Federal Cybersecurity Initiatives Demand Vigilance of Communication and Energy Infrastructure Owners and Operators

by Davis Wright Tremaine LLP

Cybersecurity initiatives are moving rapidly within the federal government and require owners and operators of critical infrastructure – including in particular Communication and Energy Systems, and those who supply and service them – to remain vigilant in managing cybersecurity risks. The National Institute of Standards and Technologies (NIST) is moving quickly to develop the Cybersecurity Framework required by President Obama’s Executive Order 13636 (EO-13636) and Presidential Policy Directive 21 (PPD-21), as detailed in our earlier posts here and here. At the same time, Congress continues to develop cybersecurity legislation to address concerns over the current state of cybersecurity and cyber-threat information-sharing in various sectors of the economy. Chief among these sectors are energy and communications, which are deemed “uniquely critical” in PPD-21 given their role in supporting all other critical infrastructure.

NIST has devoted substantial effort working toward the February 12, 2014 deadline for a final Cybersecurity Framework established by EO-13636. To date, NIST has held two sets of workshops on the Cybersecurity Framework (one of which we discussed here), and released a working analysis of comments received by stakeholders across various sectors, including owners of infrastructure at risk of cyber-threats – such as communications networks, and energy producers and distributors. Common themes in the comments call for:

  • a flexible, non-prescriptive framework;
  • a framework that reflects a detailed assessment of any particular risk to cybersecurity;
  • the use of existing standards and partnerships as much as is feasible;
  • the application of the framework to the entire supply chain of any given sector;
  • the incorporation of protection for individual privacy and civil liberties; and
  • incentives for private actors such as tax incentives and safe harbors for implementing the framework.

NIST plans to release its first draft of the Cybersecurity Framework on June 28, 2013, in advance of the next workshop, scheduled for July 10-12, 2013 in San Diego.

NIST already has acted to update many real-world cybersecurity practices with an April 2013 release of substantially revised “Security and Privacy Controls for Federal Information Systems and Organizations” (NIST SP 800-53). Although written for the federal government, prior versions of these controls have been highly influential as a tool used at least in part by many private businesses, non-profit organizations, and other entities to implement cybersecurity best practices. Organizations that own, operate, or contribute services or supplies to critical infrastructure such as communications and energy systems should consider reviewing the revised NIST controls to determine how your organization measures up to current best practices in cyber threat risk management.

Congress also has devoted substantial energy to cybersecurity issues. For example, on May 21, 2013, the House Committee on Energy and Commerce held back-to-back hearings on cyber threats to critical infrastructure (including energy, communications, and finance) and risk management for the supply chain for communications networks (i.e., equipment, software and services that support voice, video and data traffic on communications networks). On the same day, Commerce Committee members Markey (D-MA) and Waxman (D-CA) released a report on “Electric Grid Vulnerability” criticizing the electric energy sector for its responses to Markey’s inquiries on protecting the grid from cyber attacks. Senator Rockefeller (D-WV) recently informed NIST that he opposes any Cybersecurity Framework provision that would give “U.S. companies prospective liability protections for adopting the Framework,” arguing that such immunity would undermine private cybersecurity efforts in numerous ways and, “perhaps most importantly, undermine and otherwise distort the private market for cyber insurance.”

Beyond hearings, Congress continues to work on potential cybersecurity legislation. In April, the House passed H.R. 624, the Cyber Intelligence Sharing and Protection Act of 2013 (CISPA), and referred it to the Senate. The White House, however, said it will veto CISPA in its current form because it does not protect privacy to the administration’s satisfaction. According to the White House, cybersecurity legislation should “[c]arefully safeguard privacy and civil liberties; preserve the long-standing, respective roles and missions of civilian and intelligence agencies; and provide for appropriate sharing with targeted liability protections.” And while the Senate reportedly has no plans to take up the House bill, indicators suggest that Senate staff and members continue work with the House in an effort to produce legislation that would have support of both chambers and the White House.

Although legislation faces major obstacles in Congress, there is bipartisan agreement that cybersecurity legislation is necessary, and the White House has demonstrated its support by directing NIST to move forward with the Cybersecurity Framework. The Framework itself could become the basis for future legislation or enforceable obligations.

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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