Obama Cybersecurity Executive Order Nears Completion As Legislative Saga Continues

The failure of the Cybersecurity Act of 2012 in the Senate marked another bill that bit the dust due to political controversy. Now the Obama administration appears to be getting closer to issuing an executive order aimed at improving security at critical infrastructure companies as supporters of the Cybersecurity Act continue to push for Congress to act.

Sen. John (Jay) D. Rockefeller IV (D-W.Va) wrote to the heads of the Fortune 500 this week, calling on them to play a larger role in reforming cybersecurity laws. Rockefeller, who also urged President Barack Obama to issue an executive order after the legislation failed in the Senate, told the CEOs that he was "profoundly disappointed" in the bill's failure and opposition from business groups toward plans to "create a voluntary program that would empower the private sector to collaborate with the federal government" and develop security practices for the companies to implement as they see fit.

"The cyber threat we face is unprecedented and we need an innovative and cooperative approach to between the private sector and the federal government to protect the country from it," he wrote, also stating that legislation will be needed regardless of whether an executive order is issued.

On Sept. 19, Department of Homeland Security Secretary Janet Napolitano told the Senate Committee on Homeland Security and Government Affairs that the executive order was still being drafted and must still be approved by President Obama, but is "close to completion."

According to Napolitano, an executive order cannot solve issues related to liability protections tied to information sharing, increasing criminal penalties against attackers, or increasing staff at DHS in order to deal with cyberthreats.

"We still need cyberlegislation," she told the committee. "This is something Congress should enact in a comprehensive fashion."

Rainey Reitman, activism director at the Electronic Frontier Foundation (EFF), says that at this point, the organization neither opposes nor supports the executive order. Such an order, she says, will not have the authority to override existing privacy laws, and "at the end of the day ... can never be as dangerous for individual privacy as a new piece of legislation."

"Also, I know there are concerns that there is not enough attention paid to privacy protections in the most recently seen drafts of the executive order," she continues. "Remember that these are still early drafts, so there is still time to ensure that privacy safeguards are put in place. But, again, the most important thing is that an executive order doesn't have the legal authority to undo bedrock privacy laws."

The sharing of information between the government and critical infrastructure companies has been a thorny issue. Patrick Miller, CEO of the nonprofit Energy Sector Security Consortium (EnergySec), explains that much of the sharing that goes on today is one-way -- with that one-way heading in the direction of the government.

"I think that if we can get more actionable information ... the stuff that's typically classified, if we can declassify and take down some of the sensitivities and allow a little bit more information out there -- truly actionable information --then it would, I think, get these folks to move," he says. "In most cases, the CEOs hear there are all kinds of threats out there, but there [have been] rare briefings that they've actually been able to go to and get maybe even a temporary clearance to hear what the real issues are and see some real examples of what's actually going on out there."

Security is both science and art, Miller says, and skilled attackers will always be able to gain an advantage through innovation.

"I'm just not sure they can actually craft legislation that solves the problem," he says. "What they can do in a lot of ways is craft legislation that increases incentives to be secure, for example."

Anup Ghosh, CEO of Invincea and a former scientist with the Defense Advanced Research Projects Agency (DARPA), argues that when a cybersecurity standard is established by law, the "intended floor almost always becomes the ceiling."

"Almost all of the security budget is spent on achieving the minimum standard, and the effort becomes focused on compliance, audit, and reporting, rather than preventing or minimizing incidents," he says. "Because the threat in cyber is so dynamic, prescribing actions, methods, or approaches through legislation or regulation is almost always a failing proposition.

"Carrots or sticks focused around service up-time/downtime for critical infrastructure providers, or minimization of incidents and lost data, is more likely to produce desirable outcomes then checklists of what to do," he adds.

One of the more vocal critics of the Cybersecurity Act of 2012 was the U.S. Chamber of Commerce, which raised concerns that the legislation would place an unfair burden on businesses and could inadvertently hamper efforts to improve security.

"While concerns are understandable, the reality is that without a measuring stick, companies won't know if they have gone far enough in protecting themselves," opines Chris Petersen, CTO and LogRhythm. "Without enforcement, some companies will just kick the can down the road and hope for the best."

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