What You Should Be Doing Now to Prepare for Implementation of the Cybersecurity Executive Order

by BakerHostetler
Contact

A tempting response to the Cybersecurity Executive Order (the "Order"), announced by President Obama at his State of the Union address, is to ignore it. It is vague in key particulars, such as which companies are part of the "critical infrastructure" and therefore subject to the Order. The only immediate effect of the Order is to require various departments and agencies, led by the Department of Homeland Security ("DHS") to: (i) study issues; (ii) identify powers that can be exercised under existing laws; (iii) and come back with proposed plans of action. Maybe if we ignore it, it will go away.

But it won't. If you are a significant player in a regulated industry that that has already been identified by DHS as part of the critical infrastructure (which includes energy, health care, transportation, financial services, heavy manufacturing, food and drugs), if you are a government contractor, or especially if you are both - the Order is a statement of intent that should not be ignored.

The Administration has identified cybersecurity as "one of the most serious economic and national security challenges we face as a nation, but one that we as a government or as a country are not adequately prepared to counter." The Executive Order focuses on two solutions: 1) enhanced security standards; and 2) better sharing of information between government and the private sector.

While the Executive Order describes these security standards as "voluntary," it also directs regulators to identify "incentives" for adopting these standards. Incentives under consideration include potential preferred treatment for government contractors who participate.

With respect to information sharing, the Executive Order only specifically discusses the government sharing information with industry about identified threats. But the Administration has acknowledged that the achieving the goals of the Executive Order "will by necessity involve increased collaboration with the private sector and a whole-of-government approach." Initially this sharing may take the form of responding to questionnaires from the National Institute of Standards (NIST), or requests by the government to a company's security expert. Ultimately, be ready for requests for information related to cybersecurity threats coming from your regulators and government procurement officers.

What should you be doing now to prepare for the impact of the Executive Order on your company?

(1) Review your incident response policies and, if necessary, update them to address the concerns of this Executive Order. Historically, breach reporting obligations have focused on lost personally identifiable information and protected health information because state and federal laws have focused on these losses. The Executive Order focuses on "infrastructure threats" and includes risks posed by trade secret theft, cyber terrorism and hacktivism. Make sure that your policies in place adequately address identifying infrastructure threats and escalating those issues to the appropriate people within your organization. There are going to be "whistleblowers" waiting to assist you with making these disclosures if you are not willing to confront these issues head on.

(2) Look at your vendor lists and contracts. If you are not considered to be critical infrastructure, are your business partners? Are your business partners at risk for certain cybersecurity events like hacktivism and foreign government sponsored attacks? Are your key vendors demonstrating their readiness to you and should you be better protecting yourself in your contracts with these business partners?

(3) Establishing or upgrading security audits should be considered -- not just of your own house, but of your business partners as well. Increasingly government is not just looking at an organization, but an organization's business partners as well.

(4) Finally, develop a regulatory strategy. Just like any other government relationship, figure out how you are going to leverage your existing relationships to guide you through this process and what their expectations are. Government, whether as a regulator or a partner in the war against cyberterrorism, expects transparency, cooperation, and a good attitude. Think about reaching out and starting a dialogue about these challenges and concerns as we figure out how to combat these cyber attacks.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:

BakerHostetler
Contact
more
less

BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.