NIST seeks comments on Cybersecurity Framework – Don’t miss the Dec. 13 deadline

by Thompson Coburn LLP

The National Institute of Standards and Technology (NIST) is seeking comments on its “Preliminary Cybersecurity Framework,” which affects numerous industries. The Preliminary Framework is intended to provide guidance to organizations that are responsible for critical infrastructure services regarding the management and mitigation of cybersecurity risks and vulnerabilities. NIST seeks public comment through December 13, 2013, and is expected to publish a final version of the Framework in February 2014.

Which industries are affected? 
The Preliminary Framework is a voluntary framework that will be applied to critical infrastructure that includes the physical or cyber assets within various industries. Some of the key industries that will be impacted include the chemical, communications, defense, energy, financial services, food and agriculture, information technology, transportation, and utilities sectors.

In addition, the Framework standards will “leak” beyond the critical infrastructure sectors. These sectors purchase products and services from the general business community, and the goods and services will need to meet the Framework requirements in order to be procured by the affected industries.

Summary of the Preliminary Framework
The Preliminary Framework was prepared pursuant to the President’s Executive Order on “Improving Critical Infrastructure Cybersecurity” issued earlier this year. NIST explains that the Executive Order charged it with developing a “voluntary Cybersecurity Framework that provides a ‘prioritized, flexible, repeatable, performance-based, and cost-effective approach’ for assisting organizations responsible for critical infrastructure services to manage cybersecurity risk.” As defined by the Executive Order, critical infrastructure includes “systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.”

Among the principle objectives of the Preliminary Framework is to “encourage organizations to consider cybersecurity risk as a priority similar to financial, safety, and operational risk while factoring in larger systemic risks inherent to critical infrastructure.” The Preliminary Framework accomplishes this by providing an organizational structure oriented around a “Framework Core” of five key functions – Identify, Protect, Detect, Respond, and Recover – that, in turn, each identify specific outcomes that are intended to shape an organization’s overall approach to cybersecurity based upon individual considerations of risk, specific critical functions, available resources, and any applicable legal or regulatory requirements. A methodology for addressing issues relating to the protection of privacy and civil liberties within the context of cybersecurity is provided in an appendix to the Preliminary Framework.

While the NIST Preliminary Framework is intended to be voluntary, practicing good “cyber-hygiene” will help organizations, including those in the critical infrastructure sectors, mitigate the impacts of a cyber attack. Notwithstanding its voluntary nature, the NIST Preliminary Framework may evolve into a general standard of care for cyber protections in critical infrastructure industries. In addition to making critical infrastructure more vulnerable, failure to consider and adopt appropriate measures as described in the Framework could increase legal risk by raising exposure to litigation or making it more difficult to obtain certain types of insurance. It is possible that at least some of the NIST voluntary standards for critical infrastructure industries could evolve into the general standard of care for some non-critical industries as well.

As outlined in the Preliminary Framework, NIST seeks comment on the following topics:

Does the Preliminary Framework:
 - Adequately define outcomes that strengthen cybersecurity and support business objectives?
 - Enable cost-effective implementation?
 - Appropriately integrate cybersecurity risk into business risk?
 - Provide the tools for senior executives and boards of directors to understand risks and mitigations at the appropriate level of detail?
-  Provide sufficient guidance and resources to aid businesses of all sizes while maintaining flexibility?
-  Provide the right level of specificity and guidance for mitigating the impact of cybersecurity measures on privacy and civil liberties?
 - Express existing practices in a manner that allows for effective use?

Will the Preliminary Framework, as presented:
-  Be inclusive of, and not disruptive to, effective cybersecurity practices in use today, including widely-used voluntary consensus standards that are not yet final?
 - Enable organizations to incorporate threat information?

Is the Preliminary Framework:
 - Presented at the right level of specificity?
 - Sufficiently clear on how the privacy and civil liberties methodology is integrated with the Framework Core?


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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