Congressionally Created Panel Releases Cyberspace Recommendations and Legislative Proposals

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The Cyberspace Solarium Commission (CSC) released its final report and made a range of recommendations, some of which were paired with legislative language the CSC has not yet made available. The CSC was created by the National Defense Authorization Act for Fiscal Year 2019 (P.L. 115-232) to “develop a consensus on a strategic approach to defending the United States in cyberspace against cyber attacks of significant consequences.” Senator Angus King (I-ME) and Representative Mike Gallagher (R-WI) served as co-chairs for the CSC, which also included Representative James Langevin (D-RI), Senator Ben Sasse (R-NE), the Federal Bureau of Investigation Director Christopher Wray, Deputy Secretary of Defense David L. Norquist, and others.

The co-chairs explained

We didn’t solve everything in this report. We didn’t even agree on everything. There are areas, such as balancing maximum encryption versus mandatory lawful access to devices, where the best we could do was provide a common statement of principles. Yet every single Commissioner was willing to make compromises in the course of our work because we were all united by the recognition that the status quo is not getting the job done. The status quo is inviting attacks on America every second of every day. The status quo is a slow surrender of American power and responsibility. We all want that to stop. So please do us, and your fellow Americans, a favor. Read this report and then demand that your government and the private sector act with speed and agility to secure our cyber future.

Nonetheless, they offered some “big ideas to get the conversation started:

• First, deterrence is possible in cyberspace. Today most cyber actors feel undeterred, if not emboldened, to target our personal data and public infrastructure. In other words, through our inability or unwillingness to identify and punish our cyber adversaries, we are signaling that interfering in American elections or stealing billions in U.S. intellectual property is acceptable. e federal government and the private sector must defend themselves and strike back with speed and agility. This is difficult because the government is not optimized to be quick or agile, but we simply must be faster than our adversaries in order to prevent them from destroying our networks and, by extension, our way of life. Our strategy of layered cyber deterrence is designed with this goal in mind. It combines enhanced resilience with enhanced attribution capabilities and a clearer signaling strategy with collective action by our partners and allies. It is a simple framework laying out how we evolve into a hard target, a good ally, and a bad enemy.
• Second, deterrence relies on a resilient economy. During the Cold War, our best minds were tasked with developing Continuity of Government plans to ensure that the government could survive and the nation recover after a nuclear strike. We need similar planning today to ensure that we can reconstitute in the aftermath of a national-level cyberattack. We also need to ensure that our economy continues to run. We recommend that the government institute a Continuity of the Economy plan to ensure that we can rapidly restore critical functions across corporations and industry sectors, and get the economy back up and running after a catastrophic cyberattack. Such a plan is a fundamental pillar of deterrence—a way to tell our adversaries that we, as a society, will survive to defeat them with speed and agility if they launch a major cyberattack against us.
• Third, deterrence requires government reform. We need to elevate and empower existing cyber agencies, particularly the Cybersecurity and Infrastructure Security Agency (CISA), and create new focal points for coordinating cybersecurity in the executive branch and Congress. To that end, we recommend the creation of a National Cyber Director with oversight from new congressional Cybersecurity Committees, but our goal is not to create more bureaucracy with new and duplicative roles and organizations. Rather, we propose giving existing organizations the tools they need to act with speed and agility to defend our networks and impose costs on our adversaries. The key is CISA, which we have tried to empower as the lead agency for federal cybersecurity and the private sector’s preferred partner. We want working at CISA to become so appealing to young professionals interested in national service that it competes with the NSA, the FBI, Google, and Facebook for top- level talent (and wins).
• Fourth, deterrence will require private-sector entities to step up and strengthen their security posture. Most of our critical infrastructure is owned by the private sector. at is why we make certain recommendations, such as establishing a cloud security certification or modernizing corporate accountability reporting requirements. We do not want to saddle the private sector with onerous and counterproductive regulations, nor do we want to force companies to hand over their data to the federal government. We are not the Chinese Communist Party, and indeed our best path to beating our adversaries is to stay free and innovative. But we need C-suite executives to take cyber seriously since they are on the front lines. With support from the federal government, private-sector entities must be able to act with speed and agility to stop cyberattackers from breaking out in their networks and the larger array of networks on which the nation relies.
• Fifth, election security must become a priority. The American people still do not have the assurance that our election systems are secure from foreign manipulation. If we don’t get election security right, deterrence will fail and future generations will look back with longing and regret on the once powerful American Republic and wonder how we screwed the whole thing up. We believe we need to continue appropriations to fund election infrastructure modernization at the state and local levels. At the same time, states and localities need to pay their fair share to secure elections, and they can draw on useful resources—such as nonprofits that can act with greater speed and agility across all 50 states—to secure elections from the bottom up rather than waiting for top-down direction and funding. We also need to ensure that regardless of the method of casting a vote, paper or electronic, a paper audit trail exists (and yes, we recognize the irony of a cyber commission recommending a paper trail).

The CSC stated

We didn’t solve everything in this report. We didn’t even agree on everything. There are areas, such as balancing maximum encryption versus mandatory lawful access to devices, where the best we could do was provide a common statement of principles. Yet every single Commissioner was willing to make compromises in the course of our work because we were all united by the recognition that the status quo is not getting the job done. The status quo is inviting attacks on America every second of every day. The status quo is a slow surrender of American power and responsibility. We all want that to stop. So please do us, and your fellow Americans, a favor. Read this report and then demand that your government and the private sector act with speed and agility to secure our cyber future.

The CSC stated that “[a]fter conducting an extensive study including over 300 interviews, a competitive strategy event modeled after the original Project Solarium in the Eisenhower administration, and stress tests by external red teams, the Commission advocates a new strategic approach to cybersecurity: layered cyber deterrence.” The CSC explained that “[t]he desired end state of layered cyber deterrence is a reduced probability and impact of cyberattacks of significant consequence…[and] [t]he strategy outlines three ways to achieve this end state:

1. Shape behavior. The United States must work with allies and partners to promote responsible behavior in cyberspace.

2. Deny benefits. The United States must deny benefits to adversaries who have long exploited cyberspace to their advantage, to American disadvantage, and at little cost to themselves. This new approach requires securing critical networks in collaboration with the private sector to promote national resilience and increase the security of the cyber ecosystem.

3. Impose costs. The United States must maintain the capability, capacity, and credibility needed to retaliate against actors who target America in and through cyberspace.”

The CSC made a host of recommendations generally but also linked some of the recommendations to legislative proposals drafted by CSC staff. However, these drafts have not yet been released even though the CSC claims “[l]egislative proposals are available online at www.solarium.gov. Nonetheless, the CSC made clear it does not necessarily support these proposals:

• PILLAR 1: REFORM THE U.S. GOVERNMENT’S STRUCTURE AND ORGANIZATION FOR CYBERSPACE
  • Recommendation 1.2: Create House Permanent Select and Senate Select Committees on Cybersecurity
  • Recommendation 1.3: Establish a National Cyber Director
  • Recommendation 1.4.1: Codify and Strengthen the Cyber Threat Intelligence Integration Center
  • Recommendation 1.5: Diversify and Strengthen the Federal Cyberspace Workforce
• PILLAR 2: STRENGTHEN NORMS AND NON-MILITARY INSTRUMENTS OF POWER
  • Recommendation 2.1: Create a Cyber Bureau and Assistant Secretary at the U.S. Department of State
  • Recommendation 2.1.4: Improve International Tools for Law Enforcement Activities in Cyberspace [Provide MLAT Subpoena Authority and Increase FBI Cyber ALATs]
  • Recommendation 2.1.5: Leverage Sanctions and Trade Enforcement Actions [Codify Executive Order 13848]
• PILLAR 3: PROMOTE NATIONAL RESILIENCE
  • Recommendation 3.1: Codify Sector-specific Agencies into Law as “Sector Risk Management Agencies” and Strengthen Their Ability to Manage Critical Infrastructure Risk
  • Recommendation 3.1.1: Establish a Five-Year National Risk Management Cycle Culminating in a Critical Infrastructure Resilience Strategy
  • Recommendation 3.1.2: Establish a National Cybersecurity Assistance Fund to Ensure Consistent and Timely Funding for Initiatives  at Underpin National Resilience
  • Recommendation 3.2: Develop and Maintain Continuity of the Economy Planning
  • Recommendation 3.3: Codify a “Cyber State of Distress” Tied to a “Cyber Response and Recovery Fund”
  • Recommendation 3.3.2: Clarify Liability for Federally Directed Mitigation, Response, and Recovery Efforts
  • Recommendation 3.3.5: Establish a Biennial National Cyber Tabletop Exercise
  • Recommendation 3.3.6: Clarify the Cyber Capabilities and Strengthen the Interoperability of the National Guard
  • Recommendation 3.4: Improve the Structure and Enhance Funding of the Election Assistance Commission
  • Recommendation 3.4.1: Modernize Campaign Regulations to Promote Cybersecurity
  • Recommendation 3.5: Build Societal Resilience to Cyber-Enabled Information Operations [Educational and Awareness Grant Programs]
  • Recommendation 3.5.1: Reform Online Political Advertising to Defend against Foreign Influence in Elections
• PILLAR 4: RESHAPE THE CYBER ECOSYSTEM TOWARD GREATER SECURITY
  • Recommendation 4.1: Establish and Fund a National Cybersecurity Certification and Labeling Authority
  • Recommendation 4.1.1: Create or Designate Critical Technology Security Centers
  • Recommendation 4.2: Establish Liability for Final Goods Assemblers
  • Recommendation 4.3: Establish a Bureau of Cyber Statistics
  • Recommendation 4.4: Resource a Federally Funded Research and Development Center to Develop Cybersecurity Insurance Certifications
  • Recommendation 4.4.4: Amend the Sarbanes-Oxley Act to Include Cybersecurity Reporting Requirements
  • Recommendation 4.5: Develop a Cloud Security Certification
  • Recommendation 4.5.1: Incentivize the Uptake of Secure Cloud Services for Small and Medium-Sized Businesses and State, Local, Tribal, and Territorial Governments
  • Recommendation 4.5.2: Develop a Strategy to Secure Foundational Internet Protocols and Email
  • Recommendation 4.5.3: Strengthen the U.S. Government’s Ability to Take Down Botnets
  • Recommendation 4.6: Develop and Implement an Information and Communications Technology Industrial Base Strategy
  • Recommendation 4.7: Pass a National Data Security and Privacy Protection Law
  • Recommendation 4.7.1: Pass a National Breach Notification Law
• PILLAR 5: OPERATIONALIZE CYBERSECURITY COLLABORATION WITH THE PRIVATE SECTOR
  • Recommendation 5.1: Codify the Concept of “Systemically Important Critical Infrastructure”
  • Recommendation 5.1.1: Review and Update Intelligence Authorities to Increase Intelligence Support to the Broader Private Sector
  • Recommendation 5.1.2: Strengthen and Codify Processes for Identifying Broader Private-Sector Cybersecurity Intelligence Needs and Priorities
  • Recommendation 5.1.3: Empower Departments and Agencies to Serve Administrative Subpoenas in Support of Threat and Asset Response Activities
  • Recommendation 5.2: Establish and Fund a Joint Collaborative Environment for Sharing and Fusing Threat Information
  • Recommendation 5.2.2: Pass a National Cyber Incident Reporting Law
  • Recommendation 5.2.3: Amend the Pen Register Trap and Trace Statute to Enable Better Identification of Malicious Actors
  • Recommendation 5.3: Strengthen an Integrated Cyber Center within CISA and Promote the Integration of Federal Cyber Centers
  • Recommendation 5.4.1: Institutionalize Department of Defense Participation in Public-Private Cybersecurity Initiatives
• PILLAR 6: PRESERVE AND EMPLOY THE MILITARY INSTRUMENTS OF POWER
  • Recommendations 6.1 & 6.1.3: Direct the Department of Defense to Conduct a Force Structure Assessment of the Cyber Mission Force / Review the Delegation of Authorities for Cyber Operations
  • Recommendation 6.1.1: Direct the Department of Defense to Create a Major Force Program Funding Category for U.S. Cyber Command
  • Recommendation 6.1.7: Assess the Establishment of a Military Cyber Reserve
  • Recommendation 6.2: Conduct a Cybersecurity Vulnerability Assessment of All Segments of the NC3 and NLCC Systems and Continually Assess Weapon Systems Cyber Vulnerabilities
  • Recommendation 6.2.1: Require Defense Industrial Base Participation in a Threat Intelligence Sharing Program
  • Recommendation 6.2.2: Require  Threat Hunting on Defense Industrial Base Networks
  • Recommendation 6.2.4: Assess and Address the Risk to National Security Systems Posed by Quantum Computing

It is unlikely that Congress will adopt most of these recommendations by turning them into statute, but the Administration will likely pick and choose those it will implement without obtaining new or further authority. However, these recommendations will serve to inform the debate on cyber-related issues going forward.