Federal Cybersecurity “Framework” Advances to Draft

by Mintz Levin - Privacy & Security Matters
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After several months of work, the National Institute of Standards and Technology (NIST) has published a draft of the cybersecurity “Framework” it is developing in response to Executive Order 13636. In publishing the Framework draft, NIST emphasized that it is not intended to introduce a set of prescriptive rules, but to “provide guidance” on managing cybersecurity risk and to “support the improvement of cybersecurity for the Nation’s Critical Infrastructure using industry-known standards and best practices.” That being said, the Framework is only one part of the administration’s efforts to bolster private sector cybersecurity, and more prescriptive requirements still are in the works.

Last week’s draft Framework follows a series of requests by NIST for industry advice and information and several workshops held throughout the U.S. since February. A final workshop to take comments on the draft Framework is planned for September 11-13 in Dallas.

This alert summarizes the approaches taken by the NIST Framework, describes the future steps in the implementation of the Framework, and discusses the Framework’s response to acknowledged weaknesses in the current state of national cybersecurity technology and practice.

An Approach to Enhanced Cybersecurity

According to the draft Framework, it is intended to compliment rather than replace an organization’s existing cybersecurity risk management program by helping the organization to identify opportunities to improve that existing program. It purports to do so by providing

a common language and mechanism for organizations to: 1) describe current cybersecurity posture; 2) describe their target state for cybersecurity; 3) identify and prioritize opportunities for improvement within the context of risk management; 4) assess progress toward the target state; 5) foster communications among internal and external stakeholders.

At a more practical level the Framework is composed of three parts: a Framework Core, Framework implementation tiers and a Framework profile.

Framework Core

The crux of the Framework Core is a compilation of government and industry cybersecurity standards and best practices that address five critical cybersecurity functions:

  • Identifying the threat – Developing understanding of which business systems, assets, data, and capabilities need to be protected, determining priority in light of the organization’s mission, and establishing processes to achieve risk management goals.
  • Protecting against the threat – Developing and implementing safeguards to ensure delivery of critical infrastructure services.
  • Detecting events – Developing and implementing actions to identify the occurrence of a cybersecurity event.
  • Responding to events – Developing and implementing responses to a detected cybersecurity event.
  • Recovery – Developing and implementing management processes to restore the capabilities that were impaired through a cybersecurity event.

Framework Tiers

Each core function is tied to specific industry and government standards, which provide guidance on how industry should develop and implement practices to carry out the core function. The draft Framework encourages organizations to measure their achievement of each of the cybersecurity core functions and then rate the status of their achievement of each function against the scorecard of Framework tiers.

Tiers, ranked from 0 to 3, are an effort to report the extent to which core functions have been successfully implemented. An organization that has failed to implement, or implements in a haphazard fashion, a core function rates a “0.” An organization that continuously updates its cybersecurity processes and procedures based upon information about emerging threats rates a “3.”

Presumably, this scorecard is intended to become the basis of a standardized set of measures of an organization’s cybersecurity readiness. How that scorecard might eventually be reported and what uses might be made of it in future regulatory actions are not discussed.

Framework Profile

As envisioned in the draft, the Framework Profile is simply a means to measure an organization’s “current state and the desired target state of specific cybersecurity activities, thus revealing gaps that should be addressed to meet cybersecurity risk management objectives.” Importantly, the Profile also is described as a roadmap that “considers legal/regulatory requirements, and reflects risk management priorities.” This is the only mention of future “legal/regulatory requirements” in the draft, but such requirements are on the horizon.

Regulatory Implementation of the Framework

While the NIST Framework itself is correctly described as an analytical tool and compilation of best practices, not prescriptive, it is reasonable to anticipate that it will be incorporated into future regulations. On August 6, 2013, recommendations of the Departments of Commerce, Homeland Security, and Treasury regarding incentives to encourage industry adoption of the Framework were published by the White House. The Homeland Security recommendations included, for example, incorporating Framework adoption as one of the requirements for contractors providing communications and information technology products and services to government agencies. The Commerce recommendations noted that “regulatory streamlining” proposals should be considered to ensure that the Framework “interact[s] in an effective manner with existing regulatory structures.” Treasury did not directly suggest regulatory implementation, but also was careful not to recommend against such initiatives.

Challenges to Better Cybersecurity

The focus of the draft Framework published by NIST last week was the Framework Core and its associated scorecard and profile, but of equal import was its discussion of technical and process weaknesses that pose challenges to achievement of improved cybersecurity. The fact that the extent of these challenges was determined through extensive industry consultation demonstrates the scope of the problem. Areas of major weakness requiring concerted effort to overcome include:

  • Authentication – Despite the known inadequacy of password authentication, the inability to date to deploy more robust authentication schemes is the greatest single cybersecurity vulnerability.
  • Automated Indicator Sharing – The lack of suitable mechanisms to automatically share detection of indications of a cybersecurity event as they are occurring so that the event can be contained quickly hinders effective response to attack.
  • Privacy – Existing Fair Information Practice Principles (FIPPS) are the basis of privacy laws and regulations, but they fail to provide standardized guidance on implementation and best practices. The failure to develop such standards and best practices hinders efforts to establish ground rules for mitigating liability to individuals whose personal data may be misused.
  • Supply chain interdependencies – Interconnection of supply chain data systems makes even the strongest links susceptible to penetration and disruption through the weakest link. The absence of standard procedures and best practices applicable to every link in the chain poses significant risks to critical infrastructure.

The Framework makes no recommendations for addressing these and other major challenges to our current ability to improve cybersecurity.

The Framework itself is largely non-controversial and provides a useful tool for assessing an organization’s readiness to defend against cyber attack and for planning improvements in cybersecurity defenses. The steps that follow the development of the Framework will be more controversial, as issues of regulatory compliance, privacy, incentives, and tort liability, all based upon the Framework, will have significant impacts on organizations and individuals.

The Framework draft will be finalized following the September workshop and published in October 2013. Public comments are being accepted at cyberframework@nist.gov.

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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