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RE: Forensic/Cyber Crime Investigator
From: "Craig Wright" <cwright () bdosyd com au>
Date: Fri, 10 Feb 2006 09:43:08 +1100


Hi Dave,

It is true that there are cases/incidents that go to court (even virus infections). These are statistically the 
anecdotal case is just the exception. In fact if 1% of all corporate (even excluding personal incidents) incidents 
involving virus incidents alone where to go to court, the court system would fold.

Look at the volume of cases in any given country in total. No organisation would take a case to court for this for 
costs of less than $50,000 loss - it can not be justified financially and the process will generally cost more than 
this.

An extra 10,000 - 20,000 cases in Australia (lets take the NSWSC and other Supreme courts in the other states as these 
are the required starting point to file claim at this level of loss etc etc) would result in the total collapse of the 
legal system. Cases would not be heard. The backlog each year would exceed the number tried.
[http://www.austlii.edu.au is a good source for cases etc]

Based on the number of companies (not businesses, lets narrow this) in Australia, if every "REPORTED" virus incident 
was to go to court this would involve at least 200,000 additional cases. (figures calculated from SANS, Symantec and 
APRIA data). Even taking the incidents with a reported impact of greater than $1,000,000 based on loss estimates from 
the companies we are looking at 30,000 to 40,000 (Mean 37,102 +/- 3,458 at alpha = 5%).

So taking this reduced figure at about 37,000 cases. This is far more than the courts can handle. If only 1 in 4 
incidents (with costs over $1,000,000) go to court, this is still more than the system can handle.

Even looking to 100 cases worldwide going to court. This does not even come to 1% of incidents. Thus any incident which 
does go to court is an anomaly.

I am certain that the US does not have that many idle judges that they could handle the extra load any better.

As to the CFO and embezzlement. It is rare to have large fraud tried. I teach corporate fraud detection as one of my 
"hats" at a chartered firm (like a US CPA organisation).

I have to argue again, Forensic ALWAYS involves court. This is the nature of the word. As stated, involves court does 
not mean that it will end up in court, but an affidavit (deposition eqv. US) is a court process even if the document 
never sees the light of day.

Dave, you state "But, if we treat them all as if they might end up in litigation and do them in a forensically sound 
manner, are our clients, organizations etc, not better served?" Well yes in the ideal world. The real world is not as 
nice and not as clear cut.

It is clear that we lack knowledge of the others respective process requirements. Statute is one thing, rules of the 
courts another.

Always remember that anecdotal evidence is not scientific evidence.

Regards
Craig

-----Original Message-----
From: dave kleiman [mailto:dave () davekleiman com]
Sent: 10 February 2006 3:44
To: security-basics () securityfocus com
Subject: RE: Forensic/Cyber Crime Investigator

Craig,

I hope you are taking this as a friendly discussion

Answers inline..

     -----Original Message-----
     From: Craig Wright
   
    
     Virus attacks etc as you put are incidents. The average
     (and all but maybe a rare exception) organisation will
     treat these as incidents. They do not take them to court
     nor have the intention of doing such. To take your Virus
     example. This is an incident, it requires a response. It
     does not require a forensic analysis of the system, nor
     would this be generally done. Organisations want "the
     systems up" more than they want to catch the criminal.
     California may prove interesting... But we will see.

Interesting concept, however not correct:
 
http://www.southeastforensics.com/services.php

http://www.dailything.com/2005/01/31/teen-convicted-of-virus-distribution/

http://www.usdoj.gov/criminal/cybercrime/pierre-louis_Convict.htm

There was a large forensic investigation involved in these cases and many more you can easily find with Google.

Even analysis of the viruses themselves are done in a forensic manner.

I have dealt with cases of in-house malware being distributed by disgruntled employees, and had to conduct a forensic 
investigation.  This is a reason to have Incident Response as part of the orgs DRP/BCP, often entire systems must be 
taken down to investigate.


        
     By, "Many organizations have a policy of not going to
     litigation." I means that some (and by some - a lot - I
     have statistics if you wish - most at the 95% CI, some at
     alpha = 10% levels) of organisations would rather bury the
     issue. This is not all and is something that needs to be
     decided in advance, but it is a business decision (we have
     no disclosure laws for disclosure of these incidents).
     Public admission is required to get an Anton pillar (civil
     search) - many listed companies would never do this. Many
     listed companies would rather remain in the dark (they
     know what is happening - but stock options ...)

Wow, so if the CFO embezzles millions of dollars, at these companies with a no litigation policy,  they just fire the 
CFO and the CFO gets to keep the money?

By the way, how do these companies handle discovery requests from the court?
Do they reply with a letter that says "dear court, we are sorry to inform you we have a no litigation policy, therefore 
we refuse to participate in your tribunal."


     As for concedes - I have know several companies who would
     not concede a case if they had the world only infallible
     evidence from every other personal and company in the
     world to oppose them.
    
Yes some will not concede, however if you have two councils and one is looking at the evidence and says "we are toast" 
they usually advise the client to settle out of court, as to not cost them more.


     You are again looking from a perspective that assumes that
     separate skill may never be deployed by a single person.
     This is not the case. Incident response as I have been
     stated has a different set of goals to Forensics. As
     stated, Forensics ALWAYS involves court (this is not only
     a definition in a dictionary, but also in law. As stated
     defined word etc. There ARE consequences for using the
     term incorrectly - at least there can be). An affidavit
     (or deposition is the US) is a function of the court
     (involving court does not mean going into court - please
     not the separation). Incident repose may or may not have
     something to do with this process.

Forensic does not ALWAYS involve court.  It is a best practice method, in case you end up in litigation.

    
    
     You state "Investigations are the systematic and thorough
     gathering, examining, and studying of factual information
     that results in the factual explanation of what
     transpired." I agree with this statement. It misses the
     line however "for legal production" or "for use in court"
     etc. This is the difference. As stated, forensic = court
     (as simple as I may state). Investigation may OR MAY NOT
     mean court (court being the legal process).

Here we go with a slight contradiction again, you state my "quote about Investigations" leaves off  "for legal 
production" or "for use in court", however in the next sentence you state ""Investigation may OR MAY NOT mean court 
(court being the legal process)"" ????



     You seem mostly to not understand that (in a common law
     jurisdiction - which includes the US), experts (including
     forensic experts) are agents of the court. You work for
     the court - this does not mean you are paid (and I know it
     is not a perfect world and this oft does not hold true).
     The party who pays you is not who you represent. You are a
     representative of justice (the court). Not the state, not
     your employer. You present the facts, not the opinion (and
     I know this does occur).
    
Since I not only do civil investigations, I also do criminal and even participated in military tribunals, I believe I 
fully understand the concepts agents of the court. However, did I state something that made you feel I was not aware of 
this concept?


  
     So yes, there are forensically conducted investigations
     and there are investigations. Thus DFS and Investigation
     are separate (though related).
    
But, if we treat them all as if they might end up in litigation and do them in a forensically sound manner, are our 
clients, organizations etc, not better served?

     Regards,
     Craig
    
   

Respectfully,

______________________________________________________
Dave Kleiman, CAS,CCE,CIFI,CISM,CISSP,ISSAP,ISSMP,MCSE
 



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