[House Hearing, 113 Congress]
[From the U.S. Government Printing Office]
STRIKING THE RIGHT BALANCE: PROTECTING OUR NATION'S CRITICAL
INFRASTRUCTURE FROM CYBER ATTACK AND ENSURING PRIVACY AND CIVIL
LIBERTIES
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HEARING
before the
SUBCOMMITTEE ON CYBERSECURITY,
INFRASTRUCTURE PROTECTION,
AND SECURITY TECHNOLOGIES
of the
COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
APRIL 25, 2013
__________
Serial No. 113-13
__________
Printed for the use of the Committee on Homeland Security
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.gpo.gov/fdsys/
__________
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COMMITTEE ON HOMELAND SECURITY
Michael T. McCaul, Texas, Chairman
Lamar Smith, Texas Bennie G. Thompson, Mississippi
Peter T. King, New York Loretta Sanchez, California
Mike Rogers, Alabama Sheila Jackson Lee, Texas
Paul C. Broun, Georgia Yvette D. Clarke, New York
Candice S. Miller, Michigan, Vice Brian Higgins, New York
Chair Cedric L. Richmond, Louisiana
Patrick Meehan, Pennsylvania William R. Keating, Massachusetts
Jeff Duncan, South Carolina Ron Barber, Arizona
Tom Marino, Pennsylvania Dondald M. Payne, Jr., New Jersey
Jason Chaffetz, Utah Beto O'Rourke, Texas
Steven M. Palazzo, Mississippi Tulsi Gabbard, Hawaii
Lou Barletta, Pennsylvania Filemon Vela, Texas
Chris Stewart, Utah Steven A. Horsford, Nevada
Richard Hudson, North Carolina Eric Swalwell, California
Steve Daines, Montana
Susan W. Brooks, Indiana
Scott Perry, Pennsylvania
Vacancy
Greg Hill, Chief of Staff
Michael Geffroy, Deputy Chief of Staff/Chief Counsel
Michael S. Twinchek, Chief Clerk
I. Lanier Avant, Minority Staff Director
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SUBCOMMITTEE ON CYBERSECURITY, INFRASTRUCTURE PROTECTION, AND SECURITY
TECHNOLOGIES
Patrick Meehan, Pennsylvania, Chairman
Mike Rogers, Alabama Yvette D. Clarke, New York
Jason Chaffetz, Utah William R. Keating, Massachusetts
Steve Daines, Montana Filemon Vela, Texas
Scott Perry, Pennsylvania Steven A. Horsford, Nevada
Vacancy Bennie G. Thompson, Mississippi
Michael T. McCaul, Texas (ex (ex officio)
officio)
Alex Manning, Subcommittee Staff Director
Dennis Terry, Subcommittee Clerk
C O N T E N T S
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Page
Statements
The Honorable Patrick Meehan, a Representative in Congress From
the State of Pennsylvania, and Chairman, Subcommittee on
Emergency Preparedness, Response, and Communications........... 1
The Honorable Yvette D. Clarke, a Representative in Congress From
the State of New York, and Ranking Member, Subcommittee on
Emergency Preparedness, Response, and Communications:
Oral Statement................................................. 3
Prepared Statement............................................. 4
The Honorable Bennie G. Thompson, a Representative in Congress
From the State of Mississippi, and Ranking Member, Committee on
Homeland Security:
Prepared Statement............................................. 5
Witnesses
Ms. Mary Ellen Callahan, Partner, Jenner & Block, and Former
Chief Privacy Officer, U.S. Department of Homeland Security:
Oral Statement................................................. 6
Prepared Statement............................................. 8
Ms. Cheri F. McGuire, Vice President, Global Government Affairs &
Cybersecurity Policy, Symantec:
Oral Statement................................................. 14
Prepared Statement............................................. 15
Ms. Harriet P. Pearson, Partner, Hogan Lovells:
Oral Statement................................................. 19
Prepared Statement............................................. 21
STRIKING THE RIGHT BALANCE: PROTECTING OUR NATION'S CRITICAL
INFRASTRUCTURE FROM CYBER ATTACK AND ENSURING PRIVACY AND CIVIL
LIBERTIES
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Thursday, April 25, 2013
U.S. House of Representatives,
Subcommittee on Cybersecurity, Infrastructure
Protection, and Security Technologies,
Committee on Homeland Security,
Washington, DC.
The subcommittee met, pursuant to call, at 2:19 p.m., in
Room 311, Cannon House Office Building, Hon. Patrick Meehan
[Chairman of the subcommittee] presiding.
Present: Representatives Meehan, Rogers, Daines, Perry,
Clarke, Keating, Vela, and Horsford.
Mr. Meehan. The Committee on Homeland Security Subcommittee
on Cybersecurity, Infrastructure Protection, and Security
Technologies will come to order.
The subcommittee is meeting today to examine the balance
between preventing a cyber attack on our Nation's critical
infrastructure and ensuring privacy and civil liberties are
protected. I will recognize myself for an opening statement.
I would like to welcome everyone to today's hearing, which
is titled, ``Striking the Right Balance: Protecting Our
Nation's Critical Infrastructure From Cyber Attack and Ensuring
Privacy and Civil Liberties.'' During this Congress, our
subcommittee has been examining the cybersecurity threat to
individuals and to our critical infrastructure. Our Nation has
made great strides, but the threat is multi-faceted and we are
only as strong as our weakest link.
Earlier this week, we saw the ramifications of a hacked
Twitter account that nearly sent our financial markets into a
tailspin. While the Dow Jones Industrial Average has to recoup
their losses, the lesson is clear: We are in an interconnected
world. A successful attack on one network will certainly impact
others.
The Department of Homeland Security plays a crucial role in
preventing cyber attacks on our Governmental and critical
infrastructure key resources. As Chairman McCaul and I and the
Ranking leadership work together, we have continued to use our
efforts to craft legislation to bolster existing structures and
improve the capabilities of the Department of Homeland
Security. One of the key challenges will be to strike the
balance of securing our networks and ensuring our protections
for our citizens.
Upon assuming the gavel of this subcommittee this year, I
made sure I immediately reached out to leading privacy
advocates. Groups like the American Civil Liberties Union and
Center for Democracy & Technology have been instrumental in
shaping the thinking as we have moved forward with the
committee's work. Indeed, we must make clear that the purpose
of sharing information is to prevent a cyber attack and nothing
else. Any intelligence shared with the Government or with
public or private entities must include protections for
consumers and individuals.
In order to accomplish this, we must ensure that we have a
full understanding, first, what the threat is; next, what type
of intelligence is necessary to share to prevent an attack;
then what type of information is inadvertently caught in the
net; and furthermore, what may be done once it is identified?
The answer to these questions, coupled with robust civilian
oversight, a clear set of rules of conduct and liability
protections for those acting in good faith will help shape the
key policy initiatives for our subcommittee.
I need to be clear and I think all of us share that right
out front that the committee is not concerned with internet
habits of ordinary Americans. It is our duty as Members of this
committee to make sure that the Department does not monitor,
collect, or store the on-line activity of law-abiding American
citizens. Therefore, information that permits the identity of
an individual to be directly or indirectly inferred, which is
also referred to as personally identifiable information, must
be protected.
The Department of Homeland Security has significant
inherent advantages that enable the Department to facilitate
communication among 16 critical infrastructure sectors. The
Department of Homeland Security Privacy Office is the first
statutorily required privacy office in any Federal agency. The
office is responsible for evaluating Department operations for
potential privacy impacts and providing mitigation strategies
to reduce the privacy impact.
By employing Fair Information Practice Principles, or
FIPPs, as it is known, the DHS Privacy Office is charged with
ensuring that the Department's data collection methods are
transparent, have specified purposes, and include data
minimization, use limitation, data quality and integrity,
security, accountability, and auditing. Those are FIPPs
principles.
It is for these reasons that many intelligence and
cybersecurity experts point to DHS as manning a significant
role in combating the threat. In fact, the Director of the
National Security Agency, General Keith Alexander, said that
due to the Department's transparency, he sees DHS as an entry
point for working with industry.
Building our Nation's capacity to prevent cyber attacks is
complex as it is essential. As a former United States attorney,
I can tell you that the Department of Justice has a very
important role to play in enforcing our cyber crime laws. We
also must permit our military and foreign intelligence
capabilities and those resources to protect our Nation's
defense. Equally as important, the Department of Homeland
Security has the mission of defending our Nation's key
resources and the liberties guaranteed by our Constitution.
We have an excellent panel of witnesses today who will help
us answer these questions and hopefully help us find the
balance. Moving forward, today's hearing aims to examine how
DHS currently protects privacy and personally identifiable
information. It addresses the legitimate privacy concerns that
are inherent in sharing cybersecurity threat information and
finds ways to strike that proper balance between privacy and
security. No one should mistake the common cause of securing
our homeland for authority to violate the civil liberties of
Americans.
The Chairman now recognizes the Ranking Minority Member,
the gentlelady from New York, Ms. Clarke, for any statement she
may have.
Ms. Clarke. Mr. Chairman, I thank you for holding today's
hearing. I am pleased to be joined today by this very
distinguished panel of witnesses, and I would like to welcome
Mary Ellen Callahan back to the committee for her first time
since leaving the Department.
Here on the Homeland Security committee, we have understood
the need to balance security and privacy for quite some time.
Protecting our Nation from 21st Century threats requires
vigorous coordinated action from our Government and State,
local, private sector, and international partners. But if we go
overboard to identify and eliminate every conceivable threat at
any cost, we risk trampling the very rights of citizens we aim
to protect. The need to find that proper balance has been a
cornerstone of our committee's work on counterterrorism, on
transportation security and certainly on today's topic,
cybersecurity.
Most of the Government's efforts in cybersecurity do not
directly touch upon privacy issues, and that is an important
distinction that is not made often enough. Many programs, such
as the Department of Homeland Security's EINSTEIN program, do
not involve the collection or sharing of any kind of personally
identifiable information at all. The vast majority of all of
the information needed to thwart cyber attacks consists of
technical data, such as IP addresses and malicious code, which
has little or nothing to do with someone's social security
number or passwords.
But where the private sector needs to share information
with the Government to stop cyber attacks, every precaution
must be taken to ensure the privacy of our citizens is ensured.
Last month, we heard from the American Civil Liberties
Union on the importance of protecting privacy in cyberspace. I
am pleased that we are joined today by three witnesses, who can
really speak to the nuts and bolts of challenges, protecting
private data from both the Government and business
perspectives. As we look toward crafting our own legislation to
help protect critical infrastructure and improve our Nation's
cybersecurity efforts, it is important to really nail down the
specifics of protecting privacy.
In order to get our approach to cybersecurity and privacy
right, we must examine it from all the angles. We must assess
the current legal environment and identify challenges that
companies must cope with in ensuring the privacy and security
of their employees' and customers' data. We must determine the
types of information needed by the Government to prevent the
attacks and the intended uses of that information. We must
examine how commercial cybersecurity providers interact with
their customers and the Government to share threat information.
Thankfully, our witnesses today cover the breadth of these
issues with their testimony.
I am particularly pleased we are joined by Harriet Pearson,
who is one of the Fortune 1,000 first chief privacy officers
and has been a trailblazer for developing information policies
and practices for protecting the private data of employees--
excuse me, consumers.
Every American values their privacy and civil liberties as
well as their security in cyberspace. I am confident that in
building a lasting solution to our cybersecurity, we can adopt
measures that will satisfy privacy advocates, the business
community, and our citizens.
That ends my statement, Mr. Chairman, and I yield back the
balance of my time.
[The statement of Ranking Member Clarke follows:]
Statement of Ranking Member Yvette D. Clarke
April 25, 2013
Here on the Homeland Security Committee, we have understood the
need to balance security and privacy for a long time. Protecting our
Nation from 21st Century threats requires vigorous, coordinated action
from our Government and State, local, private-sector, and international
partners.
But if we go overboard to identify and eliminate every conceivable
threat at any cost, we risk trampling the very rights of the citizens
we aim to protect. The need to find that proper balance has been a
cornerstone of our committee's work, on counterterrorism, on
transportation security, and certainly on today's topic, cybersecurity.
Most of the Government's efforts in cybersecurity do not directly
touch upon privacy issues, and that is an important distinction that is
not made often enough. Many programs, such as the Department of
Homeland Security's EINSTEIN program, do not involve the collection or
sharing of any kind of personally identifiable information at all.
And the vast majority of the information needed to thwart cyber
attacks consists of technical data such as IP addresses and malicious
code, which has little or nothing to do with someone's social security
number or passwords. But where the private sector needs to share
information with the Government to stop cyber attacks, every precaution
must be taken to ensure that the privacy of our citizens is ensured.
Last month we heard from the American Civil Liberties Union on the
importance of protecting privacy in cyberspace, and I am pleased that
we are joined today by three witnesses who can really speak to the
nuts-and-bolts challenges of protecting private data, both from the
Governmental and business perspectives.
As we look towards crafting our own legislation to help protect
critical infrastructure and improve our Nation's cybersecurity efforts,
it is important to really nail down the specifics on protecting
privacy.
In order to get our approach to cybersecurity and privacy right, we
must examine it from all the angles:
We must assess the current legal environment and identify
challenges that companies must cope with in ensuring the
privacy and security of their employees and customers' data;
We must determine the types of information needed by the
Government to prevent attacks, and the intended uses for that
information;
And we must examine how commercial cybersecurity providers
interact with their customers and the Government to share
threat information.
Thankfully, our witnesses today cover the breadth of these issues
with their testimony. I am particularly pleased that we are joined by
Harriet Pearson, who was one of the Fortune 1000's first chief privacy
officers, and has been a trailblazer for developing information
policies and practices for protecting the private data of employees and
consumers.
Every American values their privacy and civil liberties as well as
their security in cyberspace, and I am confident that in building a
lasting solution to our cyber insecurity, we can adopt measures that
will satisfy privacy advocates, the business community, and our
citizens.
Mr. Meehan. I thank you, Ranking Member.
The other Members of the committee are reminded that
opening statements may be submitted for the record.
[The statement of Ranking Member Thompson follows:]
Statement of Ranking Member Bennie G. Thompson
April 24, 2013
We are here to discuss ways to secure cyberspace and critical
infrastructure from hackers while assuring that Constitutionally-
guaranteed privacy and civil liberties are safeguarded.
In the last 10 years, our society has become increasingly connected
by computer networks. Networking technologies have changed our
traditional notions of time and space. Our ability to reach the
farthest corner of the earth has grown while the distance between us
has shrunk. The world and all it has to offer is a click away and can
be viewed on a screen in front of us.
But this unprecedented connectivity and convenience has not come
without a price. We face new kinds of dangers that may come for us at
any time from any corner of the globe. Destruction can be delivered
with a keystroke.
Unfortunately, cyber attacks are increasing. This Nation cannot
unnecessarily delay implementation of cybersecurity programs to combat
these threats. Those efforts must include responsible collaboration
between private industry and the Government to ensure the greatest care
is given to our citizens' private data. The protections we put in place
and the information we share to combat the threats must not undermine
the privacy that each American rightfully regards as a fundamental
freedom.
Working together, we can create a legal framework which encourages
businesses to share enough information to reduce the likelihood of
intrusions and prevent future harm without compromising privacy.
But, Mr. Chairman, perhaps the most important weapon in our arsenal
to protect privacy is ensuring that the Government's efforts are led by
a civilian agency. Information sharing with Federal civilian agencies
will provide the public with a sense of increased transparency and
accountability because Congressional oversight and public information
requests will enable Members of this body and members of the public to
peek behind the curtain, ask questions, and find out what is happening.
That is why I was proud to sponsor, with Chairman McCaul, an
amendment to the Cyber Intelligence Sharing and Protection Act, which
firmly established a center at the Department of Homeland Security to
serve as the hub for cyber threat information sharing. As you know,
this amendment was approved.
Mr. Chairman, I thank you for holding today's hearing to bring the
privacy question into sharp focus. In the coming months, I look forward
to introducing legislation to further improve our Nation's
cybersecurity posture, with a special emphasis on privacy implications.
I would like to thank our witnesses for joining us today. I look
forward to hearing the testimony.
Mr. Meehan. We really are pleased to have a very
distinguished panel of witnesses before us today on this
important topic. I don't think that there could have been a
better group assigned, but this is a remarkably important
issue, and I think you have the ability to help the American
citizens understand where this area is in which important work
is done to allow us to protect our homeland, but simultaneously
significant and important work is being done and can be done to
help us ensure that we protect the privacy interests of
Americans. So I am hoping that we can educate those who don't
really understand in this complex area what the parameters are.
We have in this panel Ms. Mary Ellen Callahan, who we have
had the privilege of having before this committee before, a
Nationally recognized privacy attorney with an extensive
background in consumer protection law. As the longest-serving
former chief privacy officer of the United States Department of
Homeland Security, the first statutorily-mandated privacy
officer in any Federal agency, Ms. Callahan has a unique and
broad knowledge of experience with the interface of protection
of privacy, civil rights, and civil liberties with
cybersecurity and National security issues.
During her tenure at the Department of Homeland Security,
Ms. Callahan also served as the chief Freedom of Information
Officer, responsible for centralizing both FOIA and Privacy Act
operations to provide policy and programmatic oversight and
support implementation across the Department.
Ms. Callahan is a founder and chair of Jenner & Block's
privacy information governance practice.
We have Ms. Cheri McGuire, who serves as vice president for
global government affairs and cybersecurity policy at Symantec,
where she is responsible for managing a global team focused on
cybersecurity, data integrity, and privacy issues. Prior to
joining Symantec, Ms. McGuire served as the director of
critical infrastructure in cybersecurity in Microsoft's
Trustworthy Computing Group and also as Microsoft's
representative to the Industry Executive Subcommittee on the
President's National Security Telecommunications Advisory
Committee. Prior to joining Microsoft Ms. McGuire served in
numerous capacities at DHS including as acting director and
deputy director of the National Cybersecurity Division and US-
CERT.
We are very pleased to be joined as well by Ms. Harriet
Pearson, a partner at Hogan Lovells, where she focuses on
counseling clients on privacy and information security policy
in compliance matters, data security incident response and
remediation and information in cybersecurity risk management
and governance. Ms. Pearson joined Hogan from IBM Corporation
where she served as vice president, security counsel, and chief
privacy officer. At IBM, she was responsible for information
policy and practices affecting over 400,000 employees and
thousands of clients. She also lead IBM's global engagement
public policy and industry initiatives relative to
cybersecurity and data privacy. I think that outlines the
tremendous qualifications and experience of this very, very
distinguished panel.
So the witnesses' full statements will appear in the
record.
The Chairman now recognizes Ms. Callahan for her testimony.
STATEMENT OF MARY ELLEN CALLAHAN, PARTNER, JENNER & BLOCK, AND
FORMER CHIEF PRIVACY OFFICER, U.S. DEPARTMENT OF HOMELAND
SECURITY
Ms. Callahan. Thank you very much, sir.
Chairman Meehan, Ranking Member Clarke, distinguished
Members of the subcommittee, thank you for the opportunity to
appear before you again today.
My name is Mary Ellen Callahan, and I am a partner at the
law firm of Jenner & Block, where I chair the privacy and
information governance practice and counsel private-sector
clients on integrating privacy and cybersecurity.
As the Chairman noted, from March 2009 to August 2012, I
served as the chief privacy officer at the U.S. Department of
Homeland Security. I have worked as a privacy professional for
15 years and have National and international experience in
integrating privacy into business and Government operations. I
am appearing before this subcommittee in my personal capacity.
As the subcommittee knows and as Ms. McGuire will detail
more thoroughly, the United States critical infrastructure
faces significant cybersecurity threats. However, cybersecurity
and privacy must be integrated in order to effectively--most
effectively protect those valuable assets.
The Department of Homeland Security has taken multiple
steps, including several during my 3\1/2\-year tenure to
integrate privacy into the DHS cybersecurity programs. First,
as the Chairman noticed, DHS has thoroughly integrated the Fair
Information Practice Principles into all of its programs,
including cybersecurity. The FIPPs are eight interdependent
principles that create a framework for how information may be
used and shared in a manner that protects privacy:
Transparency; individual participation; purpose specification;
data minimalization; use limitation; data quality and
integrity; security; and accountability and auditing.
DHS has furthermore been very transparent about its
cybersecurity capabilities. For example, DHS published several
privacy impact assessments, or PIAs, detailing pilot programs
and information sharing among and between different entities,
including a pilot program with the National Security Agency and
an information-sharing program with the defense industrial
base.
The Department engaged privacy advocates and private-sector
representatives on its cybersecurity activities through a
Federal advisory committee subcommittee, multiple meetings with
advocates, and with Congressional testimony such as before this
committee.
The Department has already hired multiple cybersecurity
privacy professionals in order to embed them into the
infrastructure at DHS. These privacy professionals review and
provide comments and insight into cybersecurity standard
operating procedures, statements of work, contracts, and
international cyber information-sharing agreements. These
privacy professionals also provide cyber-specific privacy
training to the cybersecurity analysts to supplement the
privacy training required for DHS employees and contractors.
Furthermore, an important tenet of the FIPPs is the concept
of accountability. Given the importance of the DHS mission in
cybersecurity, the DHS Privacy Office conducted a privacy
compliance review in late 2011. My office found that the
cybersecurity program was generally compliant with the
requirements outlined with cybersecurity privacy impact
assessments. This compliance review is available in the DHS
Privacy Office website, as are all the privacy documents
referenced in my written testimony.
Since I left DHS, I know through public knowledge that the
Department continues to work to embed privacy protections into
its cybersecurity activities. For example, its advisory
committee, the Data Privacy and Integrity Advisory Committee,
issued a robust paper for DHS to consider when implementing
information-sharing pilots and programs with other entities,
including the private sector. Furthermore, in January 2013, DHS
published a thoughtful and comprehensive privacy impact
assessment covering the enhanced cybersecurity surfaces, also
known as ECS--we have a lot of acronyms, and I am sorry about
that--ECS is voluntary program based on the sharing of
indicators of malicious cyber activity between DHS and
participating commercial service providers.
The information-sharing implementation standards described
in the ECS PIA are concrete examples of privacy by design and
should well position DHS to effectively implement the increased
information sharing mandated in the 2013 Executive Order. In
addition, just this week, the Department announced that it will
deploy EINSTEIN 3 accelerated, known as E3A, network intrusion
prevention capabilities on Federal Government networks as a
managed security service provided by ISPs, rather than placing
the entire response on the Federal Government.
DHS will share threat information it receives through E3A
consistent with its existing policies and procedures. The way
E3A is structured should enhance privacy, protect the Federal
civilian Executive branch departments and agencies, and provide
a nimble response to the evolving cyber threat.
The continued integration of privacy and cybersecurity is
crucial for effective cybersecurity protections. In my 15
years, it is clear that privacy integration into the
operational aspects of any activity makes the program both more
effective and more likely to protect privacy. I believe DHS has
appropriately and effectively integrated privacy and
cybersecurity, both in its Federal Executive responsibilities
and as an information-sharing responsibility.
Thank you for the opportunity to appear before you this
afternoon. I am happy to take any questions.
[The prepared statement of Ms. Callahan follows:]
Prepared Statement of Mary Ellen Callahan
April 25, 2013
Chairman Meehan, Ranking Member Clarke, distinguished Members of
the subcommittee, thank you for the opportunity to appear before you
today. My name is Mary Ellen Callahan. I am a partner at the law firm
of Jenner & Block, where I chair the Privacy and Information Governance
practice and counsel private-sector clients on integrating privacy and
cybersecurity. From March 2009 to August 2012, I served as the chief
privacy officer at the U.S. Department of Homeland Security (DHS or
Department). I have worked as a privacy professional for 15 years, and
have National and international experience in integrating privacy into
business and Government operations. I am appearing before this
subcommittee in my personal capacity, and not on behalf of any other
entity.
As this subcommittee knows, the United States' critical
infrastructure, including Government assets, face significant
cybersecurity threats. Cybersecurity and privacy must be integrated in
order to most effectively protecting valuable assets. Furthermore, if
done right, increased cybersecurity (with appropriate standards and
procedures) also means increased privacy.
The Department of Homeland Security has taken multiple steps to
integrate cybersecurity and privacy as part of the Department's
cybersecurity mission. In fact, DHS has integrated privacy into its
cybersecurity program since the EINSTEIN program was launched in late
2003. Shortly thereafter, the Department published one of the its first
Privacy Impact Assessments (PIA) on EINSTEIN 1 (a network flow system),
detailing the privacy protections that DHS embedded into its
cybersecurity program from the beginning, and being transparent about
those protections.\1\ In 2008, DHS conducted a PIA on the second
iteration of the DHS cybersecurity program, EINSTEIN 2 (adding an
intrusion detection capability).\2\ These PIAs exemplify the concept of
``privacy by design'' and are important foundational considerations for
a large operational department like DHS.
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\1\ EINSTEIN 1, developed in 2003, provides an automated process
for collecting computer network security information from voluntary
participating Federal executive agencies. It works by analyzing network
flow records. Even though DHS was not required to do a PIA given no
personally identifiable information (PII) was being collected, DHS
conducted a PIA (DHS/NPPD/PIA/001) on EINSTEIN 1 in September 2004 for
transparency, available at: http://www.dhs.gov/xlibrary/assets/privacy/
privacy_pia_einstein.pdf.
\2\ As with EINSTEIN 1, EINSTEIN 2 passively observes network
traffic to and from participating Federal Executive Branch departments
and agencies' networks. In addition, EINSTEIN 2 adds an intrusion
detection system capability that alerts when a pre-defined specific
cyber threat is detected and provides the US-CERT with increased
insight into the nature of that activity. The May 2008 PIA (DHS/NPPD/
PIA-008) is available at: http://www.dhs.gov/xlibrary/assets/privacy/
privacy_pia_einstein2.pdf.
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i. dhs integration of privacy protections into its cybersecurity
programs
During my 3\1/2\-year tenure at DHS, we further integrated privacy
into the DHS cybersecurity programs in several ways.
1. Integration of the Fair Information Practice Principles into DHS
Cybersecurity Programs.--As noted below, DHS has thoroughly
integrated the Fair Information Practice Principles (FIPPs)
into its cybersecurity programs. The FIPPS are the ``widely-
accepted framework of defining principles to be used in the
evaluation and consideration of systems, processes, or programs
that affect individual privacy.''\3\
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\3\ National Strategy for Trusted Identities in Cyberspace, April
2011, available at: http://www.whitehouse.gov/sites/default/files/
rss_viewer/NSTICstrategy_041511.pdf.
---------------------------------------------------------------------------
The FIPPs are eight interdependent principles that create a
framework for how information may be used and shared in a
manner that protects privacy: Transparency; individual
participation; purpose specification; data minimization; use
limitation; data quality and integrity; security; and
accountability and auditing.\4\ During my tenure, my office
worked tirelessly to integrate the FIPPs into all DHS programs,
including cybersecurity.
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\4\ DHS adopted the eight FIPPs as a framework for Privacy Policy
on December 29, 2008; see DHS Privacy Policy Guidance Memorandum 2008-
01, available at: http://www.dhs.gov/xlibrary/assets/privacy/
privacy_policyguide_2008-01.pdf.
---------------------------------------------------------------------------
2. Transparency.--DHS has been very transparent about its
cybersecurity capabilities. During my tenure, DHS published
several PIAs detailing pilot programs and information sharing
among and between different Government entities. First, DHS
discussed via PIA a 12-month proof of concept to determine the
benefits and issues presented by deploying the EINSTEIN 1
capability to Michigan State government networks managed by the
Michigan Department of Information Technology.\5\ Shortly
thereafter, DHS completed both a classified and unclassified
PIA for the ``Initiative Three Exercise''\6\ of the
Comprehensive National Cybersecurity Initiative.''\7\ In the
Initiative Three Exercise, DHS engaged in an exercise to
demonstrate a suite of technologies that could be included in
the next generation of the Department's EINSTEIN network
security program, such as an intrusion prevention capability.
This demonstration used a modified complement of system
components then being provided by the EINSTEIN 1 and EINSTEIN 2
capabilities, as well as a DHS test deployment of technology
developed by the National Security Agency (NSA) that included
an intrusion prevention capability. The DHS Privacy Office
worked with DHS and the NSA to be as transparent as possible
with the Exercise, including naming NSA (and its role in the
Exercise) expressly in the PIA.
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\5\ Privacy Impact Assessment Update for the EINSTEIN 1: Michigan
Proof of Concept, February 19, 2010, (DHS/NPPD/PIA-013) available at:
http://www.dhs.gov/xlibrary/assets/privacy/
privacy_pia_nppd_einstein1michigan.pdf.
\6\ US-CERT: Initiative Three Exercise Privacy Impact Assessment
(unclassified), March 18, 2010, (DHS/NPPD/PIA-014) available at: http:/
/www.dhs.gov/xlibrary/assets/privacy/privacy_pia_nppd_initiative3.pdf.
\7\ See http://www.whitehouse.gov/cybersecurity/comprehensive-
national-cybersecurity-initiative for a description of all 12
cybersecurity initiatives.
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In early 2012, DHS published a PIA on its information-sharing pilot
with the Defense Industrial Base;\8\ after 180 days and a
series of evaluations of its effectiveness, the PIA was updated
to reflect the establishment of a permanent program to enhance
cybersecurity of participating Defense Industrial Base entities
through information-sharing partnerships. The permanent program
was announced via PIA shortly before my departure.\9\
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\8\ Privacy Impact Assessment for the National Cyber Security
Division Joint Cybersecurity Services Pilot (JCSP), January 16, 2012,
(DHS/NPPD/PIA-021) available at: http://www.dhs.gov/xlibrary/assets/
privacy/privacy_nppd_jcsp_pia.pdf. (N.B., this PIA has been retired
with the release of the ECS PIA in January 2013, referenced below).
\9\ Privacy Impact Assessment Update for the Joint Cybersecurity
Services Program (JCSP), Defense Industrial Base (DIB)--Enhanced
Cybersecurity Services (DECS), July 18, 2012, (DHS/NPPD/PIA-021(a))
available at: http://www.dhs.gov/xlibrary/assets/privacy/privacy-pia-
update-nppd-jcps.pdf. (N.B., this PIA update has been retired with the
release of the ECS PIA in January 2013, referenced below).
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Furthermore, one of my last acts as Chief Privacy Officer was to
approve a comprehensive PIA that described the entire National
Cybersecurity Protection System (NCPS), a programmatic PIA that
explains and integrates all the NPPD/Cybersecurity and
Communication (CS&C) cyber programs in a holistic document,
rather than the previous patchwork PIAs that were snapshots in
time of CS&C capabilities.\10\ This NCPS PIA helps provide a
comprehensive understanding of the CS&C cybersecurity program,
further increasing transparency.
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\10\ National Cybersecurity Protection Program Privacy Impact
Assessment, July 30, 2012, (DHS/NPPD/PIA-026) available at: http://
www.dhs.gov/sites/default/files/publications/privacy/privacy-pia-nppd-
ncps.pdf.
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3. Outreach and engagement with advocates and private-sector
representatives.--The Department engaged privacy and civil
liberties advocates and private-sector representatives about
its cybersecurity activities in several ways. First, as part of
the Cyberspace Policy Review conducted by the administration in
2009,\11\ the Department met with privacy and civil liberties
advocates and academicians (at a Top Secret/SCI level) to
discuss the Advanced Persistent Threat landscape, and
Government response. That ad hoc meeting led to the creation of
a subcommittee of DHS' Federal Advisory Committee Act-
authorized committee, the Data Privacy and Integrity Advisory
Committee (DPIAC).\12\ The members and the experts on the DPIAC
subcommittee (including privacy and civil liberties advocates,
academicians, and private-sector representatives) were briefed
frequently at the Top Secret/SCI level. After my departure, the
DPIAC subcommittee produced an excellent report on integrating
privacy into the DHS information-sharing pilots and programs,
discussed below.
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\11\ Cyberspace Policy Review: Assuring a Trusted and Resilient
Information and Communications Infrastructure, 2009, available at:
http://www.whitehouse.gov/assets/documents/
Cyberspace_Policy_Review_final.pdf.
\12\ The DHS Data Privacy and Integrity Advisory Committee provides
advice at the request of the Secretary of Homeland Security and the DHS
Chief Privacy Officer on programmatic, policy, operational,
administrative, and technological issues within the DHS that relate to
PII, as well as data integrity and other privacy-related matters. The
committee was established by the Secretary of Homeland Security under
the authority of 6 U.S.C. 451 and operates in accordance with the
provisions of the Federal Advisory Committee Act (FACA) (5 U.S.C. App).
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In addition to the systematic engagement of advocates,
academicians, and private-sector representatives through the
DPIAC subcommittee, DHS also discussed its embedded privacy and
cybersecurity protections in several public fora, including
Congressional testimony,\13\ public articles,\14\ and multiple
public presentations before the DPIAC on DHS cyber
activities.\15\
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\13\ See, e.g., The Cybersecurity Partnership Between the Private
Sector and Our Government: Protecting Our National and Economic
Security, Joint Committee Hearing before Senate Committee on Homeland
Security and Governmental Affairs and Senate Committee on Commerce,
Science, and Transportation, March 7, 2013 (testimony of Secretary
Janet Napolitano); DHS Cybersecurity: Roles and Responsibilities to
Protect the Nation's Critical Infrastructure, Hearing before House
Committee on Homeland Security, March 13, 2013 (testimony of Deputy
Secretary Jane Holl Lute); Examining the Cyber Threat to Critical
Infrastructure and the American Economy, Hearing before House Committee
on Homeland Security, March 16, 2011 (testimony of NPPD Deputy Under
Secretary Philip Reitinger).
\14\ See, e.g., Securing Cyberspace While Protecting Privacy and
Civil Liberties, Homeland Security Blog (by Secretary Janet
Napolitano), April 2, 2013, available at: http://www.dhs.gov/blog/2013/
04/02/securing-cyberspace-while-protecting-privacy-and-civil-liberties;
Op-Ed: A Civil Perspective on Cybersecurity, (Jane Holl Lute and Bruce
McConnell), WIRED, February 14, 2011, available at: http://
www.wired.com/threatlevel/2011/02/dhs-oped/all/.
\15\ See, e.g., on March 18, 2010, Deputy Assistant Secretary for
Cybersecurity and Communications Michael A. Brown presented to DPIAC on
computer network security and related privacy protections in DHS,
including the Department's role in the CNCI (focusing on the DHS
Privacy Office's work on PIAs for EINSTEIN 1, EINSTEIN 2, and the
proof-of-concept pilot project of the EINSTEIN 1 capabilities with the
U.S. Computer Readiness Team and the State of Michigan), the National
Cyber Incident Response Plan (NCIRP), and the National Cybersecurity
and Communications Integration Center, US-CERT, DHS I&A, and the
National Cybersecurity Center; on July 11, 2011, the Senior Privacy
Officer for NPPD Emily Andrew described how her office was integrated
into the NPPD structure.
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The DHS Privacy Office (and NPPD) also frequently met with privacy
advocates to discuss cybersecurity considerations, either when
a new program or initiative was announced, or during the
quarterly Privacy Information for Advocates meetings instituted
in 2009.\16\
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\16\ See DHS Privacy Office Annual Report, July 2009 to June 2010
at 66 for a discussion of the Privacy Information for Advocates
quarterly meetings, available at: http://www.dhs.gov/xlibrary/assets/
privacy/privacy_rpt_annual_2010.pdf.
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4. Dedicated Cyber Privacy Personnel.--To be engaged and be able to
effectively integrate privacy protections, the Department has
hired multiple cyber privacy professionals. These cyber privacy
professionals focus on integrating the FIPPs of purpose
specification, data minimization, use limitation, data quality
and integrity, and security systematically into NCSD
activities. For example, the Senior Privacy Officer for the
National Protection and Program Directorate (reporting to the
Directorate leadership) was hired in August 2010; she has a
dedicated privacy analyst on-site with CS&C and both are
integrated into planning and implementation processes. In the
DHS Privacy Office, there has been a liaison with NPPD
cybersecurity organizations since the first EINSTEIN PIA was
written; currently that position is Director, Privacy and
Technology. This Director of Privacy and Technology was, for a
period of time, embedded at the NSA as part of the development
of the enhanced relationship between the NSA and DHS.\17\
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\17\ Memorandum of Agreement Between The Department of Homeland
Security and The Department of Defense Regarding Cybersecurity,
September 2010, available at: http://www.dhs.gov/xlibrary/assets/
20101013-dod-dhscyber-moa.pdf.
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When I was Chief Privacy Officer, I actively participated in
numerous cybersecurity policy planning organizations within the
Department.
5. Involvement and Coordination on Standard Operating Procedures,
and Operational Aspects of DHS Cybersecurity Activities.--As
part of its mission to implement the FIPPs and to integrate
privacy protections into DHS cybersecurity activities, DHS
privacy professionals review and provide comments and insight
into cybersecurity Standard Operating Procedures (SOPs)
(including protocols for human analysis and retention of cyber
alerts, signatures, and indicators for minimization of
information that could be PII), statements of work, contracts,
and international cyber-information sharing agreements.
6. Cyber-specific Privacy Training for Cybersecurity Analysts and
Federal Privacy Professionals.--These cyber privacy
professionals provide cyber-specific privacy training to
cybersecurity analysts to supplement the privacy training
required for DHS employees and contractors. In my opinion as a
privacy professional, the more relevant and concrete you can
make privacy training, the more likely the audience will
understand and incorporate privacy protections into their daily
activities, thus increasing personal accountability.
During my tenure, the Department also engaged in a year-long
Speakers Series for members of the Federal Government community
to discuss privacy and cybersecurity issues, and their impact
on Federal operations.\18\ The Federal Government-wide access
to the Speakers Series helped enhance awareness of the
cybersecurity and privacy issues, along with providing an
interagency communications channel on privacy and cybersecurity
questions.
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\18\ See DHS Privacy Office Annual Report, July 2011-June 2012 at
27 for a discussion of the four-part Speakers Series, available at:
http://www.dhs.gov/sites/default/files/publications/privacy/Reports/
dhs_privacyoffice_2012annualreport_September 2012.pdf.
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7. Accountability of the Cybersecurity Program Through Privacy
Compliance Review.--An important tenet of the FIPPs is the
concept of accountability--periodically reviewing and
confirming that the privacy protections initially embedded into
any program remain relevant, and that those protections are
implemented.
While I was DHS Chief Privacy Officer, I instituted ``Privacy
Compliance Reviews'' (PCRs) to confirm the accountability of
several of DHS's programs.\19\ We designed the PCR to improve a
program's ability to comply with assurances made in PIAs,
System of Records Notices, and formal information-sharing
agreements. The Office conducts PCRs of on-going DHS programs
with program staff to ascertain how required privacy
protections are being implemented, and to identify areas for
improvement.
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\19\ See id., DHS Privacy Office Annual Report, July 2011-June 2012
at 39-40 for a detailed discussion of Privacy Compliance Reviews.
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Given the importance of the DHS mission in cybersecurity, the DHS
Privacy Office conducted a Privacy Compliance Review in late
2011, publishing it in early 2012.\20\ The DHS Privacy Office
found NPPD/CS&C generally compliant with the requirements
outlined in the EINSTEIN 2 PIA and Initiative 3 Exercise PIA.
Specifically, NPPD/CS&C was fully compliant on collection of
information, use of information, internal sharing and external
sharing with Federal agencies, and accountability requirements.
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\20\ Privacy Compliance Review of the EINSTEIN Program, January 3,
2012, available at: http://www.dhs.gov/xlibrary/assets/privacy/
privacy_privcomrev_nppd_ein.pdf.
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My office made five recommendations to strengthen program
oversight, external sharing, and bring NPPD/CS&C into full
compliance with data retention and training requirements. NPPD
agreed with our findings and, as I understand it, has taken
multiple steps to address our recommendations. For example, in
response to one of the recommendations, the NPPD Office of
Privacy now conducts quarterly reviews of signatures and
handling of personally identifiable information. These reviews
have provided increased awareness to US-CERT Staff and has
helped to build positive working relationships with cyber
analysts and leadership. This is important in continuing to
integrate cybersecurity and privacy, by understanding the
impact of each.
In addition, as this subcommittee knows, the DHS Chief Privacy
Officer has unique investigatory authorities, therefore in the
unlikely event that something went awry in the future, the
Chief Privacy Officer can investigate those activities.\21\
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\21\ 6 U.S.C. 142(b). See ibid., DHS Privacy Office Annual
Report, July 2011-June 2012 at 40 for a discussion of the DHS Chief
Privacy Officer investigatory authorities.
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ii. dhs continues to integrate privacy protections into its
cybersecurity programs
Since I left DHS, I know through public information that the
Department continues to work to embed privacy protections in its
cybersecurity activities.
A. DPIAC Cybersecurity Report
The DPIAC issued a robust advisory paper for DHS to consider when
implementing information-sharing pilots and programs with other
entities, including the private sector.\22\ The report addresses two
important questions in privacy and cybersecurity--``what specific
privacy protections should DHS consider when sharing information from a
cybersecurity pilot project with other agencies?'' and ``what privacy
considerations should DHS include in evaluating the effectiveness of
cybersecurity pilots?''
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\22\ Report from the Cyber Subcommittee to the Data Privacy and
Integrity Advisory Committee (DPIAC) on Privacy and Cybersecurity
Pilots, Submitted by the DPIAC Cybersecurity Subcommittee, November
2012, available at: http://www.dhs.gov/sites/default/files/
publications/privacy/DPIAC/dpiac_cyberpilots_10_29_2012.pdf.
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The DPIAC report supported in large part what DHS had been doing
with regard to privacy protections incorporated in its cybersecurity
pilots and programs. DPIAC recommended the following best practices
when sharing information from a cybersecurity pilot project with other
agencies: Incorporate the FIPPs into cybersecurity activities; develop
and implement clear data minimization rules and policies; provide
employees and public users of Federal systems notice and transparency
of the collection, use, and sharing of information for cybersecurity
purposes; when engaging in information sharing that includes PII or
content of private communications, information sharing should be
limited to what is necessary to serve the pilot's purposes (with
defined limits on law enforcement, National security, and civilian
agency sharing); have more robust safeguards for information from
private networks; define data retention policies to keep records no
longer than needed to fulfill the purpose of the pilot; and integrate
privacy by design and privacy-enhancing technologies whenever possible.
This type of insight from privacy advocates, academicians, and
private-sector representatives will enhance DHS' considerations of
privacy-protective options when sharing cybersecurity information.
B. Enhanced Cybersecurity Services PIA
Furthermore, in January 2013, DHS published a thoughtful and
comprehensive PIA covering the Enhanced Cybersecurity Services (ECS), a
voluntary program based on the sharing of indicators of malicious cyber
activity between DHS and participating Commercial Service
Providers.\23\ The purpose of the program is to assist the owners and
operators of critical infrastructure to enhance the protection of their
systems from unauthorized access, exploitation, or data exfiltration
through a voluntary information-sharing program. ECS is intended to
support U.S. critical infrastructure, however, pending deployment of
EINSTEIN intrusion prevention capabilities, ECS may also be used to
provide equivalent protection to participating Federal civilian
Executive branch agencies.\24\
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\23\ Privacy Impact Assessment for the Enhanced Cybersecurity
Services (ECS), January 16, 2013, DHS/NPPD/PIA028, available at: http:/
/www.dhs.gov/sites/default/files/publications/privacy/
privacy_pia_nppd_ecs_jan2013.pdf.
\24\ This PIA consolidates and serves as a replacement to the two
PIAs I mentioned earlier: DHS/NPPD/PIA-021 National Cyber Security
Division Joint Cybersecurity Services Pilot PIA, published on January
13, 2012, and the DHS/NPPD/PIA-021(a) National Cyber Security Division
Joint Cybersecurity Services Program (JCSP), Defense Industrial Base
(DIB)--Enhanced Cybersecurity Services (DECS) PIA Update, published on
July 18, 2012.
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The ECS PIA is exemplary of how to integrate privacy protections
into cybersecurity programs, particularly when engaging in information
sharing with the private sector. This ECS PIA is the culmination of all
of the hard work that I summarized above, including the DPIAC
cybersecurity report.
It is clear DHS continues to embed privacy protections into
cybersecurity activities. The information sharing and implementation
standards described in the ECS PIA are concrete examples of privacy by
design, and should well position DHS to effectively implement the
increased information sharing mandated by the February 12, 2013
Executive Order on Improving Critical Infrastructure Cybersecurity.\25\
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\25\ Executive Order on Improving Critical Infrastructure
Cybersecurity, available at: http://www.whitehouse.gov/the-press-
office/2013/02/12/executive-order-improving-critical-infrastructure-
cybersecurity.
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C. EINSTEIN 3 Accelerated (E\3\A) PIA
In addition, just this week, the Department announced that it will
deploy EINSTEIN 3 Accelerated (E\3\A) network intrusion prevention
capabilities on Federal Government networks as a Managed Security
Service provided by Internet Service Providers (ISPs), rather than
placing the entire response on the Federal Government.\26\
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\26\ Privacy Impact Assessment for EINSTEIN 3--Accelerated (E\3\A),
April 19, 2013 (DHS/PIA/NPPD-027), available at: http://www.dhs.gov/
sites/default/files/publications/privacy/PIAs/
PIA%20NPPD%20E3A%2020130419%20FINAL %20signed.pdf.
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The use of ISPs as a Managed Security Service is noteworthy from a
privacy perspective for several reasons. First, the coordination and
collaboration of the ``best of breed'' Federal classified and
unclassified capabilities combined with the nimbleness (and proprietary
capabilities) of the private-sector ISPs will allow a more robust
response to evolving cybersecurity threats. It is an important
recognition by DHS that Federal cybersecurity programs did not need to
re-invent cybersecurity protections when defending Federal Government
networks, but could supplement existing commercial intrusion prevention
security systems to provide a more robust prevention and detection
regime for the Federal civilian Executive branch.
Second, integrating cybersecurity threat detection and intrusion
prevention will allow DHS to better detect, respond to, or
appropriately counter, known or suspected cyber threats within the
Federal network traffic it monitors, which helps protect the target
systems from unauthorized intrusions (and therefore implements the
security FIPP). It is important to emphasize--E\3\A monitors only
select internet traffic either destined to, or originating from,
Federal civilian Executive branch departments and agencies (commonly
known as .gov traffic). This data minimization and segregation is also
privacy-protective; the ISP Managed Security Service can be
compartmentalized to affect only .gov traffic. The participating
agencies will identify a list of IP addresses for their networks and
both CS&C cybersecurity analysts and the ISPs verify the accuracy of
the list of IP addresses provided by the agency. CS&C SOPs are followed
in the event of any out-of-range network traffic is identified and the
ISP removes any collected data to prevent any further collection of
this network traffic. This too is a privacy-protective approach,
further confirming that the only impacted traffic is Federal civilian
Executive branch departments and agencies.
DHS will share cyber threat information it receives through E\3\A
consistent with its existing policies and procedures (which have been
thoroughly reviewed by the Department's cyber privacy professionals).
In accordance with the SOPs and information-handling guidelines, all
information that could be considered PII is reviewed prior to inclusion
in any analytical product or other form of dissemination, and replaced
with a generic label when possible, again protecting privacy. The way
E\3\A is structured should enhance privacy, protect the Federal
civilian Executive branch departments and agencies, and provide a
nimble response to the evolving cybersecurity threat.
iii. integration of privacy principles into cybersecurity is crucial
for effective cybersecurity programs
The continued integration of privacy and cybersecurity is crucial
for effective cybersecurity protections. In my experience based on 15
years as a privacy professional as both outside counsel and chief
privacy officer at DHS, it is clear that integrating privacy into the
operational aspects of any activity makes the program both more
effective and more likely to protect privacy. For example, providing
tailored training, and engaging the analysts or employees in the field
facilitates the integration of privacy into daily operations. Ex ante
review of programs and anticipating issues such as unintended uses,
data minimization, and defined standards for information sharing are
also important to confirm privacy protections are working throughout
the life cycle of information collection. Embedding privacy protections
into SOPs and information-handling guidelines help to further the goal
of the project while assuring that privacy protections are
systematically integrated into a program or service. Finally,
transparency is the cornerstone for any privacy program to succeed.
These privacy-by-design factors are important any time an
organization incorporates privacy into a new program, but they are
particularly important with an operational cybersecurity program such
the DHS National Cybersecurity Protection System which continuously
counters emerging cybersecurity threats and applies effective risk
mitigation strategies to detect and deter these threats. Integrating
privacy from the beginning--and periodically testing to confirm that
the integration continues--is the only way to effectively protect
cybersecurity and privacy. In fact, if done right, increased
cybersecurity also means increased privacy.
To address threats and minimize the impact on Federal facilities
and critical infrastructure, key agencies and critical infrastructure
companies must share information about cybersecurity threats. That
said, such information sharing must occur in a thoughtful, clearly-
designed process that also minimizes the impact on individual privacy.
I believe that DHS has appropriately and effectively integrated privacy
and cybersecurity both in its Federal Executive branch responsibilities
and in its information-sharing responsibilities as articulated in the
ECS and related cybersecurity PIAs. Currently, I advise private-sector
clients that this privacy-by-design approach should be taken to most
effectively combat cybersecurity threats by both increasing
cybersecurity protections and protecting privacy.
Thank you for the opportunity to appear before you this afternoon.
I would be happy to take any questions you may have.
Mr. Meehan. Thank you, Ms. Callahan.
The Chairman now recognizes Ms. McGuire for your testimony.
STATEMENT OF CHERI F. MCGUIRE, VICE PRESIDENT, GLOBAL
GOVERNMENT AFFAIRS & CYBERSECURITY POLICY, SYMANTEC
Ms. McGuire. Chairman Meehan, Ranking Member Clarke, and
distinguished Members of the subcommittee, thank you for the
opportunity also to testify today on behalf of Symantec
corporation. We are the largest security software company in
the world, with over 31 years of experience in providing
security, storage, and systems management solutions. With more
than 21,000 employees and operations in more than 50 countries,
protecting critical infrastructure, Government, and citizens'
data is core to our mission and our business.
My name is Cheri McGuire. I am the vice president for
global government affairs in cybersecurity policy, where I lead
a team that addresses the global public policy agenda for the
company, including data integrity, critical infrastructure
protection, cybersecurity, and privacy issues.
At Symantec, we are committed to assuring the privacy,
security, availability, and integrity of our customers'
information. Too often, security is portrayed as being in
conflict with or somehow undermining privacy. However, in the
digital world, nothing could be further from the truth, because
your privacy is only as secure as your data. Criminals and
hackers, many of whom are well-funded and highly skilled, have
built a business model based on their ability to steal and
monetize personal information.
Recent efforts to improve the Nation's cybersecurity
posture have recognized that privacy and security must be
addressed in tandem. Symantec supports an approach that allows
to us share threat indicators and related non-PII within
industry and within Government.
Now, I would like to talk briefly about today's threat
landscape. As we briefed the committee last week, our latest
internet security threat report noted that, in 2012,
approximately 93 million identities were exposed through
hacking, theft, and simple user error. We also found that there
was a 42 percent rise in targeted attacks, an increasing number
which are directed at small businesses.
Finally, we saw a 58 percent rise in attacks designed to go
after mobile devices. Simply put, every year, threats are
increasing and becoming more sophisticated. Sharing actionable
threat and vulnerability information is an essential element to
combating threats like these. As a general rule, we believe
that voluntary information-sharing programs are the best way to
develop trusted partnerships to achieve the best results. That
trust is weakened when Government information-sharing mandates
are imposed on industry.
In order for information sharing to be effective it must be
shared in a timely manner with the right people or organization
and with the understanding that, as long as an entity shares
information in good faith, it will not face legal liability.
In addition, the Government must have the proper tools and
authorities to disseminate information effectively. We were
pleased that the Executive Order the President signed in
February and legislation passed in the House last week sent a
clear message to the Government that sharing actionable
information for cybersecurity purposes with the private sector
is both a priority and a necessity.
Information sharing on cyber threats happens in a number of
ways designed to protect our customers and their data. We get
information from a myriad of sources, from our customers, our
partners, the Government and our network--and through our
network, called the global intelligence network of 69 millions
attack sensors.
The information itself can be high-level threat data,
details about a particular incident or attack, data signatures
or other types of metadata. All of this data is then aggregated
and analyzed, and during that process, we remove PII. Using
this data, we develop machine-level signatures and other
identifying information about specific pieces of malware and
other threats. We also regularly publish analyses of attacks as
well as white papers on current and future threat factors.
In closing, Symantec is deeply committed to securing the
privacy and security of our customers' information. I hope that
my testimony today has provided some insight into how we
protect our customers' privacy and share threat information
with our various partners while also balancing that with the
need for robust cybersecurity. Thank you, again, for the
opportunity to testify today, and I am happy to answer any
questions you may have.
[The prepared statement of Ms. McGuire follows:]
Prepared Statement of Cheri F. McGuire
Chairman Meehan, Ranking Member Clarke, and distinguished Members
of the subcommittee, thank you for the opportunity to testify today on
behalf of Symantec Corporation.
My name is Cheri McGuire and I am the vice president for global
government affairs and cybersecurity policy at Symantec. I am
responsible for Symantec's global public policy agenda, including
cybersecurity, data integrity, critical infrastructure protection
(CIP), and privacy. In this capacity, I work extensively with industry
and Government organizations, including serving from 2010 to 2012 as
chair of the Information Technology Sector Coordinating Council (IT
SCC)--one of 16 critical sectors identified by the President and the
U.S. Department of Homeland Security (DHS) to partner with the
Government on CIP and cybersecurity. I also serve as a board member of
the Information Technology Industry Council, the TechAmerica Commercial
Policy Board, and the U.S. Information Technology Office (USITO) in
China, and am a past board member of the IT Information Sharing and
Analysis Center (IT-ISAC). Prior to joining Symantec in August 2010, I
was director for critical infrastructure and cybersecurity in
Microsoft's Trustworthy Computing Group. Before joining Microsoft in
2008, I served in numerous positions at DHS, including as acting
director and deputy director of the National Cyber Security Division
and U.S. Computer Emergency Readiness Team (US-CERT).
Symantec is the largest security software company in the world,
with over 31 years of experience in developing internet security
technology. We are the global leader in providing security, storage,
and systems management solutions to help consumers and organizations
secure and manage their information and identities. We protect more
people and businesses from more on-line threats than anyone in the
world. Symantec has developed some of the most comprehensive sources of
internet threat data through our Global Intelligence Network (GIN).
Comprised of approximately 69 million attack sensors, the GIN records
thousands of events per second and covers over 200 countries and
territories 24 hours a day, 7 days a week. It allows us to capture
world-wide security intelligence data that gives our analysts an
unparalleled view of the entire internet threat landscape, including
emerging cyber attack trends, malicious code activity, phishing, and
spam.
Symantec also maintains one of the world's most comprehensive
vulnerability databases, currently consisting of more than 51,000
recorded vulnerabilities (spanning more than 2 decades) from over
16,000 vendors representing over 43,000 products. Every day we process
more than 3 billion e-mail messages and more than 1.4 billion web
requests across our 14 global data centers. In short, if there is a
class of threat on the internet, Symantec knows about it.
At Symantec, we are committed to assuring the privacy, security,
availability, and integrity of our customers' information. Too often
security is portrayed as being in conflict with or somehow undermining
privacy. In the digital world, nothing could be further from the truth,
because your privacy is only as secure as your data.
We welcome the opportunity to provide comments as the committee
continues its important efforts to bolster the state of cybersecurity
while protecting privacy in the United States and abroad. In my
testimony today, I will provide the subcommittee with:
our latest analysis of the threat landscape as detailed in
the just-released Symantec Internet Security Threat Report
(ISTR), Volume 18;
our core privacy principles;
an overview of the current information-sharing environment;
and
a summary of how we ensure privacy when we share threat
information.
today's threat landscape
We rely on technology for virtually every aspect of our lives, from
driving to and from work, to mobile banking, to securing our most
critical systems. As the use of technology increases so do the volume
and sophistication of the threats. At Symantec, it is our goal to
ensure that we are thinking ahead of the attackers. Looking at the
current threat landscape is not enough--we must also keep our eyes on
the horizon for evolving trends.
In the latest Symantec Internet Security Threat Report (ISTR), we
detail that in 2012, approximately 93 million identities were exposed
through hacking, theft, and simple error. That is 93 million
individuals whose personal information is now potentially for sale in
the black market--93 million people who are at risk for credit card
fraud, identity theft, and other illegal schemes.
We also found that there was a 42 percent rise in targeted attacks
last year.\1\ It is almost certain that this trend will continue in the
coming years. Conducting successful targeted attacks requires attackers
to do research about the organizations they are seeking to penetrate,
and often about specific people who work there. Attackers will mine the
internet for information about how a company does business and use what
they learn to craft personalized attacks designed to gain access to its
systems. Once they gain access, they will move within a system,
collecting information and staging data for exfiltration--the
unauthorized transfer or release of data from a computer or server--to
their own computers. Attackers can spend weeks and months covertly
moving around a victim's system, collecting e-mail, personal data,
documents, intellectual property, and even trade secrets.
---------------------------------------------------------------------------
\1\ Symantec Internet Security Threat Report XVIII, April 2013.
http://www.symantec.com/security_response/publications/
threatreport.jsp.
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We also saw a sharp rise in the exploitation of mobile malware.
Last year, mobile malware increased by 58 percent, and 32 percent of
all mobile threats attempted to steal personal information, such as e-
mail addresses and phone numbers. Attacks on mobile devices will almost
certainly continue to rise as we become ever more reliant on these
devices to perform our daily activities, such as working, banking,
shopping, and social networking.
Another alarming finding was the rise of attacks on small and
medium-size businesses. In 2012, 50 percent of all targeted attacks
were aimed at businesses with fewer than 2,500 employees, and the
largest growth area for targeted attacks was aimed at businesses with
fewer than 250 employees. Thirty-one percent of all attacks targeted
them, up from 18 percent the year before. This likely stems from the
fact that unlike large enterprises, smaller businesses often do not
have the resources to install adequate security protocols, making them
an easier target for attackers. Yet many of these small companies
subcontract or work for larger companies--and thus hold intellectual
property and trade secrets coveted by attackers. As one of our security
engineers likes to say, while every subcontractor may sign a strict
non-disclosure agreement, the attacker who is sitting on that small
company's system is not bound by it.
In sum, whether they are attacking our computers, mobile phones, or
social networks, cyber-criminals are looking to profit by spying on us
or stealing our information. Our best defense is strong security,
education, and good computer hygiene.
privacy and security go hand-in-hand
At Symantec, we are guided by the following privacy principles:
First, customers should be empowered to decide how their personal
information is used, and informed what--if anything--will be done with
it. Second, privacy protections must be integrated into the development
of products or services and not added as an afterthought. Finally, we
all need to be proactive in protecting privacy--absent strong security,
information is vulnerable.
Criminals and hackers--many of whom are well-funded and highly
skilled--have built a business model based on their ability to steal
and monetize personal information. There is an entire criminal eco-
system that trades in stolen personal information, as well as the tools
and technology that allow them to steal more. Some of these criminal
enterprises are so sophisticated that they provide 24/7 customer
support, and offer guarantees that the stolen information they provide
is valid.
In the face of this criminal threat, it should go without saying
that strong security is essential to securing our personal data and
private information. Simply put, if your data is not secure, then
neither is your privacy. And, if you do not take steps to secure your
own personal information, or the companies to which you entrust it do
not do so, you are gambling with your privacy. When it comes to
personal data, security measures and data protection are not an
infringement on privacy but instead are the foundations of protecting
it.
Recent efforts to improve the Nation's cybersecurity posture--
whether legislative initiatives or Executive branch actions--have
recognized that privacy and security must be addressed in tandem. The
various bills in the House and the Senate have taken different
approaches, but in the information-sharing area there is broad
agreement that both the Government and the private sector need to be
able to share cybersecurity information for cybersecurity purposes.
This view also is shared by many prominent civil society organizations.
Reaching consensus on the precise parameters of those terms is where
complications have arisen. Symantec supports an approach that allows us
to share threat indicators and related non-Personally Identifiable
Information (PII) within industry and with the Government. In our view,
companies should receive legal protection for sharing appropriate
information with other companies or civilian agencies, and we believe
that data minimization standards are a reasonable approach.
the current information-sharing environment
Globally, there are many different information-sharing models,
ranging from voluntary programs to regulatory mandates to ad hoc
arrangements to contractual agreements. Sharing can be Government-to-
Government, business-to-business, and between Government and business.
As a general rule, we believe that voluntary programs--which of course
leave space for contractual and ad hoc arrangements--are the best way
to develop trusted partnerships to achieve the best results. In the
United States, we have a voluntary framework based on the National
Infrastructure Protection Plan (NIPP).\2\ The NIPP, as refined by the
recent Presidential Decision Directive 21, establishes 16 critical
infrastructure sectors and identifies a sector-specific Federal agency
for each.\3\
---------------------------------------------------------------------------
\2\ National Infrastructure Protection Plan (2009), http://
www.dhs.gov/xlibrary/assets/NIPP_Plan.pdf.
\3\ The 2009 National Infrastructure Protection Plan (http://
www.dhs.gov/xlibrary/assets/NIPP_Plan.pdf) identified 18 critical
infrastructure sectors. Presidential Decision Directive 21 (Critical
Infrastructure Security and Resilience, signed February 12, 2013)
revised that to 16. See http://www.whitehouse.gov/the-press-office/
2013/02/12/presidential-policy-directive-critical-infrastructure-
security-and-resil.
---------------------------------------------------------------------------
Within each sector, there are Government Coordinating Councils
(GCC) and Sector Coordinating Councils (SCC). Nearly all sectors also
have chartered Information Sharing and Analysis Centers (ISAC),
operational entities that are tied to industry and serve as a focal
point for voluntary information sharing. The level of trusted
partnership and engagement among the GCCs, SCCs, and ISACs varies from
sector to sector. Symantec has a long and successful history of
participation and leadership in various multi-industry organizations as
well as public-private partnerships in the United States and globally,
including the National Cyber-Forensics & Training Alliance (NCFTA), the
IT-ISAC, the Industry Botnet Group Mitigation Initiative, and many
others.
Effective sharing of actionable information among the public and
private sectors on cyber threats, vulnerabilities, and incidents is an
essential component of improving cybersecurity. It is important to
recognize that information sharing is not an end goal, but rather is
one of a number of tools to enhance the security of IT systems. Good
information sharing provides situational awareness so that appropriate
protective and risk mitigation actions can be put into place. In order
for information sharing to be effective, information must be shared in
a timely manner, must be shared with the right people or civilian
organizations, and must be shared with the understanding that so long
as an entity shares information in good faith, it will not face legal
liability.
The NCFTA provides a good example of how private industry and law
enforcement partnerships can yield real-world success. NCTFA is a
Pittsburgh-based organization that includes more than 80 industry
partners--from financial services and telecommunications to
manufacturing and others--working with Federal and international
partners to provide real-time cyber threat intelligence.
The IT-ISAC is another example of a successful public-private
partnership. The group's primary purpose is to allow organizations to
exchange information about security threats and vulnerabilities. Member
companies report information concerning security problems that they
have or solutions to such problems that they have found. Members also
participate in National and homeland security efforts to strengthen IT
infrastructure through cyber threat information sharing and analysis.
The IT-ISAC also has an industry-funded representative that works at
the National Cybersecurity & Communications Integration Center (NCCIC)
to facilitate real-time information sharing and response.
One of the most successful U.S. public-private partnerships has
been cybersecurity exercises. The level of engagement and resources
brought to bear from the Government and industry to jointly plan and
develop scenarios, define information-sharing processes, and execute
the exercises has been unprecedented. When done right, the lessons
learned from these exercises have been invaluable to both industry and
Government to help improve response plans and improve preparedness for
future incidents.
In addition, the Government must have the proper tools and
authorities to disseminate information effectively. I have seen too
many instances of the Government releasing information on cyber threats
days and sometimes weeks after a threat has been identified. In many of
these cases, by the time the Government releases the information it
often has little use because the private sector has already identified
and taken actions to mitigate the threat. There is no single solution
that will eliminate these delays, but various legislative proposals
move us one step closer to eliminating some of the legal barriers that
currently impede sharing. Moreover, the Executive Order (EO) the
President signed in February 2013 sent a clear message to the
Government that sharing information with the private sector is both a
priority and a necessity.\4\
---------------------------------------------------------------------------
\4\ See Executive Order 13636, ``Improving Critical Infrastructure
Cybersecurity,'' 78 Fed. Reg. 11739 (February 19, 2013).
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Further, we also support an incentive-based approach to information
sharing. There is no doubt that businesses can gain a competitive
advantage by not disclosing information to their competitors. However,
a well-incentivized program of collaboration can help offset those
disadvantages and keep the information flowing freely. We also need to
address policies that discourage businesses who would be willing to
share information but choose not to because of fear of prosecution.
Therefore, liability protections are necessary to improve bi-
directional information sharing.
As with any partnership, information sharing is founded upon and
enabled by trust. That trust is weakened when Government information-
sharing mandates are imposed on industry. Enhanced self-interest and a
flexible approach are more likely to improve information sharing than
Government mandates.
protecting privacy as we share threat information
At Symantec, we understand the vital importance of sharing
information for cybersecurity awareness and response. We recognize that
information stored on our servers is sensitive, confidential, and often
personal in nature. Therefore, we take very seriously our role in
safeguarding our customer's personal information and go to great
lengths to ensure that personal information remains private.
Information pertaining to customers such as credit card
information, addresses, or other PII is not shared under any
circumstances unless we are compelled by law, following appropriate due
process. In addition, we comply with the Payment Card Industry Data
Security Standard and follow specific rules under our privacy program
to ensure that we collect only data that is proportionate for the
purposes for which it is collected, and that is relevant and necessary
for the services provided.
Information sharing on cyber threats happens in a number of ways
and for various reasons. We get information from myriad sources--from
our customers, our partners, the Government, and our network of
sensors. The information itself can be high-level threat data, details
about a particular incident or attack, data signatures, or other
information. All of this data is then aggregated and analyzed, and
during that process we remove PII. The resulting work product can range
from machine-level signatures or identifying information for a specific
piece of malware to a quick analysis of a particular attack to a
published white paper on current and future threat vectors. This work
product can then be provided to our customers and partners in both the
private sector and the Government, depending on the particular
parameters of the sharing agreement.
In some cases, the communication is purely bilateral--a customer
provides us information about activity on its system (either manually
or through an automated sensor), and we report back on what we see
happening. Other times we share it broadly, including sometimes
publicly, but only after removing any PII to ensure that the report
cannot be linked to a particular individual or customer. When we share
reports on attack trends or publish white papers on particular threats,
PII is removed as part of long-standing policy and we only share
information directly related to the cyber threat. We have legal and
organizational safeguards to ensure that information is only disclosed
to the intended partners and only used for the expressed purpose.
In closing, Symantec is deeply committed to securing the privacy
and security of our customer's information. Thank you again for the
opportunity to testify, and I will be happy to answer any questions you
may have.
Mr. Meehan. Thank you, Ms. McGuire.
The Chairman now recognizes Ms. Pearson to testify.
STATEMENT OF HARRIET P. PEARSON, PARTNER, HOGAN LOVELLS
Ms. Pearson. Thank you very much, Chairman Meehan, Ranking
Member Clarke, and Members of the subcommittee.
My name is Harriet Pearson. I am a partner in the Hogan
Lovells law firm, where I focus on cybersecurity and privacy
law. From November 2000 until July 2012, I served as the IBM
corporation's chief privacy officer and security counsel, and I
have been engaged in this area of privacy and security since
the mid-1990s.
Thank you for the opportunity to participate in today's
hearing on how we in the United States in the business
community and in Government can protect our critical
infrastructure from cyber-based threats while safeguarding
individual privacy.
Let me start with the observation that the relationship
between cybersecurity and privacy is complex, as we have heard.
On the one hand, cybersecurity that protects data from
intrusion, theft, and misuse obviously is a significant privacy
safeguard that cannot be understated. On the other hand, some
cybersecurity measures that monitor access and use of systems
and digital networks can implicate the collection of personal
information, or PII, where data can be linked to individuals
and thus raises some privacy concerns.
Understanding that relationship and integrating privacy
into cybersecurity has never been more important. As we have
heard and as the committee well knows, the threat is out there.
There are risks, and the risks come in multiple forms,
particularly for those businesses that are part of the critical
infrastructure and that have to take these measures. The
private sector's role in this respect is vital. You know that
the critical information, much of it and much of the most
valuable intellectual property of our society are owned and
managed largely by the private sector. Therefore, the steps
that companies take to safeguard their most precious
possessions and assets and figuratively to lock up and secure
their premises are very significant. Increasingly companies are
stepping up to that challenge and taking those measures.
Let me articulate a couple of, or give you a couple of
examples of the kinds of measures that might implicate some
level of collection or access to potentially personal
information. There are some measures, such as systems and
network monitoring; you have to know what is going on in your
systems. You might have to access and collect some personal
information. Background checks, more of us are bringing our own
devices and hooking them up to sensitive or important networks,
and you have to make and take safeguards. Supply chain and
vendor networks need to be secured, and sometimes you need
information. Information sharing, as has been discussed with
Government and other entities in the private sector, might also
at times implicate some kind of personal information and thus
steps need to be taken.
My recommendations for how these concerns can be addressed
start with the premise that it can be addressed. There are
responsible ways and many organizations are already taking
those steps in the business community. Some suggestions for how
and observations on how organizations are taking those steps
include, first, we have talked already on the panel, and
Chairman and Ranking Member talked about the Fair Information
Practice Principles, or the FIPPs. That is an important acronym
to keep in mind in my view. Applying the FIPPs is what privacy
professionals do in the United States all day long, every day,
in many situations. Applying FIPPs to information sharing and
other cybersecurity measures and steps is absolutely critical.
Second, one of the most foundational elements of the FIPPs
is this notion of transparency, articulating what you are
doing, educating and being open about the steps taken, not of
course to the degree that it compromises the important security
measures that need to be taken but articulating it so that
there is some understanding of the measures and that there is
some ability to say, hmm, what is going on, let's have a
conversation about it in the democratic tradition of the United
States.
Third, we have in this country a tradition of creating
codes of conduct, voluntary measures that once organizations
buy into them and engage in them, actually become quite
important as a measure of establishing base lines of behavior
in business. I endorse the development of voluntary codes of
conduct for the privacy-sensitive deployment of certain
cybersecurity measures and programs that are common enough to
warrant such effort. Examples of this might include
information-sharing codes of conduct in which organizations
that engage in information-sharing partnerships with each other
and with Governmental agencies developed and commit to adopt
privacy-sensitive practices such as the one that Ms. McGuire
mentioned.
Another example is the new work that is being undertaken by
NIST, as mandated by the recently-issued Executive Order on
critical infrastructure cybersecurity, to develop a privacy--to
develop a cybersecurity framework. As you know, NIST is
consulting with multiple stakeholders on the development of
this kind of framework, and the committee can play an important
role in asking about and looking at the kind of privacy for
consideration built into that framework.
Finally, through law, the expectations, responsibilities,
and legal protections for privacy when data is shared or
requested by Government in particular need to be clear, and
there have been certain legislation enacted through this house
that have clarified the role and some important progress and
language has been included in that and further efforts by
Government and industry leaders outside of this kind of
legislation will also be useful to educate and enable
stakeholders involved in these activities to design privacy in
information sharing and related activities.
Thank you for the opportunity to appear before you today,
and I will be happy to take questions.
[The prepared statement of Ms. Pearson follows:]
Prepared Statement of Harriet P. Pearson
April 25, 2013
Chairman Meehan, Ranking Member Clarke, and Members of the
subcommittee, my name is Harriet Pearson and I am a partner in the
Hogan Lovells law firm, where I focus on cybersecurity and privacy
law.\1\ From November 2000 until July 2012 I served as the IBM
Corporation's chief privacy officer and security counsel.
---------------------------------------------------------------------------
\1\ My professional service includes membership on the advisory
boards of the Future of Privacy Forum and the Electronic Privacy
Information Center. I was a founding and long-time member of the board
of the International Association of Privacy Professionals. I also serve
on the American Bar Association president's Cybersecurity Legal Task
Force, co-chair the Cybersecurity Law Institute of the Georgetown
University Law Center, and was a member of the CSIS Commission on
Cybersecurity for the 44th Presidency. The views I express are mine
only, and are not offered on behalf of Hogan Lovells or its clients, or
other organizations.
---------------------------------------------------------------------------
Thank you for the opportunity to participate in this hearing on how
we in the United States can protect our critical infrastructure from
cyber-based threats while safeguarding individual privacy.
The relationship between cybersecurity and privacy is complex. On
the one hand, cybersecurity that protects data from intrusion, theft,
and misuse obviously is a significant privacy safeguard. On the other
hand, cybersecurity measures that monitor access and use can implicate
the collection of personal information (or data that can be linked to
individuals), and thus raises privacy concerns.
Organizations of all types increasingly are taking steps to protect
themselves and the people that rely on them from cyber-based threats.
Cyber threats come from many different sources. The risk to information
systems and the data that resides or travels on them can come from
activists, criminals, or spies. Most of the time, these bad actors
attack from outside the company; sometimes, they strike from within.
Frequently they are enabled by the carelessness or inattention of
otherwise well-meaning individuals who leave the digital analog of the
front door open for easy entry. And sometimes there is no affirmative
attack at all, as in case where a system malfunction occurs or
sensitive data is lost or misdirected by accident--presenting risks
that are still quite significant if such information gets into the
wrong hands.
Since the critical infrastructure and the most valuable IP of our
society are owned and managed largely by the private sector, the steps
companies take to safeguard their most precious possessions and
figuratively to lock their doors, close their windows, and make sure
only authorized people and things cross the threshold are exactly the
steps needed to improve cybersecurity for society at large. Sharing
information about observed threat patterns and vulnerabilities with
other companies and with appropriate authorities is also part of the
mix. This is akin to participating in a neighborhood watch that
involves proactive and collaborative engagement with law enforcement.
While adoption of cybersecurity defenses will, as I noted, serve to
protect personal data (indeed, there can be no data privacy without
sufficient security, including cybersecurity), some of the defense
techniques may require the monitoring or collection of personal
information, and thus implicate privacy concerns.
First, there is network and system monitoring.--Experts
agree that in order to detect and defend against cyber attacks,
organizations should be aware of how their information networks
and IT systems are behaving. Such monitoring typically is
focused on non-personal information such as malware indicators,
bad IP addresses, and network flow data. Of course, the more
specifically one monitors, and potentially records, activity,
the more potential there is that personal data will be part of
the information reviewed and/or collected.
The next issue is that of background checks.--Not all cyber-
defense measures involve cyber tactics. Organizations
frequently find it prudent to conduct background checks--at
times quite extensive--on individuals with access to certain
sensitive systems and data. By definition, background checks
require the collection and use of personal information.
A new aspect of data security arises from the ``Bring Your
Own Device'' phenomenon.--An increasing number of organizations
are allowing their workforce to use personally-owned
smartphones, PCs, and other devices. The steps organizations
take to secure such devices and the data that might be stored
on them often involve access to personal data.
Steps taken to strengthen supply chain and vendor security
may also raise privacy issues.--Security-conscious enterprises
understand that the weakest link in their organization may lie
outside their formal control. Measures imposed on their vendors
and suppliers may require those third parties to conduct
background checks and share other information that has privacy
implications.
Information sharing with third parties and Government
agencies means that personal information may be shared.--
Finally, but importantly, experts agree that rapid and
preferably automated cross-organizational sharing of cyber
threat information is essential to help detect and defend
against cyber attacks. And as Members well know, given the
recent passage of H.R. 624, the Cyber Intelligence Sharing and
Protection Act, there can be significant privacy issues raised
by such sharing.
While each of these areas of cybersecurity techniques raises
privacy concerns, those concerns can be addressed responsibly.
First, consistent with the well-known Fair Information Practice
Principles,\2\ data collection should be thoughtfully limited; used
only for the purpose of security or other carefully considered and
approved purposes; retained only for as long as needed for security and
other legitimate purposes; and shared only with those that need the
data for security or other carefully considered and approved purposes,
with accompanying limitations on their sharing, use, and retention.
These are concepts that privacy professionals in American business
apply every day, and close collaboration between privacy professionals
and security personnel at companies is essential to ensure that the
security/privacy balance is correct and that Fair Information Practice
Principles are applied to design privacy into cybersecurity programs.
---------------------------------------------------------------------------
\2\ The U.S. privacy framework is based on underlying principles of
fairness known as ``Fair Information Practice Principles'' or
``FIPPs,'' which were first developed in the United States in the 1970s
and have since influenced every privacy law, regulation, or code of
conduct adopted in this and many other nations. The Fair Information
Practice Principles focus on empowering individuals to exercise control
over personal information that pertains to them, and on ensuring that
measures are taken to achieve adequate data security.
---------------------------------------------------------------------------
Second, there should be transparency as to the cybersecurity
measures that organizations, especially operators of critical
infrastructure, increasingly are using. Transparency is fundamental to
the Fair Information Practice Principles. When implemented, it
reassures individuals that the processing of information that relates
to them is not being done in secret, thus enabling them to pursue any
recourse available if necessary.
As it relates to cybersecurity measures, transparency would include
encouraging companies that are deploying network and systems monitoring
to disclose their use of such measures (not in sufficient detail as to
defeat their operations, of course, but in enough detail that
individuals know about the systems monitoring the use of workplace
technologies and the like). The more we inform and educate each other
about how cybersecurity systems work, and how privacy considerations
are addressed in their design and implementation, the more these
measures are demystified.
Third, I endorse the development of voluntary codes of conduct for
the privacy-sensitive deployment of cybersecurity measures and programs
that are common enough to warrant such effort. Examples might include
information-sharing codes of conduct, in which organizations that
engage in information-sharing partnerships with each other and with
Governmental agencies develop and commit to adopting privacy-sensitive
practices. Another example is new work by the National Institute for
Standards and Technology as mandated by the recently-issued Executive
Order on Improving Critical Infrastructure Cybersecurity, to develop a
voluntary Cybersecurity Framework that includes consideration of
privacy. As you know, NIST will be consulting with stakeholders in both
Government and industry as it develops the Framework. This subcommittee
can keep the focus on privacy issues by showing interest in, and
requesting to see, how privacy is integrated into NIST's and others'
cybersecurity efforts.
Finally, the expectations, responsibilities, and legal protections
for privacy when data is shared with or requested by Government need to
be clear. Legislation that clarifies the rules surrounding information
sharing is a valuable first step, and it is encouraging to see that the
privacy issues associated with information sharing have been discussed
and that language addressing these issues has been included in the
legislation proposed in this Congress. Further efforts by Government
and industry leaders, outside of new legislation, will also be useful
to educate and enable stakeholders involved in these activities to
design privacy into information sharing and related activities.
Thank you for the opportunity to appear before you today and to
present my thoughts on how we can achieve a meaningful balance between
privacy and protecting the United States' critical infrastructure.
Mr. Meehan. Thank you, Ms. Pearson.
Thanks, each of you on the panel, for helping us to set the
table on this issue. Let me begin, because I think that may be
one of the places for us to begin to draw the parameters around
this issue to get to the places where we think the real crux of
the privacy issues find themselves.
I was struck your testimony, Ms. Callahan, where you said,
if done right, increased cybersecurity with appropriate
standards and procedures also means increased privacy.
Ms. McGuire, you testified that security is portrayed as
being in conflict with or somehow undermining privacy; in the
digital world, nothing could be further from the truth.
Ms. Pearson, you discussed a little bit where there may be
some sort of conflicts, but at the same time, there are some
steps being taken. You talked about FIPPs.
Maybe that is a good place to start. I would like your
general observations, each in order, about what you believe are
the important steps that are being taken to create the privacy
protections while we enable information to be shared and maybe
specifically what FIPPs is and how that enhances this ability.
Ms. Pearson or others, if you have an area in which you find
you say ``but,'' don't tell hesitate to tell us what the
``but'' is.
Ms. Callahan, I will recognize you.
Ms. McGuire, Ms. Pearson, in order.
Ms. Callahan. Thank you very much, sir.
My testimony with regard to increased cybersecurity can
enhance increased privacy goes to the FIPP of security because
the information has to be kept secure; it has to be kept
contained. Ms. McGuire testified about 93 million exposed
identities, and those people did not have the FIPPs to protect
them in that circumstance. But what is important is the
parenthetical that you read of mine, which is, you have to have
the appropriate standards, procedures, and safeguards within
that in order to protect that information.
Mr. Meehan. Can you take one moment and tell me 93,000
people----
Ms. Callahan. Ninety-three million identities.
Mr. Meehan [continuing]. Did not have the FIPPs. Would you
explain what you mean by that?
Ms. Callahan. It is Ms. McGuire's number, but I think it
involves data breaches, ma'am.
Ms. McGuire. The number was 93 million identities that were
lost or stolen in 2012, and that could be through any number.
It could be cyber attacks, laptops stolen, et cetera.
Mr. Meehan. Okay.
Ms. Callahan. So the concept of unauthorized access,
whether we are talking about it as a laptop or a device, as Ms.
Pearson talked about, or an actual cyber attack, where an
organized cyber criminal is taking the information. In that
circumstance, not all FIPPs prevent. That is my point about
security as an important element to the protection of privacy,
because if you can't keep the information secure, then you
can't have privacy, but you can enhance it if indeed you have
the proper safeguarding.
Mr. Meehan. So, in other words, even though the Government
may not be getting that information for 94 million people, it
is already out there in not only the private sector but out
there in the world of criminality and otherwise.
Ms. Callahan. That is correct. It could be as much as that.
That we need to mitigate that and address that going forward.
Mr. Meehan. Ms. McGuire.
Ms. McGuire. So I think it might be useful for me to take a
little bit about Symantec's sort-of, our privacy principles,
and we have three of those: First, that we believe that
customers should be empowered to decide how their personal
information is used and informed what, if anything, will be
done with it; and second, that privacy protections must be
integrated into the development of products and services and
not added as an after-thought; and finally, that we all need to
be proactive in protecting our own privacy, and absent strong
security, as I said before, information is vulnerable. We take
a number of steps as a company to secure the privacy, the PII
information of our customers and our partners and those are
tied directly to the FIPPs, as Ms. Callahan discussed, as well
as a number of internal policies, privacy policies, and privacy
impact tools that we use across our company. So I think it has
to be a multi-pronged approach, both with informing customers
as well as developing your own internal policies and practices
to safeguard that personally identifiable information.
Mr. Meehan. Where do you come down on the industries
developing personal policies, but where does the Government
come in on creating policies that the industry needs to adhere
to?
Ms. McGuire. Well, I think that, as Ms. Pearson talked
about, this notion of voluntary or codes of conduct that have
been developed over time, the adoption of those can be quite
useful, as well as internationally developed standards that
many times those codes of conduct form the basis for as it
moves through the standard development process.
Mr. Meehan. I am worried about the changing nature of the
threat and whether or not we will be able to create consistent,
sort-of, this is today's standard, it may be less relevant
tomorrow if there are new technologies or new ways to get
around it.
Ms. McGuire. Well, I think you raise a very, very important
point, and that is standards need to be flexible enough so
that, as time evolves, the nature of the threat evolves, that
they can evolve--the standard can evolve as well. Sometimes if
they are written too tightly, they will constrict the ability
to respond and deal with the next level of threat as it
evolves.
Mr. Meehan. Thank you.
Ms. Pearson, my time is up, but your time is still ticking
to answer and be responsive to any of the issues that were
raised.
Ms. Pearson. What I will say is that the Fair Information
Practice Principles were developed in the United States over 30
years ago, and they are still as good today as they were back
then. So that shows the power of having principles that can
guide our behaviors. When it comes to identifying what kind of
information you collect, if you are a business trying to
protect your assets and your people and then share, there are
some really foundational questions, which is: What am I doing,
what am I collecting, do I really need to collect it? The
answer may be, no, or the answer may be I do collect a lot of
information so that I can identify patterns, so I can see
abhorrent uses, so I can secure my networks. Once you decide on
kind of a principle level, what are you collecting, the
question then becomes: What do you need to share it, what
exactly do you need to share? From my own experience and
personal experience with my clients, I know that the vast
majority of the information involved in addressing cyber
threats has nothing to do with individuals. It is IP addresses.
It is the signatures. It is very technical information. So when
it comes time to share that information, that really is not a
privacy-related concern. Where there might be information that
relates to individuals, then the question becomes: Do you need
to share it? How important is it to the mission involved or to
the goal? Are there abilities to strip or share or amass or
protect that information? That is really the question.
Operationally speaking, I see companies more and more being
able to do that. I see innovation in the marketplace, American
innovation on the part of the companies, like Ms. McGuire's and
others, coming up the curve to help deal with that particular
privacy issue and help address technical or operational or
market measures. That is what I see.
Then, finally, as you deal with industry-to-Government, the
question I think that you are all in an excellent place to
address is: What will Government do with it? What will happen
to it, and what kind of assurances back and forth are in place
to make predictable to the American people and to business what
happens to that information, including protecting its
confidentiality for privacy purposes as well as business
confidentiality purposes?
Mr. Meehan. Thank you.
My time has expired, and now, at the suggestion of the
Ranking Member, we are going to go out of order and recognize
the gentlemen from Nevada, Mr. Horsford, for questioning.
Mr. Horsford. Thank you very much, Mr. Chairman.
Thank you to the Ranking Member, I appreciate the courtesy
to our witnesses, and thank you for being here.
Just briefly, obviously, this is an important National
security issue, and the need for qualified cybersecurity
experts has grown at the same time. Everyone from our President
to the GAO has said that we have to address this as a serious
economic challenge, both in the public and private sectors.
Now it appears that our ability to meet the cybersecurity
workforce needs of the Nation are not fully understood or fully
quantified. Would you recommend that the Federal Government
work with the private sector as well as training and
educational institutions to address the problem of kind of the
workforce areas of cybersecurity? If so, how?
Ms. McGuire. So, really important this issue of workforce
development and education and training for the future
cybersecurity experts and workers of the future. Today, we have
a number of public-private partnerships between industry and
Government that have been quite effective. Unfortunately, they
are not effective enough because the demand is so high for
these types of high-skilled employees in the future, but things
like the National Cybersecurity Alliance, the National
Initiative for Cyber Education, that DHS and NIST and the
Department of Defense and Commerce are leading, those are the
kinds of efforts, as well as National Science Foundation's,
Cyber Corps to train up that next generation.
We need more of those kinds of programs, frankly, in order
to meet the challenge of this deficit. It really is a deficit
that we have. I can tell you today, as a company, we have more
than a thousand openings, a thousand job openings, for high-
skilled engineers, and we could go across any number of high-
tech companies as well as manufacturing and other industries,
who cannot meet the challenge today. That really is impacting
our country's economics moving forward.
Ms. Callahan. I would note briefly the Secretary and Deputy
Secretary have testified before this committee asking for such
flexibility, and these initiatives that Ms. McGuire spoke about
are helpful, but I think that we need to do more to really help
buttress the cybersecurity options.
Ms. Pearson. One thought on privacy aspects here, as I have
worked with cybersecurity professionals, the best ones have
taken training and have an enormous degree of sensitivity to
the importance of privacy as they work on defending against
attacks and also safeguarding information. So an element of
cybersecurity curricula ought to be, and I believe it is in
most of these programs, an element of data protection or
privacy training as well.
Mr. Horsford. So gathering all of these, like you said,
initiatives and public-private partnerships to know what is out
there and what is working and where the gaps might be, steps
this committee could take to move some ideas forward.
Let me also ask, as I said, cyber threats are both in the
private and public sector. I am from Nevada, and we have a
large number of facilities critical to National security. The
Nevada National Test Site is in my district, for example, and
is a critical component to National security efforts.
Obviously, do you agree that we need to do everything we can to
protect these facilities?
Ms. Callahan. Yes, absolutely.
Ms. McGuire. Yes.
Mr. Horsford. So my follow-up question is: In this
budgetary environment, does the protection from cyber threats
against our National security facilities need to be a budget
priority?
Ms. McGuire. We have stated during this uncomfortable
period of sequestration and some of the cuts that are going on,
that cybersecurity issues should be at the forefront and a
priority to not be taking the scalpel to at this point in time.
I think you can look at any number of reports, whether they are
our report or others, as well as reports coming out of various
agencies, that this is not the time to be putting our critical
infrastructure, our National security apparatus at risk.
Mr. Horsford. Thank you very much, Mr. Chairman.
Thank you to the Ranking Member, again, for the courtesy.
Mr. Meehan. I thank the gentlemen for taking the time to
join us today. I know he had conflicts in his schedule. It is
deeply appreciated.
Also, for the record, I think we all share the genuine
appreciation to assure the adequate funding for this very, very
important area, although this is one of the areas, actually the
budget was plussed up in this area, which was, in this day, a
victory, where staying even is the new staying ahead; that was
a good result.
At this moment, the Chairman now recognizes the gentleman
from Montana, Mr. Daines.
Mr. Daines. Thank you, Mr. Chairman.
I was--my last 12 years in the private sector before I came
to Congress here in January was actually the cloud computing
company that we took public in global operations. So we were
very much in the midst of denial-of-service attacks and I guess
living in the world you all live in every day.
We had a case one time where the Federal Government came
asking for customer data regarding a threat to our National
security; in fact, it was the Secret Service that approached
us, and we refused to give the information up, saying this was
customers' data; it was not our data, ultimately. The Secret
Service moves quickly, and a subpoena came about 2 hours later,
and then we had a process where we could hand the data over to
investigate the situation.
What do you think is the minimum amount of data, talking
about the balance of privacy and protecting our country and
industry from cyber attacks, what is the minimum amount of data
that you think we need to adequately trace back a cyber attack?
I would love to get opinions on that.
Ms. McGuire. So I think there is often a lot of questions
around IP addresses and whether or not that is considered PII
or not. In our view, IP addresses are really a pointer back to
a specific threat, and they need to be aggregated with other
information in order to actually resolve back to an individual.
So, at the face value, because we get this question a lot, are
IP addresses PII, and there is a little bit of a gray area
there; sometimes they can be, but generally they are not. So I
think this goes to the crux of the broader issue around
attribution and the difficulty we have with attribution today
because IP addresses are not generally static; there are
constantly changing. So to your question around what is or
isn't, it is not always clear, but I think if you have the
proper standards and practices and policies in place to make
sure that privacy or PII information and privacy is protected,
that you are on the right side of the issue.
Ms. Callahan. I would add, for the Department of Homeland
Security, when I was there, the way they would address it is
that there were these signatures or indicators that may or may
not contain what could be personally identifiable information.
Ms. McGuire mentioned IP address. There also may be other
indications that could be personally identifiable information.
So what the Department has done, due to its standard operating
procedures, is to look at that and see whether or not that
personally identifiable information needs to be shared or
information that could be personally identifiable needs to be
shared as part of the signature or indicator. If it does, then
it has to be approved by a supervisor to make sure that it
indeed is consistent with the SOP. So if it is necessary, that
information will be shared, but you have to analyze it to make
sure that it is not just being shared because it is easier.
Mr. Daines. Ms. Pearson.
Ms. Pearson. I agree with my colleagues. Most of the time,
piecing together what happened or what is the source does not
really require access to personally identifiable information,
but sometimes it does. It is a little bit like detective work.
I think you can avoid that kind of data to some degree, but
sometimes, it is just embedded in systems. It is embedded in
the kind of thinking you have to do. It is not just the digital
detective work; sometimes you have to think about, for example,
was somebody trying to--and this is an amalgam of client
experiences I have had--is somebody trying to get at a system
using a mix of physical as well as digital measures? So then
the question becomes: Well, who had access, physically who had
access? That is the kind of information that might be collected
and might conceivably be shared with law enforcement because
fundamentally most of this kind of activity we are talking
about is against the law.
Mr. Daines. Right. Let me ask you this, Wayne Gretzky made
the famous comment, ``skate to where the puck is going.'' In
this very dynamic and world of innovation and break fix, and
things change within minutes and hours; you talked a bit about
technology that could be used to minimize data as it is coming
in as it is relates to privacy. Where do you see that headed
as--of course, we have had a lot of concerns from our
constituents about the whole privacy issue, but where do you
think this is all headed here when you make advancements in
technology that can cost-effectively minimize data, still
allows us to investigate but yet protects the privacy of our
constituents?
Ms. Pearson. My own view is that the market speaks, and as
the market looks for solutions like this, that protected
security by either requesting or rewarding the ability to
manage in mass data, then these solutions are technically
feasible and have already been invented, frankly, and it is a
matter of commercializing them, doing what you did, taking it
to the market.
One thing to note, in my view also, is that we are here
talking about homeland security issues, cybersecurity issues as
it relates to that aspect, but there are so many other reasons
that companies need to keep information secure and
confidential. There are other sources of legal obligation.
There are other sources of reputational issues.
Mr. Daines. The forces of competition.
Ms. Pearson. The forces of competition are absolutely
there, and the innovations available to embed, whether it is
cloud computing or in new ways of segmenting information on
devices that we all carry and use these days, are available or
are coming. It is a matter, I think, of pooling them.
Mr. Daines. I know my time is up. I would love to have Ms.
McGuire answer that if I could, Mr. Chairman.
Mr. Meehan. The Chairman would allow Ms. McGuire to share
her instincts on this.
Ms. McGuire. Thank you. I think there are--there is a lot
of work being done in this area as far as innovation with
moving to machine, really machine-to-machine readable data, so
that people don't even get into the middle of this. It is about
really identifying at the front end when the data is coming in
what would be considered PII so that maybe a human never
actually even looks at it. So I think that is certainly a
direction that we need to go in when we are talking about this
kind of information sharing for cybersecurity protection. That
is, I think, is a major innovation the industry is moving
towards today.
Mr. Daines. Thank you.
Mr. Meehan. Thank you, Mr. Daines.
The Chairman now recognizes the Ranking Member, the
gentlelady, Ms. Clarke.
Ms. Clarke. Thank you very much, Mr. Chairman.
I thank the panelists once again for bringing their
expertise to bear on this very timely issue. There are two
central privacy concerns when we talk about private-sector
collaboration with the Government to stop cyber attacks, are
over what information gets sent and who in the Government it is
sent to. Various legislative approaches to these two questions
have been quite controversial and is something we in Congress
are still struggling to get right.
So I want to ask the panel three questions: How much
minimization of the information should be required from the
private sector side when sharing information? Does too much
minimization place an undue burden on companies, and where is
the right place in the Government for this sharing to occur?
Ms. Callahan. Thank you very much, Ranking Member Clarke.
The concept of minimization is an important tenant of the FIPPs
and one that the DHS applied very consistently through its
standard operating procedures when I was there, and I believe
continues to do so. With that said, how much minimization is
appropriate, necessary from the private sector? I don't think
the question how much is--I think it is more to think about how
to effectively and efficiently implement it, rather than
putting the burden on the private sector to go through all
these laborious steps, but if they address it, either through
machine-to-machine readable that Ms. McGuire spoke about, or
through other standard policies and procedures, like the
Department has been implementing, which is kind of now like
muscle memory in terms of how to implement it, I think it can
be an effective tool in order to share timely information on
threats without unduly burdening privacy.
Ms. McGuire. From our perspective, we think that reasonable
minimization standards or practices as are outlined in the
FIPPs is appropriate and is not an undue burden for industry.
At least from our perspective, we do that today.
As far as your question about where should the information-
sharing relationship reside within the Government today, our
view is that it should reside with the civilian agency and for
a couple of reasons. One is, we believe that it sends the right
message to our citizens and to other governments. We have a
long tradition of--in this country of being a civilian-led
government, and we also believe that the civilian agencies
today have a framework in place to work with the private
industry.
If you look at the level of investment over the last 10
years, that industry as well as Government has put into the
public/private partnerships, for example, that DHS today is the
focal point and lead for with the participation of the rest of
the associated agencies as well as the Department of Defense,
we believe that we should build on that foundation and not, you
know, spend another 10 years trying to create something that,
while we need improvements, we can utilize and build on today.
Ms. Pearson. Let me add my perspective on this. In terms of
data minimization, one thing to note would be that, by far, the
majority, if not every single organization, the private sector
that I have seen, no one is eager to open the door and hand
over information to Government unless there is process of some
sort, some rules around it. The gentleman spoke about a
subpoena or some kind of legal structure, and I think the
minimization of information to be handed over or to be shared
or to be allowed to access to, a lot of that motivation is
there already. So in terms of standards, I think educating and
putting that thought process into, for example, the new NIST
cybersecurity framework so that it is put in there as other
elements are put in as a voluntary framework that we all know
will be quite influential. I think is very important to send a
signal and the expectation there.
Certain businesses and organizations in the private sector
have more sophistication than others, and so I think as well
for smaller and medium-sized businesses, particularly that
thought process and the technology of how to do that, I think,
will be perhaps more challenging than other large
organizations, so that is an open issue that I don't have a
solution for at this moment, but again, you know, I would point
to it.
Then, finally, in terms of the right place or the central
location, I guess my observation would be that in the last
number of years that I have been working in this area, that
there has been a collaboration among agencies as everyone has
sorted through who has expertise, how do you go about doing
this, how do you work with the private sector, and that
collaboration today, while imperfect, no doubt, has been
effective and has shown a regard for the mission and the
objective over a regard for individual organizational dynamics,
and that, I think, is the most important element to continue.
I share Ms. McGuire's general view of the importance of
civilian-led engagement, but I also am cognizant of the fact
that there have been collaborations that have been very
effective and worthwhile that have been handled primarily
through the military more or military agencies.
Ms. Clarke. Very well. Thank you very much.
I yield back, Mr. Chairman.
Mr. Meehan. I thank the gentlelady.
The Chairman now recognizes the gentleman, the former
prosecutor for Massachusetts, Mr. Keating.
Mr. Keating. Thank you, Mr. Chairman, Ranking Member.
I just had a question. There has been a lot of discussion
about the private-sector involvement, the Governmental
involvement. To what extent are universities and colleges
involved in dealing with this issue, trying to seek resolution,
trying to do research, looking at programs? What is your
experience about their involvement in this and how has that
been utilized by either government or the private sector?
Anyone?
Ms. Callahan. I guess I will start. So, there is a great
deal of research going on with cybersecurity and cybersecurity
protections. There is also a lot of integration among the
different colleges to help protect it. In addition, as you
note, sir, the colleges themselves have potentially critical
infrastructure information or research information that they
will need to protect themselves. So, from the Department's
perspective, they have been--they were--when I was there, and I
think they have continued since I have left, continued to do
outreach to try to help bolster both the cybersecurity training
that Ms. McGuire spoke about but also to help bolster the
research involved therein.
Ms. Pearson. The additional observation I will make is that
universities and colleges in our country are among the most
privacy-sensitive organizations, particularly because they are
Federally statutorily mandated to protect educational records,
and so I think from a privacy side of the cybersecurity
equation, they would be among the institutions I would say
would be most sensitive to the aspects of what to do to monitor
systems to, you know, protect information that way.
They also, as a group, happen to have access to some of the
leading-edge innovation in intellectual property in this
country, and so incenting them and helping universities
identify their crown jewels and to encourage them to protect
is, I think, an important attribute of what we are doing as a
strategy and National strategy, and you know, I think that is
important.
Mr. Keating. I believe there is a middle ground myself that
they could really occupy, where they don't have a commercial
interest as much as some cyber, you know, some private-sector
sides. The additional benefit of investing in universities will
address one of the other issues that were brought up. As we are
using and utilizing universities, we are going to have more
trained people available in the workforce, so that is a major
side benefit of doing that, so I just----
Ms. McGuire. I would also just add that the academic
institutions and universities have been involved in this
information sharing for quite awhile now with their research
and education networking, information sharing and analysis
center, the REN-ISAC as it is called. It is actually a
consortium of universities that share threat and other types of
data amongst themselves so that they can help to bolster their
own protections, and that has been in existence for over 10
years now. So I think it is important that we also make sure
that they are a part of this information-sharing partnership as
well moving forward.
Mr. Keating. You know, I do believe there is a greater
place for them in adopting some policies and using some of that
innovation and some of the models that might be there.
Quick question. Let's assume there is a major cyber attack,
attack on systems, something that would have a dramatic effect
on our economy. Now, there will be a reaction to that. What
would be the one thing you would not want to see Government
react to perhaps that would be overreacting to such a major,
major event, because there will be reaction when that happens,
and there will be a suddenness if we don't move on our own
ahead of time? What would be your greatest fear that Government
would overreact in that kind of situation?
Ms. McGuire. I think there is two. One is on the
operational real-world side, which is that--and this goes back
to that attribution question that we talked about earlier, that
perhaps there might be some kind of defensive posture taken
that is more detrimental as an outcome than the attack itself
and perhaps targets the wrong systems or networks as part of
that defense.
The second piece is really around policy, and that is that
when we--when we see big events of other types in the past, we
can often get a knee-jerk reaction in the development of policy
or rules and regulations that may not, may not always be as
conducive in the long run while they are trying to address the
short-term issue to our ability to protect ourselves for the
long term. So those are the two areas.
Mr. Keating. Thank you, Mr. Chairman. I yield back.
Mr. Meehan. Thank you, Mr. Keating.
The Chairman now recognizes the gentleman from Texas, Mr.
Vela. No questions at this point in time. Thank you. I am very
grateful for your taking the time to join us, Mr. Vela, and
notwithstanding.
If the--no objection, I have a few follow-up questions on
some issues that I would like to have you further clarify.
The panel has talked a number of times today about
personally identifiable information sort of in the context of
other questions, but I think there is a fundamental question:
Just what do you believe personally identifiable information
might be? Then, what is threat information, and how are they
distinguished? Are there similarities? Help me to help others
understand what you think those terms mean.
Ms. Callahan. I guess I will go first. So, there is a kind
of traditional definition of personally identifiable
information which is associated with an individual, name, email
address, social security number, telephone number, and that has
traditionally been the definition of personally identifiable
information. There has been an approach to broaden that for
information that is identified or could be identified with an
individual, and that is the current Federal definition of
personally identifiable information, so you could have some
liaison information with it.
In fact, the Federal Trade Commission, on a slight
different note actually has now included IP address, MAC
address associated with mobile devices and other information
that is personally identifiable information in their rule on
children's privacy. So it is kind of a little bit of a moving
target.
With regard to Department of Homeland Security and how they
think about personally identifiable information in the cyber
context, they look at information, including IP address, and
they presume that it is personal information, so this data
mineralization process I spoke about earlier with the gentleman
from Montana talks about let's presume that an email address or
an IP address is personal information, is it necessary to be
included in the signature or the threat information?
Mr. Meehan. Right.
Ms. Callahan. It is a broad definition, and then the
analysis is whether or not it should be included in the threat.
But as my colleagues noted earlier, the vast majority of time,
even that broad definition of personally identifiable
information isn't necessary to include in the threat.
Mr. Meehan. Now, how about because we are watching--and I
think there was some testimony. I know it was in the written
testimony. We have seen a tremendous expansion in the amount of
mobile devices that are now being used as back doors to that,
so is that expanding on the amount of information that may be
getting caught up in the net if we are starting to do more to
look after protecting against violations that happen on
personal devices?
Ms. McGuire. Yeah. I think there is no question that the
proliferation of different devices and ways for us to connect
to the internet and to move our data around creates a larger
attack surface, if you will, and more opportunities for the bad
guys to access our personal information. So, you know, things
like FIPPs and other kinds of policies to protect your private
data, coupled with all of the necessary security that you need
to have on all of those devices, they have to be done, done
together to ensure, at least provide a level of assurance that
your information and your privacy is secured.
Ms. Pearson. So let's take a really concrete example. Let's
say you are a business with a few thousand employees and you
allow employees to use their smartphones or iPads, or you know,
device and connect and do work, and let's say that somebody who
operates your systems sees some weird behavior, and they say:
Well, what is going on? They look to see, and it is some of the
source of that information, of that aberration is coming from a
few of the devices that are hooked up to the network. What is
collected is system information and device information to find
out what is going on, what is the source of it. That is threat
information. That is the kind of information, when you are in a
business, you are collecting.
The next question is: Well, do you share it with anybody?
Do you go to one of these information-sharing collaboratives
with industry and then say: I have seen something; have you
seen something? You compare notes. It is kind of like a
Neighborhood Watch. You say, well, you know, this is kind of
happening in my neck of the woods, my neighborhood.
Most of the information--all the information in that
context is not identifiable information because you are just
saying, well, I have got devices, and this is what I have seen.
The question that turns it from threat information that is non-
PII to personal information is if you have reason to say: Oh,
and that device belonged to X.
Mr. Meehan. Why would you say that, though? Is there a
circumstance where you would?
Ms. Pearson. In a situation I just painted where you are
trying to figure out what is going on, probably not. If there
is reason to think that some--that whoever had that device
needs to be contacted to be asked questions or maybe there was
something going on, perhaps then there might be, which is why I
think all of us in our remarks have talked about how the
majority of information in the cyber context is not PII, but
sometimes it might be, and then it becomes a matter of
safeguarding and treating that information well.
That is, I think the danger of trying to overcircumscribe
how this stuff works because it is very--it is complex, it is
changing, the technology is changing, and the way to address
these issues today is very different from what it was even a
couple of years ago and it will change going forward.
Mr. Meehan. Go ahead and recognize my Ranking Member for
some follow-up questions as well.
Ms. Clarke.
Ms. Clarke. Thank you, Mr. Chairman.
You know, this is such a fascinating area that we are
engaged with right now, and we are really just at the beginning
of what can ultimately be a way of life for us because the
technologies is ever-evolving, but I have a question about data
breach information, obligations, rather.
When a company is hacked, what is its obligation to its
customers? What is its obligations to its employees and its
shareholders? Do you think that current law is sufficient to
compel corporations to give their stakeholders the information
they need? That is one question.
Then I want to ask another very important question because
this is over time. So, over the past decade, we have witnessed
an explosion in the usage of the internet for all aspects of
everyday life. Networking technologies have now fully
penetrated our civil society. Many are worried about the
intended and unintended consequences of this. Some have talked
about changing expectation of privacy as a result of the
internet. Many people have mused that no one will be able to
run for President in the future due to the amount of
information about us through social media, whether it is
Facebook, LinkedIn, all of these things that reveal so much
about us. Do you think that these technologies are changing how
we think of our privacy? How do you see the internet affecting
our conception of privacy in the future?
Ms. Pearson. Really simple questions. Can I start?
Ms. Callahan. Sure. Go ahead.
Ms. Pearson. I will start with the second one first. That
is the broad question, I think, of our time for those of us who
work in this area daily. There is something--every realm, every
type of new technology that has some implication for the
collection management of information over time, starting with,
you know, even before the camera, but the camera is kind of a
modern era start of the technology cycle that has led us to
camera to telegraph to telephone to video, et cetera, et
cetera, prompts this question, and we as a society search for
the answer, and we as an American society have come up with a
unique blend of mechanisms, law enforcement, policies, norms to
answer it for ourselves as a people.
This current era in which we live is a very rapid
technology cycle, and the rapidity of it has challenged our
whole concept. So while I resisted tweeting that I was coming
in here, I will tweet on my way out, and it is, I think, the
generation to come, the digital native generation will
reflexively, I think, engage in this information sharing, to
speak of another kind of information-sharing activity, much
more normally and as regularly than we might. But I believe
firmly, and I think there are studies that show it academically
that the human psyche needs a zone of privacy, and it just
needs to express itself in different ways, given the parameters
of what we are living in.
So I firmly believe that despite some of the rhetoric
around here, humans have, American--you know, in our American
society, but globally, some sort of psychological need for a
zone in which to express oneself, and you know, in our country,
I think the challenge will be to reinvent that for the coming
era and figure out what the laws and norms are around it.
Ms. McGuire. I will take the first question on data breach
first. Clearly, companies have a series of obligations to
inform their customers, their employees, and their
shareholders.
Today, however, we do have a patchwork of regulation around
that. I think we have 48 different State laws, and that can be
difficult for companies to scale to when they have experienced
an unfortunate data breach issue. So having some commonality
around what that reporting should be, I think, at least from
our perspective, would be desirable.
On the second question around internet--the increasing use
of internet and how it is changing and evolving our perceptions
on privacy, there is no question that I think, as Ms. Pearson
stated, that there is a big difference between, you know, the
over-30 generation and the under-30 generation on how we
perceive our privacy and our own information.
I was part of a panel a couple of weeks ago on privacy and
security where we were discussing the changing nature of
anonymity on the internet and the role that that will play in
regard to future views on privacy. So I think we are starting
to see a huge evolution, if you will, just in how we are going
to be thinking about these issues in the future.
Ms. Callahan. If I could have two small points on both
questions. You asked about data breach obligations, and I think
it is worthwhile to note that the patchwork of State laws that
Ms. McGuire mentioned involved a very narrow definition of
personally identifiable information. So it would be first and
last name, coupled with a sensitive identifier, such as social
security number, but there can be many cyber breaches that may
not reach the level of a data breach for notification.
Now, there is--so it is almost two different types of
breaches, a cybersecurity incident and a data breach incident.
With that said, there is guidance from the SEC that public
companies should notify about if there has been an incident,
but they also should notify whether or not there is a
possibility or some sort of problems, and I think that is worth
noting in terms of your shareholder question.
With regard to the internet, I think that the FIPPs of user
control and transparency are going to be important tenets as we
get into this kind of ubiquitous always on-line information.
You should know what is being happening with information and
how you as an individual can control it. I think that will help
define privacy in the future.
Mr. Meehan. Well, I thank you. Let me ask one sort of
closing question to the extent you feel comfortable answering
it, because obviously as we work through, this is one example,
although one of the critically important issues that we are
dealing with as we try to find a framework for legislation that
helps us find the very balance that we are exploring today. So,
if you were in our shoes and you were writing the legislation,
how would you look to write something that accommodates the
concerns that we are sharing today? What would be in that
legislation to help, you know, limit the sharing of PII but
still encourage the ability for us to get the necessary threat
information that we need to protect?
Then what kind of rules do you think we should be putting
in place to encourage and give guidance to companies to allow
them to feel comfortable doing information sharing, in fact, to
encourage it, because part of the fear is if you have outliers
that don't participate, as you have stated, the weakest link
may be the avenue in, how do we make sure that we do the most
to protect our system?
So, you are the legislators and we have got to go to draft,
what would be included to address those issues? I will ask you
to move across.
Ms. Callahan. Well, thank you very much, and I am happy to
be a legislator. I enjoyed my time in the Executive branch, but
I look forward to being on your side. No, just kidding.
If I were writing the legislation, I would want to make
sure that this--that the FIPPs were thoroughly integrated into
the legislation, and we have spoken a lot about how effective
that is and how it is a framework, and it is very flexible, and
I think those are important tenets to put in there. We don't
want to be too prescriptive, we don't want to be too specific,
but we want to have the framework and the concepts, and I think
data minimalization from the information sharing is a very
important tenet.
With regard to the types of rules to be put in place,
FIPPs, obviously, but I will also say that the NIST
cybersecurity framework that is currently going on with the
Executive Order can be a very useful tool to help all the
small- and medium-sized enterprises who are going to be sharing
information as well as the large multinational ones have the
same kind of baseline and not try to reinvent the wheel.
Ms. McGuire. I largely agree with everything that Ms.
Callahan has said, but I will just add that I think there is
one or two additional pieces. In addition to the FIPPs
components and building on the existing frameworks that we have
in place today, those two key pieces are that civilian agency,
as a lead, I think, are very important to ensuring that our
citizens feel comfortable that their personal information is
not somehow being used for purposes other than securing
networks and systems, and also the legal liability issue for
companies especially to feel comfortable to share information
with the Government.
Today we are--we have a very laborious process. If we want
to share something that is not part of a contractual
arrangement that exists today, a business arrangement with
Government agencies, that can take a lot of time, and
oftentimes the information becomes stale.
Mr. Meehan. They say in a moment where we are talking
microseconds sometimes about information being relevant to
preventing a threat.
Ms. McGuire. Yes. Information becomes stale very quickly,
and so today we have to go through a series of internal privacy
checks as well as legal checks and antitrust checks if we want
to share with other companies even. As you can imagine, that
takes a lot of time and resources when time is often of the
essence.
Mr. Meehan. Thank you.
Ms. Pearson.
Ms. Pearson. I also largely agree with my colleagues. The
additional couple of points I would make is that as
legislators, the oversight function that you have the ability
to play should not be underestimated at all and should continue
to be exercised, particularly in this area, to make sure that
the agencies involved and the stakeholders involved are
discharging for obligations here. I think that is very
important.
Another point to make is that certainty is important.
Certainty is important to business, of course, and I know from
my service on, for example, the American Bar Association
Cybersecurity Legal Task Force, which cuts across the entire
bar association and other fora that, as a whole, the members of
the bar who are counseling companies across the board,
different industries, are coming off the curb, so to speak, on
their understanding how the different laws here intersect with
one another and work with another, whether it is antitrust or
privacy or other things, and encouraging that kind of
maturation, I think, for example, by holding briefings, by----
Mr. Meehan. Are you saying that they are beginning to
understand the parameters and more effectively counsel their
clients as to what they may or may not do?
Ms. Pearson. It is a complex--as you noted before, it is a
complex area of law, and the challenge with security and
securing is that it implicates so many areas of law, current
law and then a lot of the law that is coming. So what I see
happening is more and more, you know, the defense industrial-
based pilot, for example, was it a fantastically successful
pilot? As involvement of industry broadens in the framework at
NIST and the voluntary efforts, so is an additional expansion
of individuals, particularly in the legal community who are
starting to understand how to put all those pieces together,
and so that should be encouraged, in my view.
Mr. Meehan. Well, I think we have time constraints, so I
want to express my deep appreciation. I think we could go on
with this hearing well into the evening hours, but I need to
respect everybody's time, and I particularly appreciate the
work that each and every one of you has done, not just in the
preparation for this hearing, but your long period of service
in what is a vital and important area now for our Nation as we
move forward trying to find the right balance on this and the
other questions that are relevant to the challenge that we
face.
I don't think anybody denies or is running from the true
nature of the very real threat that exists out there in the
cyber world that is affecting people in so many different
capacities, but I also am confident in our capacity to meet the
challenge if we do it with enough forethought.
So I thank you for having very, very valuable testimony to
this consideration as we work together as a committee to try to
reach the right challenge in the bills that we will propose.
There may be Members from the committee who have a question,
and if they do and they submit it to you, I would ask that you
do your best to try to respond in writing, if that should
happen. But I thank you for your continuing work and I look
forward to continuing dialogue as we move through on this very
important issue.
I thank the Members of the committee. The committee now
stands--subcommittee now stands adjourned.
[Whereupon, at 3:44 p.m., the subcommittee was adjourned.]
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