Weekly Highlights: April 21, 2014

April 22, 2014

FRCP Rule 37(e) (Preservation) is Changing

On April 11th, the Civil Rules Advisory Committee approved a  revision to Rule 37(e) (the section covers failure to preserve Electronically Stored Information (ESI)).  The new draft reads, as follows:

“(e) FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve the information, and the information cannot be restored or replaced through additional discovery, the court may:

(1) Upon finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice;

(2) Only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation,

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.”

You’ll note that the existing Rule 37e language is nowhere to be found:

“Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.”

You can read the proposed changes on the US Courts site, here.

 Popular Legal Websites Affected by the Heartbleed Flaw

Robert Ambrogi’s blog, “LawSites” had a post listing sites, popular with attorneys, that were affected by Heartbleed.  You can view that site here.  If you don’t know what “Heartbleed” is, you will need to.  You can view the Inforensics Blog post, to catch up.

Box.com, and Dropbox.com were, according to Ambrogi’s research, affected by the flaw.  If you use these sites, it is a good time to review and change passwords.  Also, read the Inforensics Blog post on Password Re-use.

 

Changing Metadata Leads to Sanctions

You may have missed the following case.  Remember: It doesn’t take an expert to alter data, and attempt obfuscation, just some software from your local Best-Buy:

T & E Inc. v. Faulkner, 2014 WL 550596 (N.D. Tex. Feb. 12, 2014)

In this case, sanctions were sought for alleged manipulation of metadata, in an attempt to hide the existence of a computer that had not been produced.  A successful motion to compel the defendant to produce computers gave a specific timeline for production.  A forensic expert found evidence that, during the time given to produce, the opposing party created a new user profile on a computer, copied data to it, and used a commercial software to alter times on files in order to make the system appear as though it had been in use, in an effort to hide the “real” computer that had been in use.  Spoliation sanctions were awarded in the form of an adverse inference, and $27,000 dollars.

 

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Making Sense of “Heartbleed”: Information Security Catastrophe/Nightmare

April 11, 2014

The term “Internet Security Nightmare” has been used.  This is not an exaggeration, and not an example of hyperbole; Heartbleed is a security catastrophe that cuts a wide swathe across the internet.

If you are not aware of the recently discovered Heartbleed flaw: An extremely critical security flaw has been identified in a cryptographic software component that affects an estimated two-thirds of Web servers, as well as many devices and programs that rely on the software component.  The flaw has been nicknamed “Heartbleed” because of the methodology used to exploit it.  The flaw allows an attacker to retrieve active contents in memory, including private security keys, unencrypted information, and usernames and passwords.

The Heartbleed flaw affects a software module that is in use by everything from routers and web servers, to some phones and devices.

Here are some steps you should take now to give yourself a fighting chance against this flaw:

1) Examine your own practice first:  Are you using hosted email, providing client portals, file upload services, or other web- or internet- enabled services for your clients?  If the services offer SSL, or access using encryption then you need to check with your hosting provider or IT company to confirm that they have patched, or otherwise mitigated the issue.

2) Change your passwords AFTER you have confirmed the service has been fixed: This flaw is being actively exploited.  If you change your password BEFORE the service is fixed, then you are still at risk.  Confirm first, change after.

3) Be aware of “password re-use”:  This flaw has existed for 2 years, and has only now come to light.  Some companies have gone back to review logs, and have found active attacks against this flaw from before March.  If you use the same password in multiple locations, then it is time to change all your passwords.  Recommended reading:   Because One Thing Leads to Another: Data Breach and Password Re-Use

I have included a simple chart below, as an example of high profile services to review (source: Mashable):

Social Networks

Was it affected? Is there a patch? Do you need to change your password? What did they say?
Facebook Unclear Yes Yes “We added protections for Facebook’s implementation of OpenSSL before this issue was publicly disclosed. We haven’t detected any signs of suspicious account activity, but we encourage people to … set up a unique password.”
LinkedIn No No No “We didn’t use the offending implementation of OpenSSL in http://www.linkedin.com or http://www.slideshare.net. As a result, HeartBleed does not present a risk to these web properties.”
Tumblr Yes Yes Yes “We have no evidence of any breach and, like most networks, our team took immediate action to fix the issue.”
Twitter Unclear Unclear Unclear Twitter wrote that OpenSSL “is widely used across the internet and at Twitter. We were able to determine that [our] servers were not affected by this vulnerability. We are continuing to monitor the situation.”Twitter has not yet responded to Mashable‘s request for comment.

Other Companies

Was it affected? Is there a patch? Do you need to change your password? What did they say?
Apple Unclear Unclear Unclear Apple has not yet responded to a request for comment.
Amazon No No No “Amazon.com is not affected.”
Google Yes Yes Yes “We have assessed the SSL vulnerability and applied patches to key Google services.” Search, Gmail, YouTube, Wallet, Play, Apps and App Engine were affected; Google Chrome and Chrome OS were not.*Google said users do not need to change their passwords, but because of the previous vulnerability, better safe than sorry.
Microsoft No No No Microsoft services were not running OpenSSL, according to LastPass.
Yahoo Yes Yes Yes “As soon as we became aware of the issue, we began working to fix it… and we are working to implement the fix across the rest of our sites right now.” Yahoo Homepage, Yahoo Search, Yahoo Mail, Yahoo Finance, Yahoo Sports, Yahoo Food, Yahoo Tech, Flickr and Tumblr were patched. More patches to come, Yahoo says.

Email

Was it affected? Is there a patch? Do you need to change your password? What did they say?
AOL No No No AOL told Mashable it was not running the vulnerable version of the software.
Gmail Yes Yes Yes “We have assessed the SSL vulnerability and applied patches to key Google services.”*Google said users do not need to change their passwords, but because of the previous vulnerability, better safe than sorry.
Hotmail / Outlook No No No Microsoft services were not running OpenSSL, according to LastPass.
Yahoo Mail Yes Yes Yes “As soon as we became aware of the issue, we began working to fix it… and we are working to implement the fix across the rest of our sites right now.”

Stores and Commerce

Was it affected? Is there a patch? Do you need to change your password? What did they say?
Amazon No No No “Amazon.com is not affected.”
Amazon Web Services(for website operators) Yes Yes Yes Most services were unaffected or Amazon was already able to apply mitigations (see advisory note here). Elastic Load Balancing, Amazon EC2, Amazon Linux AMI, Red Hat Enterprise Linux, Ubuntu, AWS OpsWorks, AWS Elastic Beanstalk and Amazon CloudFront were patched.
eBay Unclear Unclear Unclear “The vast majority of our services were not impacted and our users can continue to shop securely on our marketplace.”
GoDaddy Yes Yes Yes “We’ve been updating GoDaddy services that use the affected OpenSSL version.” Full Statement
PayPal No No No “Your PayPal account details were not exposed in the past and remain secure.” Full Statement
Target No No No “[We] launched a comprehensive review of all external facing aspects of Target.com… and do not currently believe that any external-facing aspects of our sites are impacted by the OpenSSL vulnerability.”

Banks and Brokerages

Was it affected? Is there a patch? Do you need to change your password? What did they say?
Bank of America No No No “We’re currently taking precautions and steps to protect customer data from this threat and have no reason to believe any customer data has been compromised in the past.”
Chase No No No “These sites don’t use the encryption software that is vulnerable to the Heartbleed bug.”
E*Trade No No No E*Trade is still investigating.
Fidelity No No No “We have multiple layers of security in place to protect our customer sites and services.”
PNC No No No “We have tested our online and mobile banking systems and confirmed that they are not vulnerable to the Heartbleed bug.”
Schwab No No No “Efforts to date have not detected this vulnerability on Schwab.com or any of our online channels.”
Scottrade No No No “Scottrade does not use the affected version of OpenSSL on any of our client-facing platforms.”
TD Ameritrade No No No TD Ameritrade “doesn’t use the versions of openSSL that were vulnerable.”
TD Bank No No No “We’re currently taking precautions and steps to protect customer data from this threat and have no reason to believe any customer data has been compromised in the past.”
U.S. Bank No No No “We do not use OpenSSL for customer-facing, Internet banking channels, so U.S. Bank customer data is NOT at risk.”
Wells Fargo No No No No reason provided.

Government and Taxes

Was it affected? Is there a patch? Do you need to change your password? What did they say?
1040.com No No No “We’re not vulnerable to the Heartbleed bug, as we do not use OpenSSL.”
FileYour Taxes.com No No No “We continuously patch our servers to keep them updated. However, the version we use was not affected by the issue, so no action was taken.”
H&R Block Unclear No Unclear “We are reviewing our systems and currently have found no risk to client data from this issue.”
Healthcare .gov Unclear Unclear Unclear Healthcare.gov has not yet responded to a request for comment.
Intuit (TurboTax) Yes Yes Yes Turbotax “has examined its systems and has secured TurboTax to protect against the “Heartbleed” bug.” Full Statement
IRS Unclear Unclear Unclear “The IRS continues to accept tax returns as normal … and systems continue operating and are not affected by this bug. We are not aware of any security vulnerabilities related to this situation.”

Other

Was it affected? Is there a patch? Do you need to change your password? What did they say?
Dropbox Yes Yes Yes On Twitter: “We’ve patched all of our user-facing services & will continue to work to make sure your stuff is always safe.”
Evernote No No No “Evernote’s service, Evernote apps, and Evernote websites … all use non-OpenSSL implementations of SSL/TLS to encrypt network communications.”Full Statement
LastPass Yes Yes Yes “Though LastPass employs OpenSSL, we have multiple layers of encryption to protect our users and never have access to those encryption keys.”
Netflix Unclear Unclear Unclear “Like many companies, we took immediate action to assess the vulnerability and address it. We are not aware of any customer impact.”
OKCupid Yes Yes Yes “We, like most of the Internet, were stunned that such a serious bug has existed for so long and was so widespread.”
SoundCloud Yes Yes Yes “We will be signing out everyone from their SoundCloud accounts … and when you sign back in, the fixes we’ve already put in place will take effect.”
Spark Networks (JDate, Christian Mingle) No No No Sites do not use OpenSSL.
Wunderlist Yes Yes YesYes “You’ll have to simply log back into Wunderlist. We also strongly recommend that you reset your password for Wunderlist.”Full Statement

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Open Source Intelligence (OSI) and Your Case

April 2, 2014

Open Source Intelligence (OSI or OSINT) is intelligence collected from sources that are available publicly.  Much of the information fed to the internet by users, collected by advertisers, or otherwise left behind during a person’s interaction with electronic systems (or with retailers and advertisers that store such information electronically and the resell it) can be identified through “deep-“, or “dark-“ web research.  OSI is important enough of a research methodology that many law enforcement agencies, especially Federal, have dedicated resources to OSINT analysis and gathering. 

In civil litigation OSI is an invaluable resource for:

  • Research of retained and opposing experts
  • Information regarding opposing attorneys
  • Witness and litigant information
  • Uncovering other emails, social site accounts, properties, activities, and repositories of information not disclosed

Consider a recent case that I was involved with: The opposing party had disclosed certain online accounts that contained relevant information regarding their corporate history, communications via web mail, and travel.  An OSI search revealed two alternate web mail addresses, as well as a connection with a competing firm, travel information (previously undisclosed), and some “known associates” that had information relevant to the case.  Metadata analysis of documents and photos contained on the newly discovered sites yielded even more information.  None of this information was contained on the hard drive submitted for inspection.

OSI, on the web, is broken down into two main categories: Direct indexed information, and Dark web (or Deep web) information.

Direct indexed information is the category most familiar to practically anyone that uses the web.  It is information that has been picked up and indexed by a search engine and, with the correct search techniques, can be narrowed down to particular people, places and things.  Indexed information typically ends up on the web through three different paths:

Deliberate – Deliberate information is information that is on the web because of the direct interaction of an entity with a web resource.  This could be information that is publicly available because of social sites, website registration, or signing on to public newsgroups and forums. 

Accidental (Through fault of the information Owner) – Often times information is deliberately provided, but the provider of the information didn’t realize that the information would be publicly searchable.  Facebook is a perfect example of where, by not understanding ALL the privacy implications of use, users (or their friends) often provide way more details, photos, or location information than is intended, desirable, or realized.

Accidental (Through fault of the information Custodian) – Very large data breaches are far too common these days.  The reality is that they have been very common for years and years, but focus has only recently been turned towards the size, and frequency of breaches.  Aside from breaches, however, “information leakage” is not at all uncommon.  Information leakage is where a website or internet resource unintentionally will provide more information than the user, or the owner, realize. There are teams of people, advertisers, and intelligence gathering entities that  look for information leak and harvest the results.

Dark (or Deep) Web information sounds very “techie” and mysterious, but in reality simply describes the large portions of the web that contain information that is not indexed by search engines.  Typically these are databases of information that are accessible from a website, registration information, attendance and membership databases and information of that nature.

The challenge with OSI is to compile information both from direct indexed resources and dark web resources, and then correlate and narrow the information so that it accurate to the particular entity that is being researched.  A thorough manual search can be performed using the “cheat sheets” provided with this book.  The challenge is that aggregation, correlation and verification can take many hours.  There are tools available to an attorney that speed up the process.  LexisNexis offers access to a static database through the Accurint tool (http://www.Accurint.com), and Westlaw (http://www.Westlaw.com) also provides static database information as well.  There are any number of smaller sites that offer various degrees of information through static databases. 

Static information can quickly become inaccurate or stale, and there are tools that fill the niche for automated research.  Vidoc Razor maintains such a tool (If you are an attorney, you can request a login at: http://www.vidocrazor.com/RSInfo.php) that actively mines “live” social information, media and publications, photos, as well as location and known relations and associate information.  The information is then aggregated, correlated, and a baseline validity check performed.  The information is available for filtering and refining from a single point, and custom reports can be generated.

Whether using manual techniques, static databases, or automated approaches, the nature of OSI is important to keep firmly in mind:  it is fluid.  The information “lives” and changes as people live and change.  It is also contradictory; some OSI is incredibly volatile and can “evaporate” without warning, while other OSI is incredibly persistent, and will stay available through harvesting techniques even when the information owner is actively trying to remove it.  Any information derived from any of the harvesting techniques discussed must be verified before action is taken on it.

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