As clients begin to recognize and prepare against the threat of ransomware attacks, one tricky question keeps coming up. Is paying a ransom “illegal yet?”. No company is champing at the bit to make unplanned payments, especially not to potential terrorists on the OFAC list, but the legality of the matter depends on a few factors. *Please note that ProCircular does not provide legal advice, rather, we disseminate guidance from the top legal authorities.
As a cybersecurity professional and business owner, I keep a close eye on the everchanging recommendations surrounding ransomware attacks and incident management. I found the following document to be one of the more up-to-date (at least by government standards) and straightforward pieces available on the topic. Here's the short version:
“In the context of hostage-taking, for example, DOJ clarified in 2015 that it “has never used the material support statute to prosecute a hostage’s family or friends for paying a ransom for the safe return of their loved one.”67
Basically, there is a low likelihood of prosecution for making ransom payments, even when it is paid to a known threat actor on the OFAC denied persons list. I would only expect to see legal action taken if a very large company went through with the payment while it was expressly illegal. Even then, the punishment would be intended to make an example rather than punish the victim.
