Lieberman's new cybersecurity bill forbids a kill switch

Sen. Joseph Lieberman (I-Conn.) is introducing a wide-ranging cybersecurity bill that would revamp the Federal Information Security Management Act and establish executive oversight of critical infrastructure but would prohibit shutting down the Internet.

The Internet Freedom Act, which has not yet been filed and assigned a number, is a reworking of the controversial Protecting Cyberspace as a National Asset Act of 2010, S. 3480. It is sponsored by Lieberman, who is chair of the Senate Homeland Security and Governmental Affairs Committee; ranking member Susan Collins (R-Maine); and Federal Financial Management Subcommittee Chairman Tom Carper (D-Del.).

“We want to clear the air once and for all,” Lieberman said in a statement announcing the bill. “There is no so-called ‘kill switch’ in our legislation because the very notion is antithetical to our goal of providing precise and targeted authorities to the president. Furthermore, it is impossible to turn off the Internet in this country.”

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The bill does include provisions for the president to declare a national cyber emergency and require implementation of response plans. It also limits the duration of such declared emergencies without congressional approval, limits the actions under response plans to the least disruptive required, and allows for judicial review of which systems are covered as critical infrastructure under the bill.

The bill’s preamble states that, “in the event of a cyberattack, it is essential that the law clearly and unambiguously delineate limits on what the federal government can and cannot do to protect the information infrastructure that is essential to the reliable operation of the Internet and the critical infrastructure of the nation; and neither the president, the director of the National Center for Cybersecurity and Communications, nor any other officer or employee of the federal government should have the authority to shut down the Internet.”

The bill also would require development of mandatory “prioritized and risk-based controls” for agency IT systems, development of a supply-chain security strategy, and creation of a workforce development and recruitment program.

The most controversial part of the bill is likely to be the provisions for an emergency declaration and imposition of controls on privately owned infrastructure.

Under the bill, the president can declare an emergency “if there is an ongoing or imminent action by any individual or entity to exploit a cyber risk in a manner that disrupts, attempts to disrupt, or poses a significant risk of disruption to the operation of the information infrastructure essential to the reliable operation of covered critical infrastructure.”

The declaration would specify the critical infrastructure involved and the owners and operators, who will have to implement previously established response plans. The director of the National Center for Cybersecurity and Communications, established in DHS by the Homeland Security Act of 2002, is to “ensure that emergency measures or actions directed under this section represent the least disruptive means feasible to the operations of the covered critical infrastructure and to the national information infrastructure”

Traffic on the specified systems can be stopped only when nothing else will work, and government would be prohibited from taking control of the critical infrastructure or intercepting traffic.

The emergency declaration lasts 30 days but can be extended for up to three additional 30-day periods. After that, a joint resolution from Congress — both the Senate and House — is required to extend the emergency for an additional 120 days.

The Homeland Security Department would establish a list of covered critical infrastructure along with the criteria for selection. Systems cannot be included based on activities protected by First Amendment, that is, by the nature of the content they carry. Owners and operators can appeal inclusion on the list in federal court.

The bill also requires development of a national strategy to improve the security and resiliency of cyberspace, and establishes an Office of Cyberspace Policy in the Executive Office of the President to develop the national strategy as well as to “oversee, coordinate, and integrate all policies and activities of the federal government across all instruments of national power relating to ensuring the security and resiliency of cyberspace.” It also would be responsible for ensuring “that all federal agencies comply with appropriate guidelines, policies and directives from [DHS], other federal agencies with responsibilities relating to cyberspace security or resiliency, and the National Center for Cybersecurity and communications”

The director of office would review agency budget requests for implementing the national strategy and make recommendations if they are lacking.

Title III of the bill essentially rewrites FISMA and requires a “comprehensive framework for ensuring the effectiveness of information security controls over information resources that support the federal information infrastructure and the operations and assets of agencies” with “prioritized and risk-based controls.”

The required controls would be developed and enforced by the National Center for Cybersecurity and Communications. These would include automated and continuous monitoring and would generally tighten up requirements for security and accountability. Agencywide information security programs would also be required.

A Federal Information Security Task Force of senior government employees would be created for selecting best practices and coordinating information sharing between agencies.

A supply-chain security policy “to enhance, in a risk-based and cost-effective manner, the security of the communications and information technology products and services purchased by the federal government,” would be developed by DHS; the Director of Cyberspace Policy; Director of the National Center for Cybersecurity and Communications; the secretaries of Defense, Commerce and State; the Director of National Intelligence; General Services administrator; the administrator of Federal Procurement Policy; and the CIO Council. The policy would be incorporated into the Federal Acquisitions Regulations.

In addition, the Office of Personnel Management and Office of Management and Budget would be required to assess workforce needs and develop five-year plan for federal recruitment. A training curriculum for cybersecurity workers would be developed and training requirements established.