Law Times

law Times • July 25, 2011 FOCUS PIs responding to cyber attacks Litany of hacking cases shows need for added expertise BY DARYL-LYNN CARLSON For Law Times A s a result of the vulner- abilities posed by com - puter security breaches that can compromise entire systems at a large company or law fi rm, more private investi- gators have established an ex- pertise in that area. In many cases that end up in court, private investigators also serve as expert witnesses given their growing reputations in the fi eld. Expertise in cyber attacks has also become a focus at many large accounting fi rms in order to assist their clients with the preservation of fi nancial information that could be sub- ject to an attack. Many hack- ing cases result in malware that releases a virus throughout the computer system that can de- stroy all information once the perpetrators have found what they were looking for. Over the past year, several law fi rms in the province have been subjected to cyber attacks, a situation that has prompted lawyers who practise in the fi eld of Internet law to com- pile a list of leading computer private investigation specialists in the event they have a client who has been a victim of hack- ing. Stuart Svonkin, a partner at Torys LLP in Toronto who practises corporate and com- mercial law with a focus on In- ternet and e-commerce issues, has seen computer forensic is- sues arise in various ways in his work. Some of the cases he's aware of involve alleged theft or misuse of electronic informa- tion. In those types of cases, private investigators or others with forensic computing ex- pertise often testify as expert witnesses. "Th ere are other cases in which the dispute is not about computers or electronic infor- mation but where you need to understand what happened with an e-mail or some other information on a party's com- puter system," he says. "In those types of cases, you may need a computer forensic ex- pert to help you and the client understand the evidence and what it means." Th e increased need for ex- pertise is simply a refl ection of today's business realities. "Giv- en the proliferation of comput- ers in all aspects of life, many cases involve electronic infor- mation," says Svonkin. "In those cases, that information may need to be analyzed or in- terpreted by an expert who can assist both the lawyers and the court in understanding that in- formation." Svonkin has represented businesses in court cases where former employees have taken and misused information from the company. "Usually, it's fair to say that both sides have evi- dence but it's critical that the evidence comes from those who are the experts in the fi eld of computers with credentials in their particular expertise and [with details of] how they can be of assistance to lawyers when they need to understand what the evidence is and what it means," he says. Jerrard Gaertner of the ac- counting fi rm Soberman LLP agrees that cyber crime is be- coming more frequent as the world becomes more intercon- nected. He has worked with law fi rms to assist with com- puter security reviews and has many corporate clients as well. "Industrial espionage and computer fraud represent greater revenue for organized crime," says Gaertner, who also heads Soberman's technology assurance wing. "Th at's why it's necessary that companies have proper governance and pro- cedures to deal with ways to identify information on their systems that need to be pro- tected." He emphasizes that con- trols and an advanced security system need to be put in place at all commercial workplaces to protect data stored on the computers from any type of breach, both in-house and from outside, and there should be regular briefi ngs to all em- ployees about how to ensure an e-mail containing an attach- ment is safe to open. "Th is year has seen the explain what happened," she says. "Th en, there will be a positive outcome for the party that has experienced a breach and [they'll] have the case resolved." Also key to the process of dealing with digital infor- mation is the collection and preservation of the evidence, says Francis Graf, director of digital forensic services at ESI Specialists Inc. Th at's because the temptation in many cases, especially at the beginning of the electronic discovery pro- cess, is to simply drag and drop the relevant fi les and save them onto a CD without consider- ing how doing so could aff ect things like the last-access or creation dates. "You may have altered them by virtue of the way you've col- lected them," says Graf. As a result, the information 'Given the proliferation of computers in all aspects of life, many cases involve electronic information,' says Stuart Svonkin. highest number of breaches on record, so this certainly should be a lesson for everyone who could be vulnerable to an at- tack on their computer sys- tem," Gaertner says. According to Ainsley Vacu- lik, a private investigator with Froese Forensic Partners Ltd., more private investigation companies have established computer expertise due to cli- ents' growing needs. At the same time, fi rms don't want to have to outsource their investigative work for commer- cial clients to a computer spe- cialist due to privacy concerns. "Some PI fi rms have estab- lished expertise in computer forensics so they can provide a thorough investigation in- house where all of the infor- mation they come across is protected," Vaculik says. "We can retrieve a hard drive and determine whether it has been compromised and, if so, how so and to what extent any in- formation has been aff ected." Vaculik adds it's particularly useful to have one expert source in the event a case goes to court. "It's important to have continuity of evidence if a case goes to court [with an investigator] who can WHEN DOES COMPETENCY BECOME A FACTOR IN MARRIAGE? CAPACITY TO MARRY AND THE ESTATE PLAN KIMBERLY WHALEY, DR. 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"It's kind of the foundation that ev- erything else is built on," he says of the collection and pres- ervation aspects. At the same time, while private investigation fi rms are doing more work in this area, Graf notes many matters often don't end up going to court or even involve police in the fi rst place. While companies facing a data breach may have to in- form their customers as well as the relevant regulator, many of them prefer to handle the issues internally without tak- ing the added step of going to court, he says. — With fi les from Glenn Kauth PAGE 11

• Cover
• Estates Ruling
• Maverick Retires
• Focus On Forensics/Private Investigators