Worldwide: Is The Government Protecting Your Private Information?

We were not affected by the recent ransomware attack that disabled computers worldwide, including in multiple public hospitals in the UK. At least not yet. For those who have never had the pleasure or who otherwise do not follow cybersecurity news closely, "ransomware" refers to an attack on a computer system that encrypts the user's data—making it unavailable—and then informing the user where it can send payment in exchange for the encryption key. It's diabolical, and it preys upon users who have an immediate and urgent need for their data—such as healthcare providers in the process of providing life-saving and life-improving care. The topic is of particular interest to us because healthcare data presents the classic data security conundrum: Access to healthcare information improves patient care, yet the private nature of health information mandates tight control to prevent unauthorized access.

So it got us to thinking, what about the government? What are federal agencies doing to protect the enormous volumes of private information that they hold? Regulators such as FDA, the FTC, and the Department of Homeland Security have stridently and justifiably insisted that our clients have policies in place regarding the protection of private information. We would expect no less. But is what's good for the goose also good for the gander?

It just so happens that President Trump signed an executive order last week calling for federal agencies to get their cybersecurity houses in order. In its Presidential Executive Order on Strengthening the Cybersecurity of Federal Networks and Critical Infrastructure, the administration set forth three cybersecurity priorities: (1) Cybersecurity of Federal Networks, (2) Cybersecurity of Critical Infrastructure, and (3) "Cybersecurity for the Nation." We put the last one in quotes because it is so broad that it could mean anything. You can link to the executive order here. You can also take a look at what our colleagues at Reed Smith's Technology Law Dispatch have to say about the executive order here.

The executive order directs federal agencies to take stock of their systems and prepare reports to be submitted ultimately to the Assistant to the President for Homeland Security and Counterterrorism, a position that has existed in some form since about a month after the attacks of September 11, 2001. Lots of reports. By our count, the executive order calls for more a dozen categories of reports prepared by federal agencies on such topics as risk mitigation, budget concerns, the transition of computer systems, and authorities and capabilities that can be deployed against cyberattack. It's a lot, and on an extremely aggressive time schedule—the first of the reports are due in less than 60 days.

The section on Cybersecurity of Federal Networks starts with certain findings, including this one: "The executive branch has for too long accepted antiquated and difficult-to-defend IT." We know from the Jason Bourne movies and any number of television shows about super-secret government agencies that the federal government has multiple windowless rooms filled with slick computer systems that know all and can do all, and look really cool in the process. We also know from our very brief sojourns into government service that reality does not match the movies. Technology is certainly better now than it was when we last plied government halls, but we would describe the available technology then as piecemeal, even haphazard. It's like when the government renovated the Pentagon years ago and found multiple antennas on the roof that no one what they did or to whom they transmitted. The technology had outlived the people who implemented it.

The Trump administration wants to fix that. The first and maybe the most important provision is that, effectively immediately, all government agencies will use the Framework for Improving Critical Infrastructure Cybersecurity developed by the National Institute of Standards and Technology. The NIST Framework is a published framework for computer security that is highly regarded and widely referenced in private industry. It dates back to 2014, and its hallmark is proactive risk management. As we reported here, the FDA has recommended that medical device manufacturers adopt parts of the Framework in designing their own cybersecurity programs.

It therefore came as a surprise that the government has not already itself widely adopted the NIST Framework. Nor will all federal agencies be able to do so "immediately." The NIST published its draft Implementation Guidance for Federal Agencies just the other day, and the comment period remains open through June 30, 2017.

Timing aside, adoption of the NIST Framework is a welcome development. It addition, each agency head (including presumably the FDA head) has to prepare a risk management report within 90 days that sets forth the agency's direction and its plan to implement the Framework. Then within another 60 days, the President wants an overall plan. Again, these are very aggressive time frames, and we will see if they permit any real analysis or viable plans of action.

The executive order also makes it's the policy of the executive branch to build and maintain a "modern, secure, and more resilient executive branch IT structure." Agency heads "shall show preference" to shared IT services, and a committee of officials will prepare a report, again within 90 days, on transitioning federal agencies to shared IT services. This provision seeks to make the government technology bureaucracy reasoned and consistent. Reality may get in the way. We are not sure that every agency head will even be capable of surveying and describing his or her agency's systems within 90 days, but it is nice that they now have to try.

The section on Cybersecurity of Critical Infrastructure pledges the government's support for the cybersecurity risk management of the owners and operators of the nation's critical infrastructure, and it calls for additional assessment, reporting, and plans. The deadlines given for these efforts are characteristically short—ranging from 90 to 240 days. The seemingly all-encompassing section on "Cybersecurity for the Nation" is really about one thing: Promoting an open, interoperable, reliable, and secure Internet for all. The Internet is at the center of everyday business and living, and it will only get more pervasive. We heard on this morning's news that Google is developing "ambient" networking technology, under which the Internet will be all around us. A device in your home will, for example, monitor your schedule and tell you when you take your meds, whether your flight is delayed, or whether you need to leave extra time to pick up your spouse at the train station. The potential for inconvenient attacks, or worse, clearly exists.

The executive branch aims to secure the Internet from cyber threats through protection against adversaries, cooperation with international allies and other partners, and development of a domestic workforce trained and equipped to promote these ends. Of course, there will be more reports, and we will be interested to see what the various agency heads will have to say.

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

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