Why CISA wants subpoena authority to probe cyber risks

Officials at the Cybersecurity and Infrastructure Security Agency have told lawmakers that there have been at least a half dozen instances over the past year where they have been unable to adequately respond to known cyber risks because they could not identify the owners of vulnerable IP addresses.

The agency is pressing Congress for new administrative subpoena powers to compel internet service providers to turn over subscriber information for IP addresses associated with critical infrastructure. In a legislative proposal to Congress seen by FCW, the agency claimed the lack of such authority has left vulnerabilities unmitigated and potential victims "exposed."

"In the past year alone, there have been at least six occasions in which CISA has been delayed, restricted, or altogether foreclosed in responding to known and actionable cyber risks because it lacked a way to identify the targets," the agency told Congress.

The proposal, submitted to the House and Senate Homeland Security Committees in June, did not provide details about the occasions, potential victims or whether the incidents involved critical infrastructure. The agency provided classified briefings to both committees, and a staffer told FCW that parties are working on developing unclassified examples they can discuss more publicly.

ISPs can't simply disclose subscriber information to law enforcement without a subpoena. But law enforcement agencies sometimes can't subpoena information on CISA's behalf without a pending investigation, as opposed to a suspected threat.

"It is in these circumstances -- when CISA has actionable information about a vulnerable device or network but no way to identify the owner -- that it becomes especially problematic to condition the government's ability to compel information from ISPs on an open criminal investigation," the agency told lawmakers. "The mere existence of a security vulnerability is not a sufficient predicate to open an investigation, and law enforcement generally will be powerless to help CISA identify the potential victim absent a specific threat of intrusion."

The proposal cited results from internal scanning tools as well as findings from Shodan, a search engine that scans for devices connected to the web, showing 82,000 industrial control system devices currently open and accessible from the internet.

Under the proposal, the National Cybersecurity and Communications Integration Center's responsibilities would expand to include "detecting, identifying and receiving information about security vulnerabilities in the information systems and devices of federal and non-federal entities" as well as notifying owners and operators that they are at risk. The subpoenas would apply to enterprise devices and systems, which the agency defines as "any system or device commonly used to perform industrial, commercial, scientific or governmental functions or processes." CISA Director Chris Krebs has said the authorities would be used only to contact vulnerable operators of critical infrastructure.

In a statement provided to FCW, CISA Assistant Director Jeanette Manfra said the agency was taking privacy concerns seriously.

"An administrative subpoena authority is relatively widely used throughout the government and is different from a criminal subpoena," Manfra said. "Protecting privacy and maintaining trust are at the cornerstone of everything we do at CISA, and we have a long history of collecting similar data through voluntary programs and have demonstrated our ability to protect it. We will work with Congress to ensure this authority is narrowly tailored and appropriate safeguards are in place."

Some cybersecurity and civil liberty groups are concerned about the potential for abuse.

"As in so many other cases, the U.S. government's view appears to be: Please trust us to not abuse any authority to demand identifying information," cybersecurity expert Herb Lin wrote in Lawfare.

Others have questioned whether a newly formed agency with no background in law enforcement is the proper place to grant subpoena powers.

Leo Taddeo, a former special agent in charge of the Cybersecurity Division at the FBI's New York City office, told FCW he had serious concerns about whether CISA has the institutional knowledge and oversight mechanisms that exist at other federal agencies with subpoena authority, such as the FBI, the Drug Enforcement Administration or Secret Service. While the records of those organizations are far from spotless when it comes to abuse, he said the risks are even higher for agencies that don't have the same muscle memory that comes from doing investigative work and issuing subpoenas every day.

"Administrative subpoenas are not like wiretaps or [Foreign Intelligence Surveillance Act]court orders, but they're certainly not something that's trivial," said Taddeo, now chief information security officer at Cyxtera. "There's a privacy issue, there's a workload issue for the ISPs, so there does need to be some limit on the government's power here."

The proposal stated that the CISA director must coordinate subpoena requests with the Department of Justice and the FBI. The question is what coordination means.

"Do they need an FBI agent or official to issue the subpoena or is it merely informing the FBI of what they're doing, which may or may not be effective?" Taddeo asked. "We've seen coordination efforts in many cases not really do what they were intended to do, so I'm leery about [it]."

Some in Congress downplayed those concerns, saying necessary oversight guardrails can be built into eventual legislation.

"The idea that they don't have the culture in place to support it … there's no reason I would suspect that of being a particular problem," said an aide to a member of the House Homeland Security Committee.

However, the staffer said it also wasn't clear why CISA could not simply ask ISPs to pass those concerns along to customers and let them know DHS is reaching out to offer assistance. The agency told Congress that such requests would only be limited to "basic subscriber records" that ISPs are already permitted to voluntarily release under the Electronic Communications Privacy Act to non-governmental parties.

"Being able to match an IP address to something that says, 'Here's a vulnerability we know you're open to' makes a lot of sense. Whether the way to deal with that is to give CISA administrative subpoena powers is something that we're open to being convinced of, but there may be other avenues," the staffer said.

Suzanne Spaulding, who formerly led CISA's predecessor organization the National Protection and Programs Directorate, said that her experience at NPPD was that ISPs were less than enthusiastic about moving on such requests and that new authorities could make it easier to prioritize CISA's support.

"If [CISA] had the ability to go get from the providers the identification of the devices, they would have the ability to prioritize that outreach effort, as opposed to asking the ISPs to go to every one of the thousands [of customers]," she said. "You're certainly not going to ask the ISPs to make that kind of prioritization."