“Data security issues are no longer just an IT Department concern. Indeed, they have become a matter of corporate survival…”2


With the most significant of cyberattacks resulting in millions of dollars in harm, irreparable damage to a company's brand, and key executives getting fired, organizations must begin to prepare for what most experts think is the inevitable breach. And yet, when it comes to cybersecurity, many still think of it like physical security: a matter for professionals to handle by fencing in a campus perimeter, putting the most important entry points under lock and key, and assigning someone to monitor the video surveillance.

But cybersecurity does not work like physical security. You might be able to station someone at every door and hallway in a building and manage the traffic of all persons and materials, like the arena security guards at a professional basketball game. Unlike a sports arena, however, every single one of us and every single one of our devices (desktops, laptops, phones, and tablets) is a viable entry point for even a novice attacker. The arena security team can deploy more guards and pay closer attention, immediately reaping the benefits of enhanced protection. In the cyber space, companies certainly now spend more on "guards,"3 churning out more detailed incident response plans, and paying more attention to the rank-and-file and the board. The result as of 2015: somewhere in the vicinity of a 66 percent annual growth rate in cyberattacks by some accounts4 and, over the past eighteen months, the largest reported breaches in history,5 novel plaintiffs and plaintiff theories,6 unprecedented actions by regulators,7 and an apparently successful phishing attack on the White House.8 The average cost of dealing with breaches has hit an all-time high, with the number of companies reporting losses over $20 million growing by 92 percent.9 And all agree that cyberattacks will only accelerate in the years to come―not only in frequency, but in volume and sophistication.

But even in the face of escalating threats and their attendant costs―both financial and reputational10―global corporate spend on cybersecurity, by some reports, actually decreased 4 percent in 2014.11 And many corporate structures still "bury" cybersecurity issues—and budget—in IT departments, delegating management of chief information security officers to IT rather than requiring CISOs to report directly to top management.12 The reality is that effective threat mitigation and incident response long ago outgrew the four walls of "IT," and now demand the full vigilance of every company employee from the C-suite down. Companies simply must do better.

The saying, "an ounce of prevention is worth a pound of cure" may be a cliché, but when it comes to developing a robust cybersecurity program, it has never been truer. In this chapter we offer some key elements of cyber preparedness that fit the current threat landscape and, frankly, reflect the minimum that companies should implement.

The Tri-Part Approach To Cybersecurity Preparedness

Dealing with today's cyberattacks is not a simple process of building a better wall or even the moat around your wall. The reality is that no cybersecurity defense program is bulletproof. The technology simply has not evolved to address all possible threats. Moreover, the human element in enabling cyberattacks and enterprise damage is omnipresent. As a result, cybersecurity preparedness must evolve into an exercise in risk mitigation, management, and displacement―not perfection.

The proactive (pre-breach) playbook must focus on the twin goals of minimizing the likelihood of a successful attack and mitigating the effects of a breach. The two are different. Minimizing the likelihood of a breach is a multi-step process that requires an organization to develop awareness of its assets and their relative values to each other, develop threat and attacker profiles relevant to the organization's specific business and operations, conduct security assessments indexed to the threat landscape and the assets to be protected, formulate and deploy remediation measures based on the conducted assessments (e.g., employee training, procurement of new technical defense measures, and destruction of data that serves no ongoing business purpose), and establishment of audit (and improvement) processes to ensure the ongoing effectiveness of cybersecurity policies and procedures.

Mitigation of the potential negative fallout post-breach is predicated on preparation, and thus, includes detailed preparation of a comprehensive, enterprise-wide security incident response plan, testing of that plan, and regular updates and fine-tuning based on new intelligence developed through experience and practice.

Proactive preparedness must be indexed to the most significant harms that befall organizations after a breach: harm and disruption to brand and litigation. Accordingly, organizations should orient their efforts around a narrative that demonstrates that the organization acted reasonably and diligently to protect valuable assets and customers.

Even though it is impossible to prevent every breach, organizations can take a wide variety of measures to safeguard data and network assets, especially where the causes involve human errors like phishing, weak passwords, and laptop/device loss. The key is to build a collaborative team approach that is predicated on a risk management model.

These principles remain just as true in cyberwarfare as they did in conventional warfare over two millennia ago:

So it is said that if you know your enemies and know yourself, you can win a hundred battles without a single loss. If you only know yourself, but not your opponent, you may win or may lose. If you know neither yourself nor your enemy, you will always endanger yourself.13

Accordingly, the first two elements of cybersecurity preparedness strategy begin with these basic principles, and incorporate three additional elements:

1. Cyber threat and risk awareness;

2. Internal awareness of data/network assets and vulnerabilities via cybersecurity assessments, coupled with remediation efforts; and

3. Development and testing of an incident response plan.

And, just as there are several elements to comprehensive preparedness efforts, there are similarly multiple stakeholders and participants that must be included to develop an enterprise-wide approach.

Cyber Threat and Risk Awareness

Threat Actors and Threat Vectors

In the context of cybersecurity, organizations must first develop situational awareness of the cyber threat landscape and the risks that attackers pose to their networks and assets. How can you protect your enterprise and prepare to defend it against an attack when you have no particularized idea of what your adversary can and will do? This should come as no surprise. Indeed, the annual cybersecurity trend reviews issued by Ponemon, IBM, SANS, Verizon, PwC and others regularly begin with a survey of the types of threat actors, where the attackers are emanating from, what information they are after, and the motivations that drive their actions. Organizations should view the threat actors in relation to the threat vectors that those attackers are most likely to exploit to achieve their desired purpose―i.e., how attackers get into corporate network environments, their favorite tools and techniques, how they obfuscate and disrupt, etc. This type of composite view that indexes the threat actors to the threat vectors allows for development of a more informative matrix that can be used to build a cybersecurity strategy that makes efficient use of limited resources to target the most significant risks.

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* The authors would like to thank Mary Kelly Persyn for her invaluable assistance and research.

2 Paul Ferillo, Cyber Security, Cyber Governance, and Cyber Insurance, HARVARD LAW SCHOOL FORUM ON CORPORATE GOVERNANCE AND FINANCIAL REGULATION (Nov. 13, 2014), http://corpgov.law.harvard.edu/2014/11/13/cyber-security-cyber-governance-and-cyberinsurance/.

3 According to Venture Beat, the global security market was worth about $87 billion in 2014, likely increasing to around $120 billion by 2017. Bob Ackerman, Three white-hot areas for cybersecurity investors in 2015, VENTURE BEAT (Dec. 22, 2014), http://venturebeat.com/2014/12/22/three-white-hot-areas-for-cybersecurity-investors-in-2015/. Venture investment in cybersecurity startups is concomitantly high; MIT Technology Review reports that 2014 set a record at $2.3 billion. Mike Orcutt, Why Venture Capitalists Love Security Firms Right Now, MITTECH.REV. (March 17, 2015), at http://www. technologyreview.com/news/535851/why-venture-capitalists-love-security-firms-right-now/ . Liana B. Baker, Olivia Oran, and Jim Finkle, Exclusive: Cyber IPO pipeline grows as data breaches boost security spending, Reuters (March 20, 2015), at http://www.reuters.com/article/2015/03/20/us-cybersecurity-ipo-exclusiveidUSKBN0MG2ET20150320 As breach frequency continues to escalate, more cybersecurity companies are going IPO, according to Reuters, including Rapid7, LogRhythm and MimeCast. Liana B. Baker, Olivia Oran, and Jim Finkle, Exclusive: Cyber IPO pipeline grows as data breaches boost security spending, REUTERS (March 20, 2015), http://www.reuters.com/article/2015/03/20/us-cybersecurityipo-exclusive-idUSKBN0MG2ET20150320. Network security provider FireEye, which went IPO at $304 million in 2013, now has a market cap of about $4.6 billion. PwC, Managing cyber risks in an interconnected world: Key Findings from The Global State of Information Security Survey 2015 (September 30, 2014), at http://www.dol.gov/ebsa/pdf/erisa/Advisory council2015security3.pdf ("PwC Report").

4 PwC Report at 7.

5 Last year saw "huge" breaches strike Home Depot (cyberthieves stole as many as 60 million credit card numbers); Target (breached during the holiday season, the retailer continued to feel repercussions into 2014, ultimately ballparking costs at $148 million); Apple (several celebrity users suffered a hack of their personal and intimate photos); Neiman Marcus (a February breach resulted in the loss of about 350,000 card numbers); and Anthem and Premera (as many as 1 in 3 Americans were affected by these two breaches). Benjamin Snyder, 5 huge cybersecurity breaches at companies you know, FORTUNE (October 3, 2014), at http://fortune.com/2014/10/03/5-huge-cybersecurity-breaches-at-big-companies/; Jeremy Kirk, Anthem now says 78.8M were affected by breach, COMPUTERWORLD (February 24, 2015), at http://www.computerworld.com/article/2888267/anthems-now-says-788m-were-affected-bybreach.html; Brian Krebs, Premera Blue Cross Breach Exposes Financial, Medical Records, KREBS ON SECURITY (March 17, 2015), at http://krebsonsecurity.com/2015/03/premera-bluecross-breach-exposes-financial-medical-records/.

6 In a novel development, a federal judge has ruled that both banks and consumers can sue Target for losses suffered due to the breach. The consumer suit has since settled for $10 million. Megan Geuss, Judge rules that banks can sue Target for 2013 credit card hack, ARSTECHNICA (December 4, 2014), at http://arstechnica.com/tech-policy/2014/12/04/judgerules-that-banks-can-sue-target-for-2013-credit-card-hack/; Peter Cooney and Supriya Kurane, Target agrees to pay $10 million to settle lawsuit from data breach, REUTERS (March 19, 2015) at http://www.reuters.com/article/2015/03/19/us-target-settlementidUSKBN0MF04K20150319.

7 The FCC has become more aggressive in its data breach enforcement stance, fining two telecommunications companies, Terracom, Inc. and YourTel America, Inc. $10 million, and more recently levying an astounding $25 million fine against See FCC 14-173, Notice of Apparent Liability for Forfeiture [In the Matter of TerraCom, Inc. and YourTel America, Inc.] (October 24, 2014), at https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-173A1.pdf; See FCC DA 15-399, Order (April 8, 2015), at https://apps.fcc.gov/edocs_public/attachmatch/DA-15-399A1.pdf FCC, AT&T to pay $25 million to settle consumer privacy investigation (April 8, 2015), at https://www.fcc.gov/document/att-pay-25m-settle-investigation-three-databreaches-0.

8 Armin Rosen, REPORT: Russia hacked the White House, BUS. INSIDER (April 7, 2015), at http://www.businessinsider.com/report-russia-hacked-the-white-house-2015-4.

9 PwC Report at 10.

10 See Ferillo, Cyber Security, supra at n. 2; see also Elise Vlebeck, Companies see personal data breach as biggest threat, THE HILL (April 10, 2015), at http://thehill.com/policy/cybersecurity/238463-companies-see-personal-data-breach-asbiggest-threat; Tim Luckett, Data & Reputational Risk, Hill + Knowlton (December 9, 2014), at http://www.hkstrategies.com/blogs/crisis/data-reputational-risk (Global security advisor Hill + Knowlton recently opined that "[n]o matter which sector or which part of the world we are in—this is now where reputations are won or lost.").

11 PwC Report at 19.

12 PwC Report at 19.

13 Sun Tzu, THE ART OF WAR.

Previously published in Inside the Minds: Understanding Developments in Cyberspace Law

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.