The Obama administration excluded the information technology (IT) industry from its definition of the nation's critical infrastructure, giving them immunity from security-related requirements unless changed by Congress.
While this is good for tech companies, the telecom industry is crying foul, saying IT businesses should share any regulatory burden.
The tech industry's exclusion, the result of lobbying by the Software & Information Industry Association, was included in President Barack Obama's executive order, issued last month.
In directing the Department of Homeland Security (DHS) to identify critical infrastructure, the order said DHS "shall not identify any commercial information technology products or consumer information technology services under this section."
The executive order is meant as a framework for protecting power plants, telecommunication networks, water filtration systems, manufacturers and financial systems from cyberattacks by terrorists or hostile governments.
Congress is considering proposed legislation to require the sharing of attack information between government and companies that own or operate critical infrastructure. The Obama administration wants to include some security regulations.
Because additional regulations are possible, telecommunication companies such as Verizon Communications and AT&T want the IT industry to share the burden. They argue that some IT companies should be considered critical infrastructure, since the products and services they provide are a crucial part of communication networks and are usually the targets of hackers.
While not naming which companies, candidates could include Microsoft, Google, IBM, Cisco and other leading tech companies.
"Network security must go beyond what is traditionally considered critical infrastructure," a Verizon spokesman said on Thursday. "The Internet ecosystem is far more interconnected and dependent on a host of players than it was even five years ago."
Tech companies contacted by CSO Online either declined comment or did not respond.
Cybersecurity experts believe it doesn't matter whether IT vendors are considered critical infrastructure, since whatever security requirements are handed down by the government will be passed on to them by the utility, telecom company or defense manufacturer.
"As a practical matter, commercial products won't escape secondary regulation," said Stewart Baker, a partner at the law firm Steptoe & Johnson and a former assistant secretary for policy at DHS.
Letting critical infrastructure owners and operators hand off security requirements also avoids having to decide which of a vendor's products need to be regulated, Jacob Olcott, principal consultant for cybersecurity at Good Harbor Consulting, said.
Many IT vendors have products and services that span consumer, business and government markets. "Rather than apply the same security rules across the board, it is better to have the requirements fit the needs of the environment," Olcott said.
Not all experts agreed. Paul Rosenzweig, founder of the homeland security consulting firm Red Branch Consulting, said if the government is going to impose more regulations, then it should do so for each industry that plays a part in running critical infrastructure.
However, Rosenzweig believes the government's approach through frameworks and legislation is wrong. He favors a non-regulatory strategy that would include information sharing, creation of a civil liability regime, better education, more international engagement and a methodology for certifying hardware components.
"For me, the government shouldn't be responsible for creating the framework," said Rosenzweig, who is also a visiting fellow at The Heritage Foundation, a conservative think tank.
Instead, Rosenzweig favors a private sector institution building a framework that is based on common law and is a "product of the market, not of a government fiat."