United States: White House Takes Action On Data Breach, Cybersecurity And Privacy; Calls On Congress To Follow Its Lead

Christopher DeLacy is a Partner and Joel Roberson is an Associate in our Washington D.C. office

2014 has been described as the "Year of the Data Breach." With data breaches, cyber attacks and privacy issues regularly in the news, the White House orchestrated a series of events this week to highlight administration policy proposals in these areas in advance of the President's State of the Union address on January 20, 2015. This week President Obama and Vice President Biden will spend four days focused on cybersecurity and information sharing privacy in four different campaign-style events raising the awareness to cyber threats. In connection with these events, the President will take executive actions that do not require Congressional approval and will also call on Congress to enact companion legislation. 

On Monday, the President spoke at the Federal Trade Commission (FTC) and focused on data breach notification, identity theft prevention, student privacy and consumer privacy. On Tuesday, the President spoke at the Department of Homeland Security (DHS) from the National Cybersecurity and Communications Integration Center (NCCIC) and highlighted information sharing. On Wednesday, the President will travel to Iowa to discuss broadband access and the importance of data protection. On Thursday, Vice President Biden will travel to Norfolk, Va. to discuss cybersecurity job training and funding announcement. 

New Executive Action on Information Sharing

This new executive action builds upon Executive Order 13636, Improving Critical Infrastructure Cybersecurity, by expanding beyond critical infrastructure. The new executive action will focus on cybersecurity information sharing between the private sector and federal government.

  1. Private Sector Call to Action: The executive action encourages the private sector to form Information Sharing and Analysis Organizations (ISAOs). ISAOs would be focused on domestic cybersecurity information sharing. ISAOs will be similar to Information Sharing and Analysis Centers (ISACs), but will not necessarily be industry specific and instead could be regional or threat specific.
  2. ISAO Standard Development: The executive action will direct DHS to issue an RFP for an organization to develop baseline standards for ISAOs.
  3. DHS Authority to Work with ISAOs: The executive action will provide the NCCIC authority to enter into agreements ISAOs so long as they meet certain security requirements. There will not be a federal certification requirement for ISAOs to work with DHS.
  4. Security Clearance Reforms: The executive action will give DHS the authority to provide clearances to individuals working with ISAOs.  

Previous Executive Action on Cybersecurity Standards

In connection with his 2013 State of the Union address, President Obama, citing a lack of Congressional action on cybersecurity, signed EO 13636, which tasked the National Institute of Standards and Technology (NIST) with developing a cybersecurity framework in collaboration with industry. The EO assigned implementation of the cybersecurity framework with the DHS, which is currently working to ensure adoption of the framework within the federal government and throughout the industry

Call for Legislation

The White House previously called on Congress to enact legislation on cybersecurity in May of 2011. This week, the President is sending Congress a series of legislative proposals to address information sharing, data breach notification, privacy and cyber crime. The information sharing proposal will include liability protections for companies that share information with the government. Congress has considered several information sharing bills over the last few years, such as the House Cyber Intelligence Sharing and Protection Act (CISPA) and the Senate Cybersecurity Information Sharing Act (CISA), but has not been able to enact a bill into law. The data breach proposal - being called the Personal Data Notification & Protection Act - would create a federal data breach standard, pre-empt the forty-nine existing state and territorial laws in this area, and generally require notification within 30 days of a breach. The privacy proposals limit the use of personal educational data and would codify an updated version of the Consumer Privacy Bill of Rights first proposed by the President in 2012. The cyber crime proposal would update the Racketeering Influenced and Corrupt Organizations Act (RICO) and Computer Fraud and Abuse Act (CFAA), criminalize illicit overseas trade in bank account and credit card information, and provide federal prosecutors with new tools to combat the use of botnets and spyware used for criminal activity. 

Prospects for Congressional Action

The President's executive action and series of legislative proposals will generate a significant amount of activity on Capitol Hill. A number of Members of Congress have already announced they plan to introduce legislation on the topics covered by President Obama, including Senator Bill Nelson (D-FL) and Representative Marsha Blackburn (R-TN). Over the past five years, Congress has considered multiple data, cyber and privacy bills. None have been enacted into law, despite numerous hearings, countless news stories about cyber intrusions and data breaches, and support from the President and some Members on both sides of the aisle. It is unclear whether the Republican-controlled Congress will enact legislation during this Congress - either in response to the President's new proposals or because of pressure from constituents and the press. 

White House Summit on Cybersecurity and Consumer Protection

The White House will host a Summit on Cybersecurity and Consumer Protection at Stanford University on February 13, 2015 that will include stakeholders involved with cybersecurity and consumer financial protection. The agenda will include public-private partnerships, cybersecurity information sharing, and the adoption and use of effective cybersecurity and payment technologies. This Summit follows a White House consumer financial protection event held at the Consumer Financial Protection Bureau (CFPB) in Washington, D.C. on October 17, 2014 where President Obama signed an EO entitled Improving the Security of Consumer Financial Transactions. In connection with the event, the White House also released this fact sheet.

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.

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