The challenge of liability protection for cyberthreat sharing

Federal officials agree that industry needs to share threat information with the government, but they differ on what level of protection to offer companies to encourage that sharing.

Speaking at the Chamber of Commerce Cybersecurity Summit in Washington, Commerce Secretary Penny Pritzker said that although the government has an obligation to defend the public against threats to national and economic security, cyber defense cannot be the sole responsibility of federal agencies.

"Laws and regulations alone cannot save us from emerging cyberthreats," she said. "The federal government cannot regulate cyber risk out of existence."

Instead, cybersecurity requires a "new proactive, collaborative approach between government and industry," she said, adding that the conversation must move from static requirements and compliance to agile risk management.

"Yet even as companies and agencies begin speaking the same language of cyber risk, we are not yet having truly candid, actionable conversations because we lack the legal support structure necessary for doing so," Pritzker said.

Some liability protections were enshrined in law under the Cybersecurity Information Sharing Act, which passed as part of the 2016 spending bill, but Pritzker argued that when companies are under cyberattack, they do not immediately turn to the government for help.

"What they see are the downsides of engagement -- potential liability, the risk of punitive action and the investigations that may result from even basic interactions, like reporting an intrusion to the FBI," she said.

Pritzker called for more protections for industry to encourage partnership and information sharing, what she called a "reverse Miranda" protection. "In other words, nothing you say in this setting will be used against you," she said.

"Failure to cultivate that trust will not only leave us vulnerable to attacks on critical infrastructure, but risk slowing the pace of American innovation," Pritzker added.

Deputy Homeland Security Secretary Alejandro Mayorkas agreed that partnering with industry is essential to enhancing cybersecurity.

"We have to liberate ourselves to some degree from the competitive spirit that is so much a part of our efforts in the private sector and take a more communal approach to cybersecurity," he said.

Mayorkas added that cyberthreats differ from other threats, and companies should work together. For instance, two companies in different locations can be hit by the same cybercrime within a short time frame, but if one of them quickly shares the details of a cyber incident, others can take protective action.

"If that becomes the culture of those two companies and the companies around them in their sector and even beyond, then the figurative 'wall of cybersecurity' is built so that we make it more difficult, more time consuming" for cybercriminals to attack.

Mayorkas described that approach as a 21^st-century neighborhood watch -- one in which the private sector must allow agencies such as the Department of Homeland Security to participate and share.

He said 50 entities are already participating in DHS' automated information-sharing system, which is designed to quickly share threat data.

"Companies that are willing to participate in this neighborhood watch are statutorily protected from liability for the provision of information, and it is incumbent on us to strip that information of personally identifiable characteristics" when it is shared, he said.

But he expressed serious reservations about extending too many protections through a regulatory or statutory process.

"I would not describe the federal government as nimble," he said, "and the cybersecurity landscape is so dynamic and so rapidly evolving that what I worry about is the implementation of a regulatory level of protection that fits what is occurring today, but by tomorrow may not fit perfectly well. And while we seek to liberate companies in their ability to share information today, we may actually handicap or imprison them tomorrow."

Instead of rigid congressional legislation or statutes, Mayorkas said he'd rather see expanded use of presidential directives that can provide a more flexible protective framework.

He also expressed concern about the need to hold industry accountable for its actions and avoid offering broad immunities in order to protect consumers.

"Here in the cybersecurity realm, the standard of care is not clearly defined," Mayorkas said. Although the National Institute of Standards and Technology's Cybersecurity Framework establishes reasonable guidelines, "it is not equivalent to a standard of care, and what I worry about is that the regulatory agencies are imposing liability and the standard of care is being shaped in the crucible of the courtroom, and I'm not sure that is the most effective and equitable chronology of events."

Rather than fixating on accountability and liability, the focus now should be on protection and response to ensure that cyberthreats and attacks are quickly contained and the damage is minimized.