President Barack Obama is signaling that if Congress won't act on cybersecurity legislation, he will implement the elements he considers essential by executive order.
That prospect gets mixed reviews from cybersecurity experts.
Stewart Baker, writing for The Volockh Conspiracy, said: "It is hard to fix bad laws with an executive order, but in this case I'm not sure it can't be done."
But David Inserra of the Heritage Foundation argues that an executive order "eschews such open debate and instead imposes the president's will with its weaknesses unmitigated by the legislative back-and-forth."
The signal from Obama came after the failure of a cloture vote in the Senate last week to end debate on the Cybersecurity Act of 2012 (CSA). White House Press Secretary Jay Carney blamed "Republican stall tactics" and told The Hill, "Unfortunately, we will continue to be hamstrung by outdated and inadequate statutory authorities that the legislation would have fixed."
"Moving forward, the president is determined to do absolutely everything we can to better protect our nation against today's cyber threats and we will do that," Carney said.
The president has issued more than 130 executive orders so far, frequently invoking the mantra, "We can't wait," to defend his implementation of initiatives he supports that Congress rejects. And this is one he has supported for more than a year.
Last year, the White House proposed its own cybersecurity legislation, presented more than 100 briefings and testified at 17 congressional hearings. More recently, he urged the passage of the CSA, introduced by Sens. Joe Lieberman (I-Conn.) and Susan Collins (R-Maine).
On July 19, The Wall Street Journal carried an op-ed by the president, in which he argued that without greater cybersecurity, a cyberattack could destroy financial, health care and infrastructure systems without a shot being fired.
But the CSA generated fierce opposition from privacy advocates, who opposed information sharing provisions and also from business groups like the US Chamber of Commerce, which said the proposed legislation would burden businesses with unnecessary and ineffective regulations.
The president apparently will not face many legal hurdles if he decides to bypass Congress. Jim Lewis, a senior fellow at the Center for Strategic and International Studies, told The Hill that many companies managing vital computer systems are already heavily regulated, and that the president could order agencies to require the industries they regulate to meet cybersecurity standards.
"You don't need new legislative authority to do that," Lewis said.
But he acknowledged that the president could not remove legal barriers to information sharing without the approval of Congress.
And that is apparently enough for privacy advocates like the Electronic Frontier Foundation (EFF), which opposed the CSA even after amendments had made information sharing voluntary.
Rainey Reitman, activism director for EFF said the group's understanding is that the president is considering an executive order "to shore up critical infrastructure but not to address the information sharing issues."
"We're not opposed to an executive order, provided Obama's actions don't undermine civil liberties or exceed the authority of the executive branch," she said.
Roger Thornton, CTO of AlienVault, said he understands the president's desire to act, noting that he gets daily briefings from intelligence sources about threats "that would probably scare the pants off everybody. So he's got to feel very compelled to act. And good for him -- his job is to protect us."
But Thornton said the real problem is not whether Congress passes a law or the president imposes one by executive order, but that current legislation lacks "stuff that will solve the problem we have today.
"Everybody is being broken into now -- what possibly would we mandate today and audit?" he said. "We know what we do today doesn't work. This would just freeze a broken process."
He said while some companies do security very well, others have an economic incentive to be careless. "A better solution is to eliminate the incentive to be negligent," he said. "One way you do that is to make companies publicly disclose finances, and conduct security audits. You take a problem that is kind of hidden, expose it and let the market work on it."
There is a chance that an executive order might not be necessary. Leslie Phillips, communications director for the Senate Homeland Security and Governmental Affairs Committee, confirmed by email several earlier reports that Lieberman "remains open to negotiating a compromise on the cybersecurity bill. But he and his fellow co-sponsors have already given up the core of their original bill -- mandatory security standards," she said. "So it is now up to Republicans to compromise on some of their positions."
She added that Lieberman "is weighing the value of an executive order on cybersecurity."