United States: DOJ Releases Updated Cyber Incident Response Guidance For Private Sector Entities

On September 27, 2018, the Computer Crime and Intellectual Property Section ("CCIPS") of the Criminal Division in the US Department of Justice ("DOJ") released a revised version of its Best Practices for Victim Response and Reporting of Cyber Incidents. Although primarily targeted to "smaller organizations and their legal counsel," this guidance on preparing for and responding to cyber incidents may be helpful to private sector entities of all sizes. It expands on guidance issued by CCIPS in April 2015 and is intended to "help organizations prepare a cyber incident response plan and, more generally, to better equip themselves to respond effectively and lawfully to a cyber incident." The updated guidance addresses new topics, including the impact of the Cybersecurity Information Sharing Act of 2015 ("CISA") and working with external support such as cyber incident response firms.

Organized according to the chronology of cyber incident preparation, response and recovery, the revised guidance provides advice under four overarching headings:

  1. Steps to Take Before a Cyber Intrusion or Attack Occurs
  2. Responding to a Cyber Incident: Executing Your Incident Response Plan
  3. What Not to Do Following a Cyber Incident
  4. What to Do After a Cyber Incident Appears to Be Resolved

Below we outline the revised guidance and discuss the new material that the DOJ has added to incorporate information learned from companies that have responded to cyber incidents.

Steps to Take Before a Cyber Intrusion or Attack Occurs

The first section of the DOJ's guidance focuses on steps that companies should take to prepare for and mitigate the damage associated with a cyber incident. These steps are as follows:

  1. Educate Senior Management About the Threat
  2. Identify Your "Crown Jewels"
  3. Have an Actionable Plan in Place ... Now!
  4. Engage with Law Enforcement Before an Incident
  5. Have Appropriate Workplace Policies in Place
  6. Institute Basic Cybersecurity Procedures
  7. Procure Appropriate Cybersecurity Technology and Services Before an Incident Occurs
  8. Have Appropriate Authorization in Place to Permit Network Monitoring
  9. Ensure Your Legal Counsel Is Familiar with Technology and Cyber Incident Management
  10. Establish Relationships with Private and Public Cyber Information-Sharing and Analysis Organizations

Many of these topics—such as the identification of an organization's informational "crown jewels," implementation of incident response plans, and engagement with law enforcement—were addressed by the April 2015 guidance. However, the updated guidance builds on these and other discussions significantly. For example, the 2015 guidance discussed the value of having "ready access to the technology and services that [a company] will need to respond to a cyber incident"; the updated guidance expands on this by highlighting specific issues and benefits associated with retaining cybersecurity incident response firms and cloud storage services. In addition, building on the recommendation in the 2015 guidance to implement real-time network monitoring in a lawful manner, the updated guidance offers more detail on the applicable legal framework, including the role of CISA in "provid[ing] private entities with broad authority to conduct cybersecurity monitoring of their own networks, or a third party's networks with appropriate consent." (See our Legal Update.) Relatedly, the updated guidance provides an expanded discussion of information sharing, acknowledging historic private sector concerns with such sharing and highlighting how CISA and other federal guidance address some of those concerns, including with respect to federal antitrust laws.

The DOJ has also added completely new sections. For example, the updated guidance addresses the increasingly prevalent topic of oversight of cybersecurity programs by senior management and boards of directors, stating that "an organization's senior management, board of trustees, and any other governing body responsible for making resource decisions and setting priorities should be aware of how cyber threats can disrupt an organization, compromise its products, impair customer confidence and relations, and otherwise cause costly damage." The guidance recommends "regular briefings" and "[c]yber incident preparedness exercises" as possible strategies for satisfying this evolving governance expectation.

The guidance also devotes new sections to actions that can help prevent cyber intrusions. In a section on "[a]ppropriate [w]orkplace [p]olicies," the DOJ recommends that organizations "adopt internal policies and rules that will help ensure that [] personnel are familiar with the incident response plan" and establish employee policies to mitigate insider threats, such as by ensuring that credentials are quickly disabled for terminated employees. In a separate, new section on instituting basic cyber hygiene, the DOJ encourages organizations to "adopt and maintain commonsense cybersecurity practices." Examples of such practices include the use of a "reasonable patch management program," "access controls and network segmentation" and "password management programs." This advice expands the focus of the DOJ's guidance from incident response to include general prescriptions for cybersecurity preparedness and the implementation of an information security program.

Responding to a Cyber Incident: Executing Your Incident Response Plan

The next section of the DOJ's guidance provides a step-by-step approach to responding to a cyber incident. The recommended steps are:

  1. Make an Initial Assessment
  2. Implement Measures to Minimize Continuing Damage
  3. Record and Collect Information
  4. Notify

The revised guidance takes these overarching topics from the 2015 guidance and expands the discussion, adding subsections to address additional concerns. For example, the updated guidance supplements the first step's focus on data collection activities with new advice for collaborating with incident response firms. The guidance advises companies to choose a provider that can employ "forensically sound methods of evidence collection" and data preservation techniques to ensure that information remains usable as evidence in a potential prosecution related to an attack. The guidance also discusses companies' legal concerns about disclosing forensic reports drafted by such firms following an incident. Specifically, the guidance describes the value of sharing such documents with law enforcement and suggests strategies for mitigating associated risks, such as by sharing a summary, creating an excerpted version or providing only technical data.

The updated guidance also includes an expanded discussion of incident notification. It notes that "[a] victim of a cyber incident can receive assistance from federal agencies that are poised to investigate the incident, help mitigate its consequences, and help prevent future incidents." In this vein, the guidance now includes a new section that highlights the "[b]enefits of [c]ontacting [l]aw [e]nforcement." Building on the prior guidance, the DOJ describes incident response services provided by the FBI's Cyber Action Teams. Notably, the DOJ also discusses how CISA has "made cooperating with law enforcement simpler by addressing common concerns about legal impediments to sharing information with the government." Specifically, "CISA authorizes nonfederal entities to voluntarily share 'cyber threat indicators' and 'defensive measures' with law enforcement for a cybersecurity purpose, notwithstanding any other provision of law."

What Not to Do Following a Cyber Incident

In this section, the revised guidance identifies certain actions that companies should not take in their response to a cyber incident. For example, the DOJ advises private sector entities against using a compromised system to communicate about an ongoing investigation or containment effort. The guidance also encourages companies not to "hack" into or damage third-party networks in responding to an incident. In 2015, the DOJ stated that attempting to gain unauthorized access to third-party networks "is likely illegal, under U.S. and some foreign laws, and could result in civil and/or criminal liability." The revised guidance maintains this position, stating that such activity "may violate federal law and possibly also the laws of many states and foreign countries, if the accessed computer is located abroad. A violation of those laws could result in civil and criminal liability." The updated guidance provides additional information about the potential unintended consequences of "hacking back," such as "targeting an unwitting, innocent victim whose system is being exploited by the perpetrator" and violating third-party privacy rights. It also notes that such activity could interfere with ongoing law enforcement investigations, such as by leading a perpetrator to "change tactics or modify operations if he or she detects a hack back attempt."

What to Do After a Cyber Incident Appears to Be Resolved

Finally, the updated guidance contains a new section addressing post-incident activities, including monitoring for "new signs of re-infection or compromise" by intruders. In addition, the DOJ advises companies to take steps to prevent future incidents, such as by "addressing shortcomings in [] security practices, acquiring resources to better secure [] systems, and fortifying relationships with law enforcement and other key response organizations."


This guidance represents an evolution in the DOJ's approach to private sector engagement on cybersecurity challenges. It was released in tandem with a cybersecurity roundtable discussion that "included many of the nation's leading private-sector practitioners in the field of data breach response and representatives from premier cybersecurity and incident response firms in the country."1 Since the establishment of the Cybersecurity Unit within CCIPS and the release of the first version of the DOJ's cyber incident response guidance, "the Department [has] continue[d] to exchange ideas with and look to the private sector's expertise and insight about how to improve cooperation between law enforcement agencies and data breach victims." The DOJ views its updated guidance as part of this ongoing effort and as a resource for private sector entities to use in preparing for and responding to cyber incidents, especially when evaluating the risks and benefits of law enforcement engagement.


1. Press Release, DOJ, Justice Department Hosts Cybersecurity Industry Roundtable (Sept. 28, 2018), https://www.justice.gov/opa/pr/justice-department-hosts-cybersecurity-industry-roundtable.

Originally published 1 November 2018

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2018. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions