Privacy and Information Security Alert

by Bradley Arant Boult Cummings LLP

The final Federal Cybersecurity Framework is imminent. Find out how the Framework operates and how it may impact your business. Learn what government and industry leaders say about the Framework and the need for related legislation. Understand the potential litigation risks that may arise as the Framework is implemented.

Cybersecurity Risk Management: The Federal Cybersecurity Framework Is Almost Here

By Executive Order 13636, “Improving Critical Infrastructure Cybersecurity,” President Barack Obama directed the development of a framework to reduce cybersecurity risks to critical infrastructure. The National Institute of Standards and Technology (NIST), in coordination with various federal agencies and market stakeholders, issued a preliminary Cybersecurity Framework in October 2013; the issuance of the final Cybersecurity Framework is anticipated next month.

The Cybersecurity Framework is a voluntary set of standards and best practices designed to apply to entities that “play a role in supporting the Nation’s [critical] infrastructure”. The executive order defines “critical infrastructure” to include virtual and physical assets and systems, “the incapacity or destruction [of which] would have a debilitating impact on security, national economic security, national public health or safety, or any combination of these matters.”

Framework Core

The Cybersecurity Framework offers a system that relies on existing requirements, best practices, and standards for evaluating and addressing cybersecurity risks. The framework’s core is based on four elements: (1) functions; (2) categories; (3) subcategories; and (4) informative references.

Core Functions

The five functions of the core structure include:

  • Identify: Identification of mission-critical data and systems, possible cybersecurity threats, and a definition of a risk-management strategy;
  • Protect: Prioritization of threats and development and implementation of safeguards against identified threats;
  • Detect: Development and implementation of monitoring and detection processes to identify threats, weaknesses, or breaches;
  • Respond: Planning and implementation of processes to act upon detection of threat or breach; and
  • Recover: Development and implementation of strategies to restore services and capabilities and mitigate risk.

These functions serve to organize cybersecurity activities at the highest level. Categories subdivide functions into groups of cybersecurity outcomes, and subcategories further subdivide such outcomes. Informative references include sets of common industry standards, practices, and guidelines to accomplish or address the subcategories.

The NIST Framework Core structure is diagrammed below:

The framework provides a methodology for mapping the functions to the categories, subcategories, and informative references. The content of the core is determined by the organization by reference to its individual activities and risks and by taking into account industry standards and best practices.

Framework Profile

The profile is a tool to establish a roadmap for reducing cybersecurity risk in accordance with the priorities established using the core. Briefly, the profile provides for the development of current profiles (based in part on the “identify” function) and target profiles (based on desired risk-management outcomes).

NIST explains:

The Profile is the alignment of the Functions, Categories, Subcategories and industry standards and best practices with the business requirements, risk tolerance, and resources of the organization. Identifying the gaps between the Current Profile and the Target Profile allows the creation of a prioritized roadmap that organizations will implement to reduce cybersecurity risk.

Identification of the gaps between the current and target profiles can be used, together with the core, to determine, analyze, and prioritize gaps and develop an action plan.

Framework Implementation Tiers

The tiers describe how an organization manages its cybersecurity risk from less to more rigorous: Tier 1, partial; Tier 2, risk informed; Tier 3, risk informed and repeatable; and Tier 4, adaptive. The framework defines each tier and explains the selection process as follows:

The Tier selection process considers an organization’s current risk management practices, threat environment, legal and regulatory requirements, business/mission objectives, and organizational constraints. Organizations should determine the desired Tier, ensuring that the selected levels meet the organizational goals, reduce cybersecurity risk to critical infrastructure, and are feasible and cost effective to implement.

Use of the Cybersecurity Framework

Use of the framework by “critical infrastructure” participants is voluntary. Although designed to work with “incentives” for participation, no such incentives have yet been proposed. There are no penalties or civil liability associated with failure to implement all or any part of the framework.

The framework’s reliance on industry standards and best practices, however, may lead to increased focus by courts on such standards and practices in the evaluation of the reasonableness of a specific participant’s cyber risk management efforts.

Further, final implementation of the framework will not preclude the implementation of federal or state legislation or regulation of cyber risks.

An example of how this entire process is designed to work is set forth in Appendix A to the proposed framework, which may be found at Copies of the executive order, the proposed Cybersecurity Framework, and the related NIST update may be found at

Cyber Risk Management, Generally

The implications of the issuance of the final Cybersecurity Framework are quite broad. The framework’s core structure, profiles, and tiers are adaptable to a variety of industries and cyber risk levels and may be used as a model to facilitate assessment and development of any business’ cybersecurity risk-management program. The framework is intended to be ancillary to—and referential of—a “critical infrastructure” organization’s regulatory and other obligations. It may, however, serve as a useful risk-management tool for any organization that engages in cyber activities.

  1. Preliminary Cybersecurity Framework, (Jan. 16, 2014, 2:37 PM),
  2. Exec. Order 13636, 78 Fed. Reg. 11,739 (February 19, 2013)
  3. Preliminary Cybersecurity Framework, (Jan. 16, 2014, 2:37 PM),
  4. Preliminary Cybersecurity Framework, (Jan. 16, 2014, 2:37 PM),
  5. Id.
  6. Preliminary Cybersecurity Framework, (Jan. 16, 2014, 2:37 PM),

Cybersecurity Risk Management: Cybersecurity Symposium Recap—What You Need to Know

In connection with the National Institute for Standards and Technology's ("NIST") issuance of the proposed Cybersecurity Framework, Bloomberg Media and Symantec co-hosted a symposium on cybersecurity in Washington, D.C. Internet security leader Symantec was a co-sponsor of the event. Comments regarding the proposed Framework were presented by government leaders at the highest levels, including National Security Agency (NSA) Director Keith Alexander, Deputy Assistant Secretary of the Treasury for Financial Institutions Katheryn Rosen, and the President’s cybersecurity czar, Michael Daniel. Industry trade group representatives who spoke included Financial Services Roundtable CEO Tim Pawlenty, vice president of risk management for the American Bankers Association, Doug Johnson, Information Technology Industry Council CEO Dean Garfield, and CEO of Internet Security Alliance, Larry Clinton.

The panelists discussed the process that had led to the framework as well as industry questions and concerns about it. The director of the NSA asserted that there is a critical need for Congressional action on how the NSA can share threat information with private industry to allow industry to protect itself from threats. For example, when a government agency finds a “bad packet,” under what circumstances can the agency pass that information on to industry in real time? The Snowden affair, though, has reduced the likelihood of Congressional action.

Financial industry representatives discussed the need for Congressional action to provide limitations of liability, exemptions from Freedom of Information Act requests, protocols for industry and government agencies sharing threat information, and government. Although there have been many distributed denial of service attacks recently in the United States, no U.S. financial institution has suffered large-scale data destruction like that of oil company Saudi Aramco in 2012 and South Korean banks in 2013. U.S. financial institutions believe such attacks are likely within United States in the future. Even so, financial institutions are much further along in implementing effective cybersecurity practices than other industry groups.

Telecom and internet industry leaders stated a need for uniform federal standards on personally identifiable information, citing different rules in 40 states.

Finally, some industry representatives expressed concern that industry’s failure to comply with the standards adopted in the framework would create legal liability. Thus, a company with an Internet presence needs to study the standards adopted to make sure it has complied with the framework’s security measures. No data system is impenetrable, so intrusion must be assumed and expected. A company will be judged by how it identifies, responds, and recovers to these 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.

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Bradley Arant Boult Cummings LLP

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