National Cyber Strategy Seeks to Shift Burden from Consumers to Tech Firms

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The strategy calls for Congress to pass legislation that would “shift liability onto those entities that fail to take reasonable precautions to secure their software.”

Technology companies and software manufacturers should be held accountable for the safety and security of their products and devices, the Biden administration said in its long-awaited national cybersecurity strategy released on Thursday. 

In a cover letter accompanying the 35-page document, President Joe Biden said the strategy will, in part, address “the systemic challenge that too much of the responsibility for cybersecurity has fallen on individual users and small organizations.” 

The strategy document warned that voluntary security practices and market forces “impose inadequate costs” on—and “often reward”—tech companies, which allows too many firms to “ignore best practices for secure development, ship products with insecure default configurations or known vulnerabilities and integrate third-party software of unvetted or unknown provenance.” 

To address these outlined concerns, the strategy calls for a fundamental change in companies’ approach to product security, with the responsibility for safeguarding devices shifting away from users and organizations onto the manufacturers themselves. 

“We must begin to shift liability onto those entities that fail to take reasonable precautions to secure their software while recognizing that even the most advanced software security programs cannot prevent all vulnerabilities,” the strategy document said. “Companies that make software must have the freedom to innovate, but they must also be held liable when they fail to live up to the duty of care they owe consumers, businesses or critical infrastructure providers.”

As part of this effort, the document said the White House will work to “drive the development of an adaptable safe harbor framework to shield from liability companies that securely develop and maintain their software products and services.” This framework, the document said, should work to incorporate current best practice principles—such as the NIST Secure Software Development Framework—while also ensuring that the safe harbor model is adaptable and can evolve to embrace “new tools for secure software development, software transparency and vulnerability discovery.”

During a press call on Wednesday, Deputy National Security Advisor for Cyber and Emerging Technology Anne Neuberger said that the strategy’s focus on shaping market forces to drive security and resilience will ensure that “we place responsibilities on those who can address the risks” and work “to shift the consequences for cybersecurity away from the most vulnerable.” 

To drive this effort, the strategy said the White House “will work with Congress and the private sector to develop legislation establishing liability for software products and services.” 

“Any such legislation should prevent manufacturers and software publishers with market power from fully disclaiming liability by contract, and establish higher standards of care for software in specific high-risk scenarios,” the document added.

Given the current political climate, however, a senior administration official on the press call acknowledged that “we don’t anticipate that this is something where we’re going to see a new law on the books within the next year,” noting that the strategy as a whole is “looking out a decade.”

“Our anticipation is that we will need to begin this process working with industry to really establish what better software development practices look like, work to implement those, work to articulate those and then work with industry and Congress to establish what some kind of liability shield for the adoption of those practices would look like,” the official said, adding that the goal will ultimately be to enforce liability “where it will do the most good.” 

Federal officials in recent months have been calling for tech companies to take more accountability for the security of their products and work to incorporate “secure by design” principles into the development of new devices. 

In a speech at Carnegie Mellon University on Monday, Cybersecurity and Infrastructure Security Agency Director Jen Easterly called for a “fundamental shift” in the tech sector’s approach to security that allows for consumers to have “implicit trust in the safety and integrity of the technology products that we use every hour of every day.” 

Easterly’s call for enhanced security features in consumer products came after she—along with Eric Goldstein, CISA’s executive assistant director for cybersecurity—penned an article for Foreign Affairs on Feb. 1 that called for the tech sector to “stop passing the buck on cybersecurity.” 

The push to hold tech companies liable for the security of their products could lead to a seismic shift in the way that the tech sector approaches cybersecurity—one that would necessitate even greater public-private engagement.

Brendan Peter, vice president of global government affairs at SecurityScorecard—an information security company that rates organizations’ cyber risks—noted that the cyber strategy is the result of “long-standing and ongoing collaboration” between the public and private sectors. He added that these efforts will take on growing importance moving forward, particularly when it comes to the likely long-term effort to enhance liability for tech companies. 

“The strategy is a wonderful marker of objectives and outcomes, but really, the proof is going to be in the implementation,” he added. “And to do that effectively, we're going to have to bring in a lot of different parties with very different vantage points, very different equities and very different expectations. And that's hard work.”

Peter said the strategy’s focus on data-driven metrics will also be key to these efforts. The document noted that “the federal government will take a data-driven approach” to its implementation of the strategy’s five key pillars to “measure investments made, our progress toward implementation and ultimate outcomes and effectiveness of these efforts.” 

“I think the data measurement and assessment piece is going to be so critical in this, because the only way that we're going to be able to show progress is by consistent measurement and reporting and examination of the progress that we're making up and down the chain,” he added.