Banks Urge Removal of Cyber Bill Provision Allowing DHS Oversight

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By Kery Murakami

Nov. 12 — Congressional leaders should remove a Senate cybersecurity bill provision that would allow the Department of Homeland Security (DHS) to regulate the cyber practices of critical financial services and other infrastructure, the American Bankers Association and 46 other trade organizations said Nov. 12 in a letter.

DHS and other regulatory agencies “seemingly would have free rein to assess certain businesses’ cybersecurity gaps and develop unilateral mitigation strategies for each critical infrastructure entity without input from industry,” said the letter from the ABA, the Financial Services Roundtable and the Electronic Transactions Association, as well as the U.S. Chamber of Commerce, and groups representing telecommunications, trucking, power and other industries.

The Senate on Oct. 27 passed the Cybersecurity Information Sharing Act (CISA), providing legal immunity to companies that voluntarily share cyber threat data with the federal government. The Senate bill (S. 754) must be reconciled with similar legislation (H.R. 1560, H.R. 1731) passed by the House.

The Senate provision in question, authored by Sen. Susan Collins (R-Maine), would apply to critical infrastructure, in which a “cybersecurity incident could reasonably result in catastrophic regional or national effects on public health or safety, economic security, or national security.”

It calls on DHS to assess to what extent a critical entity reports cyberattacks to DHS or to its existing federal regulator in a timely manner. It also requires DHS, in conjunction with existing federal regulators, to assess and create a strategy to ensure “to the greatest extent feasible, a cyber security incident affecting such entity would no longer reasonably result in catastrophic regional or national effects,” defined as causing more than $50 billion in economic damage, 2,500 fatalities or a severe degradation of national security.

Collins: DHS Oversight Needed

Collins said on the Senate floor Oct. 26 that another amendment she offered was not brought up for a vote. It would have required banks and other entities to report cyberattacks to DHS.

On the amendment included in the bill, Collins said in a Nov. 12 statement to Bloomberg BNA, “For 99 percent of businesses, the voluntary information sharing framework established in the Cybersecurity Information Sharing Act (CISA) will be sufficient. It would be a mistake, however, to treat the country’s electric grid the same as a chain of ice cream shops under the provisions of this bill. Without this amendment, these very different entities will be treated exactly the same under this legislation.”

Collins' statement also said that National Intelligence Director James Clapper told the Senate Armed Services Committee that a large-scale cyberattack against the U.S. infrastructure is his top cybersecurity concern and that National Security Agency Director Mike Rogers had ranked the nation’s preparedness in protection of critical infrastructure from cyberattacks at a “5 or 6” out of 10.

“The bare minimum we should do is to ask DHS and the appropriate federal agencies to describe what more could be done to prevent a catastrophic cyber attack on critical infrastructure that could cause thousands of deaths and/or a devastating blow to our economy or national defense,” her statement said.

But in the Nov. 12 letter, industry groups said they have “significant concerns” about the amendment because it “runs counter to the voluntary nature” of companies sharing information about cyberattacks with the government. “We support and already engage in a strong voluntary partnership of information sharing with the U.S. Government that will grow stronger with the passage of CISA and the House bills,” the groups said.

The letter was addressed to Senate Intelligence Committee Chairman Richard Burr (R-N.C.) and Vice Chair Dianne Feinstein (D-Calif.), House Homeland Security Committee Chairman Michael McCaul (R-Texas) and ranking member Bennie Thompson (D-Miss.), and House Intelligence Committee Chairman Devin Nunes (R-Calif.) and ranking member Adam Schiff (D-Calif.).

The groups also said the amendment “presumes a deficiency in current cybersecurity capabilities of covered critical infrastructure entities. In fact, businesses are spending billions of dollars to counter cyber-attacks from nation-state adversaries, criminal organizations, and other malicious actors.”

To contact the reporter on this story: Kery Murakami in Washington at kmurakami@bna.com

To contact the editor responsible for this story: Mike Ferullo in Washington at mferullo@bna.com

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