United States: How NIST’s Cybersecurity Framework Could Reduce Cybersecurity

Last Updated: October 15 2013
Article by Stewart A. Baker

In my first post about NIST's draft cybersecurity framework I explained its basic problem as a spur to better security: It doesn't actually require companies to do much to improve their network security.

My second post argued that the framework's privacy appendix, under the guise of protecting cybersecurity, actually creates a tough new privacy requirement for industry by smuggling the Fair Information Practice Principles into the law. In doing so, it clearly goes beyond the scope of the cybersecurity executive order, which is focused on protecting critical infrastructure. When was the last time lost PII caused "catastrophic regional or national effects on public health or safety, economic security, or national security?"

Today I take my critique one step further, arguing that the framework as it stands may in fact diminish the nation's cybersecurity.

The reason is simply stated. If you want more of something, you don't raise its cost. But by grafting strong privacy mandates to its weak cybersecurity standards, the privacy appendix raises the cost of putting cybersecurity measures in place. It's like a ship design that requires the builder to pay for the installation of barnacles before launch.

That disincentive will be easy to heed. Taken as a whole, the message of the framework is, "You don't have to implement any particular cybersecurity measures, but if you do, you'd better implement a bunch of privacy measures along with them." This tempts network professionals to do less security, thus saving them as well the hassles that the framework's privacy appendix calls for.

There are a lot of examples. Let's start with network audits and monitoring. These are absolutely essential cybersecurity tools in today's environment. They give a detailed picture of everything – and everyone – operating on the network. But for that reason, the NIST privacy appendix treats them as suspect — measures to be strictly limited. They are to be used only if their effectiveness is regularly demonstrated and they are regularly scrubbed to bring their privacy impact to a minimum: "When performing monitoring that involves individuals or PII, organizations should regularly evaluate the effectiveness of their practices and tailor the scope to produce the least intrusive method of monitoring." If I'm right about the legal effect of these standards, the failure to observe this rule will lead to negligence or regulatory liability. But a lawyer asked to avoid that liability will be appalled at the requirement to produce the "least intrusive method of monitoring." Lawyers understand that, with hindsight, plaintiffs and regulators can often point to some method of monitoring that would have been less intrusive and that might have worked just as well. Avoiding liability under such a rule is more a matter of luck than planning.

Audits get the same suspect treatment under the appendix. Companies that record personal data as part of a network audit are told to consider "how such PII could be minimized while still implementing the cybersecurity activity effectively." Again, it will always be possible after the fact to discover a way to reduce a little more the personal data used in an audit." Lawyers can flyspeck the audit plan forever without eliminating the risk.

The privacy appendix also prescribes yet more privacy assessments for cybersecurity detection and filtering. Companies "should regularly review the scope of detection and filtering methods to prevent the collection or retention of PII that is not relevant to the cybersecurity event." Instead of poring over logs, looking for intruders, cybersecurity professionals are to pore over them for personal data that "is not relevant." In another liability magnet, companies are instructed to adopt policies "to ensure that any PII that is collected, used, disclosed, or retained is accurate and complete." That language will give employees who violate network rules new ways to challenge disciplinary actions.

Even in the middle of responding to a breach, the NIST appendix expects security staff to prioritize privacy: "When considering methods of incident containment, organizations should assess the impact on individuals' privacy and civil liberties," and "when PII is used for recovery, an organization may need to consider how to minimize the use of PII to protect an individual's privacy or civil liberties."

Perhaps worst of all, the privacy appendix imposes a heavy new legal and practical burden on cybersecurity information-sharing. It calls on companies to scrub any forensic data they may collect before they share it with others: "When voluntarily sharing information about cybersecurity incidents, organizations should ensure that only PII that is relevant to the incidents is disclosed"; and "When performing forensics, organizations should only retain PII that is relevant to the investigation." Today, companies quickly share information with each other about new threats, including "personal" data like the IP addresses or the email accounts that are spreading malware. They face no real risk of liability for such sharing, at least as long as they keep the government out of the sharing arrangement. Once the NIST privacy appendix takes effect, though, even such private cybersecurity sharing will slow to a crawl as lawyers try to anticipate whether every piece of data has been screened for PII and for relevance.

In short, under the NIST framework, pretty much every serious cybersecurity measure in use today will come with new limits and possibly new liability. This is especially troubling because the framework does not prescribe any particular security measures, which means that companies that want to escape the new liabilities can simply decide not to implement the security measures. Rather than deal with the barnacles, they can just scuttle the ship.

Let's hope that NIST scuttles the privacy appendix instead.

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