EU Spotlight: Top 6 Issues All General Counsel Need To Know About Ransomware – Technology | #cybersecurity | #cyberattack

Executive Summary

Ransom demands from cyber-attacks show no signs of slowing down,
and the costs—both from ransom payments and repairing the
damage—are rising precipitously. Our Privacy, Cyber &
Data Strategy Team outlines six ways companies can calibrate their
cybersecurity preparedness to the current ransomware threat

  • There’s more to the attack than simply paying the

  • New laws and insurance policies mean paying the ransom may not
    even be an option

  • Expect more obligations from the EU and UK … and more

Ransomware has become an increasingly lucrative criminal
industry that is projected to cause over €16 billion in global
damages to companies in 2021. Some estimates are even higher, with
one global security company calculating that the true global cost
of ransomware, including business interruption and ransom payments,
ranged from €35 billion to €142 billion in 2020. As one
indication of the escalating threat landscape in the EU, the EU
Agency for Cybersecurity (ENISA) reported 304 significant,
malicious attacks against critical sectors in 2020, compared to 146
in 2019. These attacks can result in disrupted or even crippled
operations, with network downtime costing companies an average of
nearly €4,700 per minute—over €280,000 per
hour—as evidenced by the fallout of the attack on the Irish
Health Service Executive in May 2021, which remained significantly
disrupted for weeks after the attack, and one of the largest
Swedish grocery chains, which was forced to shut down 800 stores
after an unprecedented ransomware supply chain attack against an IT
management software provider. As companies continue to enhance
their security and restoration capabilities to prevent or minimize
the impact of a successful attack, ransomware actors likewise
continue to escalate threats and adapt their tactics to overcome
these measures. 

1. Payment will not result in zero impact

Ransom demands are growing—the average ransom paid nearly
tripled from approximately €97,000 in 2019 to €260,000 in
2020—but a payment does not guarantee zero impact. Attackers
may attempt to leverage victims by claiming that it is more
cost-effective to pay the ransom and keep quiet than to pay the
costs associated with GDPR compliance and potential associated
notifications. Indeed, GDPR compliance requirements may be
triggered if personal or sensitive data is unable to be fully
recovered or restored. 

According to the Ponemon Institute, the cost of lost business is
the largest cost factor in determining the total cost of a data
breach. Irrespective of whether a ransom is paid or whether data is
restored from backups or via a decryption tool, ransomware attacks
typically involve significant downtime, and that downtime is
increasing. A reputable third-party ransomware intermediary has
reported that the average downtime following a ransomware attack
increased from 19 days in the third quarter of 2020 to 21 days in
the fourth quarter of 2020 regardless of whether the
company paid for a decryption key
. Is your company prepared to
be down for over three weeks? For example, the Danish facility
management services company ISS needed over a month to regain
control of critical business applications. After a DKK 365 million
(€49 million) IT infrastructure rebuild, all systems were
finally completely recovered just over a year after the

In addition, paying a ransom generally does not guarantee that a
company will be able to restore all of its data immediately, or at
all. Several factors—including the ransomware variant, the
threat actor group, and the configuration of the company’s
systems—can contribute to whether a company will be able to
partially or fully decrypt its data if it is not in a position to
restore its system and data without paying for a decryption

The likelihood of downtime and the inherent uncertainty
surrounding restoration following a ransomware incident have
resulted in an increasing need for robust incident response and
resilience planning. In particular, companies may be especially
well-served by incorporating a ransomware playbook into their
existing incident response plans and ensuring their incident
response teams have practiced multiple ransomware scenarios in
tabletop exercises, for example.

2. Check your cyber-insurance coverage … and be prepared for
the renewal process

The increasing frequency of ransomware attacks and rising costs
of ransom payments have placed renewed focus on the particulars of
cyber-insurance coverage. Although some cyber-insurance companies
provide broad coverage, including both incident response and
forensic assistance to aid in timely operational recovery, global
insurance company AXA recently took the first step in moving the
industry away from cyber-insurance policies that reimburse insureds
for ransomware payments by suspending the option in France. Even if
a policy does cover ransom payment reimbursement, however, an
insurer is likely to reevaluate the policy and premium after the

Because the increasing costs of ransom payments have placed
strains on the insurance industry, insureds can expect that the
underwriting and renewal processes may be more rigorous than in
previous years. Indeed, as companies seek to acquire new
cyber-insurance policies or renew existing ones, the insurers’
enhanced diligence procedures may require additional disclosures or
the implementation of new or more stringent cybersecurity
procedures to meet the insurer’s standards. Policies can often
require a checklist of specific security controls designed to
mitigate the risk of ransomware to be in place and periodically
tested for effectiveness, for example.

There is also the risk that an insured company may find that its
policy’s pre-approval process for the retention of outside
counsel, forensic experts, ransom payment facilitators, and even
the potential ransom payment itself is in tension with the
company’s interest in a swift and immediate response to the
ransomware event. The extent to which the policy includes recovery
costs can pose an additional challenge if a policy does not treat
expenses related to the forensic investigation, the ransom payment
itself (if applicable), and rebuilding affected systems as covered
recovery costs.

3. Double extortion

As companies grapple with the challenges associated with
improving security and recovery capabilities, organized criminal
groups associated with ransomware attacks have undergone a period
of reorganization and shifting of tactics that may frustrate
response efforts. For example, in the second half of 2019, threat
actors began using a wider range of techniques to incentivize the
payment of ransom, chiefly by exfiltrating data before executing
the ransomware and then threatening to post victims’ identities
and data through online “shaming” boards. This trend
accelerated in 2020 and into 2021, beginning with Sodinokibi’s
use of a double extortion scheme to target Travelex, the
world’s largest chain of currency exchange shops in early 2020.
More recently, the Conti group targeted the Irish Department of
Health and the Health Executive Service in May 2021, threatening to
sell or publish private data after crippling the health and social
service systems for the entire nation of 4.9 million people. An
interesting twist to this incident is that the Irish authorities
made clear that they would not pay the $20 million ransom and the
threat actors responded by providing the decryption tool for free,
but then proceeded to leak some patient data when the ransom was
still not paid. According to one security firm, the percentage of
ransomware attacks that involved the threat to release stolen data
on the dark web increased from 50% in Q3 of 2020 to 70% in
Q4 2020
. Are you prepared to have your sensitive data leaked
on a criminal site?

Not surprisingly, this second threat of data leakage may also
lead to more complicated regulatory issues. Having personal or
sensitive data leaked significantly increases the risk that the
event will trigger GDPR notification requirements. Forensic and
threat intelligence firms also report that threat actor groups have
shifted the type of information targeted for encryption or
exfiltration in attacks. Whereas individuals’ personal
information has long been targeted, recent incidents such as the
attack on a Polish game developer highlight the extent to which
sensitive corporate information and intellectual property are
valuable targets. 

4. Paying the ransom might not be an option

Both EU regulators and insurance companies have recognized the
proliferation of ransom demands and staggering amounts of
cyber-extortion payments when viewed in the aggregate, and this
recognition marks a watershed in the approach to ransom payments as
a result of recent regulatory guidance and increased expectations
for compliance. For example, global insurer AXA’s decision to
remove the option to sign policies that reimburse victim companies
for a ransom payment was apparently driven by French officials’
concerns about the growing threat of ransomware. 

Insurance coverage may not be the only concern, however. On July
30, 2020, the Council of the EU developed its first cyber-sanctions
regime targeting a number of actors, including four Russian GRU
members, two Chinese nationals, and North Korean firm Chosun Expo
for the WannaCry, NotPetya, and Cloud Hopper attacks. These
sanctions prohibit the direct and indirect release of funds to the
sanctioned actors and applies to all Member States, and their
governing framework has been extended through May 2022.

Other country-specific sanctions regimes may apply as well, such
as a provision of the UK’s Terrorism Act 2000, which prohibits
an entity from providing money or property to an actor if the
entity “knows or has reasonable cause to suspect that [the
money or property] will or may be used for the purposes of
terrorism.” Accordingly, there are circumstances where even if
a company was inclined to pay the ransom to mitigate the risk to
impacted data, it may not be able to lawfully do so.

As European and other agencies increase their scrutiny of such
payments, insurers and some third-party payment facilitators have
similarly bolstered their compliance procedures to insulate
themselves from further risk. For example, some third-party payment
facilitators now maintain a more stringent “no-fly” list
than the UK’s Terrorism Act and U.S.’s OFAC Specially
Designated Nationals and Blocked Persons List. Some insurance
companies will now require more rigorous certifications of
compliance with other extraterritorial and international
provisions. Consequently, there are additional circumstances where
even if a company may be able to lawfully pay the ransom,
third-party payment facilitation or insurance reimbursement for the
payment may be unavailable.

In sum, companies are well-served by preparing for circumstances
where a company is precluded from payment—either as a matter
of legal compliance, company policy, or other practical or
contractual considerations. To further exacerbate the situation,
because ransomware attacks are now frequently a two-step extortion
process, where payment is demanded in exchange for a decryption key
and then to prevent data leakage of any exfiltrated data, the
consequences of nonpayment can be significant. In instances where
ransomware payment is not an option and data has been exfiltrated
before encryption, the need for secure backups and a comprehensive
incident response plan as a starting point for recovery is
especially important.

5. Expect increased obligations from the new EU Joint Cyber
Unit and guidance from the UK Information Commissioner’s

In response to the increasing number of cybersecurity
incidents—including the dramatically increasing rate of
ransomware attacks—the EU has proposed a new cybersecurity
task force for a unified European response to cyber incidents,
including ransomware. The “Joint Cyber Unit,” led by
ENISA, would allow Member States to seek help from other Member
States. This assistance could include the deployment of a rapid
response team to fight hackers during “real time” as an
attack is unfolding. 

Additionally, during the Information Commissioner’s Office
(ICO) May 2021 Data Protection Practitioners’ Conference, the
ICO announced that new guidance on ransomware is forthcoming. The
new guidance will include advice on preparation; data protection
requirements; and incident response plans, notification, and
compliance. Currently, the ICO begins a ransomware investigation by
looking at the affected entity’s GDPR compliance
posture—particularly focusing on Articles 5 and 32
initially—and whether the entity has segregated its live and
offline repositories to ensure compartmentalization. The new
guidance may contain provisions for increased obligations for
victim companies.

6. Proliferation of guidance … it’s back to the

Organizations have no shortage of guidance available to them
from law enforcement and regulatory authorities regarding the
ransomware threat and steps to mitigate it. Recent guidance ranges
from the UK National Cyber Security Centre (NCSC) guidance on
mitigating malware and ransomware attacks to mitigation strategies
in ENISA’s 2020 Ransomware Threat Landscape Guide to general
guidance. There are growing collaborations between private and
public sector actors, such as the joint Ransomware Task Force,
composed of tech companies such as Amazon, Cisco, FireEye,
Microsoft, and McAfee, and multinational agencies such as Europol,
the UK National Crime Agency, and the U.S. Department of Justice,
as well as, a joint effort by the Dutch National
Police, Europol, McAfee, and Kaspersky Lab.

A common thread that runs through ransomware
guidance—irrespective of an organization’s market sector,
size, or nature—is the importance of certain security
controls that fall squarely within basic cyber-hygiene and
well-established principles of reasonable security. 

Initial guidance on earlier ransomware variants focused on the
need for reliable backups; however, the additional threats posed by
data leakage, targeted attacks, and increased guidance (and
therefore increased expectations for resiliency) have prompted a
corresponding focus on basic cybersecurity controls that can be
especially helpful in preventing or minimizing the impact of
ransomware incidents. Although maintaining proper backups continues
to be a core measure to reduce the amount of downtime, additional
measures include minimizing the potential success of phishing
incidents, which can serve as a gateway incident to more serious
ransomware attacks. The implementation of email security measures
such as multifactor authentication and increased training,
including simulated phishing emails, can ensure users are
appropriately aware of the risks. Organizations should consider
disabling remote desktop protocol (RDP) access because it permits
attacks to circumvent endpoint detection tools and facilitates
easier lateral movement within a network. In addition, patching
vulnerabilities according to manufacturer’s specifications and
applying the latest updates may prevent vulnerability exploitation.
Given the trend for zero-day vulnerabilities to be exploited, it
may not be sufficient to rely on traditional patch management

In conclusion, the evolving threat tactics associated with
ransomware attacks continue to pose practical challenges for
companies. In situations where either the company’s backup
capabilities or ability to pay the ransom to prevent data leakage
is suboptimal, ransomware events now easily reach
“mega-breach” proportions in terms of their impact to the
victim company. This is especially true when a company faces a
costly recovery process that can include a ransom demand, technical
restoration, a forensic investigation, dark web monitoring, and
legal notifications—costs that may or may not be covered by a
cyber-insurance policy. And while certain aspects of the ransomware
threat landscape are beyond a company’s control—in
particular the ransomware variants and threat actor group
tactics—factors such as insurance coverage, the sufficiency
of existing security controls in light of current threats,
sanctions compliance, incident response planning, and
information-sharing arrangements can be addressed proactively by a
company in the course of its incident response planning and
preparation efforts.

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.

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