With U.S. cyber policy, clear lanes still hard to come by

The elevation of CISA and maturation of Cyber Command have clarified "big picture" responsibilities for the U.S. government's cyber mission, but private-sector coordination remains a question mark.

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The elevation of the Cybersecurity and Infrastructure Security Agency (CISA) and maturation of U.S. Cyber Command have clarified “big picture” responsibilities for the U.S. government’s digital security mission, but there’s still some confusion when it comes to interacting with the private sector.

In the latest sign that the U.S. government still has work to do clearly outlining roles and responsibilities on cyber policy, an FBI official said elements of the government are still having ongoing “conversations” about how best to counter threats to businesses and critical infrastructure.

At a Nov. 22 discussion hosted by George Mason University’s National Security Institute, FBI Chief of Cyber Policy Steven Kelly said outlining clearer guidance for how the Departments of Justice, Defense, Homeland Security and the intelligence community engage with the private sector and adapting bureaucratic processes for speed are the subject of ongoing conversation among agencies.

“In terms of the big picture kind of responsibilities, those are pretty sorted out,” Kelly told FCW. “I think the areas where we need to improve is how we’re interacting with at-risk entities -- and there’s various departments and agencies that have a role in this -- and how the information and learnings can be actioned at a speed that is [relevant].”

Kelly, who served on the National Security Council under President Barack Obama and helped develop Presidential Policy Directive 41 outlining U.S. policy on cyber incident response, was asked if the situation has become clearer since then. He answered that it was “not so simple” because so many relevant issues take place across multiple jurisdictional lines.

“Suffice it to say, those conversations are continuing about exactly how to strike the exact right balance on bringing all the right capabilities to bear,” Kelly said.

For years, U.S. policymakers have expressed concern that jurisdictional confusion was inhibiting the federal government from effectively countering malicious digital activity from criminal groups and foreign nations. The maturing posture of U.S. Cyber Command and the creation and elevation of the CISA at the Department of Homeland Security was supposed to help clarify that confusion. 

While cyber attacks against U.S. companies from foreign intelligence services would seem to be a national defense issue under the Defense Department, Kelly noted that his agency helps make critical links in the U.S. defense strategy against cyber threats.

“We work every day with victims of crime, and we rely on those relationships,” Kelly said.

“If you do not collect evidence, then you will not have attribution. If you don’t have attribution, you can’t have consequences. If you do not have consequences, you cannot achieve deterrence, so this is not a pure defense move.”

Perhaps nowhere is confusion more apparent than in determining who has responsibility for protecting the private sector. The FBI and DHS can both claim to be the lead agency for companies to contact in the event they’re hit by a cyber attack. Neither would be strictly wrong: DHS might take the lead on incident response duties while FBI would handle any subsequent criminal investigations.

Meanwhile, DOD isn’t even mentioned in PPD-41, but it is responsible for securing contractors who make up the Defense Industrial Base. The National Security Agency and U.S. Cyber Command, meanwhile, have undertaken limited information-sharing programs with the financial sector and other critical infrastructure sectors.

In the private sector, companies have pooled resources in the form of Information Sharing Advisory Committees, while threat intel firms with former U.S. intelligence and military officials on staff sell technical and open source intelligence to companies.

Jamil Jaffer, founder and executive director of the National Security Institute and vice president of strategy and partnerships at IronNet Cybersecurity, said that it’s “unrealistic” to expect many companies to defend against foreign countries on their own. He argued intelligence agencies have resources and capabilities that are unique to the public and private sector, but “nobody wants NSA or Cyber Command … standing at the borders of the U.S. internet.”

“How do you square that circle?” Jaffer asked. “That requires a national conversation about whose job is it: Is it the [FBI], is it DHS, is it NSA [and] Cyber Command, is it some combination of all three? We haven’t really solved that problem.”

There are other signs that the government still has work to do.

In October, the ranking Republican on the House Homeland Security Committee warned that “stovepiped” cybersecurity offices and programs throughout departments and agencies were undermining or stepping on CISA’s mission as the federal government’s civilian cyber lead.

For their part, CISA officials often prefer to use the term “coordination” when discussing their relationship with other civilian agencies. CISA Director Chris Krebs told FCW later that same day that he views other cyber offices and programs as “a good thing” as long as they’re doing their work in conjunction with CISA’s vision of “the big picture.”

Still, CISA also wants to make sure departments and agencies aren’t giving advice or direction to private industry and critical infrastructure organizations that conflict with its message.

"I think the problem we've had in the past is that different departments and agencies -- and probably different programs within different departments and agencies -- are going out and engaging industry and wanting to learn and understand about their own specific issue,” CISA Deputy Assistant Director Rick Driggers told FCW earlier this month. “When really, if you look at it from an operational technology perspective, a lot of what we're trying to mitigate, protect and defend are common across multiple different types of [operational technology] environments and particularly across different types of sectors."

For years, the government used a “bubble chart” outlining high-level roles and responsibilities between DOJ (investigation and enforcement), DHS (protection) and DOD (national defense) for cyber policy.

The problem is that what may look like simple or clear-cut policy lanes at a higher level becomes hopelessly muddled as agencies map them onto specific programs and actions. As an example of how often those three missions tend to intersect, that single slide chart went through at least 75 revisions during the interagency process before approval, according to congressional testimony from then NSA/CyberCom head Gen. Keith Alexander.

“If you read it, you’re like, ‘Oh that makes sense’ … but you start reading the details, and everybody gets everything they want and nobody doesn’t get anything,” said Jaffer. “So depending on who’s reading it, [they’re] like: ‘I run the whole the thing.’”

Some of these questions are being studied by the Cyberspace Solarium Commission, but despite progress in some areas, the situation is not dramatically different today. In fact, Jaffer said that Alexander, the founder of IronNet and its current CEO, recently brought the same chart to a meeting of the Solarium meeting, telling members it that still applies to U.S. operations.

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