United States: NIST Cybersecurity Framework: Is It Going Off The Rails?

Last Updated: December 23 2013
Article by Timothy J. Nagle

In Executive Order 13636,  President Obama directed the Secretary of Commerce and the National Institute of Standards and Technology (NIST) "to lead the development of a framework to reduce cyber risks to critical infrastructure..." While an executive order is directed only to agencies and offices within the executive branch, the purpose of the framework is "to help owners and operators of critical infrastructure identify, assess, and manage cyber risk." These "owners and operators" are primarily private sector companies that form the critical infrastructure and provide financial, energy, telecommunications, water, public health and other services to the nation. The order was necessary because of the inability of Congress to pass legislation relating to critical infrastructure and cybersecurity. The principal areas of contention were the nature and extent of public-private information sharing, appropriate privacy protections for any information that is shared, and liability protections for those companies that share information with the government.

NIST published the "Preliminary Cybersecurity Framework" October 29 of this year after a series of conferences, workshops, meetings and general industry outreach. The Framework is comprised of a Core, a Profile, and Information Tiers. The Core contains standards and best practices that are common across all sectors and industries. The standards are divided into five functions: Identify, Protect, Detect, Respond and Recover, which are generally consistent with industry and international information security standards such as ISO 27001. The Profile section is intended to be a tool for a company to map its "Current" alignment with the standards against a "Target" profile that will address identified cybersecurity risk. The Framework provides the concept of a profile but does not specify templates for creating one. Rather, a company or sector might use the elements of the Core to construct its own Current and Target profiles. The four Implementation Tiers describe increasingly rigorous and mature states of cybersecurity, from "Partial" (ad hoc) to "Adaptive" (cybersecurity Nirvana), against which an organization can conduct a self-evaluation based on risk, resource and regulatory considerations. The Framework is a rigorous set of standards and methodologies that one would expect of NIST, given its existing expertise in the field of cybersecurity.

The comment period ran through December 13 and NIST has received significant input from many industries, sectors and organizations. While there is general industry support for the purpose, content, and collaborative development of the Framework, there is less certainty around its eventual effect and implementation. The introduction to the Framework contains the following statement: "Because each organization's risk is unique, along with its use of IT and ICS [industrial control systems], the implementation of the Framework will vary." It remains to be seen whether the Framework is truly voluntary and tailorable to the needs of a given organization.

Another area of focus for many commenters is the reference to the Fair Information Practice Principles (FIPPs) in Appendix B of the Framework and its treatment of privacy and civil liberties. A discussion draft that was circulated to industry in August did not have an explicit reference to FIPPs in Appendix B, and its inclusion in the Preliminary Framework is concerning. FIPPs was first articulated in the early 1970s and provides the conceptual basis for the Privacy Act of 1974, which guides how the government obtains, retains and uses information about citizens. It is referenced in section 5 of the Executive Order but only in the context of agency activities. While government agencies may have developed policies around FIPPs, a private entity would be less likely to have. In fact, many statutory and regulatory regimes apply directly to companies that collect, process, store and share personal information of their employees, customers and others. Financial institutions are regulated under the privacy and security provisions of the Gramm-Leach-Bliley Act, health care organizations are subject to the privacy and security rules under HIPAA, telecommunications companies know how to protect Customer Proprietary Network Information, energy companies are familiar with the treatment of Customer Energy Usage Data, and the Federal Trade Commission has been very active in protecting personal privacy online.

More importantly, the Cybersecurity Framework may be directed away from its principal function if undue emphasis is placed on rules governing the treatment of personal information, thereby frustrating its purpose. The Executive Order defines critical Infrastructure as "systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety..." In testimony before the House Permanent Select Committee on Intelligence earlier this year, witnesses emphasized that most of the information that is processed in these critical infrastructure systems contains little or no personal data. If the presence of personal information in these systems is limited, if there are existing regulatory schemes for protecting such information, and if the purpose of the Framework is to protect all data in these systems, then implementation of a consensus Framework should be attainable. We have seen how striking the balance between privacy and security continues to elude attempts at information-sharing legislation. Will that same elusiveness derail the development of a "prioritized, flexible, repeatable, performance-based, and cost-effective approach" to reducing cyber risks? Should it?

This article is presented for informational purposes only and is not intended to constitute legal advice.

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
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