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Wannacry, Ransomware, and the Emerging Threat to Corporations

Authors:
WANNACRY, RANSOMWARE, AND THE
EMERGING THREAT TO CORPORATIONS
LAWRENCE J. TRAUTMAN*
PETER C. ORMEROD**
INTRODUCTION .................................................................................... 505
I. HISTORY OF RANSOMWARE .................................................... 507
A. The AIDS or PC Cyborg-Trojan ...................................... 509
B. Ransomware .................................................................... 510
C. Cryptolocker ..................................................................... 512
D. Nymain ............................................................................ 513
E. Kelihos Botnet .................................................................. 514
F. Adultery Blackmail Scam ............................................... 516
II. HOSPITALS AS RANSOMWARE TARGETS ................................. 517
A. MedStar Health ............................................................... 518
B. Hollywood Presbyterian Medical Center, Los Angeles ... 519
C. Others in 2016 ................................................................ 519
D. Locky Exploit ................................................................... 520
E. Others ............................................................................... 520
III. THE WANNACRY RANSOMWARE VIRUS .................................. 522
A. WannaCry’s U.S. NSA Origins ....................................... 523
B. WannaCry’s Method of Operation and Global Impacts . 524
C. WannaCry and North Korea ........................................... 525
D. WannaCry, Bitcoin, and Digital Currencies .................. 530
IV. PETYA AND NOTPETYA ATTACKS ........................................... 531
A. Petya Ransomware .......................................................... 531
B. NotPetya Malware ........................................................... 532
V. MUNICIPAL AND EDUCATIONAL RANSOMWARE ATTACKS ...... 535
A. Atlanta ............................................................................. 536
B. Rockport, Maine .............................................................. 537
C. Schools and Others .......................................................... 537
VI. THREATS RANSOMWARE POSE TO CORPORATIONS ................ 538
A. BYOD, IoT, and Vulnerability Escalation ..................... 539
B. Bribery, Corruption, FCPA, and the UK Bribery Act .... 540
VII. GOVERNANCE AND THE ORMEROD-TRAUTMAN SECURITY
MODEL .................................................................................541
A. Legal Responsibilities and Duties of Directors .............. 541
B. Duty of Care ..................................................................... 543
C. Duty of Good Faith .......................................................... 546
D. Cyber Enterprise Risk Management ............................... 548
E. Ormerod-Trautman Profit Maximizing Model of
Security..............................................................................548
504 TENNESSEE LAW REVIEW [Vol. 86.503
VII. THE CURRENT CYBERSECURITY LEGAL FRAMEWORK ........... 551
A. Sources of Cybersecurity Legal Authority ........................ 551
B. The Need to Implement a WISP Protocol ......................... 553
CONCLUSION ....................................................................................... 556
The WannaCry ransomware attack began on May 12, 2017, and is
unprecedented in scalequickly impacting nearly a quarter-million
computers in over 150 countries. The WannaCry virus exploits a
vulnerability to Microsoft Windows that was originally developed by
the U.S. National Security Agency and operates by encrypting a
victim’s data and demanding payment of a ransom in exchange for
data recovery. Security experts have indicated that a North Korea-
linked group of hackerswho have also been implicated in
cyberattacks against Sony Pictures in 2014, the Bangladeshi Central
Bank in 2016, and Polish banks in February 2017is behind the
attack.
Ransomware threatens institutions worldwide, but the risks for
businesses are starkerpotentially catastrophic. This Article provides
corporate executives with much of what they need to know about the
evolving threats of malware and ransomware like Cryptolocker,
Kelihos Botnet, Locky, Nymain, Petya, NotPetya, and WannaCry.
First, we provide a brief definition and history of ransomware. Second,
we look at the history of hospitals as ransomware targets. Third, we
offer a description of the WannaCry virus, what is known about its
development, method of action, and those who are believed to have
deployed it; in this section, we also discuss methods to defend against
this particular virus. Fourth, we discuss the Petya and NotPetya
attacks. Fifth is a discussion of municipal ransomware attacks. Sixth,
we review the myriad and unique risks that ransomware poses for
corporationsincluding expected refinements of the technique, such as
to effect corporate sabotage. Seventh, we discuss the duties and
responsibilities of corporate directors and the Ormerod-Trautman
data security economic model. Eighth and finally, we review the
current cybersecurity legal landscape with a particular focus on
corporate best practices and how business executives protect themselves
against cybersecurity-related liability. We believe this Article
contributes to the sparse existing literature about ransomware and
related cyber threats posed to corporate boards and management.
2019] WANNACRY 505
INTRODUCTION
The WannaCry
1
ransomware attack was a global cyberattack that
began on May 12, 2017, and its scale was unprecedentedquickly
impacting more than 200,000 computers in over 150 countries.
2
In
general terms, transnational crime syndicates “are adapting their
business models by using so-called ‘ransomware’ to gain control over
computer networks and then demand payment in exchange for
restoration.”
3
The WannaCry virus exploited a vulnerability in
Microsoft Windows that was originally developed by the U.S. National
Security Agency and operates by encrypting a victim’s data and
demanding payment of a ransom in exchange for data recovery.
4
Security experts have indicated that a North Korea-linked group of
hackerswho have also been implicated in cyberattacks against Sony
* BA, The American University; MBA, The George Washington University; JD,
Oklahoma City University School of Law. Mr. Trautman is Associate Professor of
Business Law and Ethics at Prairie View A&M University. He may be contacted at
Lawrence.J.Trautman@gmail.com.
** BA (magna cum laude), The George Washington University; JD, The George
Washington University Law School. Mr. Ormerod is Assistant Professor and teaches
constitutional, cyber, and business law at Western Carolina University. He may be
contacted at peter@peterormerod.com.
The authors wish to extend particular thanks to the Academy of Legal Studies in
Business (ALSB) for the opportunity to present this paper before the 93rd Annual
Conference meeting in Portland, Oregon, August 11, 2018, and to the many ALSB
colleagues who have offered comments and suggestions to earlier drafts of this
manuscript. All errors and omissions are our own.
1
. The virus is known by a variety of monikers, including “WannaCrypt,” see
Phillip Misner, Customer Guidance for WannaCrypt Attacks, MICROSOFT SECURITY
RESPONSE CTR. (May 12, 2017), https://blogs.technet.microsoft.com/msrc/2017/05/12/
customer-guidance-for-wannacrypt-attacks/, “WanaCrypt0r 2.0,” see Thomas
Brewster, An NSA Cyber Weapon Might Be Behind a Massive Global Ransomware
Outbreak, FORBES (May 12, 2017), https://www.forbes.com/sites/thomasbrewster/
2017/05/12/nsa-exploit-used-by-wannacry-ransomware-in-global-explosion/, and
“Wanna Decryptor,” see Victoria Woollaston, Wanna Decryptor Ransomware Appears
to Be Spawning and This Time It May Not Have a Kill Switch, WIRED (May 16, 2017),
http://www.wired.co.uk/article/wanna-decryptor-ransomware.
2
. Russell Goldman, What We Know and Don’t Know About the International
Cyberattack, N.Y. TIMES (May 12, 2017), https://www.nytimes.com/2017/05/12/
world/europe/international-cyberattack-ransomware.html.
3
. See Edward A. Morse & Ian Ramsey, Navigating the Perils of Ransomware,
72 BUS. LAWYER 287, 287 (2017), https://ssrn.com/abstract=2909280.
4
See Dan Goodin, An NSA-Derived Ransomware Worm Is Shutting Down Computers
Worldwide, ARS TECHNICA (May 12, 2017), https://arstechnica.com/security/2017/05/
an-nsa-derived-ransomware-worm-is-shutting-down-computers-worldwide/.
506 TENNESSEE LAW REVIEW [Vol. 86.503
Pictures in 2014, the Bangladeshi Central Bank in 2016, and Polish
banks in February 2017was behind the attack.
5
Deputy Attorney General Rod Rosenstein issued a statement in
October 2017, reporting that “the monetary costs of global annual
cybercrime will double from $3 trillion in 2015 to $6 trillion in 2021.
Those numbers are staggering; and recent events demonstrate why
we need to work together to address the growing threat.”
6
Ransomware threatens institutions worldwide, but the risks for
businesses are starkerpotentially catastrophic. This Article
provides corporate counsel and executives with much of what they
need to know about the current threats of ransomware like
WannaCry. It proceeds in eight Parts. Part I provides a brief
definition and history of ransomware. Part II looks at the history of
hospitals as ransomware targets. In Part III, we offer a description of
the Wannacry virus: what is known about its development, method of
action, and those who are believed to have deployed it; in this Part,
we also discuss methods to defend against this particular virus. Part
IV discusses the Petya and NotPetya attacks. Part V discusses
municipal ransomware attacks. In Part VI, we review the myriad and
unique risks that ransomware poses for corporationsincluding
expected refinements of the technique, such as to effect corporate
sabotage. Part VII discusses the duties and responsibilities of
corporate directors and the Ormerod-Trautman data security
economic model. Finally, in Part VIII, we review the current
cybersecurity legal landscape with a particular focus on corporate best
practices and how business executives protect themselves against
cybersecurity-related liability. We believe this Article contributes to
5
. See Nicole Perlroth, More Evidence Points to North Korea in Ransomware
Attack, N.Y. TIMES (May 22, 2017), https://www.nytimes.com/2017/05/22/technology/
north-korea-ransomware-attack.html; see also Martha Finnemore & Duncan B. Hollis,
Beyond Naming and Shaming: Accusations and International Law in Cybersecurity
15 n.77 (Mar. 6, 2019) (unpublished manuscript), https://ssrn.com/abstract=3347958;
Lucia Constantin, Recent Malware Attacks on Polish Banks Tied to Wider Hacking
Campaign, COMPUTERWORLD (Feb. 13, 2017), https://www.computerworld.com/
article/3169386/recent-malware-attacks-on-polish-banks-tied-to-wider-hacking-camp
aign.html; David E. Sanger & Katie Benner, U.S. Accuses North Korea of Plot to Hurt
Economy As Spy Is Charged in Sony Attack, N.Y. TIMES (Sept. 6, 2018),
https://www.nytimes.com/2018/09/06/us/politics/north-korea-sony-hack-wannacry-ind
ictment.html.
6
. Rod Rosenstein, Deputy Attorney Gen., Remarks at the 2017 North
American International Cyber Summit (Oct. 30, 2017), https://www.justice.gov/
opa/speech/deputy-attorney-general-rosenstein-delivers-remarks-2017-north-america
n-international.
2019] WANNACRY 507
the sparse existing literature about ransomware and related cyber
threats posed to corporate boards and management.
I. HISTORY OF RANSOMWARE
[T]he frequency and impact of cyber-attacks on our Nation’s
private sector and Government networks have increased
dramatically in the past decade and are expected to continue to
grow. We continue to see an increase in the scale and scope of
reporting on malicious cyber activity that can be measured by
the amount of corporate data stolen or deleted, personally
identifiable information compromised, or remediation costs
incurred by U.S. victims. Within the FBI, we are focused on the
most dangerous malicious cyber activity: High-level intrusions
by state-sponsored hackers and global organized crime
syndicates, as well as other technically sophisticated attacks.
7
Christopher A. Wray,
Director of the Federal
Bureau of Investigation
On October 30, 2017, Deputy Attorney General Rod Rosenstein
stated, “On average, more than 4,000 ransomware attacks have
occurred daily since January 1, 2016. That is a 300% increase over the
approximately 1,000 attacks per day in 2015.”
8
The Federal Bureau of
Investigation defines ransomware as:
a type of malware installed on a computer or server that
encrypts the files, making them inaccessible until a specified
ransom is paid. Ransomware is typically installed when a user
clicks on a malicious link, opens a file in an e-mail that installs
the malware, or through drive-by downloads (which do not
require user-initiation) from a compromised Web site.
9
7
. World-Wide Threats: Keeping America Secure in a New Age of Terror:
Hearing Before the H. Comm. on Homeland Sec., 115th Cong. 29 (2017) (prepared
statement of Christopher Wray, Dir., Fed. Bureau of Investigation).
8
. Rosenstein, supra note 6.
9
. FED. BUREAU OF INVESTIGATION, FBI PUBLIC SERVICE ANNOUNCEMENT,
ALERT NO. I-091516-PSA: RANSOMWARE VICTIMS URGED TO REPORT INFECTIONS TO
FEDERAL LAW ENFORCEMENT 1 (Sept. 15, 2016), https://www.ic3.gov/media/
2016/160915.aspx.
508 TENNESSEE LAW REVIEW [Vol. 86.503
The FBI states, “Hospitals, school districts, state and local
governments, law enforcement agencies, small businesses, [and] large
businesses . . . are just some of the entities impacted by ransomware,
an insidious type of malware that encrypts, or locks, valuable digital
files and demands a ransom to release them.”
10
The U.S. Department
of Homeland Security’s National Cybersecurity and Communications
Integration Center (NCCIC) warns, “Ransomware not only targets
home users; businesses can also become infected with ransomware,
leading to negative consequences, including temporary or permanent
loss of sensitive or proprietary information, disruption to regular
operations, financial losses incurred to restore systems and files, and
potential harm to an organization’s reputation.”
11
Consider that “[t]he
inability to access the important data these kinds of organizations
keep can be catastrophic in terms of the loss of sensitive or proprietary
information, the disruption to regular operations, financial losses
incurred to restore systems and files, and the potential harm to an
organization’s reputation.”
12
The FBI warns, “in a ransomware
attack, victimsupon seeing an e-mail addressed to themwill open
it and may click on an attachment that appears legitimate, like an
invoice or an electronic fax, but which actually contains the malicious
ransomware code.”
13
Alternatively, “the e-mail might contain a
legitimate-looking URL, but when a victim clicks on it, they are
directed to a website that infects their computer with malicious
software.”
14
In addition:
On[c]e the infection is present, the malware begins encrypting
files and folders on local drives, any attached drives, backup
drives, and potentially other computers on the same network
that the victim computer is attached to. Users and
organizations are generally not aware they have been infected
until they can no longer access their data or until they begin
to see computer messages advising them of the attack and
demands for a ransom payment in exchange for a decryption
key. These messages include instructions on how to pay the
10
. What We Investigate: Cyber Crime, FBI.GOV, https://www.fbi.gov/invest
igate/cyber (last visited Aug. 24, 2018).
11
. NCCIC, ALERT (TA17-132A): INDICATORS ASSOCIATED WITH WANNACRY
RANSOMWARE 5 (May 12, 2017), https://www.us-cert.gov/ncas/alerts/TA17-132A.
12
. What We Investigate, supra note 10.
13
. Id.
14
. Id.
2019] WANNACRY 509
ransom, usually with bitcoins because of the anonymity this
virtual currency provides.
15
According to estimates given by the US Department of Justice
(DOJ), “ransomware infects more than 100,000 computers a day
around the world.”
16
As we will see during the next few pages, a
review of the development chronology of ransomware malware reveals
a pattern of growing complexity and technical sophistication. As
Deputy Attorney General Rosenstein reported in 2017:
A few years ago, ransomware attacks were unsophisticated
and haphazard attempts by novice hackers to gain a few
hundred dollars, mostly from individual users who happened
to be affected. Today, the attacks are concerted efforts by
sophisticated individuals, criminal enterprises, or nation-
states that can target a range of home users, businesses,
networks, or critical infrastructure with laser-like precision to
cause widespread damage.
17
Accordingly, we will now look at a brief history of ransomware by
examining the following sample of malware exploits: the AIDS or PC
Cyborg-Trojan, Police ransomware, Cryptoblocker, Nymain, and the
Kelihos Botnet. Attacks directed at hospitals (employing the Locky
exploit) and the WannaCry virus will be covered in more detail in
Parts II and III. Petya and NotPetya attacks will be discussed in Part
IV.
A. The AIDS or PC Cyborg-Trojan
Known as AIDS or the PC Cyborg Trojan, one of the first examples
of a ransomware malware exploit dates back to 1989. This malware
targeted healthcare institutions and providers and was provided to
victims on a floppy disc, disguised as information about the AIDS
health crisis.
18
Following installation, after the PC had been rebooted
15
. Id.; see also Lawrence J. Trautman & Mason J. Molesky, A Primer for
Blockchain, 88 UMKC L. REV. 1 (2019) (describing blockchain technology and its use
as the foundation for virtual currencies), https://ssrn.com/abstract=3324660.
16
. See Rosenstein, supra note 6.
17
. Id.
18
. See Danny Palmer, What Is Ransomware? Everything You Need to Know
About One of the Biggest Menaces on the Web, ZDNET (Aug. 22, 2018),
https://www.zdnet.com/article/ransomware-an-executive-guide-to-one-of-the-biggest-
menaces-on-the-web/; Kaveh Waddell, The Computer Virus That Haunted Early AIDS
510 TENNESSEE LAW REVIEW [Vol. 86.503
ninety times, “it encrypted the machine and the files on it and
demanded the user ‘renew their license’ with ‘PC Cyborg Corporation’
by sending $189 or $378 to a post office box in Panama.”
19
A depiction
of the ransom message appearing on the display screen of an infected
computer is reproduced as Exhibit 1.
Exhibit 1
AIDS/PC Cyborg-Trojan Screen Message
20
Dear Customer:
It is time to pay for your software lease from PC Cyborg
Corporation.
Complete the INVOICE and attach payment for the lease
option of your choice. If you don’t use the printed INVOICE,
then be sure to refer to the important reference numbers below
in all correspondence. In return you will receive:
̶ a renewal software package with easy-to-follow, complete
instructions;
̶ an automatic, self-installing diskette that anyone can apply
in minutes.
Important Reference numbers: A5599796-2695577-
The price of 365 user applications is US$189. The price of a
lease for the lifetime of your hard disk is US$378. You must
enclose a bankers draft, cashier’s check or international
money order payable to PC CYBORG CORPORATION for the
full amount of $189 or $378 with your order. Include your
name, company, address, city, state, country, zip or postal
code. Mail your order to PC Cyborg Corporation, P.O. Box 87-
17-44, Panama 7, Panama.
Press ENTER to continue
B. Ransomware
Cybercrime such as ransomware blossomed with the advent of the
Internet. When floppy disk installations became replaced with
Internet downloads by billions of users worldwide, a new criminal
enterprise was born.
Researchers, ATLANTIC (May 10, 2016), https://www.theatlantic.com/technology/
archive/2016/05/the-computer-virus-that-haunted-early-aids-researchers/481965/.
19
. Palmer, supra note 18.
20
. Id.
2019] WANNACRY 511
Technology journalist Danny Palmer documents the success of a
criminal scheme known as Police ransomware, “which tried to extort
victims by claiming to be associated with law enforcement. It locked
the screen with a ransom note warning the user they’d committed
illegal online activity, which could get them sent to jail.”
21
The scheme
was structured such that “if the victim paid a fine, the ‘police’ would
let the infringement slide and restore access to the computer by
handing over the decryption key. Of course, this wasn’t anything to do
with law enforcement—it was criminals exploiting innocent people.”
22
Fast-forward, and we have a number of examples of ransomware
technical advancement reflecting over a decade of Internet maturity.
Illustrating how many of these cases can take years to travel
through the court system, the DOJ announced the following regarding
the August 13, 2018 sentencing of Raymond Odigie Uadiale, of Maple
Valley, Washington:
The indictment charged Uadiale with one count of
conspiracy to commit money laundering and one count of
substantive money laundering. As part of the plea agreement,
the government dismissed the substantive count. In addition
to his prison sentence, Uadiale was also sentenced to three
years of supervised release.
According to the factual proffer filed in connection with the
plea agreement, Uadiale helped to “cash out” the payments of
victims whose computers were infected with Reveton, a type of
ransomware that displayed a splash screen on the victim’s
computer with the logo of a law enforcement organization. The
splash screen would include a message falsely telling the
victim that the law enforcement organization had found illegal
material on the infected computer and required the payment
of a “fine” to regain access to the computer and its data. The
ransomware directed the victim to purchase a GreenDot
MoneyPak and enter the account number into a form on the
splash screen. Using prepaid debit cards, Uadiale transformed
the MoneyPak funds into cash, kept a portion for himself, and
sent a portion back to Reveton’s distributor, who resided in the
United Kingdom.
. . .
21
. Id.
22
. Id.
512 TENNESSEE LAW REVIEW [Vol. 86.503
According to court documents, Uadiale used the digital
currency platform Liberty Reserve to transfer approximately
[seventy] percent of the ransomware proceeds back to the
ransomware distributor. Between October 2012 and March
27, 2013, while he was a graduate student at Florida
International University, Uadiale sent approximately $93,640
in Liberty Reserve dollars to his co-conspirator as part of their
scheme. Public records show that Uadiale was hired by
Microsoft as a network engineer after the conspiracy charged
in the indictment ended.
23
C. Cryptolocker
On June 2, 2014, the DOJ “announced a multi-national effort to
disrupt the Gameover Zeus Botneta global network of infected
victim computers used by cyber criminals to steal millions of dollars
from businesses and consumers . . . .”
24
The DOJ reported, “U.S. and
foreign law enforcement officials worked together to seize computer
servers central to the malicious software or ‘malware’ known as
Cryptolocker, a form of ‘ransomware’ that encrypts the files on
victims’ computers until they pay a ransom.”
25
In Pittsburgh, a federal
grand jury unsealed a 14-count indictment naming a Russian
individual “as a leader of a tightly knit gang of cyber criminals based
in Russia and Ukraine that is responsible for the development and
operation of both the Gameover Zeus and Cryptolocker schemes. An
investigation . . . identified the Gameover Zeus network as a common
distribution mechanism for Cryptolocker.”
26
By way of methodology,
“[u]nsolicited e-mails containing an infected file purporting to be a
voicemail or shipping confirmation are also widely used to distribute
Cryptolocker. When opened, those attachments infect victims’
computers.”
27
23
. Press Release, U.S. Dep’t of Justice, Washington State Man Sentenced to
Prison for Role in Connection with Riveton Ransomware (Aug. 13, 2018),
https://www.justice.gov/opa/pr/washington-state-man-sentenced-prison-role-connecti
on-reveton-ransomware.
24
. Press Release, U.S. Dep’t of Justice, U.S. Leads Multi-National Action
Against “Gameover Zeus” Botnet and “Cryptolocker” Ransomware, Charges Botnet
Administrator (June 2, 2014), https://www.justice.gov/opa/pr/us-leads-multi-national-
action-against-gameover-zeus-botnet-and-cryptolocker-ransomware.
25
. Id.
26
. Id.
27
. Id.
2019] WANNACRY 513
The DOJ has provided the following description of Cryptolocker:
[T]he malware known as Cryptolocker (sometimes written
as “CryptoLocker”), which began appearing about September
2013 . . . [is] a highly sophisticated malware that uses
cryptographic key pairs to encrypt the computer files of its
victims. Victims are forced to pay hundreds of dollars and
often as much as $700 or more to receive the key necessary to
unlock their files. If the victim does not pay the ransom, it is
impossible to recover their files.
Security researchers estimate that, as of April 2014,
Cryptolocker had infected more than 234,000 computers, with
approximately half of those in the United States. One estimate
indicates that more than $27 million in ransom payments
were made in just the first two months since Cryptolocker
emerged.
The law enforcement actions against Cryptolocker are the
result of an ongoing criminal investigation by the FBI’s
Washington Field Office, in coordination with law enforcement
counterparts from Canada, Germany, Luxembourg, the
Netherlands, United Kingdom and Ukraine.
Companies such as Dell SecureWorks and Deloitte Cyber
Risk Services also assisted in the operation against
Cryptolocker, as did Carnegie Mellon University and the
Georgia Institute of Technology (Georgia Tech). The joint
effort aided the FBI in identifying and seizing computer
servers acting as command and control hubs for the
Cryptolocker malware.
28
D. Nymain
On December 5, 2016, the DOJannounced a multinational
operation involving arrests and searches in four countries to
dismantle a complex and sophisticated network of computer servers
known as ‘Avalanche.’ The Avalanche network allegedly hosted more
than two dozen of the world’s most pernicious types of malicious
software and several money laundering campaigns.”
29
The DOJ
stated, “The types of malware and money mule schemes operating
28
. Id.
29
. Press Release, U.S. Dep’t of Justice, Avalanche Network Dismantled in
International Cyber Operation (Dec. 5, 2016), https://www.justice.gov/opa/pr/
avalanche-network-dismantled-international-cyber-operation.
514 TENNESSEE LAW REVIEW [Vol. 86.503
over the Avalanche network varied. Ransomware such as Nymain, for
example, encrypted victims’ computer files until the victim paid a
ransom (typically in a form of electronic currency) to the
cybercriminal.”
30
As we will see demonstrated in numerous instances,
a request for payment to be made in Bitcoin or other virtual currency
is a common denominator of ransomware schemes.
31
Relevant to our
ransomware specific inquiry, the DOJ stated in its December 5, 2016
announcement:
The Avalanche network, which has been operating since at
least 2010, was estimated to serve clients operating as many
as 500,000 infected computers worldwide on a daily basis. The
monetary losses associated with malware attacks conducted
over the Avalanche network are estimated to be in the
hundreds of millions of dollars worldwide, although exact
calculations are difficult due to the high number of malware
families present on the network.
Several victims of Avalanche-based malware attacks are
located in the Western District of Pennsylvania. A local
governmental office was the victim of a Nymain malware
attack in which computer files were encrypted until the
victims paid a Bitcoin ransom in exchange for decrypting the
files.
32
E. Kelihos Botnet
On April 10, 2017, the DOJ announced substantial actions taken
to combat the results from the Kelihos Botnet, a worldwide threat that
had successfully infected tens of thousands of computers by that
time.
33
The DOJ’s press release stated (in part):
The Justice Department today announced an extensive
effort to disrupt and dismantle the Kelihos botneta global
network of tens of thousands of infected computers under the
control of a cybercriminal that was used to facilitate malicious
30
. Id.
31
. See Lawrence J. Trautman, Virtual Currencies: Bitcoin & What Now After
Liberty Reserve, Silk Road, and Mt. Gox?, 20 RICHMOND J.L. & TECH. 13, 9, 8990
(2014), http://www.ssrn.com/abstract=2393537.
32
. Press Release, Avalanche Network, supra note 29.
33
. Press Release, U.S. Dep’t of Justice, Justice Department Announces Actions
to Dismantle Kelihos Botnet (Apr. 10, 2017), https://www.justice.gov/opa/pr/justice-
department-announces-actions-dismantle-kelihos-botnet-0.
2019] WANNACRY 515
activities including harvesting login credentials, distributing
hundreds of millions of spam e-mails, and installing
ransomware and other malicious software.
. . .
“The operation announced today targeted an ongoing
international scheme that was distributing hundreds of
millions of fraudulent e-mails per year, intercepting the
credentials to online and financial accounts belonging to
thousands of Americans, and spreading ransomware
throughout our networks. The ability of botnets like Kelihos to
be weaponized quickly for vast and varied types of harms is a
dangerous and deep threat to all Americans, driving at the
core of how we communicate, network, earn a living, and live
our everyday lives,” said Acting Assistant Attorney General
[Kenneth A.] Blanco [of the Justice Department’s Criminal
Division]. . . .
. . .
Kelihos malware targeted computers running the
Microsoft Windows operating system. Infected computers
became part of a network of compromised computers known as
a botnet and were controlled remotely through a decentralized
command and control system. According to the civil complaint,
Peter Yuryevich Levashov allegedly operated the Kelihos
botnet since approximately 2010. The Kelihos malware
harvested user credentials by searching infected computers for
usernames and passwords and by intercepting network traffic.
Levashov allegedly used the information gained from this
credential harvesting operation to further his illegal
spamming operation which he advertised on various online
criminal forums. . . . Kelihos was also responsible for directly
installing additional malware onto victims’ computers,
including ransomware and malware that intercepts users’
bank account passwords.
As with other botnets, Kelihos is designed to
operate automatically and undetected on victims’ computers,
with the malicious code secretly sending requests for
instructions to the botnet operator. In order to liberate the
victim computers from the botnet, the United States obtained
civil and criminal court orders in the District of Alaska. These
orders authorized measures to neutralize the Kelihos
botnet . . . .
34
34
. Id. (emphasis added).
516 TENNESSEE LAW REVIEW [Vol. 86.503
On September 12, 2018, Peter Yuryevich Levashov, also known by
many aliases, age “38, of St. Petersburg, Russia, pleaded guilty . . . to
offenses stemming from his operation of the Kelihos botnet, which he
used to facilitate malicious activities including . . . installing
ransomware and other malicious software.”
35
The Department of
Justice reported:
Since the late 1990s until his arrest in April 2017,
Levashov controlled and operated multiple botnets, including
the Storm, Waledac and Kelihos botnets, to harvest personal
information and means of identification (including email
addresses, usernames and logins, and passwords) from
infected computers. To further the scheme, Levashov
disseminated spam and distributed other malware, such as
banking Trojans and ransomware, and advertised the Kelihos
botnet spam and malware services to others for purchase in
order to enrich himself. Over the course of his criminal career,
Levashov participated in and moderated various online
criminal forums on which stolen identities and credit cards,
malware and other criminal tools of cybercrime were traded
and sold.
F. Adultery Blackmail Scam
On July 23, 2018, the Jacksonville Division of the Federal Bureau
of Investigation (FBI) in Florida issued a press release “warning
residents of central Florida and beyond of an emerging scam that can
target a variety of individuals. FBI Ocala ha[d recently] received
numerous reports of the ‘blackmail scam’ . . . .”
36
The FBI Jacksonville
Division further warned, “The scam usually begins when a scammer
sends an anonymous letter claiming to have uncovered evidence that
the recipient of the letter has committed acts of adultery. The
scammer threatens to reveal the information to the recipient’s spouse,
family and friends, and demands payment in exchange for secrecy.”
37
35
. Press Release, U.S. Dep’t of Justice, Russian National Who Operated
Kelihos Botnet Pleads Guilty to Fraud, Conspiracy, Computer Crime and Identity
Theft Offenses (Sept. 12, 2018), https://www.justice.gov/opa/pr/russian-national-who-
operated-kelihos-botnet-pleads-guilty-fraud-conspiracy-computer-crime.
36
. Press Release, FBI Jacksonville, FBI Jacksonville Warns of Blackmail Scam
(July 23, 2018), https://www.fbi.gov/contact-us/field-offices/jacksonville/news/press-
releases/fbi-jacksonville-warns-of-blackmail-scam.
37
. Id.
2019] WANNACRY 517
Bitcoin had very often been the required form of payment.
38
The
Federal Trade Commission (FTC) provided the following example of
this new scam message primarily directed at men, “I know about the
secret you are keeping from your wife and everyone else. You can
ignore this letter, or pay me a $8,600 confidentiality fee in Bitcoin.”’
39
The FTC’s warning mentions that the scam message would “also
explain[] how to use bitcoin to make the payment.”
40
As technology evolved and the mass digitization of information
followed, cybercrime, too, evolvedrapidly. As this Part described,
the weaponization of malware like ransomware has flourished, taking
on many forms. And its impact on users, ranging from those in
government, the private sector, and beyond, is undeniable. Having
expounded upon the history of ransomware and touching on its impact
in this Part, the next Part discusses ransomware in the health care
context.
II. HOSPITALS AS RANSOMWARE TARGETS
Whether you work for local law enforcement, a utility provider,
a hospital, or a small or large company, you need to protect
your critical infrastructure against cyber infiltration. The
threat that cybercriminals pose to public entities and private
businesses is substantial. A single intrusion could mean
economic loss, bankruptcy, and in some cases, loss of human
life.
41
Rod Rosenstein,
Deputy Attorney General
As Professor Deborah R. Farringer observes, “[w]hile hackers and
data breaches are not new in the healthcare context, ransomware
attacks are unique in the way they have a direct and immediate
impact on the actual provision of care to patients and present a very
38
. Id.; see also Trautman, supra note 31.
39
. Press Release, Fed. Trade Comm’n, How to Avoid a Bitcoin Blackmail Scam
(Aug. 21, 2018) (emphasis omitted), https://www.consumer.ftc.gov/blog/2018/08/how-
avoid-bitcoin-blackmail-scam.
40
. Id.; accord Press Release, NCCIC, FTC Issues Alert on Bitcoin Blackmail
Scams (Aug. 22, 2018), https://www.us-cert.gov/ncas/current-activity/2018/08/22/FTC-
Issues-Alert-Bitcoin-Blackmail-Scams.
41
. Rosenstein, supra note 6.
518 TENNESSEE LAW REVIEW [Vol. 86.503
real threat to patient safety.”
42
In her excellent law review article she
writes, “[s]adly, the potential devastation that could be caused when
hospitals and health systems lose access to their EHRs [Electronic
Health Records] and computer systems is exactly what makes these
types of attacks so attractive to potential hackers.”
43
Because of the
critical importance of hospitals and other parts of the healthcare
system, we will briefly review several of these attacks.
A. MedStar Health
On March 28, 2016, MedStar Health, a non-profit hospital system
operating in Washington, D.C., Virginia, and Maryland, received pop-
up messages reading: “You have [ten] days to send us the Bitcoin . . .
[.] [A]fter [ten] days we will remove your private key and it’s
impossible to recover your files.”
44
A MedStar employee provided The
Washington Post with a copy of the ransom note image, “which
demanded that the $5 billion health-care provider pay [forty-five]
bitcoinsequivalent to about $19,000in exchange for the digital key
that would release the data.”
45
While the FBI investigated, the
ransomware cyberattack “forced MedStar’s [ten] hospitals and more
than 250 outpatient centers to shut down their computers and
email.”
46
The Washington Post reports learning from a nurse at the
MedStar Washington Hospital Center that “[w]ithout access to email
and computer systems, the medical staff fell back on seldom-used
paper records that had to be faxed or hand delivered. But this nurse
and another told The Post that the paper charts are far less
comprehensive than those kept in digital form.”
47
Many of the medical
professionals had no experience with paper charts, which were
“missing vital pieces of patient information: complete medical
histories, every drug prescribed, allergies to medicine and treatment
plans.”
48
42
. See Deborah R. Farringer, Send Us the Bitcoin or Patients Will Die:
Addressing the Risks of Ransomware Attacks on Hospitals, 40 SEATTLE U. L. REV. 937,
940 (2017) (footnotes omitted), https://ssrn.com/abstract=2995095.
43
. Id. (footnote omitted).
44
. Id. at 93738.
45
. John Woodrow Cox, MedStar Health Turns Away Patients After Likely
Ransomware Cyberattack, WASH. POST (Mar. 29, 2016), https://www.washington
post.com/local/medstar-health-turns-away-patients-one-day-after-cyberattack-on-its-
computers/2016/03/29/252626ae-f5bc-11e5-a3ce-f06b5ba21f33_story.html.
46
. Id.
47
. Id.
48
. Id.
2019] WANNACRY 519
B. Hollywood Presbyterian Medical Center
On February 5, 2016, hackers successfully employed malware to
infect the computer systems at Hollywood Presbyterian Medical
Center, “preventing hospital staff from being able to communicate
from those devices,” according to CEO Allen Stefanek.
49
The hackers
demanded and Hollywood Presbyterian paid the equivalent of
approximately $17,000, denominated in forty bitcoin.
50
Stefanek
stated, “The malware locks systems by encrypting files and
demanding ransom to obtain the decryption key. The quickest and
most efficient way to restore our systems and administrative
functions was to pay the ransom and obtain the decryption key . . . . .
In the best interest of restoring normal operations, we did this.”
51
The
Los Angeles Times reported learning from law enforcement sources
that “the hospital paid the ransom before reaching out to law
enforcement for assistance.”
52
The hospital was able to regain access
to its data within a few days, employing the help of technology
experts. In the interim, it resorted to pen and paper for its record-
keeping.”
53
C. Others in 2016
In addition to the two ransomware attacks listed above, Beckers
Hospital Review reported twelve additional ransomware attacks
during 2016 alone:
1. Titus Regional Medical Center (Mount Pleasant, TX),
2. Lukas Hospital (Germany),
3. Klinikum Arnsberg Hospital (Germany),
4. Los Angeles County Health Department (Los Angeles,
CA),
5. The Ottawa Hospital (Canada),
6. Methodist Hospital (Henderson, KY),
7. DeKalb Health (Auburn, IN),
8. Kansas Heart Hospital (Wichita, KS),
9. Professional Dermatology Care (Reston, VA),
49
. Richard Winton, Hollywood Hospital Pays $17,000 in Bitcoin to Hackers; FBI
Investigating, L.A. TIMES (Feb. 18, 2016), http://www.latimes.com/business/tech
nology/la-me-ln-hollywood-hospital-bitcoin-20160217-story.html.
50
. Id.
51
. Id.
52
. Id.
53
. Id.
520 TENNESSEE LAW REVIEW [Vol. 86.503
10. Keck Medicine (Los Angeles, CA),
11. Marin General Healthcare District (Greenbrae, CA), and
12. Rainbow Children’s Clinic (Grand Prairie, TX).
54
D. Locky Exploit
Technology journalist Danny Palmer reports that “[p]erhaps the
most notorious form of ransomware is Locky.”
55
As the malware
responsible for the hospital ransoms, “Locky remained successful
because those behind it regularly update the code to avoid
detection.”
56
Those responsible for Locky “even update[d] it with new
functionality, including the ability to make ransom demands in
[thirty] languages, so criminals c[ould] more easily target victims
around the world. Locky became so successful, it rose to become
[among the] most prevalent forms of malware in its own right.”
57
E. Others
The ransomware attacks on hospitals continue. Deputy Attorney
General Rod Rosenstein reported that during mid-2017, “Michigan’s
Caro Community Hospital and its related facilities lost access for
approximately two weeks to computers, phones, patient records, and
e-mail services because of a ransomware attack. Fortunately, no
medical devices were directly affected.”
58
But, as Deputy Attorney
General Rosenstein warned, “imagine how much more serious the
attack could have been. Many types of machines critical to emergency
treatment are computers. MRI machines and ventilators may run
software and be connected to networks. A targeted and widespread
attack on medical service providers could endanger lives.”
59
According to the cybersecurity firm Symantec, a hacking group
called SamSam has been responsible for many of the cyber attacks
and ransom demands targeting healthcare organizations.
60
In late
54
. 12 Healthcare Ransomware Attacks of 2016, BECKERS HOSP. REV. (Dec. 29,
2016), https://www.beckershospitalreview.com/healthcare-information-technology/12-
healthcare-ransomware-attacks-of-2016.html.
55
. Palmer, supra note 18.
56
. Id.
57
. Id.
58
. See Rosenstein, supra note 6.
59
. Id.
60
. SamSam: Targeted Ransomware Attacks Continue, SYMANTEC (Oct. 20,
2018), https://www.symantec.com/blogs/threat-intelligence/samsam-targeted-ransom
ware-attacks (referring to SamSam as “highly active”); see also Olivia Beavers,
Security Firm: Hacking Group SamSam Primarily Targeting U.S. Organizations with
2019] WANNACRY 521
2018, Symantec reported that fifty-six of the sixty-seven organizations
targeted by SamSam that year were located in the U.S.
61
Why has
SamSam been so attracted to healthcare organizations? Symantec
posits that “[t]he attackers may believe that healthcare organizations
are easier to infect. Or they may believe that these organizations are
more likely to pay the ransom.”
62
Professor Farringer argues that “while stricter and more current
federal regulations are necessary, the most expedient way to protect
against immediate attacks will be an industry-driven response
demanding industry-wide security standards from EHR [electronic
health records] companies above and beyond HIPPA standards.”
63
These enhanced standards are necessary, Professor Farringer
contends, because:
Hospitals and health systems appear uniquely vulnerable to
ransomware attacks as a result of various factors, including
(1) the fractured movement toward electronic medical records
and (2) the Department of Health and Human Services’ lack of
emphasis on enforcement of the Health Insurance Portability
and Accountability Act of 1996 (HIPPA) and the Health
Information Technology for Economic and Clinical Health
(HITECH) Act with respect to security of electronic data.
64
Ransomware Attacks, HILL (Oct. 30, 2018), https://thehill.com/policy/cybersecurity/
413860-security-firm-hacking-group-samsam-primarily-targeting-us-organizations.
61
. SamSam: Targeted Ransomware Attacks Continue, supra note 63 (“A small
number of attacks were logged in Portugal, France, Australia, Ireland, and Israel.”).
62
. Id.
63
. Farringer, supra note 43 at 941.
64
. Id. (citing Health Insurance Portability and Accountability Act of 1996, 42
U.S.C. §§ 300gg (2010), 1320d (2010); 29 U.S.C. §§ 1181 (2011), 1182 (2008), 1183
(1996); Health Information Technology for Economic and Clinical Health Act, 42
U.S.C. §§300jjjj-51 (2016), §§ 17901903 (2009); Title XIII of the American Recovery
and Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat. 115, 226-79 (2009)).
522 TENNESSEE LAW REVIEW [Vol. 86.503
III. THE WANNACRY RANSOMWARE VIRUS
Pyongyang has previously conducted cyber-attacks against US
commercial entitiesspecifically, Sony Pictures
Entertainment in 2014—and remains capable of launching
disruptive or destructive cyber attacks to support its political
objectives. Pyongyang also poses a cyber threat to US allies.
South Korean officials have suggested that North Korea was
probably responsible for the compromise and disclosure of data
in 2014 from a South Korean nuclear plant.
65
Daniel R. Coats,
Director of National
Intelligence
On May 12, 2017, reports surfaced about a virulent new strain of
ransomware originating in India, Hong Kong, and the Philippines.
66
The U.S. Department of Homeland Security’s NCCIC reported,
“According to numerous open-source reports, a widespread
ransomware campaign is affecting various organizations with reports
of tens of thousands of infections in over 150 countries, including the
United States, United Kingdom, Spain, Russia, Taiwan, France, and
Japan. The software can run in as many as [twenty-seven] different
languages.”
67
Known as WannaCry, Wanna Decryptor, or WCry,
68
this ransomware is, most fundamentally, a specific type of malicious
software that “locks your keyboard or computer to prevent you from
accessing your data until you pay a ransom, usually demanded in [the
anonymous digital cryptocurrency] Bitcoin.”
69
This “digital extortion
racket is not newit’s been around since about 2005,” but it has
recently seen a resurgence due to refined methods: “attackers have
greatly improved on the scheme with the development of ransom
cryptware, which encrypts your files using a private key that only the
attacker possesses, instead of simply locking your keyboard or
65
. Open Hearing on Worldwide Threats Before the S. Select Comm. on
Intelligence, 115th Cong. 17 (2017) (prepared statement of Daniel R. Coats, Director of
National Intelligence).
66
. See Bill Brenner, WannaCry: The Ransomware Worm That Didn’t Arrive on
a Phishing Hook, NAKED SECURITY (May 17, 2017), https://nakedsecurity.sophos.com/
2017/05/17/wannacry-the-ransomware-worm-that-didnt-arrive-on-a-phishing-hook/.
67
. NCCIC, supra note 11.
68
. See id.
69
. Kim Zetter, What Is Ransomware? A Guide to the Global Cyberattack’s Scary
Method, WIRED (May 14, 2017), https://www.wired.com/2017/05/hacker-lexicon-guide-
ransomware-scary-hack-thats-rise/.
2019] WANNACRY 523
computer.”
70
The WannaCry ransomware employs this refined
technique.
71
This Part first examines WannaCry’s originshow an
exploitation of Microsoft Windows developed by the U.S. National
Security Agency was responsible for the attack’s wide scale infection.
Second, we discuss the virus’s method of action and relate the impacts
it had across the globe. Finally, we address who authorities and
experts believe perpetrated the attack: the same North Korean
hacking group that was responsible for the 2014 breach of Sony
Pictures.
A. WannaCry’s U.S. NSA Origins
In August 2016, a group known only as the “Shadow Brokers”
began releasing and auctioning off a set of cyber weapons belonging
to the U.S. National Security Agency’s (“NSA”) highly secretive Office
of Tailored Access Operations (“TAO”).
72
The Shadow Brokers began
by announcing a putative auction of digital weapons they claimed had
been stolen from the “Equations Group,” a highly advanced hacking
group that many commentators believe is synonymous with NSA’s
TAO.
73
The Shadow Brokers released a number of leaks throughout the
second half 2016, including digital tools for exploiting firewalls and
network infrastructure engineered by companies that include Cisco,
Juniper, Fortinet, and Huawei, a Chinese company.
74
Simultaneously, the group provided a cache of encrypted files, and it
claimed they would provide the password to this cache to the winner
of a Bitcoin auction.
75
This fundraising auction effort was ultimately
70
. Id.
71
. See, e.g., Palmer, supra note 18.
72
. See David E. Sanger, ‘Shadow Brokers’ Leak Raises Alarming Question: Was
the N.S.A. Hacked? N.Y. TIMES (Aug. 16, 2016), https://www.nytimes.com/2016/
08/17/us/shadow-brokers-leak-raises-alarming-question-was-the-nsa-hacked.html.
73
. See Scott Shane, Nicole Perloth & David E. Sanger, Security Breach and
Spilled Secrets Have Shaken the N.S.A. to Its Core, N.Y. TIMES (Nov. 12, 2017),
https://www.nytimes.com/2017/11/12/us/nsa-shadow-brokers.html.
74
. Lorenzo Franceschi-Bicchierai, NSA Targeted Chinese Firewall Maker
Huawei, Leaked Documents Suggest, MOTHERBOARD, (Aug. 24, 2016, 9:00 AM),
https://motherboard.vice.com/en_us/article/nsa-huawei-firewalls-shadow-brokers-
leak.
75
. Joseph Cox, They’re Back: The Shadow Brokers Release More Alleged
Exploits, MOTHERBOARD (Apr. 8, 2017, 11:33 AM), https://motherboard.vice.com/
en_us/article/theyre-back-the-shadow-brokers-release-more-alleged-exploits.
524 TENNESSEE LAW REVIEW [Vol. 86.503
not successful,
76
so on April 8, 2017, the Shadow Brokers publicly
released the password to this encrypted cache of files.
77
Then, on April 14, 2017, the group released another set of tools
developed by the U.S. NSA. Among this April 14 cache was a Microsoft
Windows zero-day exploit known as ETERNALBLUE.
78
A zero-day
exploit is “software vulnerabilit[y] for which no patch or fix has been
publicly released.”
79
Microsoft actually issued a patch for the
ETERNALBLUE exploit a month before it was leaked,
80
which has
fueled speculation that Microsoft had been tipped off about the
existence of the vulnerability, presumably by its original engineer
the NSA.
81
B. WannaCry’s Method of Operation and Global Impacts
A technical and highly detailed discussion of WannaCry’s format,
signatures, and method of operation exceeds the scope of this Article.
82
However, in broad terms, enterprise server access was gained via
“exploitation of a critical Windows SMB vulnerability. Microsoft
released a security update for the MS17-010 vulnerability on March
14, 2017. Additionally, Microsoft released patches for Windows XP,
76
. Janus Kopfstein, ‘Shadow Brokers’ Whine That Nobody Is Buying Their
Hacked NSA Files, MOTHERBOARD (Oct. 1, 2016, 4:00 PM), https://mother
board.vice.com/en_us/article/shadow-brokers-whine-that-nobody-is-buying-their-hack
ed-nsa-files.
77
. See Cox, supra note 76.
78
. Dan Goodin, NSA-leaking Shadow Brokers Just Dumped Its Most Damaging
Release Yet, ARS TECHNICA (Apr. 14, 2017, 1:27 PM), https://arstechnica.com/security
/2017/04/nsa-leaking-shadow-brokers-just-dumped-its-most-damaging-release-yet/.
79
. LILLIAN ABLON & ANDY BOGART, ZERO DAYS, THOUSANDS OF NIGHTS: THE
LIFE AND TIMES OF ZERO-DAY VULNERABILITIES AND THEIR EXPLOITS ix (2017),
http://www.rand.org/pubs/research_reports/RR1751.html.
80
. Phillip Misner, Protecting Customers and Evaluating Risk, MICROSOFT
SECURITY RESPONSE CTR. (Apr. 14, 2017), https://blogs.technet.microsoft.com/
msrc/2017/04/14/protecting-customers-and-evaluating-risk/ (listing the “EternalBlue”
vulnerability as having been patched by MS17-010 on Mar. 14, 2017).
81
. See Richard Lawler, Microsoft Says It Already Patched ‘Shadow Brokers’
NSA Leaks, ENGADGET (Apr. 15, 2017), https://www.engadget.com/2017/04/15/
microsoft-says-it-already-patched-several-shadow-brokers-nsa-l/ (“Because ‘The
Shadow Brokers’ listed what tools they had in January, it seemed like the NSA had to
know this release could happen.”); Scott Shane, Malware Case Is Major Blow for the
N.S.A., N.Y. TIMES, May 16, 2017, at A1.
82
. See, e.g., Raj Samani & Christiaan Beek, An Analysis of the WannaCry
Ransomware Outbreak, MCAFEE (May 12, 2017), https://securingtomorrow.mc
afee.com/executive-perspectives/analysis-wannacry-ransomware-outbreak/; Zammis
Clark, The Worm That Spreads WanaCrypt0r, MALWAREBYTES, https://blog.malware
bytes.com/threat-analysis/2017/05/the-worm-that-spreads-wanacrypt0r/ (last updated
May 13, 2017).
2019] WANNACRY 525
Windows 8, and Windows Server 2003 operating systems on May 13,
2017.”
83
Worldwide victims of the WannaCry exploit included: the
U.K.’s National Health Service
84
; U.S. FedEx, Spain’s Telefónica,
Russian telecommunications giant MegaFon
85
; Russian Interior
Ministry and Romanian carmaker Dacia
86
; and a disproportionate
negative effect on China due to bootleg software.
87
However, it did not
take long for intelligence officials and security experts to agree that
North Korea was responsible for using the NSA’s ENTERNALBLUE
exploit to engineer the WannaCry virus.
88
C. WannaCry and North Korea
Former U.S. Director of National Intelligence (DNI) James R.
Clapper reports, “on November 24 [2014], a hacker group calling itself
the Guardians of Peace published a tranche of personal emails and
embarrassing information about the executives at Sony Pictures.”
89
Then, these hackers, “continued to post emails and documents and
even yet-to-be-released Sony movies, and they then tried to sabotage
Sony Pictures’ IT operating systems. They threatened to do more
damage if Sony didn’t cancel the release of The Interview.”
90
The
assessment of DNI Clapper and other U.S. cyber specialists is “that
the Sony hacks had originated in North Korea, and that, to do what
they’d accomplished, the North Koreans had been on Sony Pictures’
systems for weeks, even months.”
91
As Trautman has described
elsewhere:
During the 2014 December holiday season Americans were
confronted with yet another reported cyber attack. This time,
state actor North Korea is alleged to have committed a major
cyber attack on the data systems of Sony Corporation in
83
. See NCCIC, supra note 11.
84
. Steven Erlanger et al., Britain’s Health Service, Targeted in Cyberattack,
Ignored Warnings for Months, N.Y. TIMES, May 13, 2017, at A9.
85
. Nicole Perlroth & David E. Sanger, Hackers Use Tool Taken from N.S.A. in
Global Attack, N.Y. TIMES, May 13, 2017, at A1, A9.
86
. Mark Scott & Nick Wingfield, Clock Ticking, Security Experts Scramble to
Defuse Cyberattack, N.Y. TIMES, May 14, 2017, at A15.
87
. Paul Mozur, Addiction to Pirated Software Leaves China Vulnerable to
Malware Assaults, N.Y. TIMES, May 16, 2017, at A8.
88
. See Perlroth & Sanger, supra note 86.
89
. JAMES R. CLAPPER, FACTS AND FEARS: HARD TRUTHS FROM A LIFE IN
INTELLIGENCE 283 (2018).
90
. Id.
91
. Id.
526 TENNESSEE LAW REVIEW [Vol. 86.503
retaliation for a proposed Christmas day-release of the
Hollywood motion picture spoofing a fictitious plan to assonate
the leader of North Korea. The attack traced to North Korea
was soon followed by threats of attacks on those theaters
scheduled for the film’s release on Christmas day 2014. As a
result, Sony Pictures Entertainment cancelled the planned
release to theaters and the film became available on Netflix.
In his June 9, 2011 confirmation hearing for the post of
secretary of defense before the Senate Armed Services
Committee[,] Central Intelligence Agency Director Leon
Panetta observed, “‘the next Pearl Harbor that we confront
could very well be a cyberattack that cripples’ America’s
electrical grid and its security and financial systems.” Here,
the 2014 cyber attack of Sony Pictures Entertainment was a
breach of corporate communications, strategy and
entertainment assets, including motion picture films.
By 2017, ransomware has gained significant use by
criminals as a tool to extort payments from businesses,
governments, and individuals. After infecting the victim’s
computer with ransomware, a payment often by Bitcoin is
required, before the victim’s computer is returned to a
functional condition. The Interview is not the only motion
picture to receive extortion demands. A major cyberattack
during May 2017 is attributed to North Korean actors,
approximately two and a half years following the December
2014 attack on SONY Pictures Entertainment. The attack on
SONY is not at all among the largest breaches either in terms
of number of individuals impacted or the cost to the
shareholders of SONY. What sets the SONY attack apart from
others is that this is one of the first attributed to a nation state
actor that aims at a U.S. corporation, SONY Pictures
Entertainment.
92
On September 6, 2018, the DOJ announced the unsealing of a
complaint, “charging Park Jin Hyok . . . , a North Korean citizen, for
his involvement in a conspiracy to conduct multiple destructive
cyberattacks around the world resulting in damage to massive
amounts of computer hardware, and the extensive loss of data, money
92
. See Lawrence J. Trautman, The SONY Data Hack: Implications for World
Order (Feb. 18, 2018) (unpublished manuscript) (on file with author).
2019] WANNACRY 527
and other resources.”
93
In a press release, the DOJ described the
complaint’s allegations and further commented:
The complaint alleges that Park was a member of a
government-sponsored hacking team known to the private
sector as the “Lazarus Group,” and worked for a North Korean
government front company . . . to support the DPRK
government’s malicious cyber actions.
The Conspiracy’s malicious activities include the creation
of the malware used in the 2017 WannaCry 2.0 global
ransomware attack; the 2016 theft of $81 million from
Bangladesh Bank; the 2014 attack on Sony Pictures
Entertainment . . . ; and numerous other attacks or intrusions
on the entertainment, financial services, defense, technology,
and virtual currency industries, academia, and electric
utilities.
. . .
. . . [FBI Director Christopher Wray stated,] “We stand
with our partners to name the North Korean government as
the force behind this destructive global cyber campaign. This
group’s actions are particularly egregious as they targeted
public and private industries worldwidestealing millions of
dollars, threatening to suppress free speech, and crippling
hospital systems. We’ll continue to identify and illuminate
those responsible for malicious cyberattacks and intrusions,
no matter who or where they are.”
. . .
About the Defendant Park and Chosun Expo Joint Venture
According to the allegations contained in the criminal
complaint, which was filed on June 8, 2018 in Los Angeles
federal court, and posted today: Park Jin Hyok, was a
computer programmer who worked for over a decade for
Chosun Expo Joint Venture . . . . Chosun Expo Joint Venture
had offices in China and the DPRK, and is affiliated with Lab
110, a component of DPRK military intelligence. In addition to
the programming done by Park and his group for paying
93
. Press Release, North Korean Regime-Backed Programmer Charged With
Conspiracy to Conduct Multiple Cyber Attacks and Intrusions: North Korean Hacking
Team Responsible for Global WannaCry 2.0 Ransomware, Destructive Cyberattack on
Sony Pictures, Central Bank Cybertheft in Bangladesh, and Other Malicious
Activities, Dep’t of Justice (Sept. 6, 2018), https://www.justice.gov/opa/pr/north-
korean-regime-backed-programmer-charged-conspiracy-conduct-multiple-cyber-attac
ks-and.
528 TENNESSEE LAW REVIEW [Vol. 86.503
clients around the world, the Conspiracy also engaged in
malicious cyber activities. Security researchers that have
independently investigated these activities referred to this
hacking team as the “Lazarus Group.” The Conspiracy’s
methods included spear-phishing campaigns, destructive
malware attacks, exfiltration of data, theft of funds from bank
accounts, ransomware extortion, and propagating “worm”
viruses to create botnets.
. . .
Creation of Wannacry 2.0
In May 2017, a ransomware attack known as WannaCry
2.0 infected hundreds of thousands of computers around the
world, causing extensive damage, including significantly
impacting the United Kingdom’s National Health Service. The
Conspiracy is connected to the development of WannaCry 2.0,
as well as two prior versions of the ransomware, through
similarities in form and function to other malware developed
by the hackers, and by spreading versions of the ransomware
through the same infrastructure used in other cyber-attacks.
Park and his co-conspirators were linked to these attacks,
intrusions, and other malicious cyber-enabled activities
through a thorough investigation that identified and traced:
email and social media accounts that connect to each other and
were used to send spear-phishing messages; aliases, malware
“collector accounts” used to store stolen credentials; common
malware code libraries; proxy services used to mask locations;
and North Korean, Chinese, and other IP addresses. Some of
this malicious infrastructure was used across multiple
instances of the malicious activities described herein. Taken
together, these connections and signaturesrevealed in
charts attached to the criminal complaintshow that the
attacks and intrusions were perpetrated by the same actors.
94
More evidence continues to build regarding the ongoing
involvement of North Korea in WannaCry exploits and progeny.
95
Exhibit 2 presents a sample of North Korean Government activity,
known as HIDDEN COBRA.
94
. Id.
95
. See Perlroth, supra note 5.
2019] WANNACRY 529
Exhibit 2
North Korean Government Cyber Activity
96
Date
Item
Comment
Oct. 2, 2018
Alert (TA18-275A)
HIDDEN COBRA FASTCash
Campaign
Oct. 2, 2018
Malware Analysis Report
(MAR-10201537)
HIDDEN COBRA FASTCash-
Related Malware
Aug. 9, 2018
Malware Analysis Report
(10135536-17)
North Korean Trojan: KEYMARBLE
June 14, 2018
Malware Analysis Report
(10135536-12)
North Korean Trojan: TYPEFRAME
May 29, 2018
Alert (TA18-149A)
HIDDEN COBRA- Joanap Backdoor
Trojan and Brambul Server Message
Block Worm
May 29, 2018
Malware Analysis Report
(MAR-10135536-3)
HIDDEN COBRA RAT/Worm
Mar. 28, 2018
Malware Analysis Report
(MAR-10135536.11)
North Korean Trojan: SHARPKNOT-
STIX file for MAR-10135536.11
Feb. 13, 2018
Malware Analysis Report
(MAR-10135536-F)
North Korean Trojan: HARDRAIN-
STIX file for MAR-10135536-F
Feb. 13, 2018
Malware Analysis Report
(MAR-10135536-G)
North Korean Trojan: BADCALL-
STIX file for MAR-10135536-G
Dec. 21, 2017
Malware Analysis Report
(MAR-10135536)
North Korean Trojan: BANKSHOT-
STIX file for MAR-10135536
Nov. 14, 2017
Alert (TA-318A)
HIDDEN COBRA-North Korean
Remote Administration Tool:
FALLCHILL
Nov. 14, 2017
Alert (TA17-318B)
HIDDEN COBRA-North Korean
Trojan: Volgmer
Aug. 23, 2017
Malware Analysis Report
(MAR-10132963)
An Delta Charlie Attack Malware
STIX file for MAR-10132963
June 13, 2017
Alert (TA17-164)
HIDDEN COBRA- North Korea’s
DDoS Botnet Infrastructure
May 12, 2017
Alert (TA17-132A)
Indicators Associated With
WannaCry Ransomware
96
. See Hidden CobraNorth Korean Malicious Cyber Activity, U.S.-CERT,
U.S. DEPT. OF HOMELAND SEC., https://www.us-cert.gov/HIDDEN-COBRA-North-
Korean-Malicious-Cyber-Activity (last visited Apr. 23, 2019).
530 TENNESSEE LAW REVIEW [Vol. 86.503
D. WannaCry, Bitcoin, and Digital Currencies
Numerous scholars have discussed the fundamental role bitcoin
plays in the success of criminal enterprises and recent ransomware.
97
While not “untraceable or completely anonymous,”
98
“[b]itcoin is
currently the most popular cryptocoin . . . .
99
But new cybercurrencies
“claim to provide full anonymity and untraceability, and will probably
be preferred in the future by cyber gangs to make law enforcement
work in tracking the flux of money almost impossible.”
100
In the case
of the Cryptolocker ransomware exploit, Professors Hernandez-
Castro, Cartwright, and Stepanova observe:
Cryptolocker employed a number of different bitcoin addresses
to request the victims to send the money to. There is
speculation that it created a new one for each
victim. . . . [O]nce the victim’s bitcoins were transferred to that
address, they were rapidly moved to others, and laundered
using bitcoin mixers. At least 628 of these initial addresses are
known. When further investigated, it was discovered that the
bitcoin transfers very frequently visited a small number of
addresses. For example, from this list of 628 at least 440
visited the address
174psvzt77NgEC373xSZWm9gYXqz4sTJjn. This single
address received a total of 346,102.31357807 BTC, which is a
significant amount of the total number of bitcoins in
circulation (approx. [twelve] million) at the time of its last
transaction in February 2014. The average value of this
amount of bitcoins at that time was in excess of $207
[million].
101
The mechanics of bitcoin transfer in the case of Cryptolocker
ransomware involved payments received at the address requested
97
. See Julio Hernandez-Castro et al., Economic Analysis of Ransomware
(March 20, 2017), https://ssrn.com/abstract=2937641; Adam J. Sulkowski, Blockchain,
Law, and Business Supply Chains: The Need for Governance and Legal Frameworks
to Achieve Sustainability 1 (May 13, 2018) (unpublished manuscript),
https://ssrn.com/abstract=3205452; Lawrence J. Trautman, Is Disruptive Blockchain
Technology the Future of Financial Services?, 69 CONSUMER FIN. L. Q. REP. 232, 234
(2016); Lawrence J. Trautman & Alvin C. Harrell, Bitcoin Versus Regulated Payment
Systems: What Gives?, 38 CARDOZO L. REV. 1041, 1050 (2017).
98
. Hernandez-Castro, et al., supra note 98, at 3.
99
. Id.
100
. Id.
101
. Id.
2019] WANNACRY 531
going “straight to accumulator addresses like those shown above.
These accumulators, after receiving around 500 BTC, then sent the
money to a chain of addresses [with] typically only 2 transactions
each, the first one receiving the bitcoin and another one sending
bitcoin to two or more addresses,”
102
further dividing the transaction
amounts.
IV. PETYA AND NOTPETYA ATTACKS
Taken all together, cyber poses an incredibly complex set of
threats, because criminals, and “hacktivist” collectives like
Anonymous, are all thrown in together with aggressors like
North Korea and Iran, and with the Russians and Chinese,
who could do real damage if they are so inclined. Each of those
actors has different capabilities and different objectives when
they engage in Cyberspace, and all of them operate on the same
Internet.
103
James R. Clapper,
Former Director of National
Intelligence
A. Petya Ransomware
Petya is a type of ransomware that propagates using an email
attachment.
104
The first iteration appeared in March 2016 and arrived
in victims’ inboxes as a job applicant’s resume with an executable file
attached.
105
If a victim downloaded the file, the victim would be
prompted by the Windows User Access Control warning that the
executable file wants to make changes to the computer.
106
If a victim
allowed the malware to make changes, the computer would reboot;
upon rebooting, the victim’s files would be encrypted and a ransom
message would be displayed.
107
102
. Id.
103
. CLAPPER, supra note 90, at 28485 (citing James R. Clapper, Remarks at the
International Conference on Cyber Security at Fordham University (Jan. 2015)).
104
. Josh Fruhlinger, Petya Ransomeware and NotPetya Malware: What You
Need to Know Now, CSO BLOG (Oct. 17, 2017, 2:59 AM), https://www.csoonline.com/
article/3233210/ransomware/petya-ransomware-and-notpetya-malware-what-you-ne
ed-to-know-now.html.
105
. Id.
106
. Id.
107
. Id.
532 TENNESSEE LAW REVIEW [Vol. 86.503
In some ways, however, Petya is the next logical step in
ransomware’s evolution. For example, Petya’s mode of encrypting a
victim’s files is more sophisticated than past strains of malware, and
a later iteration of Petya bundled a second, alternative mechanism
called Mischato render victims’ computers unusable.
108
All things
considered, Petya is a fairly routine malware evolutionary step: it uses
a more sophisticated technique to encrypt a victim’s files but its
reliance on unwitting users granting permissions limited the scope of
its damage.
B. NotPetya Malware
In June 2017, a new and far more dangerous version of Petya
wreaked international havoc. Many people initially believed it was
merely a routine evolutionary step in Petya’s developmenta version
of Petya that used the ETERNALBLUE exploit, rather than relying
on users granting permissions.
109
But eventually researchers
determined this new strain was fundamentally different from Petya,
and it has been dubbed NotPetya.
110
NotPetya is the most costly and
damaging cyberattack in history: The U.S. government estimated its
damages in excess of $10 billion.
111
While superficially resembling Petya, NotPetya differed in some
significant and important ways. Perhaps most notably, NotPetya is
not, technically, ransomware. While it does encrypt a victim’s
computer files, it does so irreversibly: Even if a victim paid the
ransom, the files could not be recovered.
112
Like WannaCry, NotPetya spreads using the ETERNALBLUE
zero-day.
113
NotPetya, however, does not incorporate the fairly
fundamental errors that stunted WannaCry’s proliferationnamely,
it omits the infamous WannaCry “kill switch,” meaning that the only
way to protect against NotPetya is to install the Windows patch.
114
The U.S. Department of Homeland Security’s National Cybersecurity
and Communications Integration Center (NCCIC) observes that “if
108
. Id.
109
. See, e.g., Lily Hay Newman, A Scary New Ransomware Outbreak Uses
WannaCry’s Old Tricks, WIRED (June 27, 2017, 12:09 PM), https://www.wired.com/
story/petya-ransomware-outbreak-eternal-blue/.
110
. Andy Greenberg, The Untold Story of NotPetya, the Most Devastating
Cyberattack in History, WIRED (Aug. 22, 2018, 5:00 AM), https://www.wired.com/
story/notpetya-cyberattack-ukraine-russia-code-crashed-the-world/.
111
. Id.
112
. Id.
113
. Id.
114
. Newman, supra note 110.
2019] WANNACRY 533
the malware gains administrator rights, it encrypts the master boot
record (MBR), making the infected Windows computers unusable,”
115
and provides the following technical details:
NCCIC received a sample of the NotPetya malware
variant and performed a detailed analysis. Based on the
analysis, NotPetya encrypts the victim’s files with a
dynamically generated, 128-bit key and creates a unique ID of
the victim. However, there is no evidence of a relationship
between the encryption key and the victim’s ID, which means
it may not be possible for the attacker to decrypt the victim’s
files even if the ransom is paid. It behaves more like
destructive malware rather than ransomware.
NCCIC observed multiple methods used by NotPetya to
propagate across a network. The first andin most cases
most effective method, uses a modified version of the Mimikatz
tool to steal the user’s Windows credentials. The cyber threat
actor can then use the stolen credentials, along with the native
Windows Management Instrumentation Command Line
(WMIC) tool or the Microsoft SysInternals utility, psexec.exe,
to access other systems on the network. Another method for
propagation uses the EternalBlue exploit tool to target
unpatched systems running a vulnerable version of SMBv1. In
this case, the malware attempts to identify other hosts on the
network by checking the compromised system’s IP physical
address mapping table. Next, it scans for other systems that
are vulnerable to the SMB exploit and installs the malicious
payload. Refer to the malware report, MIFR-10130295, for
more details on these methods.
The analyzed sample of NotPetya encrypts the
compromised system’s files with a 128-bit Advanced
Encryption Standard (AES) algorithm during runtime. The
malware then writes a text file on the “C:\” drive that includes
a static Bitcoin wallet location as well as unique personal
installation key intended for the victim to use when making
the ransom payment and the user’s Bitcoin wallet ID.
NotPetya modifies the master boot record (MBR) to enable
encryption of the master file table (MFT) and the original
MBR, and then reboots the system. Based on the encryption
methods used, it appears unlikely that the files could be
115
. Press Release, Alert (TA17-181A) Petya Ransomware (Feb. 15, 2018),
https://www.us-cert.gov/ncas/alerts/TA17-181A.
534 TENNESSEE LAW REVIEW [Vol. 86.503
restored, even if the attacker received the victim’s unique key
and Bitcoin wallet ID.
The delivery mechanism of NotPetya during the June 27,
2017, event was determined to be the Ukrainian tax
accounting software, M.E.Doc. The cyber threat actors used a
backdoor to compromise M.E. Doc’s development environment
as far back as April 14, 2017. This backdoor allowed the threat
actor to run arbitrary commands, exfiltrate files, and
download and execute arbitrary exploits on the affected
system. Organizations should treat systems with M.E.Doc
installed as suspicious, and should examine these systems for
additional malicious activity.
116
But NotPetya also has a mechanism for infecting computers that
have been patched. This second mechanism is called Mimikatz, and
Mimikatz is capable of pulling a Windows user’s password out of a
computer’s RAM.
117
This becomes particularly dangerous in multi-
computer networks: If a single machine has not installed the
ETERNALBLUE patch, then NotPetya could use the Mimikatz to
obtain administrator credentials and thus infect the entire
network.
118
The French security researcher who first demonstrated
Mimikatz, Benjamin Deply, explained: “You can infect computers that
aren’t patched, and then you can grab the passwords from those
computers to infect other computers that are patched.”
119
The victims of NotPetya were widespread and included several
sophisticated companies. The attack was initially focused on Ukraine,
but the malware was so virulent that it spread far and wide, damaging
“Ukrainian infrastructure like power companies, airports, public
transit, and the central bank, as well as Danish shipping company
Maersk, the Russian oil giant Rosnoft, and institutions in India,
Spain, France, the United Kingdom,” among others.
120
The shipping
giant Maersk alone estimated that NotPetya cost the company
between $250 million and $300 million.
121
There is universal
consensus that the Russian government is responsible for using
NotPetya to wage war on Ukraine.
122
But, in light of the fact NotPetya
damaged Rosnoft, it seems that the malware was more successful
116
. Id.
117
. Greenberg, supra note 111.
118
. Id.
119
. Id.
120
. Newman, supra note 110.
121
. Greenberg, supra note 111.
122
. Id.
2019] WANNACRY 535
than even its creators anticipated. NotPetya represents a startling
escalation of nation-state cyberwar.
V. MUNICIPAL AND EDUCATIONAL RANSOMWARE ATTACKS
The concept is simple: Your computer gets infected with a virus
that encrypts your files until you pay a ransom. It’s extortion
taken to its networked extreme. The criminals provide step-by-
step instructions on how to pay, sometimes even offering a help
line for victims unsure how to buy bitcoin. The price is designed
to be cheap enough for people to pay instead of giving up: a few
hundred dollars in many cases. Those who design these
systems know their market, and it’s a profitable one.
123
Bruce Schneier,
Chief Technology Officer,
IBM Resilient, fellow at
Harvard’s Berkman Center,
and a board member of EFF
Municipalities, educational institutions, and other public
institutions have also proven to be an attractive target for
ransomware criminals. During 2017, reports of a $25,000 ransom
demanded of the St. Louis Public Library and a $50,000 demand of
Licking County, Ohio, surfaced: “Local governments are forced to
spend money on frantic efforts to recover data, system upgrades,
cybersecurity insurance and, in some cases, to pay their online
extortionists if they can’t restore files some other way.”
124
This Part
presents a few of the ample 2018 examples of ransomware attacks on
such institutions.
123
. Bruce Schneier, The Future of Ransomware, SCHNEIER ON SECURITY (May
23, 2017, 5:55 AM), https://www.schneier.com/blog/archives/2017/05/the_future_
of_r.html.
124
. See Jon Kamp & Scott Calvert, Cyberattacks Target Local Governments,
WALL ST. J., June 25, 2018, at A4.
536 TENNESSEE LAW REVIEW [Vol. 86.503
A. Atlanta
During mid-March 2018, the city of Atlanta received a ransom
demand from hackers known as the SamSam group, requesting a
payment of about $51,000 to be made in Bitcoin.
125
The New York
Times characterizes the Atlanta attack as “one of the most sustained
and consequential cyberattacks ever mounted against a major
American city.”
126
The digital extortion “laid bare once again the
vulnerabilities of governments as they rely on computer networks for
day-to-day operations.”
127
While wastewater systems and the systems
involving 911 emergency telephone calls were not impacted, “other
arms of city government [were] scrambled for days. The Atlanta
Municipal Court [was] unable to validate warrants. Police officers
[were] writing reports by hand. The city . . . stopped taking
employment applications.”
128
Even after the desktop computers for
roughly 8,000 Atlanta employees came “back to life for the first time
in five days, residents still could not pay their traffic tickets or water
bills online, or report potholes or graffiti on a city website. Travelers
at the world’s busiest airport still could not use the free Wi-Fi.”
129
It appears that victims of SamSam’s attacks “more easily afford
the $50,000 or so in ransom than the time and cost of restoring their
locked data and compromised systems. In the past year, the group has
taken to attacking hospitals, police departments and universities
targets with money but without the luxury of going off-line for days or
weeks for restoration work.”
130
So, what appears to be the cost to
Atlanta? The Wall Street Journal reported that Atlanta Mayor Keisha
Lance Bottoms, speaking in mid-2018 at a mayor’s conference,
“estimated that the city, which decided to rebuild its systems, was
facing more than $20 million in costs, but she hoped insurance would
cover much of that.”
131
125
. See Alan Blinder & Nicole Perlroth, Atlanta Hobbled by Major Cyberattack
That Mayor Calls ‘a Hostage Situation’, N.Y. TIMES, Mar. 28, 2018, at A14.
126
. Id.
127
. Id.
128
. Id.
129
. Id.
130
. Id.
131
. See Kamp & Calvert, supra note 125.
2019] WANNACRY 537
B. Rockport, Maine
In addition to the Atlanta ransomware attack, other local
governments attacked during 2018 include Leeds, Alabama and
Rockport, Maine.
132
In the Rockport attack, “[a]n unknown hacker had
sneaked malicious software onto the network and was demanding a
payment of roughly $1,200 in bitcoin in return for codes to unlock the
town’s files”
133
and “offered tips on how to acquire cryptocurrency.”
134
Rockport decided not to pay the ransom. Instead, two city employees
“worked through the weekend and had town systems up and running
again by the next week. Still, the hamlet of about 3,400 ultimately
paid about $10,000 to cover the immediate restoration work, plus
another $28,000 to $30,000 on security improvements.”
135
C. Schools and Others
Schools have also been the target of substantial ransomware
threats and requests.
136
Examples of recent ransomware payments
made by educational institutions include: in 2016, South Carolina’s
Horry County Schools (paying hackers nearly $10,000); in 2017, Los
Angeles Valley College in California (paying a ransom of $28,000 in
January) and Dorchester School District Two in South Carolina
(paying $2,900 to hackers in July). Dorchester School District Two
ultimately paid “a $5,000 deductible in an insurance claim, which
covered the $2,900 ransom and just over $150,000 for legal fees,
consulting costs and personnel costs to rebuild some databases
destroyed in the hack.”
137
Horry County’s executive director of
technology, Charles Hicks, stated that the County’s “nearly $10,000
payment to hackers pales in comparison to each day it didn’t have
access to files and content created by 43,000 students and 4,000-plus
faculty and staff.”
138
Other examples of ransomware demands made
on educational institutions far exceed the limited space available for
this Article. In Part VI, our attention will shift to threats directed
toward corporations.
132
. Id.
133
. Id.
134
. Id.
135
. Id.
136
. Tawnell D. Hobbs, Hackers Target Schools, WALL ST. J., Oct. 24, 2017, at A3.
137
. Id.
138
. Id.
538 TENNESSEE LAW REVIEW [Vol. 86.503
VI. THREATS RANSOMWARE POSE TO CORPORATIONS
Cyber criminals know that a company’s lifeblood is contained
in its networks and the information flowing through those
systems. The last few years have witnessed a significant
increase in criminals using ransomware.
139
Rod Rosenstein,
Deputy Attorney General
Transnational organized crime syndicates have utilized extortion
schemes for many years.
140
Joining longstanding illicit lines of
businesssuch as the kidnapping of executives and piracy of vessels
and their cargos in exchange for ransom paymentsis the newly
technologically-enabled extortion business model of computer
ransomware.
141
This new technology vulnerability is now on the long
list of crises that face corporate directors.
142
The Proofpoint Quarterly Threat Report for the fourth quarter
of 2017 states that “ransomware remained the top payload distributed
by malicious messages[,] . . . account[ing] for 57% of all malicious
volume.”
143
Proofpoint provides the following commentary about
ransom payment:
139
. See Rosenstein, supra note 6.
140
. See Morse & Ramsey, supra note 3, at 287.
141
. Id.; see also David D. Schein & Lawrence J. Trautman, The Dark Web and
Employer Liability 21 (Sept. 18, 2018) (unpublished manuscript), https://ssrn.com/
abstract=3251479.
142
. See Lawrence J. Trautman, The Board’s Responsibility for Crisis
Governance, 13 HASTINGS BUS. L. J. 275, 28182 (2017); Lawrence J. Trautman &
George P. Michaely, Jr., The SEC & The Internet: Regulating the Web of Deceit, 68
CONSUMER FIN. L. Q. REP. 262, 262 (2014), http://www.ssrn.com/abstract=1951148;
Lawrence J. Trautman, Who Qualifies As an Audit Committee Financial Expert Under
SEC Regulations and NYSE Rules?, 11 DEPAUL BUS. & COMM. L. J. 205, 23233 (2013)
(discussing the need for cybersecurity expertise represented on corporate boards);
Lawrence J. Trautman et al., Corporate Information Technology Governance Under
Fire, 8 J. STRAT. & INTL STUD. 105, 105 (2013), https://ssrn.com/abstract=2346583;
Lawrence J. Trautman & Kara Altenbaumer-Price, D&O Insurance: A Primer, 1 AM.
U. BUS. L. REV. 337, 344 (2011) (cyber insurance is important in managing risk);
Lawrence J. Trautman, The Matrix: The Board’s Responsibility for Director Selection
and Recruitment, 11 FLA. ST. U. BUS. REV. 75, 11215 (2012) (discussing need for
recruitment of corporate directors experienced in cybersecurity matters).
143
. See PROOFPOINT, PROOFPOINT QUARTERLY THREAT REPORT Q4, at 4 (2017),
https://www.proofpoint.com/us/resources/threat-reports/january-2018.
2019] WANNACRY 539
For much of the last two years, attackers’ ransoms have been
denominated in Bitcoin values. The amount demanded is
expressed as some number of bitcoins, whether a full integer
or a fraction such as “0.5” or “0.15.” Surging cryptocurrency
values are a boon for holders of Bitcoin. But they are a
challenge for anyone who tries to price their product or service
in Bitcointhreat actors included. In Q4, newer ransomware
strains appeared to take this into account. Sigma ransomware
first appeared in mid-November [2017] demanding a payment
denominated in U.S. dollars. Denominating ransoms in a
government issued currencyeven if the actual payment is
made in the form of Bitcoinhas two big benefits for an
attacker. It allows the threat actors to maintain stability and
still accept their payments anonymously, and in a currency
that, for the moment, continues to appreciate quickly.
144
Large corporations often have developed customized software over
the years, while still operating on older operating systems. These
mission critical applications often break due to programming conflicts
between these legacy operating systems as updates are installed.
145
Bruce Schneier observes, Many of the organizations hit by
WannaCry had outdated systems for exactly these reasons. But as
expensive and time-consuming as updating might be, the risks of not
doing so are increasing.”
146
A. BYOD, IoT, and Vulnerability Escalation
Cyber threats to corporations have increased substantially due to
the use of multiple electronic devices by each of their employees, often
referred to as Bring Your Own Data (BYOD).
147
Use of personal
laptops, smart phones, iPads, and any of the numerous other personal
digital devices interconnecting with employees expose corporate data
systems to the vulnerabilities resident on employee devices.
144
. Id. at 67.
145
. Bruce Schneier, WannaCry Ransomware, SCHNEIER ON SECURITY (May 19,
2017, 6:10 AM), https://www.schneier.com/blog/archives/2017/05/wannacry_ran
som.html.
146
. Id.
147
. See Lawrence J. Trautman & Peter C. Ormerod, Industrial Cyber
Vulnerabilities: Lessons from Stuxnet and the Internet of Things, 72 U. MIAMI L. REV.
761, 770 (2018).
540 TENNESSEE LAW REVIEW [Vol. 86.503
As Bruce Schneier has observed:
Everything is becoming a computer. Your microwave is a
computer that makes things hot. Your refrigerator is a
computer that keeps things cold. Your car and television, the
traffic lights and signals in your city and our national power
grid are all computers. This is the much-hyped Internet of
Things (IoT). It’s coming, and it’s coming faster than you might
think. And as these devices connect to the Internet, they
become vulnerable to ransomware and other computer
threats.
148
B. Bribery, Corruption, FCPA, and the UK Bribery Act
Laws designed to prohibit bribery and corruption have existed for
many years. Notable among these are the Foreign Corrupt Practices
Act (FCPA)
149
in the United States, the U.K. Bribery Act,
150
and the
OECD Convention on Combating Bribery.
151
International bribery
and corruption schemes have also employed cyber tools to assist in the
payment of funds conveyed for nefarious purposes. The anonymity of
cryptocurrencies provides obvious benefits to those seeking to mask
payments for such things as armaments, ransom, or bribes to officials
of foreign governments.
152
148
. Schneier, supra note 124.
149
. See Lawrence J. Trautman & Kara Altenbaumer-Price, The Foreign Corrupt
Practices Act: Minefield for Directors, 6 VA. L. & BUS. REV. 145, 146 (2011); Lawrence
J. Trautman & Kara Altenbaumer-Price, Foreign Corrupt Practices Act: An Update on
Enforcement and SEC and DOJ Guidance, 41 SEC. REG. L.J. 241, 244 (2013),
http://ssrn.com/abstract=2293382.
150
. See Lawrence J. Trautman & Kara Altenbaumer-Price, Lawyers, Guns, and
Money: The Bribery Problem and U.K. Bribery Act, 47 INTL LAW. 481, 481 (2013).
151
. See generally Lawrence J. Trautman & Joanna Kimbell, Bribery and
Corruption: The COSO Framework, FCPA, and U.K. Bribery Act, 30 FLA. J. INTL L.
481 (2019), http://ssrn.com/abstract=3239193.
152
. See Lawrence J. Trautman, Bitcoin, Virtual Currencies and the Struggle of
Law and Regulation to Keep Pace, 102 MARQ. L. REV. 447, 46768 (2018),
https://ssrn.com/abstract=3182867; Lawrence J. Trautman, How Law Operates in a
Wired Global Society: Cyber and E-Commerce Risk, PROCEEDS KOREA LEGIS. RES. INS.
2122 (Sept. 28, 2017), https://ssrn.com/abstract=3033776; Adam J. Sulkowski,
Blockchain, Law, and Business Supply Chains: The Need for Governance and Legal
Frameworks to Achieve Sustainability 3 (unpublished manuscript), https://ssrn.com/
abstract=3205452.
2019] WANNACRY 541
VII. GOVERNANCE AND THE ORMEROD-TRAUTMAN SECURITY MODEL
Undoubtedly, the decision to notify law enforcement of a cyber-
attack and to cooperate fully in an investigation involves a
certain risk-reward calculation weighing the anticipated
benefits of a pro-active approach against potential legal,
reputational, and other costs.
153
Rod Rosenstein,
Deputy Attorney General
This Part begins by discussing the legal duty of each corporate
board member owes to the shareholders for the governance of the
corporation, including the productive functioning of the board in
protecting the corporation from cyberthreats like ransomware.
A. Legal Responsibilities and Duties of Directors
State granted charters create corporations; their governance is
dictated by state law, with corporate directors responsible for
managing the affairs of the corporation.
154
Delaware law provides that
directors owe their corporation and shareholders fiduciary duties of
care and loyalty.
155
The duty of loyalty stands for the proposition that
153
. See Rosenstein, supra note 6.
154
. DEL. CODE ANN. tit. 8, § 141(a) (1991) (“The business and affairs of a
corporation organized under this chapter shall be managed by or under the direction
of a board of directors, except as may be otherwise provided in this chapter or in its
certificate of incorporation.”). While more than half of all publicly owned United States
corporations are chartered under the laws of the state of Delaware, corporate counsel
and directors will want to closely examine the laws of relevant states when considering
any particular matter. See Stephen M. Bainbridge, Why a Board? Group
Decisionmaking in Corporate Governance, 55 VAND. L. REV. 1, 4 (2002); Ronald J.
Gilson & Reinier Kraakman, Delaware’s Intermediate Standard for Defensive Tactics:
Is There Substance to Proportionality Review?, 44 BUS. LAW. 247, 248 (1989)
(“Delaware corporate law . . . governs the largest proportion of the largest business
transactions in history.”); Lawrence J. Trautman, Who Sits on Texas Corporate
Boards? Texas Corporate Directors: Who They Are & What They Do, 16 HOUS. BUS. &
TAX L.J. 44, 86, 9197 (2016) (describing the experience and demographics of corporate
directors in Texas); Lawrence J. Trautman, Corporate Boardroom Diversity: Why Are
We Still Talking About This?, 17 SCHOLAR 219, 24248 (2015).
155
. See Lawrence J. Trautman & Kara Altenbaumer-Price, The Board’s
Responsibility for Information Technology Governance, 28 J. MARSHALL J. COMPUTER
& INFO. L. 313, 32223 (2011) (citing Smith v. Van Gorkom, 488 A.2d 858, 872 (Del.
1985)); see also Stephen M. Bainbridge et al., The Convergence of Good Faith and
Oversight 5–9 (UCLA Sch. of Law, Law-Econ. Research Paper No. 07-09),
http://ssrn.com/abstract=1006097; Bernard S. Black, The Core Fiduciary Duties of
Outside Directors, ASIA BUS. L. REV., July 2001, at 1, 3; Julian Velasco, How Many
542 TENNESSEE LAW REVIEW [Vol. 86.503
directors “must act in good faith and must not allow his personal
interests to prevail over the interests of the corporation.”
156
Even when Directors make mistakes, the business judgment rule
often provides a safe harbor. Delaware courts have stated that the
business judgment rule is a “presumption ‘that in making a business
decision the directors of a corporation acted on an informed basis, in
good faith and in the honest belief that the action taken was in the
best interests of the company.’”
157
Professor Stephen M. Bainbridge
has observed that the business judgment rule “pervades every aspect
of state corporate law.”
158
A discussion by former SEC commissioners
and seasoned legal experts contends that external events or pressures
can cause a crisis; as such, cyber-attacks can seriously disrupt or harm
Fiduciary Duties Are There in Corporate Law?, 83 S. CAL. L. REV. 1231, 1268 (2010);
cf. Eric J. Pan, Rethinking the Board’s Duty to Monitor: A Critical Assessment of the
Delaware Doctrine, 38 FLA. ST. U. L. REV. 209, 209 (2011) (assessing the duty to
monitor). But see Bernard S. Black et al., Outside Director Liability, 58 STAN. L. REV.
1055, 107476 (2006); Stuart R. Cohn, Demise of the Director’s Duty of Care: Judicial
Avoidance of Standards and Sanctions Through the Business Judgment Rule, 62 TEX.
L. REV. 591, 60203 (1983); William T. Allen, Modern Corporate Governance and the
Erosion of the Business Judgment Rule in Delaware Corporate Law 1113 (CLPE
Research Paper No. 06/2008), http://ssrn.com/abstract=1105591.
156
. BYRON F. EGAN, HOW RECENT FIDUCIARY DUTY CASES AFFECT ADVICE TO
DIRECTORS AND OFFICERS OF DELAWARE AND TEXAS CORPORATIONS 7 (Feb. 13, 2015)
(citing Gearhart Indust., Inc. v. Smith Int’l, Inc., 741 F.2d 707, 719 (5th Cir. 1984));
see also Dalia Tsuk Mitchell, Status Bound: The Twentieth Century Evolution of
Director’s Liability, 5 N.Y.U. J.L. & BUS. 63, 119 (2009).
157
. Dalia Tsuk Mitchell, The Import of History to Corporate Law, 59 ST. LOUIS
U. L.J. 683, 69091 (2015) (quoting Aronson v. Lewis, 473 A.2d 805, 812 (Del. 1984));
see also Sean J. Griffith, Good Faith Business Judgment: A Theory of Rhetoric in
Corporate Law Jurisprudence, 55 DUKE L.J. 1, 1112 (2005); Robert J. Rhee, The Tort
Foundation of Duty of Care and Business Judgment, 88 NOTRE DAME L. REV. 1139,
1148 (2013).
158
. Stephen M. Bainbridge, The Business Judgment Rule As Abstention
Doctrine, (UCLA Sch. of Law, Law and Econ. Research Paper No. 03-18),
http://ssrn.com/abstract=429260. See generally Douglas M. Branson, The Rule That
Isn't a Rulethe Business Judgment Rule, 36 VAL. U. L. REV. 631 (2002); Deborah A.
DeMott, Corporate Officers As Agents, 74 WASH. & LEE L. REV. 847 (2017); Lisa M.
Fairfax, Spare the Rod, Spoil the Director? Revitalizing Directors’ Fiduciary Duty
Through Legal Liability, 42 HOUS. L. REV. 393 (2005); Darian M. Ibrahim, Individual
or Collective Liability for Corporate Directors?, 93 IOWA L. REV. 929 (2008); Lyman
P.Q. Johnson, Corporate Officers and the Business Judgment Rule, 60 BUS. LAW. 439
(2005); Bernard S. Sharfman, The Importance of the Business Judgment Rule, 14
N.Y.U. J.L. & BUS. 27 (2017); Robert Sprague & Aaron J. Lyttle, Shareholder Primacy
and the Business Judgment Rule: Arguments for Expanded Corporate Democracy, 16
STAN. J.L. BUS. & FIN. 1 (2011); John C. P. Goldberg, The Fiduciary Duty of Care
(unpublished manuscript), https://ssrn.com/abstract=3182604.
2019] WANNACRY 543
a business.
159
In all cases of corporate crisis, “[w]hatever the cause,
the Board is expected to act quickly and effectively to mitigate the
damage to the company.”
160
The foundation of corporate governance
is constructed upon the key duties of corporate directors: the duty of
care, the duty of loyalty, and the duty of good faith.
B. Duty of Care
A careful, diligent approach to the effective discharge of every
director’s duties and responsibilities is required to satisfy the legal
concept of duty of care. Professors Lyman P.Q. Johnson and Mark
Sides note:
The duty of care specifies the manner in which directors
must discharge their legal responsibilities . . . includ[ing]
electing, evaluating, and compensating corporate officers;
reviewing and approving corporate strategy, budgets, and
capital expenditures; monitoring internal financial
information systems and financial reporting obligations, and
complying with legal requirements; making distributions to
shareholders; approving transactions not in the ordinary
course of business; [and] appointing members to committees
and discharging committee assignments, including the
important audit, compensation and nominating
committees . . . .
The duty of due care arises in both the discrete decision-
making context and in the oversight and monitoring areas. In
the decision-making settingwhether it involves directors
making a routine business decision or responding to a high-
stakes unsolicited bid for corporate controlthe duty of care
inquiry clearly focuses on a board’s ‘decision-making process.’
Directors in that setting are under an obligation to obtain and
act with due care on all material information reasonably
available.
161
159
. Alan Beller et al., panelists, The Role of Corporate Directors in a Corporate
Crisis, Denit Trust Challenges in Corporate Governance Series: George Washington
University School of Law 32 (Oct. 21, 2013) (discussion materials available at
http://business.gwu.edu/about-us/research/institute-for-corporate-responsibility/the-
series-on-corporate-governance/#Q7).
160
. Id.
161
. Lyman P.Q. Johnson & Mark A. Sides, Corporate Governance and the
Sarbanes-Oxley Act: The Sarbanes-Oxley Act and Fiduciary Duties, 30 WM. MITCHELL
L. REV. 1149, 1197 (2004); see also William T. Allen et al., Realigning the Standard of
544 TENNESSEE LAW REVIEW [Vol. 86.503
In the landmark 1985 corporate governance case Smith v. Van
Gorkom,
162
the Delaware Supreme Court found that the experienced
and sophisticated directors
163
of Trans Union Corporation were not
entitled to the protection of the business judgment rule
164
and had
breached their fiduciary duty to their shareholders “(1) by their failure
to inform themselves of all information reasonably available to them
and relevant to their decision to recommend the Pritzker merger; and
Review of Director Due Care with Delaware Public Policy: A Critique of Van
Gorkom and Its Progeny As a Standard of Review Problem, 96 NW. U. L. REV. 449,
44951 (2002). See generally Lucian A. Bebchuk et al., Director Liability, 31 DEL. J.
CORP. L. 1011 (2006); Christopher M. Bruner, The Fiduciary Enterprise of Corporate
Law, 74 WASH. & LEE L. REV. 791 (2017); Christopher M. Bruner, Is the Corporate
Director's Duty of Care a “Fiduciary” Duty? Does It Matter?, 48 WAKE FOREST L. REV.
1027 (2013); Donald C. Langevoort, Internal Controls After Sarbanes-Oxley:
Revisiting Corporate Law's “Duty of Care as Responsibility for Systems” (unpublished
manuscript), http://ssrn.com/abstract=808084.
162
. 488 A.2d 858 (Del. 1985). Two decades after the Delaware Supreme Court’s
landmark decision, authors continue to discuss Smith v. Van Gorokom in corporate
governance. See Lawrence A. Hamermesh, Twenty Years after Smith v. Van Gorkom:
An Essay on the Limits of Civil Liability of Corporate Directors and the Role of
Shareholder Inspection Rights, 45 WASHBURN L.J. 283, 28384 (2006); Stephen J.
Lubben & Alana J. Darnell, Delaware's Duty of Care, 31 DEL. J. CORP. L. 589, 59091
(2006); Robert T. Miller, Smith v. Van Gorkom and the Kobayashi Maru: The Place of
the Trans Union Case in the Development of Delaware Corporate Law, 9 WM. & MARY
L. REV. 65, 7071 (2017); Steven A. Ramirez, The Chaos of Smith, 45 WASHBURN L.J.
343, 343 (2006); Bernard S. Sharfman, The Enduring Legacy of Smith v. Van Gorkom,
33 DEL. J. CORP. L. 287, 288, 28990 (2008); Bernard S. Sharfman, Being Informed
Does Matter: Fine Tuning Gross Negligence Twenty Plus Years after Van Gorkom, 62
BUS. LAW. 135, 136, 138 (2006); Cheryl L. Wade, What Independent Directors Should
Expect from Inside Directors: Smith v. Van Gorkom As a Guide to Intra-Firm
Governance, 45 WASHBURN L.J. 367, 368 (2006). See generally Stephen M. Bainbridge,
Smith v. Van Gorkom (UCLA Sch. of Law, Law-Econ. Research Paper No. 08-13),
http://ssrn.com/abstract=1130972.
163
. See Trautman & Altenbaumer-Price, supra note 156, at 323, 323 n.55 (citing
PETER V. LETSOU, CASES AND MATERIALS ON CORPORATE MERGERS AND ACQUISITIONS
643 n.21(Erwin Chemerinsky et al. eds. 2006)) (“Trans Union’s five ‘inside’ directors
had backgrounds in law and accounting, 116 years of collective employment by the
company and 68 years of combined experience on its Board. Trans Union’s five ‘outside’
directors included four chief executives of major corporations and an economist who
was a former dean of a major school of business and chancellor of a university. The
‘outside’ directors had 78 years of combined experience as chief executive officers of
major corporations and 50 years of cumulative experience of Trans Union. Thus,
defendants argue that the Board was eminently qualified to reach an informed
judgment on the proposed ‘sale’ of Trans Union notwithstanding their lack of any
advance notice on the proposal, the shortness of their deliberation, and their
determination not to consult with their investment banker or to obtain a fairness
opinion.”).
164
. Van Gorkom, 488 A.2d at 888.
2019] WANNACRY 545
(2) by their failure to disclose all material information such as a
reasonable shareholder would consider important in deciding whether
to approve the Pritzker offer.”
165
Before the corporate takeover
decision involving the Trans Union board, “courts had rarely found
individual directors liable for breaching their duty of care absent
accompanying disloyal acts.”
166
With an analogy that seems to follow
the clear and present danger logic of contemporary cybersecurity
threat, the Business Roundtable says of the September 11, 2001
terrorist attacks:
According to Judge Alvin Hellerstein, who administered the
lawsuits resulting from the attacks, principles of ‘duty of care’
and ‘foreseeable risk’ were forever altered by the tragic
attacks. For example, according to Judge Hellerstein:
‘Defendants argue that the ground victims lost their lives and
suffered injuries from an event that was not reasonably
foreseeable, for terrorists had not previously used a hijacked
airplane as a suicidal weapon to destroy buildings and murder
thousands.’ He continued, ‘Defendants contend that because
the events of September 11 were not within the reasonably
foreseeable risks, any duty of care that they would owe to
ground victims generally should not extend to the victims of
September 11. According to the Court’s decision, however,
corporate leaders now also must adopt strategies to manage
widespread infrastructure disruptions and crises resulting
from previously unforeseeable terrorist attacks or
nonmalicious infrastructure failures.
167
165
. PETER V. LETSOU, CASES AND MATERIALS ON CORPORATE MERGERS AND
ACQUISITIONS 644 (Erwin Chemerinsky et al. eds. 2006).
166
. Jacqueline M. Veneziani, Causation and Injury in Corporate Control
Transactions: Cede & Co. v. Technicolor, Inc., 69 WASH. L. REV. 1167, 1167 & n.3
(1994) (“Before Van Gorkom was decided, one commentator had stated that ‘[t]he
search for cases in which directors . . . have been held liable in derivative suits for
negligence uncomplicated by self-dealing is a search for a very small number of needles
in a very large haystack.’” (quoting Joseph W. Bishop, Jr., Sitting Ducks and Decoy
Ducks: New Trends in the Indemnification of Corporate Directors and Officers, 77 YALE
L.J. 1078, 1099 (1968)).
167
. BUSINESS ROUNDTABLE, COMMITTED TO PROTECTING AMERICA: CEO GUIDE
TO SECURITY CHALLENGES 81 (2005), http://www.cj.msu.edu/~outreach/wmd/ceo_
guide.pdf.
546 TENNESSEE LAW REVIEW [Vol. 86.503
C. Duty of Good Faith
A director must be able to demonstrate that she acted in “good
faith” to effectively invoke the business judgment rule in defending
against a claim for breach of fiduciary duty.
168
Professor Janet E. Kerr
writes, “[b]ecause the duty of good faith has not been clearly defined
nor fully developed, its definition and application are being driven by
numerous forces.”
169
Many factors “define what it means for a
corporate director to act in good faith[,] . . . includ[ing] the judicial
application of state corporate law, federal and state legislation,
shareholder activism, . . . corporate governance ratings, and the
expectations of the public in response to the media’s treatment of
current issues in corporate governance.”
170
Stockbridge v. Gemini Air
Cargo, Inc. stands for the proposition that “the board of directors of a
Delaware corporation [is charged with] the legal responsibility to
manage its business for the benefit of the corporation and its
shareholders with ‘due care, good faith, and loyalty.’”
171
According to
Professor Kerr, “[r]ecognizing that directors have a fiduciary duty to
manage a corporation with good faith in the best interests of all its
shareholders and of the long-term health of the corporation, the court
opined that whether directors have acted in good faith is a question of
fact.”
172
In addition:
Whether the duty to act in good faith is merely a subset of the
duties of care and loyalty, a duty separate and freestanding
from the other two duties, or a duty similar to the duty of good
168
. See id. at n.45; see also Christopher M. Bruner, Good Faith, State of Mind,
and the Outer Boundaries of Director Liability in Corporate Law, 41 WAKE FOREST L.
REV. 1131, 113738 (2006); Sean J. Griffith, Good Faith Business Judgment: A Theory
of Rhetoric in Corporate Law Jurisprudence, 55 DUKE L.J. 1, 913, 1516 (2005); Leo
E. Strine, Jr. et al., Loyalty’s Core Demand: The Defining Role of Good Faith in
Corporation Law, 98 GEO. L.J. 629, 633 (2010); Hillary A. Sale, Good Faith's Procedure
and Substance, In re Caremark International Inc., Derivative Litigation 8 (U. Iowa
Legal Studies Research Paper No. 08-02), http://ssrn.com/abstract=1133570; cf.
Melvin A. Eisenberg, The Duty of Good Faith in Corporate Law, 31 DEL. J. CORP. L. 1,
5 (2006).
169
. Janet E. Kerr, Developments in Corporate Governance: The Duty of Good
Faith and Its Impact on Director Conduct, 13 GEO. MASON L. REV. 1037, 1038 (2006).
170
. Id. See generally Hillary A. Sale, Delaware’s Good Faith, 89 CORNELL L.
REV. 456 (2004).
171
. Kerr, supra note 170, at 1045 (quoting Stockbridge v. Gemini Air Cargo,
Inc., 611 S.E. 2d 600, 606 (Va. 2005)). For more information about the duty of loyalty,
see Julian Velasco, The Diminishing Duty of Loyalty, 75 WASH. & LEE L. REV. 1035,
1038 (2018).
172
. See Kerr supra note 170, at 1046 (citing Stockbridge, 611 S.E.2d at 605).
2019] WANNACRY 547
faith required in the contractual context, remains to be
answered. Importantly, the duty of good faith could be held to
encompass compliance with the expectations of the parties
involved and conformity to the spirit of the fiduciary
relationship. Finally, despite inconsistency and uncertainty,
under the emerging definition of the duty of good faith,
directors may be held personally liable for corporate
misbehavior if their conduct evidences improper motive or ill
will, a reckless disregard of known risks, a sustained failure to
oversee management, or is so egregious that it is
unexplainable on any other grounds other than bad faith.
173
According to Delaware Chief Justice E. Norman Veasey,
[F]ailure to follow the minimum expectations of the evolving
standards of director conduct, the . . . Sarbanes-Oxley, or the
NYSE or NASDAQ Rules (when . . . approved by the SEC)
might likewise raise a good faith issue. There is no definitive
answer to that question, but counsel should advise the
directors of that possible exposure and encourage the utmost
good faith behavior.
174
Consider:
[T]he evolving business and judicial expectations of director
conduct over the years are part of the common law grist for the
fiduciary duty mill. As Chancellor Allen stressed in Caremark,
the kind of sustained inattention of directors exemplified by
the failure to institute law compliance programs contemplated
by the federal sentencing guidelines and expected of prudent
businesses could be held to be a violation of fiduciary duty of
good faith. That standard of conductgood faithis key to
director conduct, and it must be considered when one looks at
the directors’ processes and motivations to be certain that they
are honest and not disingenuous or reckless.
175
173
. Id. at 1051.
174
. E. Norman Veasey, Policy and Legal Overview of Best Corporate Governance
Principles, 56 SMU L. REV. 2135, 2141 (2003). See generally Robert H. Sitkoff, Other
Fiduciary Duties: Implementing Loyalty and Care, in OXFORD HANDBOOK OF
FIDUCIARY LAW 1214 (forthcoming 2019), https://ssrn.com/abstract=3197941.
175
. Veasey, supra note 175, at 2141; see also Robert T. Miller, Oversight
Liability for Risk-Management Failures at Financial Firms, 84 S. CAL. L. REV. 47, 81
548 TENNESSEE LAW REVIEW [Vol. 86.503
D. Cyber Enterprise Risk Management
While a comprehensive discussion of cyber enterprise risk
management far exceeds the scope of this Article, some useful
resources are listed below.
176
Here, we pause to reflect upon the basic
duties of loyalty and care imposed by law on corporate directors.
E. Ormerod-Trautman Profit Maximizing Model of Security
Professors Ormerod and Trautman present a way to think about
the management of cybersecurity, The Profit-Maximizing Model of
Security, in Exhibit 3.
177
(2010); Christine Hurt, The Duty to Manage Risk 5–7 (U. of Ill. College of Law,
Behavior and Social Science Paper No. LBSS14-09), http://ssrn.com/abstract=2308007.
176
. See generally Michelle M. Harner, Ignoring the Writing on the Wall: The Role
of Enterprise Risk Management in the Economic Crisis, 5 J. BUS. & TECH. L. 45 (2010)
(“examin[ing] the different approaches to enterprise risk management . . . and how
ERM contributed to the survival or failure of [] firms”); Lawrence J. Trautman,
Managing Cyberthreat, 33 SANTA CLARA HIGH TECH. L.J. 230 (2016); Lawrence J.
Trautman, How Google Perceives Customer Privacy, Cyber, E-commerce, Political and
Regulatory Compliance Risks, 10 WM. & MARY BUS. L. REV. 1 (2018) (answering “What
are the major cyber risks perceived by those engaged in the universe of Internet
businesses?”); Lawrence J. Trautman, E-Commerce and Electronic Payment System
Risks: Lessons from PayPal, 16 U.C. DAVIS BUS. L.J. 261 (2016); Lawrence J.
Trautman, Cybersecurity: What About U.S. Policy?, 2015 U. ILL. J.L. TECH. & POLY
341 (2015); Lawrence J. Trautman, Congressional Cybersecurity Oversight: Who’s Who
& How It Works, 5 J.L. & CYBER WARFARE 147 (2016); Lawrence J. Trautman & Janet
Ford, Nonprofit Governance: The Basics, 52 AKRON L. REV. 1, 6466 (forthcoming).
177
. Lawrence J. Trautman & Peter C. Ormerod, Corporate Directors’ and
Officers’ Cybersecurity Standard of Care: The Yahoo Data Breach, 66 AM. U. L. REV.
1231, 1290 (2017); Peter C. Ormerod, A Private Enforcement Remedy for Information
Misuse, 60 B.C. L. REV. ___ (forthcoming 2019), https://ssrn.com/abstract=3340674.
2019] WANNACRY 549
Exhibit 3
The Ormerod-Trautman Profit-Maximizing Model of Security
178
Note that at the leftmost point on the curve, enterprise data
security is so abysmal that few, if any, users trust the enterprise with
their Personally Identifiable Information (PII), therefore rendering
the profitability or efficiency of the enterprise’s data security function
a nullity. To paraphrase, zero security measures, as shown at the
bottom left-hand side of the graph, result in zero users and, therefore,
zero profitability (efficiency). But, as the enterprise security improves
an increasing number of users trust the enterprise with their PII, and
the risk of data breach and loss of users’ PII decreases, both of which
contribute to increased profitability (efficiency). At a point where the
number of users is maximized, increased security measures (spending
on cybersecurity) result in limiting the usability of the data/website
and thus decrease profitability (efficiency). Thus, taken to an extreme,
excessive security measures may theoretically drive usability to the
point of futility, achieving no additional benefit from the next dollar
spent on cybersecurity and decreasing utility of additional spend. For
nonprofits, the Ormerod-Trautman Model can be rephrased to
illustrate the “cost-minimizing” level of security, as shown in Exhibit
4.
179
178
. Trautman & Ormerod, supra note 178, at 1290.
179
. Trautman & Ford, supra note 177, at 68.
550 TENNESSEE LAW REVIEW [Vol. 86.503
Exhibit 4
Ormerod-Trautman Nonprofit Cost-Minimizing Model of Security
On the left, as Professor Ormerod explains, “[C]yber services are
costly due to the threat of litigation and penalties; on the right, cyber
services are costly because they are prohibitively difficult to use and
cost money to generate/host. This re-conception allows nonprofits and
governments to express security within the confines of a dollar
amount.”
180
“The critical takeaway is that little or no digital security
may be just as damaging to an enterprise’s financial health as
implementing overly excessive security.”
181
As this area of the law develops and matures in the coming
years, courts, regulators, shareholders, and commentators will
increasingly view the relationship between data security and
enterprise efficiency as described in [Exhibits 3 and 4 herein].
Perhaps the most important implication of embracing the
relationship depicted in the Ormerod-Trautman model is that
there is a profit-maximization [or cost effective] amount of
security. And, as this view of the relationship between security
180
. Id.
181
. Id.
Cost
Security
2019] WANNACRY 551
and profitability is embraced, there can be little doubt that the
various constituencies of stakeholders will increasingly expect
corporate officers and directors to actively seek their
company’s profit-maximizing level of data security.
182
VII. THE CURRENT CYBERSECURITY LEGAL FRAMEWORK
We cannot have a society in which some dictator someplace
can start imposing censorship here in the United States.
Because if somebody is able to intimidate folks out of releasing
a satirical movie, imagine what they start doing when they see
a documentary that they don’t like, or news reports that they
don’t like. Or even worse, imagine if producers and
distributors and others start engaging in self-censorship
because they don’t want to offend the sensibilities of somebody
whose sensibilities probably need to be offended.
183
President Barak Obama
Emerging threats like WannaCry demonstrate in stark relief the
risks to corporate directors and officers who are ill-prepared to
confront digital threats. As detailed in this Part, a complicated
patchwork of authorities makes compliance with applicable law a
difficult and complex task. But corporate directors need not dismay:
the law favors a comprehensive process-based approach to defending
organizations, complex and simple alike, from cyber threats. As
further detailed below, implementing a Written Information Security
Process (WISP) is an approach we believe all organizations should be
undertaking to ensure compliance with a dizzying variety of
cybersecurity-related legal authorities.
A. Sources of Cybersecurity Legal Authority
There is no one, single comprehensive authority for cybersecurity-
related legal duties.
184
Instead, organization obligations to implement
data security systems are “set forth in an ever-expanding patchwork
of state, federal, and international laws, regulations, and enforcement
182
. Trautman & Ormerod, supra note 178, at 1291.
183
. President Barak Obama, Remarks by the President in Year-End Press
Conference (Dec. 19, 2014) (transcript available at https://obamawhitehouse.archives.
gov/the-press-office/2014/12/19/remarks-president-year-end-press-conference).
184
. See Trautman & Ormerod, supra note 178, at 1235.
552 TENNESSEE LAW REVIEW [Vol. 86.503
actions, as well as common law duties, contractual commitments, and
other expressed and implied obligations to provide ‘reasonable’ or
‘appropriate’ security for corporate data.”
185
There are many different types of statutes and regulations that
have digital security components; these include privacy laws, data
security laws, electronic transaction laws, corporate governance laws,
unfair and deceptive business practice and consumer protection laws,
and breach notification laws.
186
Federal privacy statutes include: the Financial Services
Modernization Act of 1999,
187
which governs financial information;
Health Insurance Portability and Accountability Act of 1996,
188
which
governs healthcare information; the Children’s Online Privacy
Protection Act,
189
which applies to anyone who collects personal
information on the Internet from children; and the Privacy Act of
1974, which provides governmental record-keeping requirements.
190
Some federal regulations impose a duty to protect specific types of
information, such as IRS Revenue Procedures requiring security
measures to protect electronic tax records
191
and SEC regulations
requiring the protection of corporate financial data.
192
Many states have enacted data security statutes that impose “a
general obligation on all companies to ensure the security of personal
information.”
193
California was the first state to enact this type of law,
and it requires all businesses to “implement and maintain reasonable
security procedures and practices” to protect California residents’
personal information against “unauthorized access, destruction, use,
modification, or disclosure.”
194
185
. THOMAS J. SMEDINGHOFF, INFORMATION SECURITY LAW: THE EMERGING
STANDARD FOR CORPORATE COMPLIANCE 29 (2008).
186
. See Thomas J. Smedinghoff, An Overview of Data Security Legal
Requirements for All Business Sectors 46 (Oct. 8, 2015) (unpublished manuscript),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2671323.
187
. Financial Services Modernization (Gramm-Leach-Bliley) Act of 1999
(“GLBA”), Pub. L. No. 106-102, 113 Stat. 1338 (codified as amended in scattered
sections of 12 and 15 U.S.C.).
188
. Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub.
L. No. 104-191, 110 Stat. 1936 (codified as amended in scattered sections of 29 and 42
U.S.C.).
189
. Children’s Online Privacy Protection Act of 1998, 15 U.S.C. §§ 650102
(2012).
190
. Privacy Act of 1974, 5 U.S.C. § 552(a) (2012).
191
. See Rev. Proc. 97-22, 1997-1 C.B. 652; Rev. Proc. 98-25, 1998-11 I.R.B. 7.
192
. See 17 C.F.R. §§ 240.17a-4, 248.30 (2015); 17 C.F.R. § 257.1(e)(3) (2011).
193
. See Smedinghoff, supra note 187, at 5.
194
. CAL. CIV. CODE § 1798.81.5(b) (West 2016).
2019] WANNACRY 553
There are electronic transaction laws that apply at both the
federal
195
and state
196
levels. These laws are intended to maintain the
fidelity, accuracy, and enforceability of electronic documents, and they
also require data security for electronic record-keeping. Both federal
and state law mandate companies secure electronic records that relate
to online transactions, primarily through requirements concerning
the data’s accessibility, integrity, and accuracy.
197
B. The Need to Implement a WISP Protocol
Of the authorities discussed above that impose a data security
duty, most simply state that there is “an obligation to implement
‘reasonable’ or ‘appropriate’ security measures,” but they “provide
little or no guidance as to what is required for legal compliance.”
198
While there is little question that the legal standard for what
constitutes reasonable security is still emerging, much progress has
been made in recent years.
Thomas J. Smedinghoff, a leading expert on this emerging
cybersecurity standard, explains that the emerging digital security
standard is particularized and case specific.
199
Unlike prior specific
requirements, such as passwords or firewalls, the new corporate
security obligation is fact-specific, requiring companies to go through
a “process” and determine what security measures are most
appropriate for the company’s security needs.
200
The emerging legal
standard follows suit by allowing companies to create their own
specific security measures so long as the companies conduct ongoing
reviews of their security mechanisms.
201
This repetitive review
process includes detecting and evaluating risks, implementing
specific security responses to those risks, verifying the effective
implementation of those security responses, and updating the
measures as needed in reaction to developing security concerns.
202
195
. See C.F.R. §§ 240.17a-4, 248.30; C.F.R. § 257.1(e)(3).
196
. NATL CONFERENCE OF COMMRS ON UNIF. STATE LAWS, UNIFORM
ELECTRONIC TRANSACTIONS ACT § 7 (1999).
197
. See id. § 12; see also 15 U.S.C. § 7001(d)(e) (clarifying that statutory
requirements to retain documents or to execute documents in writing are satisfied by
electronic documents so long as the electronic versions are accurate and accessible).
198
. See Smedinghoff, supra note 187, at 9.
199
. Id. at 910.
200
. Id. at 10.
201
. Id.
202
. Id.
554 TENNESSEE LAW REVIEW [Vol. 86.503
Specifically, Mr. Smedinghoff’s process-oriented approach to
satisfying a “reasonable” or “appropriate” standard of care for a duty
to provide security is composed of the following seven provisions
203
:
Assign Responsibility”: A corporation should expressly
designate one or more employees to be responsible for
maintaining the data security program.
Identify Information Assets”: A corporation should
identify its information assets that require protection,
which include both the data itself (i.e., records containing
personal information) and the computing systems that
store the personal information (e.g., servers, laptops, and
portable devices).
Conduct Risk Assessment”: A corporation should perform
a risk assessment to identify both internal and external
risks to its data security, and it should evaluate the
effectiveness of the company’s current practices for
safeguarding and minimizing the risks identified.
Select and Implement Responsive Security Controls”: A
corporation should implement physical, administrative,
and technical security controls it considers appropriate to
minimize the risks it identified in its risk assessment.
Monitor Effectiveness”: A corporation should regularly
monitor, test, and reassess the security controls it has
chosen to implement to ensure its security program is
operating in a manner reasonably calculated to protect
personal information. Relatedly, a corporation should
regularly upgrade its security controls as necessary to
limit emerging risks.
Regularly Review the Security Program”: A corporation
should review and adjust its data security program no less
than once per year. A corporation should also perform
security program reviews whenever there is a material
change in business practices that could affect personal
information or after any incident involving a breach of its
data security.
Address Third Party Issues”: A corporation should take all
reasonable steps to verify that every third-party service
provider that has access to the company’s data assets and
203
. Id.
2019] WANNACRY 555
personal information has the capacity to protect that
information.
204
An ever-increasing number of authorities are expressly adopting
this process-oriented approach to data security, which is referred to
as a Written Information Security Program (WISP).
205
The FTC is the
most important of the authorities that have adopted the WISP
standard. According to the FTC, businesses in all industries should
comply with the process-oriented approach to information security as
it demonstrates the “best practice” for legal compliance.
206
The FTC
has demonstrated this view by requiring any company resolving FTC
complaints about failure to provide adequate information security
through consent decrees to implement and comply with this process-
oriented approach.
207
The FTC’s adherence to the WISP standard is
particularly important in light of the agency’s post-2005 theory of
liability that sanctions a duty to protect data.
208
As a precautionary measure, the U.S. Department of Homeland
Security’s National Cybersecurity and Communications Integration
Center (NCCIC) recommends the following basic hygiene for
defending against ransomware:
Ensure anti-virus software is up-to-date.
Implement a data back-up and recovery plan to maintain
copies of sensitive or proprietary data in a separate and
secure location. Backup copies of sensitive data should not
be readily accessible from local networks.
204
. Id.
205
. See id. at 11; see also, e.g., 201 HIPAA Security Standards, 45 C.F.R.
§ 164.308 (2018); 201 MASS. CODE REGS. § 17.03 (2017). See generally Bruce Radke &
Michael J. Waters, Selected State Laws Governing the Safeguarding and Disposing of
Personal Information, 31 J. MARSHALL J. INFO. TECH. & PRIVACY L. 487 (2015)
(comparing different state WISP regulations).
206
. See Smedinghoff, supra note 187, at 11(“‘[T]he FTC Safeguards Rule
promulgated under the GLB Act serves as a good model’ for satisfying the obligation
to maintain reasonable and appropriate security.” (citing Identity Theft: Innovative
Solutions for an Evolving Problem: Hearing Before the Subcomm. on Terrorism, Tech.
& Homeland Sec. of the S. Comm. on the Judiciary, 110th Cong. 93 (statement of Lydia
Parnes, Dir., Bureau of Consumer Prot., FTC)).
207
. Id.
208
. See, e.g., Brad Lunn, Strengthened Director Duties of Care for Cybersecurity
Oversight: Evolving Expectations of Existing Legal Doctrine, 4 J.L. & CYBER WARFARE
109, 124, 12728 (2014) (describing the duty to protect in the context of the
responsibilities of company director to be informed and actively engaged in
cybersecurity issues that arise in a company).
556 TENNESSEE LAW REVIEW [Vol. 86.503
Scrutinize links contained in emails, and do not open
attachments included in unsolicited emails.
Only download softwareespecially free softwarefrom
sites you know and trust.
Enable automated patches for your operating system and
Web browser.”
209
CONCLUSION
Businesses must confront information security risks in a
systematic way. Global policymakers and corporate stakeholders
increasingly expect complex institutions to implement process-based
security solutions. This focus on process may, however, wane over
time, as robust procedures give way to substantive rules.
210
Ransomware poses particularly vexing problems. Given the rapid
rate of technological change, our world increasingly becomes smaller
and more interconnected. Global data systems interact with
increasing frequency. Ransomware threatens institutions worldwide,
but the risks for businesses are all the starkerpotentially
catastrophic. Business leaders are responsible for ensuring that their
organizations have considered and addressed these threats.
209
. See NCCIC, supra note 11.
210
. See, e.g., Ormerod, supra note 177.
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