Presidential Directives and Cybersecurity

Concerning the use of Presidential Directives in Cybersecurity Policy

Latest News

  • EPIC to House Committee: Privacy Safeguards Apply to Personal Data Sent to Government: In advance of a hearing on "Cyber Threat Information Sharing," EPIC has sent a statement to the House Homeland Security Committee. EPIC urged the Committee to determine whether there are sufficient protections for personal data sent to government agencies. Private companies now have legal authority to transfer data to government agencies outside traditional privacy procedures following passage of the Cybersecurity Information Sharing Act. EPIC and a broad coalition warned that the law will increase monitoring of Internet users and government secrecy. EPIC urged the Congressional committee to carefully examine the "scrubbing" techniques that are intended to remove personally identifiable information before data is transferred to federal agencies. (Nov. 15, 2017)
  • White House Vulnerability Review Charter Provides Process for Disclosing Tech Flaws: The White House has released the "Vulnerabilities Equities Policy and Process," describing how the U.S. Government will make decisions regarding disclosure of "Zero-day vulnerabilities." At issue are vulnerabilities in software and consumer products that can be exploited by intelligence agencies and malicious hackers. If the VEP review board — comprised of agency representatives such as the DHS, ODNI, CIA, FBI, OMB, Commerce Department, and NSA — votes for disclosure, the tech company will be notified "when possible" within 7 business days. The charter requires the NSA, serving as the board's secretariat, to produce an annual public report on VEP decisions. In extensive comments on surveillance reform, EPIC supported the recommendations of the Obama Review Group, which included a recommendation for an interagency process to review "Zero-day vulnerabilities." In a letter to the Senate Committee on Homeland Security earlier this year, EPIC stated that "data protection and privacy should remain a central focus of the cyber security policy of the United States." (Nov. 15, 2017)
  • Senators Urge FEC to Promote Transparency in Online Ads: A group of 15 Senators led by Mark Warner (D-VA), Amy Klobuchar, (D-MN) and Claire McCaskell, (D-MO) have urged the Federal Election Commission to improve transparency for online political ads. The Senators stated that, "the FEC can and should take immediate and decisive action to ensure parity between ads seen on the internet and those on television and radio." The Senators emphasized how "Russian operatives used advertisements on social media platforms to sow division and discord" during the 2016 election. EPIC provided comments to the FEC calling for "algorithmic transparency" and the disclosure of who paid for online ads. Senators Klobuchar, Warner, and McCain (R-AZ) have also introduced a bipartisan bill that would require the same disclosures for online political advertisements as for those on television and radio. EPIC's Project on Democracy and Cybersecurity, established after the 2016 presidential election, seeks to promote election integrity and safeguard democratic institutions from various forms of cyber attack. (Nov. 13, 2017)
  • EPIC Sues Department of Homeland Security for Release of Russian Interference Records: EPIC has filed a Freedom of Information Act lawsuit against the Department of Homeland Security to obtain records related to Russian interference in the 2016 U.S. Presidential Election. Earlier this year, the DHS has designated state election systems as critical infrastructure and published a Joint Analysis Report acknowledging Russian interference with U.S. election systems. However, DHS has not provided any significant new information to the American public about the extent of the Russian interference. EPIC now seeks disclosure of the agency's "research, integration, analysis" related to the scope of Russian interference. EPIC's FOIA lawsuit follows H.Res. 235, a bill sponsored by Rep. Thompson (D-MS) that would have directed the DHS to provide this information to Congress, but was blocked by the House Homeland Security Committee. EPIC has filed several FOIA lawsuits to determine the scope of Russian interference. The cases include: EPIC v. FBI (Russian Hacking), EPIC v. ODNI (Russian Hacking), and EPIC v. IRS (Donald Trump's Tax Records). (Oct. 4, 2017)
  • EPIC Obtains Documents about DARPA's "Brandeis" Program: EPIC has received documents about the Defense Advanced Research Projects Agency's (DARPA) Brandeis Program, following a 2015 FOIA request. According to the agency, the program is intended to "research and develop tools for online privacy." EPIC obtained over 1,100 pages of documents about the Program. The documents include email communications (parts 1, 2, 3), budget appropriation justifications for fiscal year’s 2015 (parts 1, 2) and 2016 (parts 1, 2), as well as the names of contract awardees. According to the documents obtained by EPIC, the $75 million program provided $75 million over 4.5 years. Contract recipients include UC Berkley, UC Irvine, MIT, Carnegie Mellon University, Raytheon, SRI International, Stealth Software Technologies, and Galois. (Oct. 2, 2017)
  • EPIC Awarded Nearly $100,000 in Internet Surveillance Case: A federal judge in Washington, DC has issued a final order granting EPIC substantial attorney's fees in a long-running case against the Department of Homeland Security. EPIC sued the DHS in 2012 for information about a secret program to monitor Internet traffic. The "Cyber Pilot" program applied originally to defense contractors, but an executive order dramatically expanded the program, raising concerns about violations of federal wiretap law. EPIC's lawsuit produced the release of several thousand pages on the program. EPIC sought attorneys fees for the successful litigation, which the DHS opposed. In November, Judge Gladys Kessler ruled that EPIC was entitled to attorney's fees because it "substantially prevailed in [the] litigation" and added "to the fund of information that citizens may use in making vital political choices." On Monday, Judge Kessler confirmed that decision and awarded EPIC nearly $100,000 in fees—the largest such award in EPIC's history. (Jun. 5, 2017)
  • Executive Order on Cybersecurity Finally Released: A long delayed Executive Order on cybersecurity was released this week. The Order continues many of the cybersecurity policies of the Obama and Bush administrations. The Executive Order requires agency heads to use the NIST Framework to manage cybersecurity risk, and to provide a risk management report. The Order also requires Cabinet officials to devise a strategy for international cooperation in cybersecurity. However, the Order does not address Russia's cyber interference with the 2016 Presidential Election. EPIC, and a group of forty leading experts in law and technology, had urged the White House to strengthen privacy and data protection, and support strong encryption. The EPIC Cybersecurity and Democracy Project focuses on US cyber policies, threats to election systems and foreign attempts to influence American policymaking. (May. 12, 2017)
  • On Cyber Policy, EPIC Urges Senate to Protect Consumers, Democratic Institutions: In advance of a hearing on "Cyber Threats Facing America: An Overview of the Cybersecurity Threat Landscape," EPIC has sent a statement to a Senate Committee urging Congress to protect democratic institutions, following the Russian interference with the 2016 presidential election. EPIC explained that "data protection and privacy should remain a central focus" of cyber security policy. EPIC also recommended that Congress strengthen the federal Privacy Act and establish a U.S. data protection agency. EPIC recently launched the EPIC Cybersecurity and Democracy Project that will focus on US cyber policies, threats to election systems and foreign attempts to influence American policymaking. (May. 8, 2017)
  • EPIC To Senate Judiciary - "Public Has Right to Know About Russia Ties": EPIC has sent a statement to the Senate Judiciary Committee for a hearing on "Russian Interference in the 2016 United States Election." EPIC described its Freedom of Information Act cases against the FBI and the ODNI to obtain records about activities aimed at undermining democratic institutions. EPIC is also pursuing the release of any FISA orders for Trump Tower, as well as Donald Trump's tax returns. EPIC wrote the "need to understand Russian efforts to influence democratic elections cannot be overstated.” (May. 5, 2017)
  • Intelligence Agency Provides Non-Responsive Response in EPIC Lawsuit for Russia Report: The Director of National Intelligence has failed to provide a sufficient response in EPIC v. ODNI, concerning release of the report on the Russian interference in the 2016 Presidential election. The intelligence agency was required to release all “non-exempt portions" of the report to EPIC on May 3, 2017. However the agency withheld the entire document, refusing to provide even partial information that should have been released to EPIC under the Freedom of Information Act. As EPIC made clear in the complaint, “There is an urgent need to make available to the public the Complete ODNI Assessment to fully assess the Russian interference with the 2016 Presidential election and to prevent future attacks on democratic institutions.” EPIC will challenge the agency’s response as the litigation continues in federal district court in Washington, DC. EPIC v. ODNI is a part of the EPIC Cybersecurity and Democracy Project, which focuses on US cyber policies, threats to election systems and foreign attempts to influence American policymaking. (May. 3, 2017)

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

 

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