from the why-do-we-need-this-again? dept
Back in September, Techdirt posted a leaked version of a draft for a cybersecurity executive order that the White House had been passing around, mainly to try to force Congress into passing a cybersecurity law. With the last ditch attempt by Senator Harry Reid to move that process forward failing, it took exactly a week for the White House to revise its draft exec order, and start passing it around on November 21st. And, today, that new draft leaked as well. You can see the full draft here or embedded below.
It’s basically more of the same. It insists that there’s a problem without providing any real evidence of that. Much of the order focuses on increasing information sharing among and between different government agencies. As expected, it’s designed to encourage private companies, who are “owners and operators of critical infrastructure” to “participate, on a voluntary basis, in the Enhanced Cybersecurity initiative.” This is part of what had people so concerned about the various bill proposals: whether or not companies would get broadly defined as “owners and operators of critical infrastructure” and then be forced or pressured into sharing private information, all in the name of “cybersecurity!”
And, of course, what is “voluntary” when it’s the federal government, often means what is likely to put you in a very uncomfortable position if you don’t participate. In fact, the executive order makes this somewhat explicit:
The Secretary shall coordinate establishment of a set of incentives designed to promote participation in the Program. Within 90 days of the date of this order, the Secretary and the Secretaries of Treasury and Commerce each shall make recommendations separately to the President… on what incentives can be provided to owners and operators of critical infrastructure that participate in the Program, under existing law and authorities, and what incentives would require legislation, including analysis of the benefits and relative effectiveness of such incentives.
So, yeah, “voluntary” belongs in quotes.
As for what counts as “critical infrastructure,” well it basically involves various government agencies coming up with a list and then the government telling companies: “hey, you’re critical infrastructure.”
The Secretary, in coordination with Sector-Specific Agencies, shall confidentially notify owners and operators of critical infrastructure identified under subsection (a) of this section that they have been so identified, and ensure identified owners and operators are provided with relevant threat information.
There is one oddity snuck into that subsection (a):
The Secretary shall not identify any commercial information technology products under this section.
I’m not quite sure what that means within this context (so feel free to chime in and explain it if you do know…). Is it suggesting that this only applies to other forms of infrastructure? If so, that would ease the concerns of a number of tech companies, who were worried that they’d be listed as “critical infrastructure” under a broad reading of any rule.
The exec order doesinclude a shout out to protecting civil liberties, though you wonder how much that will matter in practice:
Agencies shall coordinate their activities under this order with their senior agency officials for privacy and civil liberties and ensure that privacy and civil liberties protections are incorporated into such activities based upon the Fair Information Practice Principles and other applicable privacy and civil liberties policies, principles and frameworks.
They also say that any programs will be reviewed by the Chief Privacy Officer and the Officer for Civil Rights and Civil Liberties to ensure that the program isn’t causing any problems in those areas. For what it’s worth, apparently the administration has been also reaching out to a lot of people to get in on the executive order — a process described as “highly unusual” for an executive order.
Either way, it’s still frustrating that the order brushes over what the real problems are. It just handwaves that question away by insisting that we’re under attack, without providing either (a) evidence or (b) notification on what laws are currently causing issues here. That’s unfortunate.