Require companies to disclose breaches to the government in exchange for legal liability limitations.
The most intriguing suggestion at the first Senate Intelligence Committee hearing on the SolarWinds attack came toward the end.
It seems to have bipartisan support. It would have a tremendous impact on our ability as a nation to quickly respond to attacks like SolarWinds that threaten both government agencies and businesses large and small, public and private. It’s been debated for years, but finally has a chance of coming to fruition.
It’s a mandatory, national data breach reporting law. It’s not every day that top executives of major technology companies openly call for more regulations on themselves. Of course, it wasn’t without a condition: They would commit to disclosing breaches to the government in exchange for legal liability limitations.
This is a major step toward the centralized cyber threat intelligence sharing we’ve long needed. Of course, as the committee Chairman Mark Warner pointed out, offering legal protection for disclosures could lead to “sloppy behavior” among companies. This is why we need a cybersecurity quid pro quo.
Require the disclosure of breaches—something we’ve long needed. Grant businesses limited legal liability—a reasonable incentive. But require businesses to meet minimum cybersecurity standards as a condition for those liability concessions.
I’ve seen the issue of data breach reporting from every angle. I was a global CISO for the second-largest defense contractor in the world and an early customer of Mandiant before it was acquired by FireEye. I’ve lived the difficulty of breach notification, ITAR breach issues, and the political and legal challenges of notification while trying to run an operational response. As a founding member of an early public-private partnership with the Department of Defense, I came to understand all the policy and legal issues inherent in threat information sharing, from notification to reporting to sharing tactics.
Now we have an opportunity to strengthen our defenses against cyber threats that continue to grow in frequency and severity. I’ve seen the good, the bad, and the ugly, including companies that have spent next to nothing on cybersecurity because no one has ever required them to.
Just as every car on the road has to comply with the same minimums for safety and security, businesses that are granted limited liability must prove they’re taking certain levels of precaution. Carmakers don’t get to decide the specifications for brakes, airbags and seatbelts; businesses should no longer be allowed to ignore basic cybersecurity practices.
We can’t fine and publicly shame our way to a more secure infrastructure. Instead, we need to incentivize it. We already have a model for how to do so. Ohio’s 2018 Data Protection Act motivated businesses to pursue stronger cybersecurity practices in exchange for liability protections in the event of a breach. The same should hold true at the federal level. If companies meet target standards, the government should absolutely extend legal protections in the event of a breach and use this structure and system to create standardized and centralized reporting and sharing of threat intelligence.
We also have a model for breach notification requirements that have been in place for many years for defense contractors. The Defense Federal Acquisition Regulation Supplement requires defense contractors to notify the DOD of any cybersecurity incidents within 72 hours. It would need updating, but is a strong base on which to build a national reporting requirement. The DOD’s public-private partnership with the defense industrial base is one that other agencies and industries can learn from.
A cybersecurity quid pro quo would establish a public-private partnership that would enhance our ability to defend against and mitigate breaches like SolarWinds. It would create early alarms through disclosures that could limit the scope of future breaches. It would encourage those disclosures by legally protecting the companies participating. And it would ensure every company participating was taking at least minimal security precautions.
It would be a win for the public and private sector, for American intellectual property, and for national security, and would be a strong step toward preventing the next SolarWinds-scale attack.
Eric Noonan is the chief executive officer of CyberSheath and served as a Marine and in the CIA.
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