McConnell: Laws and policies 'have not kept pace' with cyber threats

When former Director of National Intelligence Mike McConnell briefed Henry Kissinger about cyber security several years ago, Kissinger had one word: Gutenberg.

“[Johannes] Gutenberg invented the printing press and it took 200 years to change the world,” McConnell recalled the former secretary of state arguing. “You are describing a technology that's changed the world in less than a generation and our institutions, our laws and our policies have not kept pace."

McConnell, who is now the vice-chair of Booz Allen and keynoted a March 26 Georgetown Law discussion on responding to cyber attacks, said the United States need comprehensive legislation and international agreements for a "a secure internet for commerce, trade and the free flow of ideas." He also called for increased sharing of potential cyber threats between businesses and government, as well as among businesses themselves.

"If my community can capture that information before it's ever used, why shouldn't it be provided to corporate America?” McConnell said. “Particularly the critical infrastructures."

The government could incentivize businesses to share incidents of cyber hacking by granting litigation immunity if they follow a standard of sharing, McConnell said.

The retailer Target, for example, is facing lawsuits regarding the hacking of its customers’ credit card information in December. And members of an ensuing panel expressed concern that companies are unwilling to disclose breach information because of a “victimize the victim” attitude surrounding cyber attacks.

"A company reports a breach and there seems to be almost a presumption immediately by the media, by regulators and to some degree by Congress that the company was negligent,” said Jason Weinstein, lawyer and partner at Steptoe & Johnson. “Instead of being guilty until proven innocent, they're negligent until proven reasonable."

So a dilemma ensues: Whom does a company tell?

"Time and time again we see the same [security] compromise working in company A, company B, company C and it just keeps working,” Shane McGee, general counsel and vice president of legal affairs at Mandiant. “But partially because we're in this 'victimize the victim' attitude right now where we automatically assume negligence on the part of any company that's victimized, people don't want to come out with the details of these compromises."

Another dilemma is where to draw the line between defending one’s system by responding to an attack and hacking. Kimberly Peretti lawyer and partner at Alston & Bird said that people in the information community are not using defense tactics that they had previously used because of the murkiness of law regulating cyber activity.

"[The information service community] is very unclear what they can do, what they can't do," Peretti said.

Questions surround the legality of “hacking back,” like infiltrating another system to take back stolen information.

"[Hacking back] implies a destructive motive or a malicious intent on the part of companies that I think is not there," Weinstein said.