Executive Order and Policy Directive Promotes Cybersecurity Cooperation and Intelligence Sharing

by Davis Wright Tremaine LLP

On February 12, 2012, President Obama signed an Executive Order as well as a complementary Presidential Policy Directive intended to improve the flow of information and cyber-threat intelligence between government agencies and the private sector, and to improve the security of the nation’s critical infrastructure.  The policies and requirements in these documents outline an ever-increasing role for owners and operators of critical infrastructure in resisting cyber threats.

The Executive Order and Presidential Policy Directive establish the Secretary of the Department of Homeland Security (DHS) as the chief coordinator for a comprehensive harmonization of federal agency efforts to oversee intelligence and various industry segments that may be deemed part of “critical infrastructure.” The Directive identifies energy and communications systems as “uniquely critical” because they enable all other critical infrastructure systems, as defined in the Patriot Act.
The Executive Order promotes greater government sharing of cyber-threat intelligence data with affected private sector entities by calling for coordinated processes that include sector-specific agencies, such as the Federal Communications Commission, Federal Energy Regulatory Commission, Nuclear Regulatory Commission, Federal Reserve Board, and Department of Health and Human Services. The development of these plans, on timetables detailed below, remains subject to input from various stakeholders.

The Executive Order and Presidential Policy Directive contain specific instructions for DHS to recommend measures to harden critical infrastructure. DHS is also to adopt a “Plan B” for “data and information formats and accessibility, system interoperability, and redundant systems and alternate capabilities” if primary systems fail. Likewise, the Presidential Policy Directive adopts a national policy to secure “national essential functions,” which covers systems that support “government functions that are necessary to lead and sustain the Nation during a catastrophic emergency.” Ultimately, this may mean increased security for high-speed broadband networks that serve government facilities.

A key element of the Presidential Policy Directive instructs DHS to establish and operate two “national critical infrastructure centers,” one each devoted to cyber infrastructure and physical infrastructure. These infrastructure centers are to operate as hubs of information collection and distribution from other federal departments and agencies and the private sector.

Both the Executive Order and Presidential Policy Directive require government agencies to abide by laws governing privacy and civil liberties. Neither document, however, provides for any form of immunity nor limitation on liability for private entities that participate in information sharing that might be challenged as a violation of other laws or privacy rights.

The executive documents contain numerous detailed timelines for implementation of information sharing processes; creation of a Cybersecurity Framework to reduce cyber risk and adoption of it by federal departments and agencies; and establishment of “incentives” for private sector participation in the Cybersecurity Framework. Key benchmarks along these timelines include:

  • Expanded Sharing of Cybersecurity Information by June 12, 2013 (120 days)
    • The Attorney General, DHS and Director of National Intelligence each must issue instructions to ensure timely production of unclassified reports of domestic cyber threats that identify a specific target.
    • DHS is to establish procedures to expand its existing Enhanced Cybersecurity Services Program to all critical infrastructure sectors and provide classified intelligence to “eligible” critical infrastructure companies or commercial service providers that offer security services to critical infrastructure. Security clearances for “appropriate personnel” working for critical infrastructure entities are to be expedited.
    • DHS must describe the functional relationships within DHS and across the federal government related to critical infrastructure security and resilience, to serve as a roadmap for participants in the information sharing process.
  • Establishment of a Cybersecurity Framework and Incentives for Private Participation
    • By October 10, 2013, the National Institute for Standards and Technology (NIST) is to publish a preliminary Cybersecurity Framework (with standards, procedures and policies) to reduce cyber risks to critical infrastructure. NIST plans to issue a Request for Information (RFI) to obtain feedback on what it should include in the Framework. NIST has posted a summary of the planned RFI on its web site.
    • NIST is to incorporate voluntary standards and industry best practices to the extent possible, and have them be consistent with voluntary international standards. Framework guidance is to be technology neutral. The process is to be open, with public review and comment.
    • Agencies are to review the preliminary Framework and, within 90 days of its publication (i.e., January 8, 2014), submit a report to the President stating whether the agency has “clear authority” to implement the framework, and if not, to specify additional authority the agency would require. If current regulatory requirements are deemed insufficient to protect cybersecurity, then within 90 days of publication of the final Framework, agencies must “propose prioritized, risk-based, efficient and coordinated actions” to mitigate the risks.
    • The final Cybersecurity Framework is due in one year, by February 12, 2014.
    • DHS, in coordination with other executive agencies, is to establish a voluntary program to support the adoption of the Cybersecurity Framework by affected owners and operators of critical infrastructure. Sector-specific guidance is to be developed by sector-specific agencies.
    • DHS is to coordinate the establishment of incentives to promote voluntary participation. Recommendations for, and analysis of, industry-specific incentives are to be made by the agencies responsible for each industry, including analysis of whether the incentives require new legal authority.
  • Identification of Infrastructure With Potential For Catastrophic Impact from Cyber Threat:
    • The Presidential Policy Directive requires DHS, within 150 days of the order (July 12, 2013), to “use a risk-based approach” to identify critical infrastructure where a cybersecurity incident could have catastrophic regional or national impact on health, safety, economic security, or national security.
      • Commercial information technology products or consumer information services, however, are exempt from being designated as critical infrastructure at the greatest risk.
    • DHS must, in coordination with sector-specific agencies, provide confidential notice to owners and operators of critical infrastructure identified as being “at greatest risk” for catastrophic impact from a cybersecurity incident.

Davis Wright Tremaine, LLP assists communications service providers and other owners and operators of critical infrastructure to understand and navigate cybersecurity issues. Please contact us for more information or guidance.

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.

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