Lawmakers Weighing Critical Infrastructure Designation for Major Cloud Service Providers

All hope is not lost for bipartisan legislation that honors the bargain reached by a landmark commission between public and private-sector entities over the cybersecurity responsibilities of systemically important critical infrastructure. And it could apply to major cloud service providers that have thus far been considered off-limits for regulation as “commercial” information technology. 

“Representative [Jim Langevin, D-R.I.], is working with Representative [John Katko, R-N.Y.], Representative [Yvette Clarke, D-N.Y.] and others to develop legislation for systemically important critical infrastructure that does fully reflect the Solarium Commission’s intent, for a real partnership and system of operational collaboration,” a House Democratic aide told Nextgov.

The Cyberspace Solarium Commission—convened three years ago under a Congressional mandate—included top executives from major private-sector entities like Southern Company, lawmakers from the House and Senate that spanned the political spectrum—including Langevin—and leaders from the executive branch, such as the FBI director. The group produced a comprehensive report of recommendations, complete with legislative language as appropriate, for improving U.S. cybersecurity.  

Among the recommendations was the proposal that certain entities be designated “systemically important critical infrastructure” and be allowed some protection from liability and access to government-procured intelligence and resources, in exchange for implementing baseline security controls to protect their systems and reporting their cybersecurity incidents to the government.

The Cybersecurity and Infrastructure Security Agency is already working to implement some of the bargain under a new incident reporting law for “critical infrastructure.” The term was defined by the Obama administration to mean “systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.”

But “covered entities” under that law will be further determined after a rulemaking process that could last more than three years.

During an April 6 hearing, agreement on the remaining components of the Solarium bargain seemed to break down along partisan lines as Langevin and Clarke took issue with a bill Katko had proposed invoking the Solarium Commission. Katko’s bill proposed identifying the systemically important critical infrastructure and outlined benefits for those entities but included nothing on the security burdens they should be on the hook for in return.

“There are conflicting opinions between my colleagues and myself on the right direction for SICI,” Katko said during the hearing. He was joined by Republican colleagues in decrying regulations in favor of a voluntary approach. 

But the ranking member of the House Homeland Security Committee is still negotiating with Langevin and Clarke, who chairs the committee’s panel on cybersecurity, the aide said, noting that they hope to have legislation ready to introduce some time this summer.

“It’s something we want to do right, rather than something we want to do quickly,” the aide said, adding, “one of the reasons is that [Langevin] believes so strongly in the need for both benefits and obligations for systemically important critical infrastructure entities.” 

In the meantime, under a July 28 national security memo, the Department of Homeland Security and the National Institute of Standards and Technology in September published preliminary cross-sector performance goals for critical infrastructure. 

The idea of identifying critical infrastructure for special treatment by the government in the interest of cybersecurity goes back to the Obama administration. Section 9 of a 2013 executive order called for the development of a list of such entities but barred the inclusion of “commercial information technology.”

Following high-profile supply-chain attacks like the “SolarWinds” hack— which also leveraged Microsoft’s Active Federal Directory Service—and others involving underlying information and communications technology, that lack of inclusion is also something lawmakers are considering changing with the new legislation.

“Another thing that we're thinking about is what sort of additions might be needed to the section 9 list,” the aide said, “and there may be certain entities, like major cloud service providers, that may need consideration as systemically important, just given the degree to which their services underpin so much of modern digital life.”