FireStarter: IP Breach Disclosure, No-Way, No-HowBy Adrian Lane
On Monday March 1st, the Experienced Security Professionals Program (ESPP) was held at the RSA conference, gathering 100+ practitioners to discuss and debate a few topics. The morning session was on “The Changing Face of Cyber-crime”, and discussed the challenges facing law enforcement to prosecute electronic crimes, as well as some of the damage companies face when attackers steal data. As could be expected, the issue of breach disclosure came up, and of course several corporate representatives pulled out the tired argument of “protecting their company” as their reason to not disclose breaches. The FBI and US Department of Justice representatives on the panel referenced several examples where public firms have gone so far as to file an injunction against the FBI and other federal entities to stop investigating breaches. Yes, you read that correctly. Companies sued to stop the FBI from investigating.
And we wonder why cyber-attacks continue? It’s hard enough to catch these folks when all relevant data is available, so if you have victims intentionally stopping investigations and burying the evidence needed for prosecution, that seems like a pretty good way to ensure criminals will avoid any penalties, and to encourage attackers to continue their profitable pursuits at shareholder expense. The path of least resistance continues to get easier.
Let’s look past the murky grey area of breach disclosure regarding private information (PII) for a moment, and just focus on the theft of intellectual property. If anything, there is much less disclosure of IP theft, thanks to BS arguments like – “It will hurt the stock price,” or “We have to protect the shareholders.” or “Our responsibility is to preserve shareholder value.” Those were the exact phrases I heard at the ESPP event, and they made my blood boil. All these statements are complete cop-outs, motivated by corporate officers’ wish to avoid embarrassment and potential losses of their bonuses, as opposed to making sure shareholders have full and complete information on which to base investment decisions.
How does this impact stock price? If IP has been stolen and is being used by competitors, it’s reasonable to expect the company’s performance in the market will deteriorate over time. R&D advances come at significant costs and risks, and if that value is compromised, the shareholders eventually lose. Maybe it’s just me, but that seems like material information, and thus needs to be disclosed. In fact, not disclosing this material information to shareholders and providing sufficient information to understand investment risks runs counter to the fiscal responsibility corporate officers accept in exchange for their 7-figure paychecks. Many, like the SEC and members of Congress, argue that this is exactly the kind of information that is covered by the disclosure controls under Section 302 of Sarbanes-Oxley, which require companies to disclose risks to the business.
That said, I understand public companies will not disclose breaches of IP. It’s not going to happen. Despite my strong personal feelings that breach notification is essential to the overall integrity of global financial markets, companies will act in their own best interests over the short term. Looking beyond the embarrassment factor, potential brand impact, and competitive disadvantages, the single question that foils my idealistic goal of full disclosure is: “How does the company benefit from disclosure?”
That’s right – it’s not in the company own interest to disclose, and unless they can realize some benefit greater than the estimated loss of IP (Google’s Chinese PR stunt, anyone?), they will not disclose. Public companies need to act according to their own best interests. It’s not noble – in fact it’s entirely selfish – but it’s a fact. Unless there are potential regulatory losses due to not disclosing, since the company will already suffer the losses due to the lost IP, there is no upside to disclosing and disclosure probably only increases the losses. So we are at an impasse between what is right and what is realistic. So how to do we fix this? More legislation? A parade down Wall Street for those admitting IP theft? Financial incentives? Help a brother out here – how can we get IP breach disclosure, and get it now?