October is National Cybersecurity Awareness Month. Thus, on October 1, 2020, the U.S. Department of the Treasury’s Office of Terrorism and Financial Intelligence issued a pair of advisories to assist U.S. individuals and businesses in efforts to combat ransomware scams and attacks, which continue to increase in size and scope. As Treasury explained, anti-money laundering and sanctions regulations implemented and enforced by Treasury’s Office of Terrorism and Financial Intelligence may have implications for persons involved in facilitating ransomware payments. Efforts to detect and report ransomware payments are vital to prevent and deter cyber actors from deploying malicious software to extort individuals and businesses, and to hold ransomware attackers accountable for their crimes.

Treasury’s Financial Crimes Enforcement Network (FinCEN) issued an advisory, entitled Advisory on Ransomware and the Use of the Financial System to Facilitate Ransom Payments, to provide information on the role of financial intermediaries in payments, ransomware trends and typologies, and related financial red flags. It also provides information on effectively reporting and sharing information related to ransomware attacks.

As the advisory explains, ransomware attacks are a growing concern for the financial sector because of the critical role financial institutions play in the collection of ransom payments. Processing ransomware payments is typically a multi-step process that involves at least one depository institution and one or more money services business (MSB). Many ransomware schemes involve convertible virtual currency (CVC), the preferred payment method of ransomware perpetrators. Following the delivery of the ransom demand, a ransomware victim will typically transmit funds via wire transfer, automated clearinghouse, or credit card payment to a CVC exchange to purchase the type and amount of CVC specified by the ransomware perpetrator. Next, the victim will send the CVC, often from a wallet hosted at the exchange, to the perpetrator’s designated account or CVC address. The perpetrator then launders the funds through various means, including mixers and tumblers to convert funds into other CVCs, smurfing transactions across many accounts and exchanges, and/or moving the CVC to foreign-located exchanges and peer-to-peer (P2P) exchangers in jurisdictions with weak anti-money laundering and countering financing of terrorism (AML/CFT) controls.

FinCEN identified 10 red flag indicators of ransomware-related illicit activity to assist financial institutions in detecting, preventing, and reporting suspicious transactions associated with ransomware attacks:

(1) IT enterprise activity is connected to cyber indicators that have been associated with possible ransomware activity or cyber threat actors known to perpetrate ransomware schemes. Malicious cyber activity may be evident in system log files, network traffic, or file information.

(2) When opening a new account or during other interactions with the financial institution, a customer provides information that a payment is in response to a ransomware incident.

(3) A customer’s CVC address, or an address with which a customer conducts transactions, appears on open sources, or commercial or government analyses have linked those addresses to ransomware strains, payments, or related activity.

(4) A transaction occurs between an organization, especially an organization from a sector at high risk for targeting by ransomware (e.g., government, financial, educational, healthcare), and a DFIR or CIC, especially one known to facilitate ransomware payments.

(5) A DFIR or CIC customer receives funds from a customer company and shortly after receipt of funds sends equivalent amounts to a CVC exchange.

(6) A customer shows limited knowledge of CVC during onboarding or via other interactions with the financial institution, yet inquires about or purchases CVC (particularly if in a large amount or rush requests), which may indicate the customer is a victim of ransomware.

(7) A DFIR, CIC, or other company that has no or limited history of CVC transactions sends a large CVC transaction, particularly if outside a company’s normal business practices.

(8) A customer that has not identified itself to the CVC exchanger, or registered with FinCEN as a money transmitter, appears to be using the liquidity provided by the exchange to execute large numbers of offsetting transactions between various CVCs, which may indicate that the customer is acting as an unregistered MSB.

(9) A customer uses a CVC exchanger or foreign-located MSB in a high-risk jurisdiction lacking, or known to have inadequate, AML/CFT regulations for CVC entities.

(10) A customer initiates multiple rapid trades between multiple CVCs, especially AECs, with no apparent related purpose, which may be indicative of attempts to break the chain of custody on the respective blockchains or further obfuscate the transaction.

The advisory included a reminder that a financial institution is required to file a suspicious activity report (SAR) if it knows, suspects, or has reason to suspect a transaction conducted or attempted by, at, or through the financial institution involves or aggregates to $5,000 (or, with one exception, $2,000 for MSBs) or more in funds or other assets and involves funds derived from illegal activity, or attempts to disguise funds derived from illegal activity; is designed to evade regulations promulgated under the BSA; lacks a business or apparent lawful purpose; or involves the use of the financial institution to facilitate criminal activity.

Treasury’s Office of Foreign Assets Control (OFAC) also issued an advisory, entitled Advisory on Potential Sanctions Risks for Facilitating Ransomware Payments, to highlight the sanctions risks associated with facilitating ransomware payments on behalf of victims targeted by malicious cyber-enabled activities.  According to OFAC, companies that facilitate ransomware payments to cyber actors on behalf of victims, including financial institutions, cyber insurance firms, and companies involved in digital forensics and incident response, not only encourage future ransomware payment demands but also may risk violating OFAC regulations.

OFAC has designated numerous malicious cyber actors under its cyber-related sanctions program and other sanctions programs, including perpetrators of ransomware attacks and those who facilitate ransomware transactions.  For example, the May 2017 WannaCry attack was linked to the Lazarus Group, a cybercriminal organization sponsored by North Korea.

OFAC’s advisory highlights OFAC’s designations of malicious cyber actors and those who facilitate ransomware transactions under its cyber-related sanctions program. It identifies U.S. government resources for reporting ransomware attacks and provides information on the factors OFAC generally considers when determining an appropriate enforcement response to an apparent violation, such as the existence, nature, and adequacy of a sanctions compliance program. The advisory also encourages financial institutions and other companies that engage with victims of ransomware attacks to report such attacks to and fully cooperate with law enforcement, as these will be considered significant mitigating factors.

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David Zaslowsky has a degree in computer science and, before going to Yale Law School, was a computer programmer. He is currently the Chairman of the Litigation Department of the firm’s New York office. His practice focuses on international litigation and arbitration. He has been involved in cases in trial and appellate courts across the United States and before arbitral institutions around the world. Many of David’s cases, including some patent cases, have related to technology. Since 2008, David has been included in Chambers for his expertise in international arbitration.