Congress needed to put teeth in Obama's cybersecurity order

Whether standards for security standards and best practices should remain voluntary or mandated by Congress will be a key issue of debate

President Obama's executive order aimed at protecting the nation's critical infrastructure against cyberattack sets the groundwork for congressional action to put teeth into the order's voluntary approach toward private industry, experts say.

The order, issued Wednesday, establishes a framework for creating voluntary security standards and industry best practices for utilities and other entities defined as critical infrastructure. The order directs the National Institute of Standards (NIST) to work with private industries in developing standards and guidelines set for release within a year.

Voluntary compliance is expected to be widespread, particularly among companies that do business with the government or are already under some form of regulatory oversight. For others, following established best practices would provide a stronger defense against lawsuits.

Whether the standards should remain voluntary or mandated by Congress is expected to be a key issue of debate when lawmakers take up the issue of cybersecurity this year. Last year's Cybersecurity Act, which would have given the Department of Homeland Security the power to set standards for private industry, died in the Senate

In reviving some version of the act, Congress could decide to make standards and best practices established by the Obama administration mandatory for companies doing business with the government, said Andrew Serwin, who leads the privacy, security and information management practice of the law firm Foley & Lardner. The other alternative: Make those standards mandatory for all critical infrastructure companies.

"If Congress does mandate minimum standards, I suspect it will be something that is a risk-balancing approach," Serwin said.

Such an approach would be similar to the Health Insurance Portability and Accountability Act, which sets standards for data protection in the healthcare industry, but leaves it up to hospitals to decide on the technology used to meet the standards.

Another key provision of Wednesday's executive order involves information sharing between government agencies and the private sector. Removing obstacles to the flow of threat intelligence is considered pivotal to building better defenses against cyberattacks.

Besides directing agencies to share non-classified information, the order also focuses on making it easier for companies in critical infrastructure industries to get security clearances.

How much information sharing is mandated will depend on the final version of the Cyber Intelligence Sharing and Protection Act (CISPA), which was reintroduced Wednesday in Congress. One element sure to come up for debate will be providing companies immunity from lawsuits stemming from the information shared with the government. In addition, companies may need immunity from being penalized, if providing the information would violate federal or state regulations.

"If you are a CISO (chief information security officer) and an in-house lawyer working with a CISO, you're caught between a rock and a hard place," said Harriet Pearson, a cybersecurity lawyer for the law firm Hogan Lovells and former chief privacy officer for IBM. "You want to do the right thing, but there's two right things to do."

The President's order could expand the current list of 18 critical infrastructure sectors, which currently includes food and agriculture, banking and finance, utilities, dams, defense contractors and critical manufacturing. Businesses added to the list will have the opportunity to contest the designation.

Overall, the executive order will heighten awareness among the private sector of the threat of cyberattacks. "The first step is raising the awareness to say, 'This is a private sector problem and it is a very well funded and organized enemy attacking the private sector one by one and something needs to be done about that,'" Serwin said.

Copyright © 2013 IDG Communications, Inc.

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