Gonzalez Case Raises Very OId Retail Security Issues

Since the earliest days of law enforcement, police have wrestled with the appropriate way to deal with criminal gangs. At its simplest, what should be done with two burglars who break into a house? Who is the primary lawbreaker and who is merely the assistant? Legislatures and courts have often tried to sidestep the question, declaring that a murder charge, for example, will be applied to all participants of a home break-in if anyone gets killed.

As a tactical practical matter, police (and that includes FBI, Secret Service, assistant district attorneys, deputy attorneys general and anyone who else charged with apprehending and punishing wrongdoers) often uses that ambiguity as a tool to pressure confessions. In short, the one who talks first gets to point the finger at the others and cut himself/herself the sweeter cooperating witness deal, while the suspect who hesitated gets left being charged as the scheme's mastermind.

Such a drama is now unfolding with the Albert Gonzalez case, the Miami man accused of breaking into TJX, Hannaford, Heartland, Barnes & Noble, Sports Authority and a laundry list of others. Is Gonzalez the masterhead of a cyber thief ring? Was he coordinating different teams in the U.S., each group assigned to attack different retail chains? Or was he merely the pawn of an Eastern European data theft syndicate? In Dickensian terms, was he more Fagin, the Artful Dodger or even Oliver Twist?

(Editor's Note: There are two new stories published that update this one: J.C. Penney, Target Added To List Of Gonzalez Retail Victims. and Gonzalez's Plea Agreement Details.)

The attorney for Gonzalez, in various media interviews (including two conversations with StorefrontBacktalk), has painted a Gonzalez colleague—Damon Patrick Toey, who plead guilty in December to working with Gonzalez on the TJX breach—as the true master cyberthief, with Gonzalez just going along for the ride.

"Mr. Toey has been cooperating since Day One. He was staying at (Gonzalez's) apartment. This whole creation was Mr. Toey's idea," said Gonzalez attorney Rene Palomino. "It was his baby. This was not Albert Gonzalez. I know for a fact that he wasn't involved in all of the chains that were hacked from New Jersey."

From a legal standpoint, though, it's unclear how any of this would help his client, except perhaps at sentencing (and it's questionable, even then). If Gonzalez was actively involved in the overall criminal enterprise—and did nothing to stop it—it's hard for him to avoid blame for the consequences. Granted, this is in the midst of plea negotiations and Gonzalez is trying to cut his own best deal. Palomino confirmed that a deal for all of the federal retail charges involving his client—New York charges involving the Dave & Buster's restaurant chain, a Boston case involving TJX, BJ's Wholesale, Forever 21 and many others, plus new charges out of Newark, N.J., involving Heartland, Hannaford and 7-Eleven, among others—had been resolved and a guilty plea was imminent when, the lawyer charges, the U.S. Attorney for New Jersey pulled a switch. (If you can't trust a New Jersey politician, what is this world coming to? The Artful Dodger, indeed.)"We had this case all worked out. I saw my client on Tuesday and we had this thing zipped, locked, sealed and ready to go forward," Palomino said. "They were not supposed to indict him on Wednesday. We're trying to bring closure. Everyone is trying to wash their hands (by dumping all charges on Gonzalez). I'm not saying that he didn't do anything."

Of course, the real issue here is: How can a group of people like this had been able to successfully penetrate such a lengthy Who's Who of major retailers? The indictments have alluded to—but not identified—either two or three other major chains that were breached.

The Boston indictment vaguely refers to one major retail chain, but doesn't identify the chain. We've spoken with someone from that chain who asked that their name—for now—remain secret. The New Jersey indictment explicitly refers to two retail chains that it is keeping secret, for the moment. Federal authorities—both at the Justice Department and the New Jersey U.S. Attorney's Office—wouldn't say if the unidentified retail chain referred to in the Boston indictment is one of the two referenced in the Newark indictments. That's why we're saying there are either two or three unidentified retail chains involved.

Were the thieves' tactics so sophisticated or were the retail chains' security so lax? (Yeah, we don't quite need a show of hands to answer that last question. As Yoda would have said, "Einsteins, these attackers were not.")

The crucial next question is "These break-ins happened months—and, in some cases, years—ago. Are these—and other—retail chains still as vulnerable today? Security is always great at fighting the last war. In other words, it's unlikely that the old assaults from this crew would be nearly as successful today with larger chains. But that's the point. These crews won't mount the same kinds of attacks again. They'll sniff around, find another huge vulnerability and attack again in a different way. (In a terrorism context, the next 9/11 won't likely involve hijacked commercial aircraft.)

But we won't need to ponder this hypothetical for very long. As long as zero liability and an absence of meaningful data protection laws exist, retailers can't justify investing in the security they truly need. So the next group of Gonzalezes will be around shortly. Truth be told, they're probably already in your system right now. We simply won't realize it for six more months.