliverables five days before they will start to mail letters) would love to have back some of the upfront engagement time.

Getting the MSA and SOW signed does not immediately result in clear sailing. These investigations do not play out like a CSI show—companies do not get answers on the day the forensic firm arrives on-site (it is not unusual for it to take seven to ten days to get preliminary findings). Hopefully the security firm begins to learn about the company's environment and what forensic data are available while building the SOW. But complications can arise when the company cannot quickly and accurately describe its network, collect logs, make forensic images to ship to the firm, get cooperation from key third party hosting vendors, or provide the firm with remote access to the SIEM.

Companies do not always get the "luxury" of having 30 days to investigate, determine who is potentially affected, and then mail letters. It is not uncommon for third parties to be aware of the incident before the company, which can result in public awareness before the company has even started to investigate. According to Mandiant's 2015 M-Trends report, for 69% of the incidents it investigated, the company learned of the potential incident from a third party. Mandiant also reported that the median number of days from when the attacker first broke-in until detection was 205. Slow detection and early public awareness are two factors that often lead to companies making missteps in initial public statements.

When there is early public awareness, companies have fared better when they can at least make an initial statement that they have identified and stopped the issue from continuing. According to Trustwave's 2015 Global Security Report, the median number of days from detection to containment was seven. If it took several days to get the security firm engaged and then seven more days to learn enough about the attack to put in place an effective containment plan, that means it is ten days or more before the company is even prepared to provide a short holding statement in response to customer or media inquiries that the company has identified and stopped the attack. And reaching containment does not mean the investigation is complete—it usually takes several more weeks to determine the full nature and extent of the attack. Only after the security firm can identify what the attacker accessed is the company positioned to determine what notification obligations may exist.

Companies that are working to select a primary security firm as part of their incident response preparedness efforts should consider the following factors:

• Capability: This may be the most critical factor. How do they conduct their investigations—do they have tools that provide visibility to endpoints quickly, that can capture network traffic, and a good repository of current IOCs to quickly look for signs of a compromise? Or do they expect to forensically image everything and then conduct manual analysis? Will they help with operational issues when doing remediation (e.g, if you have a widespread commodity malware infection, can they help you clean?)? How do they help companies with containment plans and short-term/long-term remediation recommendations? Do their tools work in your environment, and do you need individuals with specific subject-matter knowledge because you have a less-common environment?
• Capacity: Also critical—are you comfortable that they will have a good team available when you call? Will they actually tell you that they do not have a team ready so you can turn to your backup instead of waiting a week or two for their team to finish a different investigation? Do they offer a retainer arrangement? Many firms are now offering retainer agreements that provide a 24-hour response time from when a SOW is signed.
• Credibility: Will stakeholders have confidence in their findings?
• Terms of agreement: How will they address (1) steps to preserve attorney-client privilege and work product, (2) confidentiality and security of data provided to the forensic firm, (3) limits on liability, (4) indemnification, and (5) appropriate scope of work and related costs? Ideally, in order to assert that privilege and work product apply to the findings of the firm, the agreement with a forensic firm should be a three-party agreement between the company, outside counsel, and the forensic firm. The forensic firm should be conducting the investigation at the direction of counsel and for the purposes of allowing counsel to provide legal advice to the company in anticipation of litigation that may arise from the incident.
• Cost: Most firms charge hourly rates. Some have rates that vary by experience, and some are flat for all investigators. However, some will require you to pay up front for a number of "budgeted" hours, and they may not refund any unused hours (or they will manage to use all of the budgeted hours). Are there equipment charges?
• Experience: Do they have experience responding to the types of incidents you are likely to face?

After selecting and finishing the MSA negotiation, companies can further improve their readiness by doing onboarding with the security firm. One option is a meeting with the security firm and the incident response team to learn more about the company's IT structure. A key discussion point for this meeting would include identifying logging practices—security firms that are used to investigating incidents have good insight into what data they need to help the company get more certainty about what occurred (especially if the attacker broke in more than six months ago). Other preparedness options include working to fine-tune the security department's incident-specific "run books" and inviting the security firm to participate in the company's mock-breach tabletop exercises.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.