Congressional Cybersecurity Commission Releases Annex To Final Report

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

First things first, if you would like to receive my Technology Policy Update, email me. You can find some of these Updates from 2019 and 2020 here.

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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Congressionally Created Panel Releases Cyberspace Recommendations and Legislative Proposals

First things first, if you would like to receive my Technology Policy Update, email me. You can find some of these Updates from 2019 here.

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 Nonetheless, the CSC made clear it does not necessarily support these proposals:

    • 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
    • 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]
    • 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
    • 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
    • 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
    • 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.