Can an executive order protect against a 'cyber Pearl Harbor?'

An executive order on cybersecurity appears to be close to reality, according to insiders who say draft versions have made their way through agencies for feedback. But as the nation remembers one day that will forever live in infamy, will a White House measure be enough to defend against another?

The attack on Pearl Harbor by the Japanese on Dec. 7, 1941, which took the U.S. Navy by surprise early in the Second World War, has become an often-used metaphor for a feared devastating cyber attack that could happen if America’s defenses are not in place soon.

While White House officials are not commenting on where the cyber executive order currently stands, at least one draft order, dated Nov. 21, appears to have gathered enough momentum by carefully addressing certain measures that stalled legislation in Congress earlier this year.

That version of the EO does not include explicit mandates on the private sector, meaning that owners and operators of most critical infrastructure would participate on a voluntary basis.

However, it does outline orders for specific government agencies to help develop comprehensive framework for identifying, protecting against and sharing information on cyber threats. For example, the secretary of the Homeland Security Department, who plays a leading role in the plan, is charged with producing unclassified reports on specific, targeted threats and a system for disseminating them; the Office of the Director of National Intelligence would, along with DHS, establish a system for tracking such reports and incidents. The Defense Department also is called in to create procedures for industry’s voluntary participation, and other agencies, including the National Institute for Standards and Technology, also have key roles.

With limited powers, the executive order does not take the place of legislation, which Congress is expected to take up again in 2013. It does at least try to address some of the sticking points that halted lawmaking over the past year.

“This order challenges agencies to actually work and develop a framework together to determine just what those areas are that possibly do need additional regulation,” said W. Hord Tipton, executive director of (ISC)2 and former CIO at the Interior Department. “That often gets down to the nitty-gritty that stymies regulation – industries that control 90 percent of our critical infrastructure simply don’t like regulation. Finding that appropriate balance is often times the real challenge.”

Information-sharing, as in the failed legislation preceding the EO, is addressed in the order, including in provisions to expand the use of outside subject-expert consultants and expedite security clearances to aid in the process. The measure also directs the DHS secretary to coordinate incentives for voluntary industry participation, another sticking point in proposed legislation, although it does not specify exactly what those incentives could be.

“They’ll be looking at potential incentives – they have to be coordinated with secretaries of Treasury and Commerce, and then have to be reviewed by DOD and [General Services Administration] for the merits and the possible changes to procurement practices,” Tipton said, adding that the participation of the private sector could continue to be a hurdle. “That’s going to require cooperation with the sectors themselves, and again that’s why legislation has been difficult – you have to have that trust developed before you can get the appropriate consultations to happen.”

How far is any of that from actually reaching fruition? It is difficult to tell, although insiders say the draft EO has gone through at least some of the interagency process required to get feedback on implementation – and it hasn’t necessarily been easy, with some organizations likely disagreeing on certain points.

“This has been struggle for the White House to get interagency consensus – some people thought this would be out well before elections. We know they waited to find out if legislation was going to pass, but I’m led to believe at this point there was more of an issue in getting this out of the overall interagency process of approval; that’s been a key part of this,” said Tim Sample, vice president and sector manager for special programs at Battelle.

The challenges to the EO likely mirror the parts of proposed legislation that created the most controversy, including mandates on private industry and direction of who is in charge of what. Some say that without such explicit requirements, the failed cybersecurity bills – and the EO – may be lacking teeth.

“It was hard to find anything in the legislation that would lead to the crafting of regulations, for example, that actually put required continuity and enforcement authority to effect change,” Tipton said. “It’ll be a kabuki dance between the executive branch, DHS, some of the other agencies and the key players in the critical infrastructure agency. But where really are the teeth to get the critical infrastructure sectors to go beyond what they’re currently doing?”

Stopping short of such comprehensive measures could leave the U.S. vulnerable, Sample noted – not unlike it was 71 years ago.

“Though the government was making some preparations by early December 1941, the country itself was not galvanized in support of war. It took Pearl Harbor to galvanize the country overnight. The fact is something needs to be done to galvanize, and I don’t get that – though there is a lot of positive – from this EO given the threats that are looming out there,” Sample said. “While I understand the pros and cons and limitations of government, this is still an effort in which you hope everybody is going to play, as opposed to leading nation and saying with resolve that we’re not going to be left high and dry in a major cyber attack.”