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Navigating APT Intrusions
Advanced Persistent Threat (APT) intrusions are sophisticated cyber-attacks carried out by well-funded and organized cyber-criminals, nation state actors or, more recently, a combination of both. The attacks are designed to establish persistence using various tactics, techniques and procedures (TTPs) that are intended to avoid detection and mimic authorized activity in the environment, known as "living off the land." APTs' goals may include the acquisition of intellectual property, personal data and financial information or the compromise of infrastructure or specialized data. APT intrusions often result in the unauthorized actor achieving part or all of their objective and can lead to serious reputation and financial damage to a company.
Below is an overview of concepts that must be accounted for when navigating an APT intrusion or any sophisticated attack.
Directing the Investigation; Establishing Privilege
As soon as a potential APT intrusion is detected, it is critical to engage attorneys to direct the investigation and establish attorney-client privilege. APT intrusions may involve significant "dwell" time, which means evidence may not be available or definitive. Indeed, APT activities often relate to preexisting vulnerabilities in an environment — even ones that may have been identified by the client. Further, decisions made after the discovery of an incident with regard to containment, remediation, forensics and evidence collection may impact a company's liability down the line. Therefore, it is important to establish privilege at the outset of an investigation.
External counsel should retain third-party assistance, such as forensic investigators, for the purposes of providing legal advice. When external counsel directs third-party forensic investigations and appropriate privilege protocols are in place, courts have generally held forensic investigator's records, reports, communications and other materials related to the investigation are privileged and thus do not need to be disclosed during litigation or regulatory proceedings.
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