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The Brussels Connection to Capitol Hill

CapitolWire

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JULY

20

11

Following similar strategic moves

undertaken since last year in Germany

and the United Kingdom, the Obama

administration announced in May that it

would begin pursuing a fundamentally

overhauled cyber security initiative. This

step promises to foster a more robust US

cyber infrastructure, to strengthen US

defenses against cyber attacks, to provide

greater protection for consumers, and to

expand international cooperation and

enhance public-private partnership through

streamlined communication channels and

platforms. In terms of national security,

the Pentagon followed the administration’s

release by announcing that it now classifies

cyber attacks as equivalent to conventional

armed attacks. The Defense Department

warned that the US would not hesitate to

use force in response to foreign attacks

on US cyber and critical infrastructure,

deeming them acts of war.

KEY POINTS

• TheWhiteHousehasunveileditscybersecuritylegislative proposalsanditsnew“International Strategy for Cyberspace”.Bothlaythefoundationforthe administration’seffortstosecurecriticalinfrastructure,protecttheUSfromcyberattacks,andincreasecooperationwiththeprivatesector.However,notallin Congressagreewiththespecificsoftheproposals.

• Whilemore than 55 piecesoflegislationdealingwithcybersecuritywereintroducedduringthe111thCongress,theonlymajoritemunderseriousconsiderationin the112thCongressisaSenatebillintroducedandsponsoredbySenatorsJoeLieberman,SusanCollinsandTomCarper,allofwhomaremembersoftheSenate CommitteeonHomelandSecurityandGovernmentAffairs.

• TheLieberman billwilllikelyhavetobereconciledwiththeWhiteHouseproposals,withwhichitcompetes.Reconciliationmaybedifficultgiventheabsenceofanagreement ontheemergencypowerstobegrantedtothepresidentintheeventofamajorcyberattackorontheneedforacentralWhiteHouseOfficeofCyberspacePolicy.

pPresidentObamawithWhiteHouseCybersecurityCoordinator HowardSchmidt

Developments in Digital Security: The US Unveils New Cyber Strategy

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BRUSSELSRésidence PalaceRue de la Loi 1551040 Brussels, BelgiumContact: Thomas FischerE-mail: thomas.fischer@bertelsmann-

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The Brussels Connection to Capitol Hill

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The announcement of fundamentally revamped cyber security legislative proposals comes

after nearly two years of hearings and congressional briefings. The proposals reflect the

Obama administration’s broader cyber security ambitions, which began to take shape when

the president first ordered a cyber security policy review shortly after taking office in 2009.

Not everyone is cheering the moves. Congressmen Melvin Watt (D-NC) and Darrell Issa

(R-CA) charged that the plans offer less protection for consumer privacy and data security

while providing loopholes for telecom companies to access citizens’ private information.

Congressman Bob Goodlatte (R-VA) who has long questioned whether the government should

play such a dominant role in providing (and regulating) digital security, and whether regulatory

involvement would, in fact, hinder innovation and further harm economic growth, echoed

his colleagues’ concerns. Goodlatte is particularly uneasy about the expansion of oversight

and regulatory power vested in the Department of Homeland Security (DHS) in matters of

cyber security, especially as it relates to federal and private critical-infrastructure networks.

Others, such as Congressman Jim Langevin (D-RI, ranking member of the Subcommittee on

Emerging Threats and Capabilities in the House Armed Services Committee) faulted the

White House plan for not integrating enough elements of the legislation already proposed,

such as the inclusion of an Office of Cyberspace Policy with a Senate-approved administrator

(a criticism also long made by Congresswoman Diane Watson (D-CA)). Langevin also argued

that the plan does not go far enough in encouraging businesses to take cyber security

more seriously.

Unsurprisingly, the Senate Committee for Homeland Security and Government Affairs – three

members of which, Senators Joe Lieberman (I-CT), Susan Collins (R-ME) and Tom Carper (D-

DE), are the sponsors of a significant cyber security bill – openly embraced the White House

proposal and stated that it hopes to work further on passing legislation with many of its

elements. Others in the Senate, such as Jay Rockefeller (D-WV) and Olympia Snowe (R-ME),

who have backed similar legislation, also lauded the administration’s strategy, even if they

also expressed regret on the time it took to release it.

These developments were quickly followed by the June 24 announcement by House

Speaker John Boehner (R-OH) and Majority Leader Eric Cantor (R-VA) that a new House

Cybersecurity Task Force led by Congressman

Mac Thornberry (R-TX) had been formed.

Boehner had actually selected Thornberry

for the position before the 112th Congress

even convened. The purpose of the explicitly

partisan task force is ostensibly to provide a

Republican response to President Obama’s

legislative proposal. The results of the

Republicans’ analysis are due in October.

Legislative LandscapeThe major bill currently being reviewed and reconciled is the Lieberman/Collins/Carper

“Cybersecurity and Internet Freedom Act”, which has been revised for 2011. The previous

Congress’ attempt was the Rockefeller/Snowe “Cybersecurity Act of 2010”, which was approved

by the Senate Committee on Commerce, Science and Transportation in March 2010, but

never made it to the Senate floor for debate. That moderate success, however, came only

after significant revisions of several highly controversial elements in the original bill, including

one provision that critics argued gave the president wide-reaching emergency powers to shut

off private and public access to the Internet in the event of a critical cyber attack. This is the

so-called “kill-switch” provision. In its place, the bill made clear that the administration would

rather work collaboratively with businesses and government agencies in such an emergency.

The newest version of the bill introduced by Senators Lieberman, Collins and Carper

denounced the inclusion of such a “kill-switch” provision in any form. It seeks instead to

“establish the essential point of coordination across the executive branch”. Additionally,

the 2011 bill calls for the establishment of a central office within the executive branch to deal

exclusively with cyber attacks. This mimics the set-up in the UK but differs from the more

general coordination bodies found in Germany.

In the House of Representatives, two significant cyber security-related bills were the

“International Cybercrime Reporting and Cooperation Act”, introduced by Congresswoman

Yvette Clarke (D-NY) in 2010, and the Cybersecurity Enhancement Act of 2010, introduced by

Congressman Daniel Lipinski (D-IL). The

Clarke bill was largely designed to ensure

that the administration keeps Congress

informed in all matters pertinent to cyber

crime, infrastructure protection, and the

technological activities and capacities

of other countries (within the context of

combating international cyber crime).

The Lipinski bill was designed to advance

domestic research and development,

technical standards and more

pLegislationco-sponsorsSenatorsTomCarper,JoeLiebermanand SusanCollins

House CybersecurityTask Force

ChairMac Thornberry (R-TX)

Members

Robert Aderholt (R-AL)

Jason Chaffetz (R-UT)

Mike Coffman (R-CO)

Bob Goodlatte (R-VA)

Robert Hurt (R-VA)

Bob Latta (R-OH)

Dan Lungren (R-CA)

Mike McCaul (R-TX)

Tim Murphy (R-PA)

Steve Stivers (R-OH)

Lee Terry (R-NE)

Inspiring People. Shaping the Future.

WASHINGTON, DC1101 New York Avenue, NWSuite 901Washington, DC 20005 USAContact: Tyson BarkerE-mail: tyson.barker@bertelsmann-

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BRUSSELSRésidence PalaceRue de la Loi 1551040 Brussels, BelgiumContact: Thomas FischerE-mail: thomas.fischer@bertelsmann-

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comprehensive public education on cyber security issues. The Clarke bill never made it beyond

committee referral and as of yet has not been re-introduced into the 112th Congress. The

Lipinski bill fared better, having overwhelmingly passed the House 422-5. But it did not move

beyond referral to the Senate Committee on Commerce, Science and Transportation. However,

despite this setback (and others), the bill, now called the “Cyber Security Enhancement Act

of 2011”, has been re-introduced by Congressman Michael McCaul (R-TX), with Congressman

Issues Moving ForwardThe most controversial issue ahead is arguably the proposed White House Office of

Cyberspace Policy. It’s unclear if that will make its way into final draft legislation. While

Senator Lieberman has stated that this is a priority in his bill, the White House proposal

gives the office short shrift. Creating such an entity may be a sticking point for the Senate or

the House.

Another point of contention may come over from DHS’s role in managing cyber security.

The White House strategy formalizes DHS’s current security role, essentially updating the

Federal Information Security Management

Act of 2002. But fear that DHS could abuse

its role means that provisions in any final

legislation must be ironed out to avoid

confusion about the Department’s powers

and autonomy.

Lipinski’s co-sponsorship. Senator Robert

Menendez (D-NJ) has announced plans

to introduce later this year a Senate bill

designed to mirror the House bill.

Other significant legislation introduced in 2010 and 2011 is listed below. Sponsors are listed in parentheses.

Senate

S. 813 – Cyber Security Public Awareness Act of 2011 (Senator Sheldon Whitehouse, D-RI)

S. 372 – Cyber Security and Internet Safety Standards Act (Senator Benjamin Cardin, D-MD)

House

H.R. 1136 – Executive Cyberspace Coordination Act of 2011 (Congressman James Langevin, D-RI)

H.R. 174 – Homeland Security Cyber and Physical Infrastructure Protection Act of 2011 (Congressman Bennie Thompson, D-MS)

H.R. 5548 – Protecting Cyberspace as a National Asset Act of 2010 (Congressman Jane Harmon, D-CA)

Recent Hearings/Testimony:

• Hearing: House Committee on Oversight & Government Reform – “Cybersecurity: Assessing the Nation’s Ability to Address the Growing

Cyber Threat” (July 2011)

• Hearing: Senate Committee on the Judiciary, Subcommittee on Crime and Terrorism – “Cybersecurity: Evaluating the Administration’s Proposals”

(June 2011)

• Hearing: Senate Committee on the Judiciary, Subcommittee on Crime and Terrorism – “Cybersecurity: Responding to the Threat of Cyber

Crime and Terrorism” (April 2011)

• Hearing: House Committee on Oversight and Government Reform, Subcommittee on National Security, Homeland Defense, and Foreign

Operations – “Cybersecurity: Assessing the Immediate Threat to the United States” (May 2011)

• Hearing: House Energy and Commerce Committee, Subcommittee on Energy and Power – “Protecting the Electric Grid: H.R.____, the Grid

Reliability and Infrastructure Defense Act” (May 2011)

• Hearing: House Committee on the Judiciary – “Cybersecurity: Innovative Solutions to Challenging Problems” (May 2011)

• Hearing: House Committee on Homeland Security, Subcommittee on Cybersecurity, Infrastructure Protection and Security Technologies –

“The DHS Cybersecurity Mission: Promoting Innovation and Securing Critical Infrastructure” (April 2011)

• Hearing: House Committee on Homeland Security, Subcommittee on Cybersecurity, Infrastructure Protection and Security Technologies –

“Examining the Cyber Threat to Critical Infrastructure and the American Economy” (March 2011)