Senate Committee Poised to Upgrade Agency Anti-Hacking Laws, Again

Federal data security legislation enacted in 2002 that was overhauled last December already is due for an upgrade owing to a confluence of events, say the bill’s authors.

First, the Department of Homeland Security laid out a course to wrap its intrusion-thwarting system around all federal networks this year. But DHS had trouble convincing agencies it was legal to let the department scan their Internet traffic for threats.

Then came hacks into ill-guarded federal and contractor networks that potentially yielded attackers enough information to bribe government personnel for secrets. Both incidents illustrated that DHS -- supposedly the civilian cybersecurity operations center -- does not have enough authority to protect other agencies' networks.

Now, the Senate Homeland Security and Governmental Affairs Committee, which pushed through cyber reforms in 2014, is proposing new hacker-prevention legislation.

Committee Chairman Ron Johnson, R-Wisc., and ranking Democrat Sen. Tom Carper, D-Del., are expected to unveil a bill in the coming days that would cement into law use of a DHS intrusion-blocker called EINSTEIN.

The pair hopes to vote on the measure July 29, a Carper aide tells Nextgov. Carper sponsored the 2014 Federal Information Security Modernization Act.

The new legislation would require that EINSTEIN incorporate cutting-edge commercial security technologies, provide full coverage across civilian agencies and bake in privacy protections. 

DHS Cybersecurity and Communications Assistant Secretary Andy Ozment told a different congressional committee in April that agencies can be averse to EINSTEIN.

"Some agencies, in some cases, have questioned how deployment of EINSTEIN under DHS authority interplays with their existing statutory restrictions on the use and disclosure of agency data,” he said. “As a result of this uncertainty, DHS has not been able to achieve 100 percent commitment from agencies to enter into authorizing the deployment of EINSTEIN capabilities to protect their systems."

The tool pokes around for threats in incoming Internet traffic that sometimes contains citizens’ private information, so civil liberties activists are leery about expansion of its use.

The Carper aide called the forthcoming proposal an important next step after enactment of last year’s bill.

But the tool is not without faults. The latest version, EINSTEIN3A, can only repel threats seen in the wild before. It would not have been able to recognize the attack against the Office of Personnel Management because the malicious operations involved were unknown to U.S. intelligence. Only after OPM detected some sort of suspicious behavior could the technical details be fed into EINSTEIN to prevent the intrusion from spreading further.

EINSTEIN expenses and schedule slippages also have been called into question. In March 2014, an internal inspector "found major flaws" in how DHS oversaw the program, "raising serious questions about the department’s ability to manage its existing responsibilities if codified," outgoing committee ranking Republican Sen. Tom Coburn, R-Okla., said in a damning January report on Homeland Security’s overall performance. The problems identified included insufficient performance measures and timelines, poor privacy protections, "and minor vulnerabilities in Top Secret computer systems."

The Carper aide said the upcoming proposal would hold the government accountable for ensuring the EINSTEIN technology is rolled out on time and under budget. 

A separate measure put forth Wednesday by six Senate Republicans and Democrats would empower DHS to enter other agency's networks during an emergency. It calls for Homeland Security to operate "consolidated intrusion detection, prevention or other protective capabilities" but does not explicitly name EINSTEIN. 

The Carper aide said the other senators’ reforms share many of the same provisions as his 2014 bill and he looks forward to working with his colleagues on the matter of information security.

“I’m glad to see my colleagues engaged on such an important issue,” he said in an email. “It’s my understanding that this legislation attempts to build on the FISMA modernization bill” that the committee “worked so hard to pass last year.”

Carper added he looks forward to reviewing the bill and collaborating with “all the sponsors on improving security of our federal networks, including overseeing the implementation of my FISMA legislation.”

As of Wednesday, Johnson's office was still examining the bipartisan group’s text. An aide for the chairman said Johnson and Carper plan to propose "very similar legislation" to their reforms.