United States: NIST Issues Preliminary Cybersecurity Framework — Cybersecurity Hardest Hit

NIST has revised the  draft cybersecurity framework that it released in August. What it published today is a " preliminary cybersecurity framework." After comments, a final framework will be released in February.

I've been very critical of the draft released in August. NIST clearly worked to address the criticisms.

The result is a mixed bag, but the document is still a net loss for security.

What's improved? First, in an effort to introduce flexibility into the document, NIST deleted all the "should" language from the privacy standards.

Second, it added a paragraph that asserts the "flexibility" that organizations have to implement the privacy provisions:

Appendix B contains a methodology to protect privacy and civil liberties for a cybersecurity program as required under the Executive Order. Organizations may already have processes for addressing privacy risks such as a process for conducting privacy impact assessments. The privacy methodology is designed to complement such processes by highlighting privacy considerations and risks that organizations should be aware of when using cybersecurity measures or controls. As organizations review and select relevant categories from the Framework Core, they should review the corresponding category section in the privacy methodology. These considerations provide organizations with flexibility in determining how to manage privacy risk.

Third, NIST responded to my concern that the "governance" section of the appendix would smuggle into the rules governing private companies all of the fair information practice principles, or FIPPs, that govern federal agencies. NIST narrowed the scope of the governance section by tying it to the actual PII being used for cybersecurity. See the bold language below.

Old version: Organizations should identify policies and procedures that address privacy or PII management practices. Organizations should assess whether or under which circumstances such policies and procedures : [followed by a list of FIPPs, many with dubious relationship to cybersecurity]
New version: Identify policies and procedures that address privacy or PII management practices for the PII identified under the Assets category. In connection with the organization's cybersecurity procedures, assess whether or under which circumstances such policies and procedures: [followed by the same list]

That's a substantial improvement.

What's wrong with the new version? Well, the first change, dropping the "should"s, is well-intended but largely cosmetic. In fact, it arguably makes the rules harsher, not more flexible. That's because, instead of telling companies what they "should" do to protect privacy, the appendix now just commands them to do those things. You can see that in the example above. Also in this one:

Old version: "When performing forensics, organizations should only retain PII that is relevant to the investigation."
New version: "When performing forensics, only retain PII or communications content that is necessary to the investigation."

(As an aside, note the other change in the new version, which is pretty clearly the result of privacy groups' comments. It tells companies to protect communications content, not just PII. But that change is only needed if the companies are sharing content that can't be traced to a person. So it seems to mean that companies who share information about spam should minimize the amount of spam they quote when trying to tell other companies which messages to block. That's dumb. More broadly, why should such a mandate be added to a standard that insists that it's about PII?)

That brings me to my biggest concern. Despite NIST's claim that it has left companies lots of flexibility, you can't really find flexibility in the language of the privacy appendix. So I continue to fear that the net result of the package will be to impose a "privacy tax" on cybersecurity, adding to the cost of security measures by tying those measures to expensive privacy obligations whose value is unproven. For example:

Old: "When voluntarily sharing information about cybersecurity incidents, organizations should ensure that only PII that is relevant to the incidents is disclosed."
New: "When voluntarily sharing information about cybersecurity incidents, limit disclosure of PII or communications content to that which is necessary to describe or mitigate the incident"

The new language is slightly less demanding, but it still calls on companies that share information about malware and intrusions to make determinations about which information is "necessary" to describe or mitigate the incident. If the company guesses wrong about a couple of bits of information, and someone later decides that those bits weren't strictly necessary to mitigate the incident, then the standard has been violated and liability is much more likely. At a minimum, lawyers have to review every category of data that is being shared and write rules for when it is necessary and when it isn't. It takes heroic ignorance to believe that a requirement like that won't reduce the sharing that's already occurring, even among private enterprises.

Finally, NIST took a further step that has heightened my concern that this appendix is going to impose the FIPPs on the entire US private sector. That's because the only "reference" standard offered by NIST to explain and implement the appendix is a document that is plainly written for government agencies trying to implement federal privacy standards. In the absence of any other reference, the pressure will be great to follow the government rules.

So, to return to the example above, suppose you're a company that wants to implement privacy-compliant information sharing. You consult the "reference" standard, and here's what you're told:


Control: The organization:
a. Identifies the minimum personally identifiable information (PII) elements that are relevant and necessary to accomplish the legally authorized purpose of collection;
b. Limits the collection and retention of PII to the minimum elements identified for the purposes described in the notice and for which the individual has provided consent; and
c. Conducts an initial evaluation of PII holdings and establishes and follows a schedule for regularly reviewing those holdings [Assignment: organization-defined frequency, at least annually] to ensure that only PII identified in the notice is collected and retained, and that the PII continues to be necessary to accomplish the legally authorized purpose.
Supplemental Guidance: Organizations take appropriate steps to ensure that the collection of PII is consistent with a purpose authorized by law or regulation. The minimum set of PII elements required to support a specific organization business process may be a subset of the PII the organization is authorized to collect. Program officials consult with the Senior Agency Official for Privacy (SAOP)/Chief Privacy Officer (CPO) and legal counsel to identify the minimum PII elements required by the information system or activity to accomplish the legally authorized purpose.
Organizations can further reduce their privacy and security risks by also reducing their inventory of PII, where appropriate. OMB Memorandum 07-16 requires organizations to conduct both an initial review and subsequent reviews of their holdings of all PII and ensure, to the maximum extent practicable, that such holdings are accurate, relevant, timely, and complete. Organizations are also directed by OMB to reduce their holdings to the minimum necessary for the proper performance of a documented organizational business purpose. OMB Memorandum 07-16 requires organizations to develop and publicize, either through a notice in the Federal Register oron their websites, a schedule for periodic reviews of their holdings to supplement the initial review. Organizations coordinate with their federal records officers to ensure that reductions in organizational holdings of PII are consistent with NARA retention schedules. By performing periodic evaluations, organizations reduce risk, ensure that they are collecting onlythe data specified in the notice, and ensure that the data collected is still relevant and necessary for the purpose(s) specified in the notice. Related controls: AP-1, AP-2, AR-4, IP-1, SE-1, SI-12, TR- 1.
Control Enhancements:
The organization, where feasible and within the limits of technology, locates and removes/redacts specified PII and/or uses anonymization and de-identification techniques to permit use of the retained information while reducing its sensitivity and reducing the risk resulting from disclosure.
Supplemental Guidance: NIST Special Publication 800-122 provides guidance on anonymization.

None of this is good for quick and easy cybersecurity information sharing. It seems to suggest that each sharing company has to evaluate its cybersecurity data and minimize, perhaps even anonymize, the data it keeps and to get rid of anything it isn't sure it needs. The data will have to be scrubbed for accuracy and completeness. To make that decision, the guidance creates a committee that includes not just the lawyers but top officials and a privacy officer, further clogging and bureaucratizing what should be an instantaneous exchange of threat data. This raises the cost of information sharing, which is what you do only if you want less of something.

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.

Michael A. Vatis
Jason M. Weinstein
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