The cyber war battlefield has expanded, and your business is now a fighter and a target.

A new U.S. Government report explains many reasons for identifying and penalizing Russian hackers, the Russian intelligence services, and the Russian leadership in response to hacks on U.S. government, political and business targets. The report contains detailed information that organizations can use to determine if the Russians have accessed their systems, plus a detailed list of prudent steps and best practices that all organizations should consider as part of their cyber security efforts.

The overarching message of the report is that the DNC hack was not an isolated incident but part of an ongoing campaign of cyber-enabled operations directed at the U.S. government and its citizens. These cyber operations have included campaigns targeting government organizations, critical infrastructure entities, think tanks, universities, political organizations, and corporations leading to the theft of information.

The report is best understood as a call to arms for U.S. private sector and government entities to strengthen their vigilance and defenses against Russian Intelligence Services and join DHS and FBI in their effort to counter them. Many organizations believe that because they hold no state secrets, defense-related intellectual property, or sensitive information on government employees, they have no stake in geopolitical cyber security. DHS and the FBI are saying that this is not true. The national interest in cyber security is materially weakened whenever organizations with credibility and standing allow their domains to be breached and used conduits for cyber-attacks on others --as happened in the DNC breach. Furthermore, data collected from breaches of non-traditional targets is often used to create the highly-targeted and highly credible email packages for use in spear phishing campaigns against more traditional targets. Geopolitical cyber security is being “democratized” with wide ranging potential public policy implications.

On December 29, 2016, the United States Department of Homeland Security (DHS) and the Federal Bureau of Investigation (FBI) jointly identified the Russian civilian and military intelligence services (RIS) as responsible for the 2015-2016 hack of the Democratic National Committee and its leadership. (In a nod to investigatory confidentiality, the joint DHS/FBI report refers to the targets only as a “U.S. political party,” and “multiple senior party members.”) The U.S. government has given the RIS effort the rather unartfully chosen name of “GRIZZLY STEPPE.” __________________

1 Would a second such cyber-attack become the “GRIZZLY TWO-STEPPE” or simply “DANCING BEAR?”

The joint DHS/FBI report provides the most detailed public discussion to date by U.S. law enforcement and cyber security agencies of the means and methods used in a foreign government-sponsored cyber-attack against U.S. interests. In October 2016, DHS and the Director of National Intelligence had reported that they were “confident” that RIS was behind the DNC attack. But this is the first time that a DHS/FBI joint report had formally assigned culpability for a specific cyber-attack to a specific nation. It is also the first time that specific operational groups within a foreign cyber directorate have been singled out and their identifying practices, approaches and tools have been publically discussed.

The report links these operations by RIS to damaging or disruptive cyber-attacks committed in recent years on foreign interests.2 The report does not mention these attacks by name but apparently is referencing recent cyber-attacks on the Ukrainian electrical grid, banking system and other infrastructure,3 and on Estonian governmental and quasi-governmental entities. All of these cyber-attacks have been widely attributed to the Russian government, which denies that attribution.

As part of its call to arm, the DHS/FBI report provides “technical details regarding the tools and infrastructure” being used by the RIS “to compromise and exploit networks and endpoints associated with a range of U.S. Government, political and private sector entities.”

The report shows how groups working within RIS have been able to plant command and control infrastructure within the servers and domains of U.S. organizations and educational institutions --infrastructure they used to send phishing emails to potential victims and to serve as a pipeline to receive and retransmit stolen data once a breach was established. The report infers that the Russians were able to camouflage their actions by routing this malicious internet traffic through otherwise known and legitimate –perhaps even well-respected— private and educational organizations.

In the report, DHS and the FBI provides “technical indicators related to many of these operations, recommended mitigations, suggested actions to take in response to these the indicators provided and information on how to report such incidents to the U.S. Government.” The technical indicators include the specific software fingerprints (Yara signatures) for the malware planted by RIS, and the specific IP addresses, URLs and file hashes that the RIS operatives have used in their attacks on U.S. computer systems.

DHS and the FBI call on the private sector and others to put this information to immediate use to identify and remediate on-going RIS breaches and to limit future vulnerabilities. It is likely that other private and governmental entities are subject to active and breaches by the RIS, and may be serving as infrastructure for on-going RIS attacks on others. To this end, the report recommends that network administrators “review the IP addresses, file hashes, and Yara signatures provided and add the IP addresses to their watchlists” to determine whether malicious activity is taking place in their systems today. __________________

2 http://www.wsj.com/articles/behind-russias-cyber-strategy-1483140188 3 http://www.wsj.com/articles/cyber-experts-cite-link-between-dnc-hacks-and-aggression-against-ukraine-1482385672

The DHS/FBI report cautions that some of the traffic crossing network perimeters or firewalls and reflecting the suspicious IP addresses and other identifying information may prove to be legitimate. Conversely, some traffic that appears legitimate may involve RIS or others scanning public-facing servers (e.g., HTTP, HTTPS, FTP) to identify websites that are vulnerable cross-site scripting (XSS) or Structured Query Language (SQL) injection attacks. This scanning can be the precursor to exploitation of the vulnerabilities found.

The FBI and DHS cannot impose direct legal consequences on private sector and governmental entities who fail to act on this information. But scenarios can be envisioned where the failure to do so could be considered a failure to provide the minimum levels of data protection that are may be required by the multiple statutory, regulatory and common law constructs under which businesses operate today. Womble Carlyle advises its clients to evaluate the DHS/FBI report carefully, and to document and the actions and decisions taken response to it for future reference.

As to the specific DNC attack, the report concludes that two separate groups within RIS breached the DNC computer system. These teams used different techniques and malware exploits and the report does not show direct coordination between the breaches. The report designates the two RIS hacking groups as APT (Advanced Persistent Threat) 28 and APT 29.

(An advanced persistent threat actor or APT is a hacker or team of hackers whose sophisticated methods, choice of targets, and the determination to breach those specific targets set them apart from even the most accomplished global cybercriminals. APTs are generally assumed to be associated with nation states and other political actors.)

The report indicates that the initial breach of the DNC computer resulted from a 2015 spear phishing campaign in which APT29 sent “out emails containing a malicious link to over 1,000 recipients, including multiple U.S. Government victims.” But even before this, APT29 had breached a number of “legitimate [internet] domains, to include domains associated with U.S. organizations and educational institutions.” Through these earlier breaches, APT29 had set up operational infrastructure (i.e., false user and email accounts) within the computer domains of these legitimate organizations. These accounts allowed APT29 to send spear phishing emails to its victims from legitimate organizations, possibly organizations known to and respected by the potential victims, albeit from unauthorized and fraudulent email accounts hosted there.

Links in the spear phishing emails directed the victims to web pages created by APT29 and hosted, once again, on the domains of these otherwise legitimate organizations. The pages included malware droppers which downloaded malicious software on the targets’ computer system when the victims’ clicked on the links.

At least one targeted individual, apparently a “U.S. Government victim,” activated the malicious link from a computer on the DNC’s system. The downloaded malware granted APT29 remote access to that individual’s computer which the group then used to obtain control over the computer’s operating systems (PowerShell commands). The group established “persistence” in the form of difficult to detect “back doors” allowing its members to come and go on the system at will. They “escalated privileges” harvesting credentials that allowed them wider and wider access to the data on the DNC’s system. They created their own user accounts on the DNC domains to receive, encrypt and exfiltrate (steal) data. They conducted surveillance and began exporting data using encrypted connections.

Operational infrastructure unwittingly hosted on legitimate sites formed the pipeline for breaching the DNC and transmitting the stolen data to Russia. This made the malicious nature of the transfers harder to detect.

A second breach occurred in the spring of 2016 when a separate RIS group, APT28, hacked the DNC using a different spear phishing technique. DHS and the FBI report that APT28’s established modus operandi is to “leverage[e] domains that closely mimic those of targeted organizations.” This can mean, for example, substituting www.yourcompany.co or www.youcompany.com for www.yourcompany.com. Spear phishing emails can be sent that spoof an email from the targets’ IT department or other leadership. The email instructs the targets to confirm or update their passwords using a link provided. The link is to a fraudulent web page on an unwitting host’s system. If the targets click on the link and enter passwords as instructed, their credentials are immediately transmitted to the hacker who uses them to gain access to the computer and begin uploading malware and conducting exploits.

APT28’s approach appears to gained access to the email accounts of “multiple senior party members” at the DNC. The report indicates that the 19,000 emails and other documents posted on WikiLeaks on the eve of the Democratic National Convention were harvested by APT28.

Other reports indicate that it was APT28’s attempts to breach the DNC’s computers in the spring of 2016 that led to DNC to retain cybersecurity consultants to look for a potential breach. Apparently, by the time remedial action could be taken the damage had been done. It also seems that the investigation into the APT28 cyber-attack lead to the discovery of the older, on-going APT29 breach, which may explain the fact that the team responsible for the older breach was assigned the higher reference number.

The DHS/FBI report does not say which “U.S. organizations and educational institutions” were the unwitting hosts to the RIS’s activities. But it is very reasonable to assume that sometime in the summer of 2016, a legitimate and undoubtedly respected U.S. organization or educational institution received a call from the FBI telling them that their lax cyber security policies materially contributed to what the U.S. government is now reporting to be a deliberate attempt by Russia to subvert the U.S. political process. Other organizations may be in a similar situation today, with RIS actively using their infrastructure to carry out cyber-attacks on other U.S. interests.

Would an organization become civilly liable, if absent good reasons, it were to ignore the tools and recommendations cited in this report and then becomes (or continues to be used as) the conduit for future data breaches that injure others? The law on this point is in its infancy. The answer will only come when courts resolve claims by specific plaintiffs seek against specific defendants in future lawsuits. But the process for creating future precedents on these matters will likely be slow, embarrassing and expensive for the defendants involved. And the resulting reputational black-eye may represent the greatest cost of all. Womble Carlyle strongly urges its clients to carefully consider and document their response to the matters contained in this report. Our cyber security and data privacy team represents some 20 lawyers ready to advise and assist on these matters.