Corporate > AG Deal Diary > Cybersecurity Activity During Last Gasp of Lame-Duck Congress
12 Dec '14

Cybersecurity Activity During Last Gasp of Lame-Duck Congress

This week, there has been a flurry of last-minute action on various cybersecurity items in both the House and Senate. Much of the legislative activity involved modest adjustments to, or confirmation of, the authority or responsibilities of some government agencies in the area of cybersecurity, or a focus on existing or needed cybersecurity skills in the government workforce. Most notably, the House and Senate quickly passed Sen. Rockefeller’s Cybersecurity Act (described below) on Thursday by unanimous consent agreements.

On Monday evening (December 8, 2014), the Senate passed a bill to update the Federal Information Security Management Act (FISMA), a 12-year-old law that governs federal government information security. The bill, known as the Federal Information Security Modernization Act (S. 2521), passed by voice vote under unanimous consent in a nearly empty Senate chamber. By law, the White House Office of Management and Budget (OMB) has oversight of federal agencies’ information technology security. However, OMB has recently begun ceding some of its authority in this area to the Department of Homeland Security (DHS), since OMB does not have the resources that DHS does at a time when cybersecurity has become more critical in government operations. The Senate bill, sponsored by Sen. Tom Carper (D-DE), would codify those actions. The House passed its version of FISMA reform in 2013, but, unlike the Senate measure, the House bill did not designate a role for DHS to assist other federal agencies in implementing cybersecurity protections. Instead, the House passed S. 2521 on Wednesday, December 10, 2014, again on voice vote without objection. The bill heads to the president’s desk, where it is expected to be signed into law.

On Wednesday, the Senate passed the National Cybersecurity Protection Act (S. 2519, also sponsored by Sen. Carper), which is the Senate’s version of a House-passed bill, the National Cybersecurity and Critical Infrastructure Protection Act (NCCIP). The bill officially authorizes the already-existing cybersecurity information-sharing hub at DHS. Known as the National Cybersecurity and Communications Integration Center, the hub receives cyber information from multiple government and industry sources, then disseminates information on specific cyber threats back to those partners. The Senate’s measure is a slimmed-down version of the House bill, leaving out many of the specifics on the information exchange between the public and private sector. The House passed the bill on Thursday, and it now also heads to the president’s desk for signature.

Further, the Senate also passed H.R. 2952 on December 10, 2014. Originally titled and passed by the House as the Critical Infrastructure Research and Development Advancement Act of 2014, the Senate approved an amendment by Sen. Carper to require the Secretary of Homeland Security to assess the cybersecurity workforce of DHS and develop a comprehensive workforce strategy. The bill was also passed by the House on Thursday and now heads to the president’s desk, along with the other two previously mentioned above.

Additionally, the Homeland Security Cybersecurity Workforce Assessment Act, which was included in the Border Patrol Agent Pay Reform Act of 2014 (S. 1691), was passed by the House on Wednesday. Though the bill is primarily about compensating border patrol agents, when it passed the Senate in September, lawmakers added provisions to the bill incorporating Sen. Carper’s DHS Cybersecurity Workforce Recruitment and Retention Act of 2014. The provisions would give DHS special flexibility to recruit and pay cyberprofessionals. That bill also now awaits President Obama’s signature.

On Thursday evening, the House and Senate passed S. 1353, the Cybersecurity Act of 2013. The bill, sponsored by outgoing Senate Commerce Committee Chairman Rockefeller Jay Rockefeller (D-WV), amends the National Institute of Standards and Technology Act to permit the Secretary of Commerce, acting through the Director of the National Institute of Standards and Technology (NIST), to facilitate and support the development of a voluntary, industry-led set of standards and procedures to reduce cyberrisks to critical infrastructure. Under the standards, NIST would be directed to “include methodologies to mitigate impacts on business confidentiality, protect individual privacy and civil liberties” when coordinating and sharing information with private owners and operators of critical infrastructure. It should be noted that the term “critical infrastructure” is not defined within the context of the bill. Further, the bill would require the development of a national cybersecurity research and development plan, direct the departments of Commerce and Homeland Security to sponsor competitions and other challenges to recruit cybersecurity workers, and direct NIST to continue efforts to improve public awareness of cybersecurity risks.

Finally, the Senate Banking Committee held a hearing Wednesday about how to prevent cyber-attacks and handle data breaches facing the financial-services industry. In submitted testimony, the Securities Industry and Financial Markets Association urged lawmakers to pass the Cybersecurity Information Sharing Act of 2014 (knowas CISA, or CISPA in the House), since the bill would be the best way “for Congress to engage more productively in this effort to improve our cybersecurity.” The hearing featured testimony from representatives of the Treasury, DHS, Office of the Comptroller of Currency, the Secret Service and the Federal Bureau of Investigation. The Senate is not expected to pass CISA before the end of the lame-duck session.

In sum, it is likely that five bills pertaining to federal information security (S. 2521), limited cyber information sharing (S. 2519), critical infrastructure cybersecurity, R&D and workforce development, and the hiring of federal cybersecurity professionals will all become law before the end of the year. However, Congress has yet to reach an agreement on how to create a framework for comprehensive cooperation and collaboration on cybersecurity information sharing with the private sector, and such legislation is unlikely to pass in the waning days of the 113th Congress.