Is cybersecurity legislation still alive?

As the likelihood of a cybersecurity executive order increases, voices both favoring and opposing the measure are growing louder, and at least one member of Congress insists legislation – which failed in the Senate, triggering the EO – isn’t completely dead.

Following weeks of speculation and leaked drafts, Homeland Security Secretary Janet Napolitano on Sept. 19 told Congress that the White House’s executive order is “close to completion.” There hasn’t been official word from any federal agency or office, but it’s expected the executive order will contain at least some elements of earlier legislation.

Supporters of the White House measure, such as Sen. Jay Rockefeller (D- W. Va.) and Sen. Joe Lieberman (I-Conn.), are pushing for executive action in wake of the bipartisan Cybersecurity Act of 2012’s failure in the Senate. Opponents of the measure, including Rep. Kay Bailey Hutchison (R-Texas), are criticizing the administration for “overriding Congress.”

According to one congressman, hope is still alive that Congress will be able to pass a cybersecurity law – and that it would be more effective than a White House order.

“It may be coughing, it may be sputtering, but it’s not dead,” said Rep. Mike Rogers (R-Mich.), chairman of the House intelligence committee. “After the election we’re going to have a prime opportunity to come back and…take care of the things that are difficult to get done legislatively. We’re not giving up. I think there’s a good chance that we’re going to turn this around.”

Rogers, speaking Sept. 26 at the INSA Cyber Innovation Symposium in Washington, said he was concerned about the prospects of new regulation he thinks may come in the executive order, but also noted that he doesn’t know what specifically the order may entail.

“What we’re hearing is there’s no carrots and no sticks in the executive order. I don’t know what that gets you…but if there’s no carrots and no sticks, I’m not sure what changes from today,” he told reporters at the symposium. “What I’m concerned about is the new uncertainty of what is likely to be some form of regulation. Does that mean as a private sector IT shop I don’t invest in my system, I have to wait to determine if it’s compatible with what the government may or may not do? That uncertainty is dangerous when we’re under attack today.”

Rogers highlighted the serious cybersecurity concerns both industry and the government face today – economic espionage that costs the U.S. millions and the need for better information-sharing among them – but said new regulatory measures could hamper progress in keeping up with fast-moving cyber threats.