United States: Hastert, Hoekstra And Finch: Watching The Backs Of Sentinels Resisting Cyberattacks

Last Updated: March 20 2013
Article by John A. Gibbons

Liability protections safeguard technology that protects the nation

Earlier this month, we celebrated the 10th anniversary of the creation of the Department of Homeland Security. It is worth reflecting on what was created 10 years ago, and the authority imparted to it. The Department of Homeland Security represented the largest reorganization of the U.S. government since the creation of the Department of Defense in the late 1940s, and we crafted the Homeland Security Act so the nation would have at its disposal a flexible, forward-leaning agency.

While the department has had its ups and downs over the past 10 years, for the most part, its employees and its leaders, all the way through to Secretary Janet A. Napolitano, have done a fine job of protecting our nation. What has pleased us most, however, is the legislation that passed has proven to be adaptable to meet any number of emerging threats. This is especially true as the current Congress and the Obama administration are working to combat the latest and perhaps most urgent threat -- cyberattacks.

The facts about cyberattacks are well-known: Tens of thousands of new pieces of malware emerge daily, with the public and private sector constantly being probed or outright attacked. It seems as though our nation can now be measured in two types of entities: those who have been hacked and those who don't realize they have been hacked. The consequences of these attacks can range from embarrassing, with the release of otherwise private or sensitive information, to economically ruinous, with the theft of intellectual property, and all the way to catastrophic, with the damage to or destruction of critical infrastructure.

It is no wonder, then, that the past two years have seen great debate in the White House and the Congress over how to better prepare ourselves to confront a cyberattack. Some have advocated increased government regulation, with various federal agencies setting a floor for minimum cybersecurity. Others have argued that while the federal government itself could be doing more, the best role it can take with the private sector would be to encourage it to responsibly share sensitive threat information with at-risk entities. Not surprisingly, the gulf between these two visions is wide. The result has been a legislative stalemate that, despite the personal appeals from Senate leaders and the president himself, is nowhere near resolution.

Without weighing in on this debate, it is vital to address one point repeatedly heard during the debate on cybersecurity legislation. Both Congress and the White House have consistently stated that there is little that can be done to promote good cybersecurity through liability protection without legislative action. Liability protection, of course, is critical because without it, companies may not be willing to offer advanced solutions or adopt them for fear of facing endless second-guessing through litigation after an attack has occurred. If you think this fear is overblown, just ask any defendant in the nearly endless post-Sept. 11 litigation, or from the 1993 World Trade Center attack, for that matter.

The comments on liability protection are both right and wrong. It is true that the creation of affirmative liability protection requires action by Congress, but people are incorrect when they assert that there is little that can be done now to offer liability protections for cybersecurity technologies and services. The fact is that when we passed the Homeland Security Act in 2002, we included just such liability protections, and they are ready for use right now.

Contained within the Homeland Security Act is a law known as the Safety Act. We included the Safety Act in the Homeland Security Act because we did not know where the next attack would come from or who would conduct it. Given that another attack of any scale could happen at any time, we decided that we needed to encourage the private sector to sell and use products and services to deter, defeat or mitigate future attacks. This is because as big as the Department of Homeland Security was going to be, it could not and should not be everywhere. The best way we could encourage the sale and use of security products and services would be to tie their use to meaningful liability protections. That is exactly what we did with the Safety Act, a law that says if you sell or use a useful and effective technology, we will guarantee you a range of liability protections that can be asserted when the inevitable post-attack litigation occurs.

In the 10 years since its passage, the Safety Act has been one of the most effective and beneficial programs administered by the Department of Homeland Security. More than 500 technologies and services have been granted these liability protections by the department, ranging from security-guard services to engineering standards. What many people don't realize, however, is that this program applies equally to cybersecurity products and services as well. Applying these safeguards to cybersecurity was a deliberate decision in 2002. Everyone knew full well that cyberattacks were a possibility, and the Safety Act was drafted specifically so that it would encompass cybersecurity technologies and so that the defenses could be asserted in court after a cyberattack. It even included the definition of an "act of terrorism" (the trigger for the liability protections) so that there was no need to identify who conducted the attack or their motivation. So long as the attack was intended to cause damage to U.S. persons, property or economic interests, the liability protections are available for use.

There is no question that the Safety Act applies in the "cyber" context. Homeland Security has already granted these protections to a few cybersecurity technologies, and the department has confirmed that such protections will apply to a cyberattack, regardless of the identity of the attacker. So what remains is for the private sector to realize that this powerful tool is at its disposal, and that companies should be taking advantage of it now. Using this program more broadly will pre-empt the need for duplicative risk-management programs, provide more stability to insurance markets and, most importantly, will encourage the greater use of effective cybersecurity technologies.

To borrow from an old saying, we are firm believers in examining the U.S. Code twice and legislating once. While more could certainly be done to enhance the Safety Act with respect to cybersecurity concerns (especially as related to providing protections when sharing cyberthreat information), with the Safety Act on the books, there is no need to race to legislate new liability protections. Instead, the country should be taking advantage of a program that already exists and -- most importantly -- is working.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions