No New Cyber Security Legislation is Better Than Any New Legislation

The head of the U.S. Cyber Command, the former head of the NSA, and various national security wonks recently told Congress that we must pass new cyber security legislation now or risk worse legislation later. The serious cyber security problems we are dealing with today, left unchecked, could lead to a catastrophic attack tomorrow. In the aftermath of such an attack there would be calls for immediate action, but no time to think clearly about the unintended consequences of a snap decision.

It is hard to reconcile the sound and the fury coming from Capitol Hill about the need for new cyber security legislation with the reality cyber security practitioners are facing on a daily basis. If cyber security is such a problem, why hasn’t funding for the Comprehensive National Cybersecurity Initiative been extended? How come we have such a spotty law enforcement response? If cyber security is so important to the homeland, how come DHS – the organization the Congress would have setting security standards for industry – can’t keep a cyber czar on the job?

We have laws on the books that address cyber crime now: the Computer Fraud and Abuse Act  and the Electronic Communications Privacy Act, both of 1986, come immediately to mind. They’re good laws in that they address the vast majority of behaviors that are associated with cyber crime, they’re just effectively un-enforceable. That does not stop just because we pass new law. The Cyber Security Enhancement Act is proof of that.

The idea that we would later come back to adjust bad legislation, as offered by former NSA Director Hayden, is an equally laughable proposition. There are a lot of things wrong with the PATRIOT Act – legislation passed in a panicked rush because something had to be done – but when we had the opportunity to amend or even repeal what is essentially a wartime law, we did nothing despite the crippling of the threat it was created to combat.

It’s only natural that Washington’s solution to every problem is new law, but new law doesn’t address the root cause of the problem; it simply allows more bureaucracy to grow up around it (imagine the TSA sticking a gloved hand in your laptop). The problems we’ve been facing are a product of both behavior and technology. You can’t legislate behavior, and technology will change three or four times in the span of a Congressman’s term, which means any proposed legislation is outdated before it ever comes to a vote.

The government has known about the security problems associated with the spread of information technology for decades, but despite countless recommendations and warnings we are no better off today than we were 20 years ago. It has taken years for the agencies that would protect us from digital evil to stop receiving “F” grades on their own cybersecurity report cards, but now industry is supposed to consider their advice “expert.”

Bills like the Cybersecurity Enhancement Act in the House want to fund the educations of those who study cyber security, but cyber security education is a band-aid for a kludge. It does not address what is essential for a more secure online environment: better programmers and engineers who are able to build functional but at the same time less vulnerable systems.

The Cybersecurity Act in the Senate emphasizes the need for “sharing,” but Information Sharing and Analysis Centers have been in existence for years. There are no statistics that show sharing has led to a more secure industry. Holding security contests to develop the security workforce is another tired idea. Security contests are always “capture the flag” affairs, which simply train tomorrow’s digital janitors to clean up yesterday’s engineering messes. There is no shortage of technical talent in this country, it’s simply that not everyone wants or is able to work for the government.

There are a number of things the government can do that would have a more meaningful impact on cyber security without new law.

Start by professionalizing and making cyber security a career field in which you can advance to the highest ranks in both law enforcement, defense and intelligence. When an agent, analyst or operator can have a career, not just a rotation, combating cyber crime we can help ensure people on the front lines have the most current skills and can begin to build up institutional knowledge (something sorely lacking in most cyber security organizations today).

Stop relying on shortcuts like certification to determine who gets to join in the fight. You cannot express dismay that our networks are indefensible if you’d rather have a poor performer with a credential instead of someone with who lacks a credential but has demonstrated expertise. The same goes for security requirements. Not everything dealing with government cyber security is classified. The idea that cyber security is some kind of gentleman’s game didn’t make sense 80 years ago and it makes even less sense now when the capability to become a cyber power is within any-one persons grasp.

Encourage more creative approaches to combating cyber crime and cyber criminals. The government cannot and should not do it all. Instead of trying to force the reluctant in industry to share, why not supply administrative and legal support they need to act in their own defense?

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