Should election systems be considered critical infrastructure?

The specter of a foreign government hacking into U.S. election systems has been given new emphasis because of recent remarks by Republican presidential candidate Donald Trump. The issue has a long list of former federal officials and lawmakers concerned.

In late July after the Democratic National Committee's databases were hacked and DNC members' private email messages released by WikiLeaks, Trump said Russia should help find Democratic candidate Hillary Clinton's lost email messages from her time as secretary of State.

The DNC breach has been ascribed to hackers with ties to the Russian government, but U.S. federal law enforcement has made no official attribution yet. Some political operatives in the DNC have alleged the data dump was meant to embarrass Clinton and push voters toward Trump, who has expressed admiration for Russian President Vladimir Putin.

The imbroglio has raised concerns among many former DHS officials and lawmakers about foreign influence in the U.S. election process. In a July 28 statement, 32 members of the Aspen Institute Homeland Security Group said that if the DNC hack is found to have been backed by Russia, it constitutes an attack on "the integrity of American democracy."

The group's members include former DHS Assistant Secretary for Policy Stewart Baker; New York City Police Commissioner William Bratton; former DHS Inspector General Clark Ervin; former National Counterterrorism Center Director Michael Leiter; former National Security Agency Director Michael Hayden; and former Sen. Jane Harman (D-Calif.), who now serves as president, director and CEO of the Woodrow Wilson International Center for Scholars.

The group is urging the White House and Congress to get to the bottom of the DNC hack and identify who the attacker was.

Furthermore, election officials at the federal, state and local levels should regard the hack as evidence that "our electoral process could be a target for reckless foreign governments and terrorist groups," according to the organization's statement.

The group is also calling for voting processes and results to receive the same kind of security attention that is extended to the electrical grid, water systems and other critical infrastructure.

Political parties and the federal government "bear special responsibility for helping to prevent such intrusions in the future," the group said. "Just as the federal government offers, and candidates routinely accept, Secret Service protection for their candidates, so too should campaigns and candidates be offered and accept assistance in securing their communications."

Meanwhile, in a July 27 Washington Post column, security technologist Bruce Schneier stressed the need to provide federal cyber protection for voting systems. He argued that such systems, which are generally maintained by state and local governments, are part of the country's critical infrastructure.

However, Nathaniel Gleicher, former director for cybersecurity policy at the White House's National Security Council, told FCW that providing critical infrastructure protection to voting systems is not as straightforward as it seems, in part because each state takes its own approach.

When it comes to pursuing a hacker, "it might be possible to sanction someone for voting machines, but one would have to show that their activities met the standards set by" Executive Order 13694, said Gleicher, who joined Illumio in January as head of cybersecurity strategy.

The order, issued by President Barack Obama in 2015, gave certain federal leaders new authority to respond to threats by malicious cyber actors, the kind who present "serious economic and national security challenges" to the country's critical infrastructure, economic resources, trade secrets and personal data.

Gleicher said the standards in the order were intentionally set high, but a blatant attempt by a foreign government to influence the outcome of a presidential election could meet those standards. However, he added, applying the order to an attack on critical infrastructure would depend on the facts surrounding the attack.

For instance, Gleicher said anyone who perpetrates an attack on voting machines must be proven to be an integral part of the attack or to have provided assistance that materially contributed to a significant threat to U.S. national security, foreign policy, economic health or financial stability.

Hacking election machines to influence a major U.S. election could certainly clear the "significant threat" threshold, but pursuing an attacker based on critical infrastructure protections would be trickier.

"One would have to argue that entities that provide voting are in a critical infrastructure sector and that the service they provide was compromised by the hack," he said.

Voting systems are not explicitly named in DHS' 16 categories of critical infrastructure, however.

And Gleicher said attackers don't actually have to attack voting systems, and he offered this scenario: "What if someone were to announce, shortly after a very close election, that they had hacked enough voting machines in a swing state to change the result? Technical analysis of the systems in question provides some evidence that they may be telling the truth, but it's inconclusive. The winning candidate declares it's a desperate move by the loser to overturn the will of the people. The losing candidate calls for a revote. What do we do?"

In other words, a simple alternative to an actual cyberattack on election systems might simply be the claim of a cyberattack, he said.