United States: Cyber Update: What Businesses Must Know About The New Presidential Policy Directive

Last Updated: September 1 2016
Article by John E. Clabby

Last month the White House disclosed how the federal government will coordinate incident response activities in the event of a large-scale cyber incident. While the policy directive is worth reading in its entirety, this update will focus on the most important policies for private companies that face significant cyber risks.

The Presidential Policy Directive on United States Cyber Incident Coordination (the "Directive") was rolled out with four documents:

  1. The Directive itself;
  2. A Fact Sheet, which is only slightly shorter than the Directive, that summarizes the Directive and places it in context;
  3. A single-page Cyber Incident Severity Schema, to establish a common framework with the government to assess the severity of a cyber incident (which uses color codes similar to those of the now-abandoned terrorism alert system); and
  4. An Annex, which provides detailed architecture for federal government coordination for significant cyber incidents, including identifying which agencies have responsibility for which "critical infrastructure sectors," or, industries.

The Administration uses such "Presidential Policy Directives" to promulgate Presidential decisions on national security matters. This Directive, number 41, is therefore intended to help identity and coordinate the response to cyber incidents with a national scope.

The Directive outlines certain principles to this end, and two of them offer important clarifications to companies facing significant cyber risk.

The first, "Respecting Affected Entities" states that the federal government responders to a private sector breach will "safeguard details of the incident, as well as . . . sensitive private sector information." This continues at least the Justice Department's policy, as stated over the past two years or so, that companies that are the victims of hacks will be seen as just that – victims first. Citation to this policy at the outset of a government investigation of a private sector hack could help encourage the appropriate understanding on the access and use of proprietary data and, if litigation ensures, maximize the chances of a protective order being entered.

The second, "Enabling Restoration and Recovery," states that response activities will be conducted in such a way as to help the entity recover, balancing the investigation and national security interests against "the need to return to normal operations as quickly as possible." Again, while this has been part of the general practice of federal law enforcement, this Directive gives concrete, written assurance that investigation priorities will not override the affected business's need to remain operational. One instance in which this principle could prove useful to a business might be when law enforcement has asked to image an entire customer-facing server.

In this vein, as explained in the Fact Sheet, the government also recognizes the importance to a private sector entity of maintaining "business or operational continuity in the event of a cyber incident" and the various response activities that a company must undertake to that end, including "communications with customers and the workforce" and "engagement with stakeholders, regulators, and oversight bodies." Under the policy, "the Federal government typically will not play a role in this line of effort, but will remain cognizant of the victim's response activities consistent with these principles and coordinate with the victim."

For large cyber incidents, the Directive carves up "threat response" and "asset response" activities. "Threat response" is the law enforcement investigation, including the collection of evidence, and the FBI has been given lead responsibility in that area. The Department of Homeland Security (DHS), on the other hand, will lead "asset response," which includes, critically for a private-sector victim, "furnishing technical assistance to affected entities to protect their assets, mitigate vulnerabilities, and reduce impacts of cyber incidents." DHS will operate in this role through the National Cybersecurity and Communications Integration Center (NCCIC), which is an entity familiar to many private sector cybersecurity specialists as a source of many valuable, free resources, including those of US-CERT.

The Annex, for its part, also incorporates some private-sector best practices. It requires federal agencies to conduct "cyber incident response exercises" within 180 days of the Directive, and then to conduct them "at a frequency necessary to ensure Federal agencies are prepared." It also requires that inter-agency working groups that have formed in response to an incident to afterward review the response and prepare "a report based on that review" for a presidential committee. If a private-sector organization is not conducting such "exercises" and is not preparing post-incident reports for its leadership, it would do well to borrow from these suggestions.

Read as a whole, the Directive provides important assurances for companies that have a national and international footprint and comprises an important "rules of the road" for public-private cooperation during a breach. Companies should review their data breach response plans in light of the Directive.

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.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.