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Presidential Directives and Cybersecurity

Concerning the use of Presidential Directives in Cybersecurity Policy

Latest News

  • Senate Cybersecurity Information Sharing Bill Proposed: Senators Dianne Feinstein and Saxby Chambliss have proposed the Cybersecurity Information Sharing Act of 2014. The Senate bill is similar to the House Cyber Intelligence Sharing and Protection Act (CISPA), which was opposed by civil liberties organizations and would have been vetoed by the White House if enacted. Like CISPA, the Senate bill allows companies to monitor private communications on their networks and to disclose user activity to the government. The bill would also exempt companies from liability for monitoring communications or disclosing user information. However, the Senate bill makes some attempt to limit the collection of personally identifiable information. EPIC recently won a five-year court battle with the NSA and obtained National Security Presidential Directive 54. The directive was issued by President Bush in 2008 and is the foundational legal document for U.S. cybersecurity policies. The Presidential Directive reveals the government’s long-standing interest in enlisting private sector companies to monitor user activity. For more information, see EPIC: Cybersecurity. (Jun. 20, 2014)
  • EPIC v. NSA: EPIC Obtains Presidential Directive for Cybersecurity: After almost five years, EPIC has obtained National Security Presidential Directive 54. The previously classified Presidential Directive contains the full text of the Comprehensive National Cybersecurity Initiative and "establishes United States policy, strategy, guidelines, and implementation actions to secure cyberspace." This Directive, which is the foundational legal document for all cybersecurity policies in the United States, evidences government efforts to enlist private sector companies, more broadly monitor Internet activity, and develop offensive cybersecurity capability. EPIC first sought public release of NSPD-54 with a Freedom of Information Act request, submitted to NSA in June 2009. After the agency failed to disclose the document, EPIC filed suit. When a federal district court ruled in 2013 that the Presidential Directive was not subject to the Freedom of Information Act, EPIC then filed an appeal with the DC Circuit Court of Appeals. The document has now been disclosed to EPIC. The case is EPIC v. NSA, a Freedom of Information Act lawsuit in D.C. Circuit Court. EPIC has several related FOIA cases with the NSA pending in federal court. For more information see EPIC - EPIC v. NSA (Cybersecurity Authority). (Jun. 6, 2014)
  • New Documents Reveal Close Ties Between NSA and Tech Companies, PBS Special to Air: New e-mails obtained under the Freedom of Information Act reveal former NSA Director Keith Alexander's close communication with technology companies regarding emerging cybersecurity threats. The CEOs of Google, Apple, Microsoft, and other technology companies were invited to classified briefings as part of the "Enduring Security Framework," a government initiative focused on sharing "cyber threat information with the private sector." EPIC previously sued the NSA to obtain records about the agency's collaboration with Google on cybersecurity, following the China hack in January 2010. In that case, the NSA refused to confirm or deny the existence of any records responsive to EPIC's request. EPIC had previously urged Google to routinely encrypt cloud-based services. PBS Frontline begins a two-part special this week that explores NSA surveillance and the role of tech companies. For more information, see EPIC v. NSA: Google/NSA Relationship and EPIC: Cybersecurity. (May. 12, 2014)
  • DHS Releases Cybersecurity Report, NSA Role Remains Murky: The Department of Homeland Security had published the first Privacy and Civil Liberties Assessment Report. The report examined several federal agencies, including the Department of Defense and the Office of the Director of National Intelligence, regarding cybersecurity activities. Executive Order 13636, "Improving Critical Infrastructure Cybersecurity," requires the reports as well as the creation of a cybersecurity framework. Last year, EPIC recommended civilian control of domestic Cybersecurity and clarification of the NSA's involvement. The Privacy and Civil Liberties Assessment Report and the cybersecurity framework both fail to clarify the NSA's role in cybersecurity. For more information, see EPIC: Cybersecurity Privacy Practical Implications. (Apr. 25, 2014)
  • EPIC v. NSA: EPIC Appeals Lower Court Decision on Presidential Directive: EPIC has filed its opening brief in EPIC v. NSA. EPIC is seeking to obtain NSPD-54, a Presidential Directive on cyber security that was widely circulated to federal agencies and senior policy advisors. EPIC submitted a Freedom of Information Act request to the NSA for NSPD-54 and several related documents. The NSA turned over some of the materials to EPIC but withheld the Directive. EPIC then sued the agency to force disclosure of the document but a court ruled sue sponte that the NSA did not have control over NSPD-54, and thus it was not an "agency record" subject to release. It was the first time a federal court had ruled that a Presidential Directive was not subject to FOIA. In the appeal, EPIC argued that the agency has the document and therefore bears the burden of proving it is not an "agency record." EPIC also pointed out that the lower court failed to apply the control test followed by other courts, and that the NSA itself never claimed that NSPD-54 was not an agency record. For more information, see EPIC: Presidential Directives and Cybersecurity and EPIC v. NSA: NSPD-54 Appeal. (Apr. 1, 2014)
  • EPIC Accepts NSA's Settlement Offer, Receives Attorneys Fees: EPIC has accepted the NSA's offer to settle a Freedom of Information Act case EPIC v. NSA. EPIC sought both National Security Presidential Directive 54, a Presidential Directive setting out the scope of the NSA's authority over computer networks in the United States, as well as documents related to NSPD 54. EPIC received some of the documents as a result of the lawsuit, "substantially prevailing" under the FOIA, and prompting the NSA to make a settlement offer to EPIC. As a consequence, EPIC will receive attorneys fees from the NSA. EPIC is simultaneously appealing the lower court's determination that NSPD-54 is not an "agency record" subject to the FOIA. It was the first time a federal court has ruled that a Presidential Directive is not subject to the Freedom of Information Act. For the appeal, EPIC has already filed a Statement of the Issue, and the parties are waiting for the D.C. Circuit Court of Appeals to set a briefing schedule. For more information, see EPIC v. NSA - Cybersecurity Authority. (Feb. 11, 2014)
  • EPIC Files Appeal, Challenging Secrecy of Presidential Directives : EPIC has filed a Statement of the Issue Presented with the D.C. Circuit Court of Appeals. EPIC is appealing a lower court decision that NSPD 54 -- a Presidential Directive setting out the scope of the NSA's authority over computer networks in the United States -- is not subject to disclosure under the Freedom of Information Act. EPIC sought the Presidential Directive, signed by President Bush in January 2008, from the National Security Agency after the White House disclosed the existence of the Directive but not the substance. After the agency failed to respond to EPIC's FOIA request, EPIC filed an administrative appeal, and then a lawsuit. The lower court ruled in EPIC v. NSA that the Presidential Directive is not subject to the FOIA because it was not under "the control" of the NSA. It was the first time a federal court has ruled that an Presidential Directive is not subject to the Freedom of Information Act. EPIC is now asking the Court of Appeals to determine, "Whether the district court erred in holding that a Presidential Directive in the possession of a federal agency is not an agency record subject to the FOIA." For more information, see EPIC v. NSA: Cybersecurity Authority. (Jan. 22, 2014)
  • Federal Appeals Court Rules that Legal Policy Memos Can Be Withheld From the Public: The Court of Appeals for the D.C. Circuit has ruled that the FBI may withhold a memo prepared by the Office of Legal Counsel concerning the law governing "exigent letter" requests to telephone companies for call records. The decision affirmed an earlier opinion that the memo was privileged advice, and exempt from disclosure under the Freedom information Act. The Electronic Frontier Foundation argued that the memo was "working law" and not simply advice from government lawyers. However, the Court of Appeals found that the FBI had not itself adopted the advice of government lawyers. In a different case where the Department of State followed the guidance of Justice Department lawyers, EPIC filed a "friend" of the court brief in support of the New York Times and the ACLU and argued for the release of opinions of the Office of Legal Counsel. For more information, see EPIC v. NSA: Cybersecurity Authority and EPIC: New York Times v. DOJ. (Jan. 3, 2014)
  • EPIC Appeals Secrecy of Presidential Cybersecurity Directive: EPIC has filed a notice of appeal with the D.C. Circuit Court of Appeals in EPIC v. NSA. In that case, EPIC sought NSPD 54, a presidential policy directive outlining the scope of the NSA's authority over computer networks in the United States. A federal district court ruled that the directive is not subject to the Freedom of Information Act because it was not under "the control" of the federal agencies and officials who received it. It is the only time a federal court has ruled that presidential directives in the possession of federal agencies are not subject to the FOIA. EPIC is appealing the decision. For more information, see EPIC v. NSA: Cybersecurity Authority (Dec. 17, 2013)
  • EPIC Urges Clarification of NSA's Role in Cybersecurity: EPIC has submitted comments on the National Institute of Standards and Technology's cybersecurity policy proposal. Pursuant to an Executive Order, the federal agency is charged with defining a "cybersecurity framework" for the federal government. EPIC reiterated previous comments that emphasized civilian control, adherence to the Fair Information Practices, and compliance with the Privacy Act and Freedom of Information Act. In light of revelations that the National Security Agency's has weakened key security standards, EPIC urged NIST to clarify the NSA's involvement in the development of the federal policy. For more information, see EPIC: Cybersecurity Practical Implications and EPIC: EPIC v. NSA (Cybersecurity Authority). (Dec. 13, 2013)

Introduction

Cybersecurity encompasses an array of challenges to protect cyberspace. Cyberspace as defined by the Cyberspace Policy Review is the "interdependent network of information technology infrastructures, and includes the Internet, telecommunications networks, computer systems, and embedded processors and controllers in critical industries." The policy review goes on to define Cybersecurity policy to include "strategy, policy, and standards regarding the security of and operations in cyberspace, and encompasses the full range of threat reduction, vulnerability reduction, deterrence, international engagement, incident response, resiliency, and recovery policies and activities." Cyberspace has become a common feature of modern society and touches almost every citizen in a number of different areas including online commerce, healthcare, financial services, and social media.

The ubiquity of cyberspace and its importance in our lives puts cybersecurity front and center as one of the more important policy issues going forward. The public deserves a debate about appropriate cybersecurity measures that includes clear and accessible explanations of the Whitehouse's cybersecurity policy. Too often cybersecurity policy is set by presidential directives that are not available to the public.

Presidential directives are similar to Executive Orders--they have the same substantive legal effect. Just like executive orders, presidential directives do not lose their legal effectiveness upon a change of administration. Presidential directives are used as an instrument of national security to affect policy in this area and generally derive from the policy papers produced by the National Security Council (NSC) that advises the president on national security issues. They are not required to be published in the Federal Register and are often highly classified. This has been the case for presidential directives pertaining to cybersecurity. The secrecy surrounding cybersecurity policy has hindered the ongoing public debate in this area.

Presidential Directives

National Security Decision Directive 145 (NSDD 145)

NSDD 145 was issued by President Reagan in 1984. The directive gave the NSA control over all government computer systems containing "sensitive but unclassified" information. NSDD 145 was followed by a second directive issued by National Security Advisor John Poindexter that extended NSA authority over non-government computer systems. In response to these directives, Congress passed the Computer Security Act of 1987 (CSA). The Act reaffirmed that the National Institute for Standards and Technology (NIST) was responsible for the security of unclassified, non-military government computer systems. CSA limited the National Security Agency to providing technical assistance in the civilian security realm.

National Security Presidential Directive 38 (NSPD 38)

NSPD 38 was issued on July 7, 2004, as the National Strategy to Secure Cyberspace. The contents of this classified directive have never been released, but prior to the issuance of NSPD 38, the Whitehouse released a different document also entitled "National Strategy to Secure Cyberspace" that detailed five priorities to secure cyberspace:

  1. A National Cyberspace Security Response System.
  2. A National Cyberspace Security Threat and Vulnerability Reduction Program.
  3. A National Cyberspace Security Awareness and Training Program.
  4. Securing Governments' Cyberspace
  5. National Security and International Cyberspace Security Cooperation
National Security Presidential Directive 54 (NSPD 54)

NSPD 54 was implemented by President George W. Bush in January 2008. NSPD 54 was issued concurrently as Homeland Security Presidential Directive 23. The NSPD 54/HSPD 23 authorized the DHS (together with OMB) to set minimum operational standards for Federal Executive Branch civilian networks, and it empowers DHS to lead and coordinate the national cybersecurity effort to protect cyberspace and the computers connected to it. The directive also contains the Comprehensive National Cybersecurity Initiative (CNCI). The broad scheme of CNCI was described in a publicly-released 20009 document which included 12 initiatives:

  • Initiative #1. Manage the Federal Enterprise Network as a single network enterprise with Trusted Internet Connections.
  • Initiative #2. Deploy an intrusion detection system of sensors across the Federal enterprise.
  • Initiative #3. Pursue deployment of intrusion prevention systems across the Federal enterprise.
  • Initiative #4. Coordinate and redirect research (R&D) and development efforts.
  • Initiative #5. Connect current cyber ops centers to enhance situational awareness.
  • Initiative #6. Develop and implement a government-wide cyber counterintelligence (CI) plan.
  • Initiative #7. Increase the security of our classified networks.
  • Initiative #8. Expand cyber education.
  • Initiative #9. Define and develop enduring "leap-ahead" technology, strategies, and programs.
  • Initiative #10. Define and develop enduring deterrence strategies and programs.
  • Initiative #11. Develop a multi-pronged approach for global supply chain risk management.
  • Initiative #12. Define the Federal role of extending cybersecurity into critical infrastructure domains.

On June 5, 2014, the NSA released National Security Presidential Directive 54 ("NSPD 54") to EPIC after nearly five years of FOIA litigation. NSPD 54 is the foundational legal document outlining the Comprehensive National Cybersecurity Initiative (CNCI), the federal government’s effort to coordinate cybersecurity policy across federal law enforcement, intelligence and executive agencies, as well as with other law enforcement agencies and the private sector. The previously-classified document reveals the underlying legal authority for sweeping changes to federal cybersecurity that have taken place over the last five years. Additionally, NSPD 54 contains significant differences from the previously-released description of the CNCI. For the first time, the public now has access to the document empowering federal agencies to share cybersecurity information, develop offensive cyber programs and improve automated and predictive cyber technologies. NSPD 54 provides the public with an explanation of the government's legal and policy choices regarding cybersecurity and reveals new information about the government's coordinated cybersecurity efforts.

Presidential Policy Directive 20 (PPD 20)

PPD 20 was implemented by President Obama in October 2012, but was not released to the public. However, on June 7, 2013, PPD 20 was released by The Guardian, which had received the document from NSA leaker Edward Snowden. The directive details government policy regarding offensive cyber action and instructions to compile a list of potential targets for such action. According to the classified document, the "Government shall identify potential targets of national importance where [cyberattacks] can offer a favorable balance of effectiveness and risk ..." According to news reports, the directive gives broader power to the military to block cyberattacks and discusses what constitutes an "offensive" verses a "defensive" action with respect to cyberwar and cyberterrorism. Additionally, the directive discusses the use of cyber-operations--actions taken outside U.S. networks.

EPIC's Efforts

Freedom of Information Request for NSPD 54

EPIC submitted a FOIA request in June 2009 directed at the NSA requesting copies of the directive along with copies of any initiatives or privacy policies associated with the directive. The NSA initially made no substantive determination regarding EPIC's FOIA request. EPIC subsequently filed an administrative appeal and then the NSA released two documents that had previously been made public. Eventually, NSA also identified three relevant documents that it refused to disclose. EPIC appealed the NSA's determination and after receiving no response filed a lawsuit against the NSA.

The NSA eventually released heavily redacted versions of two of the three documents identified by the NSA as responsive to EPIC's request. EPIC appealed this decision in Federal Court, but the District Court ruled that NSPD 54 was not an agency record discoverable under FOIA. However, after EPIC appealed this decision to the D.C. Circuit Court, the NSA released the document to EPIC with minor redactions. EPIC has released NSPD 54, allowing the public to review the government’s foundational cybersecurity policy for the first time.

Freedom of Information Request for PPD 20

Immediately after the news broke that President Obama had signed a new cybersecurity directive, EPIC submitted a FOIA request directed at the NSA requesting the release of the directive. The NSA denied EPIC's request. PPD 20 became public after it was leaked to the Guardian by NSA whistleblower Edward Snowden. The directive orders the creation of potential targets for Offensive Cyber Effects Operations by the National Security Agency. According to the classified document, the "Government shall identify potential targets of national importance where [cyberattacks] can offer a favorable balance of effectiveness and risk . . ."

Resources

EPIC Reports, FOIA and Testimony

Organizations Working on Cybesecurity

Papers and Articles

Cybersecurity Infrastructure Surveillance Laws

Cybersecurity Legislation in the 111th Congress

News Articles