Pending Legislation In U.S. Congress, Part V

Congress may well pass IoT legislation this year, and the two bills under consideration take different approaches.

Continuing our look at bills Congress may pass this year leads us to an issue area that has received attention but no legislative action; the Internet of Things (IoT). Many Members are aware and concerned about the lax or nonexistent security standards for many such devices, which leaves them open to attack or being used as part of a larger bot network to attack other internet connected devices. There are two bills with significant odds of being enacted, one better than the other, for it is a more modest bill and it is attached to the Senate’s FY 2021 National Defense Authorization Act. However, the other bill is finally coming to the House floor today, which may shake loose its companion bill in the Senate.

As the United States (U.S.) Departments of Commerce and Homeland Security explained in “A Report to the President on Enhancing the Resilience of the Internet and Communications Ecosystem Against Botnets and Other Automated, Distributed Threats, insecure IoT poses huge threats to the rest of the connected world:

The Distributed Denial of Service (DDoS) attacks launched from the Mirai botnet in the fall of 2016, for example, reached a level of sustained traffic that overwhelmed many common DDoS mitigation tools and services, and even disrupted a Domain Name System (DNS) service that was a commonly used component in many DDoS mitigation strategies. This attack also highlighted the growing insecurities in—and threats from—consumer-grade IoT devices. As a new technology, IoT devices are often built and deployed without important security features and practices in place. While the original Mirai variant was relatively simple, exploiting weak device passwords, more sophisticated botnets have followed; for example, the Reaper botnet uses known code vulnerabilities to exploit a long list of devices, and one of the largest DDoS attacks seen to date recently exploited a newly discovered vulnerability in the relatively obscure MemCacheD software.

Later in the report, as part of one of the proposed goals, the departments asserted:

When market incentives encourage manufacturers to feature security innovations as a balanced complement to functionality and performance, it increases adoption of tools and processes that result in more secure products. As these security features become more popular, increased demand will drive further research.

However, I would argue there are no such market incentives at this point, for most people looking to buy and use IoT are not even thinking about security except in the most superficial ways. Moreover, manufacturers and developers of IoT have not experienced the sort of financial liability or regulatory action that might change the incentive structure. In May, the Federal Trade Commission (FTC) reached “a settlement with a Canadian company related to allegations it falsely claimed 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.”

As mentioned, one of the two major IoT bills stands a better chance of enactment. The “Developing Innovation and Growing the Internet of Things Act” (DIGIT Act) (S. 1611) would establish the beginnings of a statutory regime for the regulation of IoT at the federal level. The bill is sponsored by Senators Deb Fischer (R-NE), Cory Gardner (R-CO), Brian Schatz (D-HI), and Cory Booker (D-NJ) and is substantially similar to legislation (S. 88) the Senate passed unanimously in the last Congress the House never took up. In January, the Senate passed the bill by unanimous consent but the House has yet to take up the bill. S.1611was then added as an amendment to the “National Defense Authorization Act for Fiscal Year 2021“ (S.4049) in July. Its inclusion in an NDAA passed by a chamber of Congress dramatically increases the chances of enactment. However, it is possible the stakeholders in the House that have stopped this bill from advancing may yet succeed in stripping it out of a final NDAA.

Under this bill, the Secretary of Commerce must “convene a working group of Federal stakeholders for the purpose of providing recommendations and a report to Congress relating to the aspects of the Internet of Things, including”

identify any Federal regulations, statutes, grant practices, budgetary or jurisdictional challenges, and other sector-specific policies that are inhibiting, or could inhibit, the development or deployment of the Internet of Things;

• consider policies or programs that encourage and improve coordination among Federal agencies that have responsibilities that are relevant to the objectives of this Act;
• consider any findings or recommendations made by the steering committee and, where appropriate, act to implement those recommendations;
• examine—
  • how Federal agencies can benefit from utilizing the Internet of Things;
  • the use of Internet of Things technology by Federal agencies as of the date on which the working group performs the examination;
  • the preparedness and ability of Federal agencies to adopt Internet of Things technology as of the date on which the working group performs the examination and in the future; and
  • any additional security measures that Federal agencies may need to take to—
    • safely and securely use the Internet of Things, including measures that ensure the security of critical infrastructure; and
    • enhance the resiliency of Federal systems against cyber threats to the Internet of Things

S.1611 requires this working group to have representatives from specified agencies such as the National Telecommunications and Information Administration, the National Institute of Standards and Technology, the Department of Homeland Security, the Office of Management and Budget, the Federal Trade Commission, and others. Nongovernmental stakeholders would also be represented on this body. Moreover, a steering committee would be established inside the Department of Commerce to advise this working group on a range of legal, policy, and technical issues. Within 18 months of enactment of S.1611, the working group would need to submit its recommendations to Congress that would then presumably inform additional legislation regulating IoT.  Finally, the Federal Communications Commission (FCC) would report to Congress on “future spectrum needs to enable better connectivity relating to the Internet of Things” after soliciting input from interested parties.

As noted, there is another IoT bill in Congress that may make it to the White House. In June 2019 the Senate and House committees of jurisdictions marked up their versions of the “Internet of Things (IoT) Cybersecurity Improvement Act of 2019” (H.R. 1668/S. 734), legislation that would tighten the federal government’s standards with respect to buying and using IoT. In what may augur enactment of this legislation, the House will take up its version today. However, new language in the amended bill coming to the floor making clear that the IoT standards for the federal government would not apply to “national security systems” (i.e. most of the Department of Defense, Intelligence Community, and other systems) suggests the roadblock that may have stalled this legislation for 15 months. It is reasonable to deduce that the aforementioned agencies made their case to the bill’s sponsors or allies in Congress that these IoT standards would somehow harm national security if made applicable to the defense IoT.

The bill text as released in March for both bills was identical signaling agreement between the two chambers’ sponsors, but the process of marking up the bills has resulted in different versions, requiring negotiation on a final bill. The House Oversight and Reform Committee marked up and reported out H.R. 1668 after adopting an amendment in the nature of a substitute that narrowed the scope of the bill and is more directive than the bill initially introduced in March. The Senate Homeland Security and Governmental Affairs Committee marked up S. 734 a week later, making their own changes from the March bill. The March version of the legislation unified 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).

Per the Committee Report for S. 734, the purpose of bill

is to proactively mitigate the risks posed by inadequately-secured IoT devices through the establishment of minimum security standards for IoT devices purchased by the Federal Government. The bill codifies the ongoing work of the National Institute of Standards and Technology (NIST) to develop standards and guidelines, including minimum-security requirements, for the use of IoT devices by Federal agencies. The bill also directs the Office of Management and Budget (OMB), in consultation with the Department of Homeland Security (DHS), to issue the necessary policies and principles to implement the NIST standards and guidelines on IoT security and management. Additionally, the bill requires NIST, in consultation with cybersecurity researchers and industry experts, to publish guidelines for the reporting, coordinating, publishing, and receiving of information about Federal agencies’ security vulnerabilities and the coordinate resolutions of the reported vulnerabilities. OMB will provide the policies and principles and DHS will develop and issue the procedures necessary to implement NIST’s guidelines on coordinated vulnerability disclosure for Federal agencies. The bill includes a provision allowing Federal agency heads to waive the IoT use and management requirements issued by OMB for national security, functionality, alternative means, or economic reasons.

In general, this bill seeks to leverage the federal government’s ability to set standards through acquisition processes to ideally drive the development of more secure IoT across the U.S. The legislation would require the National Institute of Standards and Technology (NIST), the Office of Management and Budget (OMB), and the Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) to work together to institute standards for IoT owned or controlled by most federal agencies. As mentioned, the latest version of this bill explicitly exclude “national security systems.” These standards would need to focus on secure development, identity management, patching, and configuration management and would be made part of Federal Acquisition Regulations (FAR), making them part of the federal government’s approach to buying and utilizing IoT. Thereafter, civilian federal agencies and contractors would need to use and buy IoT that meets the new security standards. Moreover, NIST would need to create and implement a process for the reporting of vulnerabilities in information systems owned or operated by agencies, including IoT naturally. However, the bill would seem to make contractors and subcontractors providing IoT responsible for sharing vulnerabilities upon discovery and then sending around fixes and patches when developed. And yet, this would seem to overlap with the recently announced Trump Administration vulnerabilities disclosure process (see here for more analysis) and language in the bill could be read as enshrining in statute the basis for the recently launched initiative even though future Administrations would have flexibility to modify or revamp as necessary.

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