Congressional Cybersecurity Commission Releases Annex To Final Report

A Congressional cyber panel is adding four recommendations to its comprehensive March report.

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On 2 June, the Cyberspace Solarium Commission (CSC) released an annex to its final report. 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.” In mid-March, the CSC released its final report and made a range of recommendations, some of which were paired with legislative language the CSC has still not yet made available. However, Members of Congress who served on the CSC are working with the Armed Services Committees to get some of this language added to the FY 2021 National Defense Authorization Act (NDAA). See this issue of the Technology Policy Update for more detail on the CSC’s final report.

Per its grant of statutory authority, the CSC is set to terminate 120 days after the release of its final report, which will be next month. Nonetheless, the CSC has been holding a series of webinars to elucidate or explain various components of the final report, and the Commission began to consider cybersecurity through the lens of the current pandemic for parallels and practical effects. Consequently, the CSC added four new recommendations and renewed its call that recommendations in its final report related to the pandemic – in the view of the Commission – receive renewed attention and ideally action by Congress and the Executive Branch.

The CSC again called for the types of resources and reforms most policymakers have either not shown an appetite for or believe are a few bridges too far. Even though the CSC stated its intention to a “9/11 Commission without the 9/11 event,” it is unlikely such sweeping policy changes will be made in the absence of a crisis or event that fundamentally changes this status quo. Nevertheless, the CSC’s new recommendations are targeted and modest, one of which call for funneling more funds through an existing grant program to bolster private sector/non-profit efforts and another for a government agency to exercise previously granted authority. What’s more, the CSC could add the new recommendations to those shared in the form of legislative language with the Armed Services Committees in the hopes they are included in this year’s NDAA. Given that CSC co-chairs Senator Angus King (I-ME) and Representative Mike Gallagher (R-WI) serve on their chambers’ Armed Services Committees as do the other two Members of Congress on the CSC, Senator Ben Sasse (R-NE) and Representative James Langevin (D-RI), the chances of some of the recommendations making it into statute are higher than they may be otherwise.

In its “White Paper #1: Cybersecurity Lessons from the Pandemic,” the CSC asserted:

The COVID-19 pandemic illustrates the challenge of ensuring resilience and continuity in a connected world. Many of the effects of this new breed of crisis can be significantly ameliorated through advance preparations that yield resilience, coherence, and focus as it spreads rapidly through the entire system, stressing everything from emergency services and supply chains to basic human needs and mental health. e pandemic produces cascading effects and high levels of uncertainty. It has undermined normal policymaking processes and, in the absence of the requisite preparedness, has forced decision makers to craft hasty and ad hoc emergency responses. Unless a new approach is devised, crises like COVID-19 will continue to challenge the modern American way of life each time they emerge. This annex collects observations from the pandemic as they relate to the security of cyberspace, in terms of both the cybersecurity challenges it creates and what it can teach the United States about how to prepare for a major cyber disruption. These insights and the accompanying recommendations, some of which are new and some of which appear in the original March 2020 report, are now more urgent than ever.

The CSC conceded that “[t]he lessons the country is learning from the ongoing pandemic are not perfectly analogous to a significant cyberattack, but they offer many illuminating parallels.

• First, both the pandemic and a significant cyberattack can be global in nature, requiring that nations simultaneously look inward to manage a crisis and work across borders to contain its spread.
• Second, both the COVID-19 pandemic and a significant cyberattack require a whole-of-nation response effort and are likely to challenge existing incident management doctrine and coordination mechanisms.
• Third, when no immediate therapies or vaccines are available, testing and treatments emerge slowly; such circumstances place a premium on building systems that are agile, are resilient, and enable coordination across the government and private sector, much as is necessary in the cyber realm.
• Finally, and perhaps most importantly, prevention is far cheaper and preestablished relationships far more effective than a strategy based solely on detection and response.

The CSC continued:

The COVID-19 pandemic is a call to action to ensure that the United States is better prepared to withstand shocks and crises of all varieties, especially those like cyber events that we can reasonably predict will occur, even if we do not know when. We, as a nation, must internalize the lessons learned from this emergency and move forward to strengthen U.S. national preparedness.  This means building structures in government now to ensure strategic leadership and coordination through a cyber crisis. It means driving down the vulnerability of the nation’s networks and technologies. And finally, it means investing in rigorously building greater resiliency in the government, in critical infrastructure, and in our citizenry. In the past several years, experts have sounded the alarm, ranking cyberattacks as one of the most likely causes of a crisis. As the COVID-19 crisis has unfolded, the United States has experienced a wake-up call, prompting a national conversation about disaster prevention, crisis preparedness, and incident response. While COVID-19 is the root cause of today’s crisis, a significant cyberattack could be the cause of the next. If that proves to be the case, history will surely note that the time to prepare was now.

The CSC offered these four new recommendations:

• Pass an Internet of Things Security Law: With a significant portion of the workforce working from home during the COVID-19 disruption, household internet of things (IoT) devices, particularly household routers, have become vulnerable but important pieces of our national cyber ecosystem and our adversary’s attack surface. To ensure that the manufacturers of IoT devices build basic security measures into the products they sell, Congress should pass an IoT security law. The law should focus on known challenges, like insecurity in Wi-Fi routers, and mandate that these devices have reasonable security measures, such as those outlined under the National Institute of Standards and Technology’s “Recommendations for IoT Device Manufacturers.” But it should be only modestly prescriptive, relying more heavily on outcome-based standards, because security standards change with technology over time. Nonetheless, the law should stress enduring standards both for authentication, such as requiring unique default passwords that a user must change to their own authentication mechanism upon first use, and for patching, such as ensuring that a device is capable of receiving a remote update. Congress should consider explicitly tasking the Federal Trade Commission with enforcement of the law on the basis of existing authorities under Section 5 of the Federal Trade Commission Act.
  • In a footnote, the CSC asserted “[t]he proposed Internet of Things (IoT) Cybersecurity Improvement Act of 2019 provides a viable model for a federal law that mandates that connected devices procured by the federal government have reasonable security measures in place, but should be expanded to cover all devices sold or offered for sale in the United States.
  • The initial draft of the “Internet of Things Cybersecurity Improvement Act of 2019” (H.R. 1668/S. 734) was a revised, unified version of two similar bills from the 115th Congress of the same title: the “Internet of Things (IoT) Cybersecurity Improvement Act of 2017” (S. 1691) and the “Internet of Things (IoT) Federal Cybersecurity Improvement Act of 2018” (H.R. 7283). However, during the process of consideration in both chambers, differences emerged that as of yet have not been reconciled. However, it is possible that a final version of this bill gets folded into the FY 2021 NDAA or is passed as standalone legislation in the waning days of this Congress.
  • However, the FTC already uses its Section 5 authorities to bring actions against IoT manufacturers. For example, last month, the agency announced a settlement with Tapplock regarding “allegations that it deceived consumers by falsely claiming that its Internet-connected smart locks were designed to be “unbreakable” and that it took reasonable steps to secure the data it collected from users.”
• Support Nonprofits that Assist Law Enforcement’s Cybercrime and Victim Support Efforts: Cyber-specific nonprofit organizations regularly collaborate with law enforcement in writing cybercrime reports, carrying out enforcement operations, and providing victim support services. As the COVID-19 pandemic has proven, trusted nonprofit organizations serve as critical law enforcement partners that can quickly mobilize to help identify and dismantle major online schemes. Such nonprofits have the expertise and flexibility to help and reinforce law enforcement efforts to disrupt cybercrime and assist victims. However, they often face financial challenges. Therefore, the Commission recommends that Congress provide grants through the Department of Justice’s Office of Justice Programs to help fund these essential efforts.
  • The portion of the Department of Justice’s Office of Justice Programs that makes grants was provided $1.892 billion in FY 2020, with large chunks being earmarked for state and local law enforcement agencies like the Edward Byrne Memorial Justice Assistance Grant program. Therefore, there would likely need to be additional funding provided for this program if there will be additional eligible recipients and additional purposes.
• Establish the Social Media Data and Threat Analysis Center: Because major social media platforms are owned by private companies, developing a robust public-private partnership is essential to effectively combat disinformation. To this end, the Commission supports the provision in the FY2020 National Defense Authorization Act that authorizes the Office of the Director of National Intelligence to establish and fund a Social Media Data and Threat Analysis Center (DTAC), which would take the form of an independent, nonprofit organization intended to encourage public-private cooperation to detect and counter foreign influence operations against the United States. The center would serve as a public-private facilitator, developing information-sharing procedures and establishing—jointly with social media—the threat indicators that the center will be able to access and analyze. In addition, the DTAC would be tasked with informing the public about the criteria and standards for analyzing, investigating, and determining threats from malign influence operations. Finally, in order to strengthen a collective understanding of the threats, the center would host a searchable archive of aggregated information related to foreign influence and disinformation operations.
  • This is, obviously, not really a new recommendation, but rather a call for already granted authority to be used. The Director of National Intelligence was provided discretionary authority to establish the DTAC in P.L. 116-92 and has not chosen to do so yet. There are a number of existing entities that may qualify as the Atlantic Council’s Digital Forensics Research Lab or the Alliance for Securing Democracy. However, the issue may be resources in that the DNI was not provided any additional funding to stand up the DTAC.
• Increase Nongovernmental Capacity to Identify and Counter Foreign Disinformation and Influence Campaigns: Congress should fund the Department of Justice to provide grants, in consultation with the Department of Homeland Security and the National Science Foundation, to nonprofit centers seeking to identify, expose, and explain malign foreign influence campaigns to the American public while putting those campaigns in context to avoid amplifying them. Such malign foreign influence campaigns can include covert foreign state and non-state propaganda, disinformation, or other inauthentic activity across online platforms, social networks, or other communities. These centers should analyze and monitor foreign influence operations, identify trends, put those trends into context, and create a robust, credible source of information for the American public. To ensure success, these centers should be well-resourced and coordinated with ongoing government efforts and international partners’ efforts.
  • It is not clear whether this program would be conducted through an existing DOJ program or a new one would be created. As with the DOJ’s Office of Justice Programs, funding may be an issue, and while the Armed Services Committees may be able to fold this into the FY 2021 (notwithstanding jurisdictional issues considering the DOJ is part of the Judiciary Committees’ purviews), but the Appropriations Committees would ultimately decide whether this would be funded.

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