United States: Improving Critical Infrastructure Cybersecurity

Last Updated: April 9 2014
Article by Ross A. Buntrock

On February 26, 2014, the United States Department of Justice (DOJ) petitioned the Foreign Intelligence Surveillance Court to allow the National Security Agency (NSA) to maintain its database of telephone records that would otherwise need to be purged pursuant to its existing data-collection authority authorized by the court. DOJ requested this additional authority ostensibly to ensure that the DOJ has access to records that may be relevant to lawsuits targeting the NSA's sweeping collection of telephone metadata of both Americans and other countries' citizens alike. One plaintiff challenging the NSA's collection of telephone metadata, the American Civil Liberties Union (ACLU), stated that the DOJ's request "is just a distraction. We don't have any objection to the government deleting these records. While they're at it, they should delete the whole database."

These revelations and others by former NSA contractor Edward Snowden will likely add more fuel to fire for foreign governments to protect their citizens' data from US government eavesdropping. Most commentators agree that these revelations have spurred Brazilian President Dilma Rousseff to press the European Union to accelerate the pace of the deployment of the planned $185 million undersea fiber optic telecommunications link that will be laid directly from the northeast of Brazil to Fortaleza, Portugal. It remains to be seen, however, whether the four anticipated submarine cable systems that were planned to be added between the United States and Brazil in the coming years will be put on hold until there is a thaw between the countries' leadership.

Similarly, German Chancellor Angela Merkel and French President François Hollande have been engaged in discussion recently to explore methods to protect EU citizens' data and keep email traffic away from US servers. Chancellor Merkel stated she "will talk with France about how we can maintain a high level of data protection. Above all, we will discuss which European providers we have who offer security to citizens so that you don't have to cross the Atlantic with emails and other things, but also can build up communication networks within Europe."

Some cybersecurity experts, however, question how secure foreign citizens' data can be even if it is not processed through US based servers, given the disclosure last year that the NSA was tapping into Pacnet's submarine cables located across the Asia-Pacific region. Tapping submarine cables, however, is certainly not a recent phenomenon. Beginning in the early 1970s, the US government began tapping Soviet naval undersea communications links deployed between Soviet naval bases. This project lasted until 1981 when NSA employee Ronald Pelton, now serving a life sentence, disclosed the existence of this eavesdropping operation to the Soviets for the sum of $35,000.

More recently, the Associated Press reported in 2005 that the USS Jimmy Carter, a Seawolf-class attack submarine, was repurposed for highly-classified missions, including the ability to carry crews of technicians to the bottom of the sea so that they could tap into undersea fiber optic lines. Additionally, the NSA paid its British equivalent, the Government Communications Head Quarters (GCHQ), $25 million to radically upgrade its listening station operated at Bude in the north of Cornwall, where many undersea cables surface out of the Atlantic.

Perhaps to quell some of the ongoing furor surrounding US surveillance, the Obama Administration announced in mid-February the launch of its voluntary Cybersecurity Framework, which is the result of a year-long effort led by the National Institute of Standards and Technology (NIST) and key industry participants to develop a voluntary how-to guide for organizations in the critical infrastructure community to enhance their cybersecurity. In a potential nod to the controversy surrounding the NSA data-collection controversy, the Cybersecurity Framework also offers guidance regarding privacy and civil liberties considerations that may result from cybersecurity activities. Although many organizations already have processes for addressing privacy concerns, the Cybersecurity Framework methodology is designed to complement such processes and provide guidance to facilitate privacy risk management consistent with an organization's approach to cybersecurity risk management.

The Cybersecurity Framework is a key deliverable from President Obama's Executive Order 13636, entitled "Improving Critical Infrastructure Cybersecurity" and which President Obama announced in his 2013 State of the Union speech and released on February 12, 2013. The Cybersecurity Framework is intended to steer companies toward best practices that deter hackers and other cyber spies from interfering with critical infrastructure, including global digital infrastructure, such as undersea communications cables that surface on US shores.

The goal of the Cybersecurity Framework is for industry and government to strengthen the security and resiliency of critical infrastructure based on public-private cooperation. Yet given that the United States Senate has twice failed to advance White House-backed legislation to give government more explicit authority to mandate certain minimum standards for cybersecurity of private sector critical infrastructure, the Cybersecurity Framework remains entirely voluntarily and lacks many key incentives sought by industry stakeholders. Many businesses have argued that perks — such as giving participating companies immunity from lawsuits in the event of a hacking incident, tax breaks, special technical assistance, or other incentives — are necessary to offset the costs of investing in new security technologies and procedures.

Further, despite being applicable to only US-based companies and government agencies that provide critical infrastructure, the Cybersecurity Framework references globally accepted standards, guidelines and practices, so that organizations domiciled inside and outside of the United States can use Cybersecurity Framework to efficiently operate globally and manage new and evolving risks. In refusing to develop US-centric standards, NIST stated that diverse or "specialized requirements can impede interoperability, result in duplication, harm cybersecurity, and hinder innovation." For organizations with more advanced cybersecurity, the Cybersecurity Framework also offers a way to better communicate with their CEOs and with suppliers about management of cyber risks.

Each of the Cybersecurity Framework components is intended to reinforce the connection between business drivers and cybersecurity activities. The Cybersecurity Framework is divided into the following parts:

  • The Cybersecurity Framework Core is a set of cybersecurity activities, outcomes and informative references that are common across critical infrastructure sectors, providing detailed guidance for a company to develop its cybersecurity risk profile. The cybersecurity activities are grouped by five functions — Identify, Protect, Detect, Respond, Recover — that provide a high-level view of an organization's management of cyber risks.
  • The Cybersecurity Framework Profiles are intended to help organizations align their cybersecurity activities with business requirements, risk tolerances, and resources. Companies can use the Profiles to understand their current cybersecurity state, support prioritization, and to measure progress towards a target state.
  • The Cybersecurity Framework Tiers provide a mechanism for organizations to view their approach and processes for managing cyber risk. The Tiers range from Partial (Tier 1) to Adaptive (Tier 4) and describe an increasing degree of rigor in risk management practices, the extent to which cybersecurity risk management is informed by business needs, and its integration into an organization's overall risk management practices.

NIST, however, is quick to acknowledge that the Cybersecurity Framework is not a one-size-fits-all approach to managing cybersecurity risk for critical infrastructure. As NIST stated, "organizations will continue to have unique risks — different threats, different vulnerabilities, different risk tolerances — and how they implement the practices in the Framework will vary." Organizations are thus encouraged to determine their specific activities that are important to critical infrastructure delivery and to prioritize investments to maximize the impact of their continuing cybersecurity efforts.

Although the adoption of the Cybersecurity Framework is entirely voluntary, the Department of Homeland Security (DHS) has established the Critical Infrastructure Cyber Community (C3) Voluntary Program as a public-private partnership to increase awareness and use of the Cybersecurity Framework. The C3 Program is intended to connect companies, as well as federal, state, local, tribal, and territorial partners, to DHS and other federal government programs and resources that will assist their efforts in managing their cybersecurity risks. The goal of C3 is to provide a forum for participants to share lessons learned, get assistance, and learn about free tools and resources that can help them.

* The following article was originally published in Submarine Telecoms Forum (pg. 19–23).

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.

Similar Articles
Relevancy Powered by MondaqAI
Shearman & Sterling LLP
Sheppard Mullin Richter & Hampton
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Shearman & Sterling LLP
Sheppard Mullin Richter & Hampton
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