A compromise version of Cybersecurity Act of 2012 backs continuous monitoring of government IT security over regulatory compliance in the Federal Information Security Management Act.
The chances that FISMA reform could move through Congress this year have increased at least a little with the introduction of a compromise cybersecurity bill by Senate Homeland Security Chairman Joe Lieberman (I-Conn.).
Legislators and agency officials have long called for a reworking of the Federal Information Security Management Act. The proposed legislation would replace certification and accreditation with continuous monitoring, emphasizing the security of government IT systems rather than regulatory compliance, which most critics of FISMA as it now stands would applaud.
Moving a piece of major legislation through Congress this year, even a compromise bill, could still be a daunting challenge. But even if the new Cybersecurity Act of 2012 isn’t passed, many of the elements of FISMA reform already are making their way into government policy.
Lieberman and Senate Majority Leader Harry Reid of Nevada want to move cybersecurity legislation to the floor this month, a tough job given the opposition to cybersecurity regulation for critical infrastructure included in the original version of the bill introduced in February. So Lieberman and his co-sponsors have drafted a compromise bill that substitutes incentives for voluntary compliance in place of regulation in an effort to garner more Republican support.
A section on FISMA reform is included in both versions of the Cybersecurity Act of 2012. It has been rewritten and streamlined some for the new version, but the broad outlines remain familiar. The Homeland Security Department would be given the lead in government cybersecurity, a role it has been gradually assuming from the Office of Management and Budget, which now oversees compliance.
The new FISMA would be “a mechanism to improve and continuously monitor the security of agency information security programs and systems through a focus on continuous monitoring of agency information systems and streamlined reporting requirements rather than overly prescriptive manual reporting.”
Continuous monitoring as used in the bill means an automated, ongoing real-time or near-real-time process to determine if security controls used within an information system are effective over time. This is generally considered a much-needed improvement and already is required under current guidance for FISMA compliance.
There is a section in the bill that is likely to raise opposition with privacy and civil liberties advocates. It allows DHS to “acquire, intercept, retain, use and disclose communications and other system traffic that are transiting to or from or stored on agency information systems and deploy countermeasures with regard to the communications and system traffic.” Service providers also can be required to turn over this information if needed.
There are some limitations to this broad authority. The DHS secretary first must certify that the information being gathered is needed to deal with a cybersecurity threat, and that it “will only be retained, used or disclosed to protect agency information systems from information security threats, mitigate against such threats, or, with the approval of the Attorney General, for law enforcement purposes when -- the information is evidence of a crime that has been, is being, or is about to be committed; and disclosure of the information to a law enforcement agency is not otherwise prohibited by law.”
If the compromise Cybersecurity Act does not pass, this provision will not be greatly missed. And as long as compliance requirements for FISMA continue to evolve, agencies can still continue to improve their security posture while waiting for FISMA reform.