Robert Frost and Cybersecurity - Two Roads Diverging

Sheppard Mullin Richter & Hampton LLP

Like Frost’s nameless traveler in “The Road Not Taken,” our Government finds itself confronted with two diverging roads in the cybersecurity realm. The first offers moderation, deliberation, and evolution. The second, speed. Frost expressed regret that he could travel but one road. Armed with taxpayer dollars, our Government is not so constrained and, devoid of regret, proceeds down both in parallel.

Road No. 1

Progress continued throughout the summer in the Government’s effort to build a strong and agile cybersecurity framework. In late August, in response to the White House’s February order, the National Institute of Standards and Technology (“NIST”) released its Discussion Draft of the Preliminary Cybersecurity Framework intended to further the ongoing government/industry crosstalk about the guidelines and best practices to help government organizations better secure and manage the risks facing their IT systems. Following meetings this month in Dallas, NIST is planning to release a full preliminary draft in October for public review before issuing the final, initial version of the framework in February 2014.

When complete, the NIST framework is intended to provide organizations with guidance on managing cybersecurity risk "in a manner similar to financial, safety, and operational risk." By working with industry, the NIST effort is intended to provide not only a common cybersecurity taxonomy, but also to identify and prioritize goals and opportunities for cybersecurity risk management. When it is complete, the framework will contain three components:

1. Core Functions – five commonly practiced functions and references including:

a. Identifying what must be protected and the processes needed to reach risk management goals;

b. Implementing protections to safeguard critical infrastructure services;

c. Establishing methods for detecting malicious activities;

d. Developing and implementing methodologies for taking action after an event;

e. Establishing tools for restoring impaired capabilities after a malicious event;

2. Implementation Tiers - guidance on how to manage cybersecurity risks by reflecting “how an organization implements the framework core functions and categories and manages its risk."; and

3. Framework Profile – summarizes how well and how much of the guidance is being implemented or planned in progress towards the organization’s goals.

In the end, the framework is expected to “evolve” and to adapt to the "[u]nique missions, threats, vulnerabilities, and risk tolerances” that organizations may face. Accordingly, the framework recognizes that, across the spectrum of the Government, there will be “different risk management strategies” and that decisions of one agency may not be right for another. At its core, rather than serving as a cybersecurity risk management process in itself, the NIST framework is intended to provide agencies with a systemic methodology to consider while building and reinforcing their respective IT infrastructures.

Road No. 2

Meanwhile, DISA is planning to streamline its acquisition processes and create a more agile system that would allow for the delivery of IT capability in a shorter period of time. Attempting to address the breakneck pace at which IT is changing in the commercial marketplace, DISA intends to craft policies within the budgetary and regulatory acquisition framework that will provide program managers increased flexibility to craft the types of contracts needed to deliver evolving IT capabilities. According to DISA, this means the inclusion of shorter award periods and a heavier reliance on task order competitions over the open competitions relied upon in the past. This effort falls in line with the Agency’s 2013-2018 Strategic Plan and its objective to “[p]romote the implementation of acquisition and procurement policies, processes, and practices that enable the development of the enterprise concept and provide agile enterprise IT contract solutions for the Department.”

But, in its race to meet and keep up with progress, how will DISA manage cybersecurity? DISA recognizes that it will be accepting more cybersecurity risk in moving ahead, but it is willing to bank that its new-planned flexibility will enable it to make changes and address concerns faster than it has been able to do in the past. The agency appears prepared to accept some initial security risks in its acquisitions with the hope that such risks will lessen as cybersecurity technology evolves and is implemented more widely.

Which approach is better? Is it better to have new, rapidly deployed, but vulnerable IT systems or to defer deployment of new systems until a comprehensive and unified approach to cybersecurity can be developed? Time will tell. Is the pursuit of divergent paths conducive to a unified cybersecurity infrastructure? Hardly. Will it matter? Frost thought so, but he was just a poet.

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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