Federal Laws Relating to Cybersecurity:
Discussion of Proposed Revisions
Eric A. Fischer
Senior Specialist in Science and Technology
April 23, 2012
Congressional Research Service
7-5700
www.crs.gov
R42114
CRS Report for Congress
Pr
epared for Members and Committees of Congress
Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions
Summary
For more than a decade, various experts have expressed increasing concerns about cybersecurity,
in light of the growing frequency, impact, and sophistication of attacks on information systems in
the United States and abroad. Consensus has also been building that the current legislative
framework for cybersecurity might need to be revised.
The complex federal role in cybersecurity involves both securing federal systems and assisting in
protecting nonfederal systems. Under current law, all federal agencies have cybersecurity
responsibilities relating to their own systems, and many have sector-specific responsibilities for
critical infrastructure.
More than 50 statutes address various aspects of cybersecurity either directly or indirectly, but
there is no overarching framework legislation in place. While revisions to most of those laws
have been proposed over the past few years, no major cybersecurity legislation has been enacted
since 2002.
Recent legislative proposals, including many bills introduced in the 111th and 112th Congresses,
have focused largely on issues in ten broad areas:
• national strategy and the role of government,
• reform of the Federal Information Security Management Act (FISMA),
• protection of critical infrastructure (including the electricity grid and the
chemical industry),
• information sharing and cross-sector coordination,
• breaches resulting in theft or exposure of personal data such as financial
information,
• cybercrime,
• privacy in the context of electronic commerce,
• international efforts,
• research and development, and
• the cybersecurity workforce.
For most of those topics, at least some of the bills addressing them proposed changes to current
laws. Several of the bills specifically focused on cybersecurity have received committee or floor
action, but none have become law.
Comprehensive legislative proposals on cybersecurity that have received considerable attention in
2012 are S. 2151, recommendations from a House Republican task force, and a proposal by the
Obama Administration. They differ in approach, with S. 2151 proposing the most extensive
regulatory framework of the three, and the task force recommendations focusing more on
incentives for improving private-sector cybersecurity. Several House bills have been introduced
subsequently that address some of the issues raised and recommendations made by the House task
force. Five are scheduled for floor action the week of April 23:
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Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions
• Cybersecurity Enhancement Act of 2011 (H.R. 2096), which addresses federal
cybersecurity R&D and the development of technical standards;
• Cyber Intelligence Sharing and Protection Act (H.R. 3523), which focuses on
information sharing and coordination, including sharing of classified
information;
• Promoting and Enhancing Cybersecurity and Information Sharing Effectiveness
Act of 2011 or PRECISE Act of 2011 (H.R. 3674), which addresses the role of
the Department of Homeland Security in cybersecurity, including protection of
federal systems, personnel, R&D, information sharing, and public/private sector
collaboration in protecting critical infrastructure;
• Advancing America's Networking and Information Technology Research and
Development Act of 2012 (H.R. 3834), which addresses R&D in networking and
information technology, including but not limited to security; and
• Federal Information Security Amendments Act of 2012 (H.R. 4257), which
addresses FISMA reform.
Together, those House and Senate bills address most of the issues listed above, although in
different ways. All include or discuss proposed revisions to some existing laws covered in this
report.
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Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions
Contents
Introduction...................................................................................................................................... 1
Current Legislative Framework................................................................................................. 1
Executive Branch Actions ......................................................................................................... 3
Legislative Proposals................................................................................................................. 4
Discussion of Proposed Revisions of Current Statutes.................................................................... 8
Posse Comitatus Act of 1879..................................................................................................... 9
Antitrust Laws and Section 5 of the Federal Trade Commission Act...................................... 10
National Institute of Standards and Technology Act ............................................................... 12
Federal Power Act ................................................................................................................... 13
Communications Act of 1934.................................................................................................. 14
National Security Act of 1947 ................................................................................................. 15
U.S. Information and Educational Exchange Act of 1948 (Smith-Mundt Act)....................... 15
State Department Basic Authorities Act of 1956..................................................................... 16
Freedom of Information Act (FOIA) ....................................................................................... 17
Omnibus Crime Control and Safe Streets Act of 1968............................................................ 18
Racketeer Influenced and Corrupt Organizations Act (RICO)................................................ 19
Federal Advisory Committee Act (FACA) .............................................................................. 19
Privacy Act of 1974................................................................................................................. 20
Counterfeit Access Device and Computer Fraud and Abuse Act of 1984............................... 21
Electronic Communications Privacy Act of 1986 (ECPA)...................................................... 22
Department of Defense Appropriations Act, 1987 .................................................................. 24
High Performance Computing Act of 1991............................................................................. 25
Communications Assistance for Law Enforcement Act of 1994 (CALEA)............................ 26
Communications Decency Act of 1996................................................................................... 27
Clinger-Cohen Act (Information Technology Management Reform Act) of 1996.................. 28
Identity Theft and Assumption Deterrence Act of 1998.......................................................... 29
Homeland Security Act of 2002 (HSA)................................................................................... 30
Federal Information Security Management Act of 2002 (FISMA) ......................................... 32
Terrorism Risk Insurance Act of 2002..................................................................................... 35
Cyber Security Research and Development Act, 2002............................................................ 35
E-Government Act of 2002 ..................................................................................................... 36
Identity Theft Penalty Enhancement Act................................................................................. 37
Intelligence Reform and Terrorism Prevention Act of 2004 (IRPTA)..................................... 38
Tables
Table 1. Comparison of Topics Addressed by Selected Legislative Proposals on
Cybersecurity in the 112th Congress ............................................................................................. 7
Table 2. Laws Identified as Having Relevant Cybersecurity Provisions....................................... 40
Contacts
Author Contact Information........................................................................................................... 49
Acknowledgments ......................................................................................................................... 49
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Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions
Introduction
For more than a decade, various experts have expressed concerns about information-system
security—often referred to as cybersecurity—in the United States and abroad.1 The frequency,
impact, and sophistication of attacks on those systems has added urgency to the concerns.2
Consensus has also been growing that the current legislative framework for cybersecurity might
need to be revised to address needs for improved cybersecurity, especially given the continuing
evolution of the technology and threat environments. This report, with contributions from several
CRS staff (see Acknowledgments), discusses that framework and proposals to amend more than
30 acts of Congress that are part of or relevant to it.
Current Legislative Framework
The federal role in addressing cybersecurity is complex. It involves both securing federal systems
and fulfilling the appropriate federal role in protecting nonfederal systems. There is as yet no
overarching framework legislation in place, but many enacted statutes address various aspects of
cybersecurity. Some notable provisions are in the following acts:
1 The term information systems is defined in 44 U.S.C. §3502 as “a discrete set of information resources organized for
the collection, processing, maintenance, use, sharing, dissemination, or disposition of information,” where information
resources is “information and related resources, such as personnel, equipment, funds, and information technology.”
Thus cybersecurity, a broad and arguably somewhat fuzzy concept for which there is no consensus definition, might
best be described as measures intended to protect information systems—including technology (such as devices,
networks, and software), information, and associated personnel—from various forms of attack. The concept has,
however, been characterized in various ways. For example, the interagency Committee on National Security Systems
has defined it as “the ability to protect or defend the use of cyberspace from cyber attacks,” where cyberspace is
defined as “a global domain within the information environment consisting of the interdependent network of
information systems infrastructures including the Internet, telecommunications networks, computer systems, and
embedded processors and controllers” (Committee on National Security Systems, National Information Assurance (IA)
Glossary, April 2010, http://www.cnss.gov/Assets/pdf/cnssi_4009.pdf). In contrast, cybersecurity has also been defined
as synonymous with information security (see, for example, S. 773, the Cybersecurity Act of 2010, in the 111th
Congress), which is defined in current law (44 U.S.C. §3532(b)(1)) as
protecting information and information systems from unauthorized access, use, disclosure, disruption,
modification, or destruction in order to provide—
(A) integrity, which means guarding against improper information modification or destruction, and
includes ensuring information nonrepudiation and authenticity;
(B) confidentiality, which means preserving authorized restrictions on access and disclosure, including
means for protecting personal privacy and proprietary information;
(C) availability, which means ensuring timely and reliable access to and use of information; and
(D) authentication, which means utilizing digital credentials to assure the identity of users and validate
their access.
2 See, for example, IBM, IBM X-Force® 2011 Mid-year Trend and Risk Report, September 2011,
http://public.dhe.ibm.com/common/ssi/ecm/en/wgl03009usen/WGL03009USEN.PDF; Barbara Kay and Paula Greve,
Mapping the Mal Web IV (McAfee, September 28, 2010), http://us.mcafee.com/en-us/local/docs/MTMW_Report.pdf;
Office of the National Counterintelligence Executive, Foreign Spies Stealing U.S. Economic Secrets in Cyberspace:
Report to Congress on Foreign Economic Collection and Industrial Espionage, 2009-2011, October 2011,
http://www.ncix.gov/publications/reports/fecie_all/Foreign_Economic_Collection_2011.pdf; Symantec, Symantec
Internet Security Threat Report: Trends for 2010, Volume 16, April 2011, https://www4.symantec.com/mktginfo/
downloads/21182883_GA_REPORT_ISTR_Main-Report_04-11_HI-RES.pdf.
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Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions
• The Counterfeit Access Device and Computer Fraud and Abuse Act of 1984
prohibits various attacks on federal computer systems and on those used by banks
and in interstate and foreign commerce.
• The Electronic Communications Privacy Act of 1986 (ECPA) prohibits
unauthorized electronic eavesdropping.
• The Computer Security Act of 1987 gave the National Institute of Standards and
Technology (NIST) responsibility for developing security standards for federal
computer systems, except the national security systems3 that are used for defense
and intelligence missions, and gave responsibility to the Secretary of Commerce
for promulgating security standards.
• The Paperwork Reduction Act of 1995 gave the Office of Management and
Budget (OMB) responsibility for developing cybersecurity policies.
• The Clinger-Cohen Act of 1996 made agency heads responsible for ensuring the
adequacy of agency information-security policies and procedures, established the
chief information officer (CIO) position in agencies, and gave the Secretary of
Commerce authority to make promulgated security standards mandatory.
• The Homeland Security Act of 2002 (HSA) gave the Department of Homeland
Security (DHS) some cybersecurity responsibilities in addition to those implied
by its general responsibilities for homeland security and critical infrastructure.
• The Cyber Security Research and Development Act, also enacted in 2002,
established research responsibilities in cybersecurity for the National Science
Foundation (NSF) and NIST.
• The E-Government Act of 2002 serves as the primary legislative vehicle to guide
federal IT management and initiatives to make information and services available
online, and includes various cybersecurity requirements.
• The Federal Information Security Management Act of 2002 (FISMA) clarified
and strengthened NIST and agency cybersecurity responsibilities, established a
central federal incident center, and made OMB, rather than the Secretary of
Commerce, responsible for promulgating federal cybersecurity standards.
More than 40 other laws identified by CRS also have provisions relating to cybersecurity (see
Table 2). Revisions to many of those laws have been proposed. More than 40 bills and
resolutions with provisions related to cybersecurity have been introduced in the first session of
the 112th Congress, including several proposing revisions to current laws. In the 111th Congress,
the total was more than 60.4 Several of those bills received committee or floor action, but none
3 This term is defined in 44 U.S.C. §3542(b)(2).
4 Those bills were identified through a two-step process—candidates were found through searches of the Legislative
Information System (LIS, http://www.congress.gov) using “cybersecurity,” “information systems,” and other relevant
terms in the text of the bills, followed by examination of that text in the candidates to determine relevance for
cybersecurity. Use of other criteria may lead to somewhat different results. For example, using the LIS “cybersecurity”
topic search yields about 30 bills in the 112th Congress and 40 in the 111th, with about a 50% overlap in the bills
included. While that difference is higher than might be expected, none of the bills identified uniquely by the LIS topic
search are relevant to the discussion in this report.
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Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions
have become law. In fact, no comprehensive cybersecurity legislation has been enacted since
2002.5
Executive Branch Actions
Some significant executive actions have been taken, however.6 The George W. Bush
Administration established the Comprehensive National Cybersecurity Initiative (CNCI) in 2008
through National Security Presidential Directive 54 / Homeland Security Presidential Directive
23 (NSPD-54/HSPD-23). Those documents are classified, but the Obama Administration released
a description of them in March 2010.7 Goals of the 12 subinitiatives in that description include
consolidating external access points to federal systems; deploying intrusion detection and
prevention systems across those systems; improving research coordination and prioritization and
developing “next-generation” technology, information sharing, and cybersecurity education and
awareness; mitigating risks from the global supply chain for information technology; and
clarifying the federal role in protecting critical infrastructure.
In December 2009, the Obama Administration appointed Howard Schmidt to the position of
White House Cybersecurity Coordinator.8 He is a member of the White House national security
staff and is responsible for government-wide coordination of cybersecurity, including the CNCI.
One of the most visible initiatives in which he has been involved is the implementation of
automated, continuous monitoring of federal information systems.9 Other stated priorities include
developing a unified strategy for network security and incident response, and strengthening
partnerships with the private sector and other countries. He works with both the National Security
and Economic Councils in the White House. However, the position has no direct control over
agency budgets, and some observers argue that operational entities such as the National Security
Agency (NSA) have far greater influence and authority.10 The Obama Administration has also
launched several initiatives.11
5 Among the broader proposals in the 111th Congress, S. 773 (S.Rept. 111-384) and S. 3480 (S.Rept. 111-368) were
reported by the originating committees. H.R. 4061 (H.Rept. 111-405) and H.R. 5136 (Title XVII, mostly similar to
H.R. 4900) both passed the House. A bill combining provisions of the two Senate bills was drafted (Tony Romm,
“Lack of Direction Slows Cybersecurity,” Politico, November 4, 2010, http://www.politico.com/news/stories/1110/
44662.html). In the 112th Congress, S. 413 is similar to S. 3480 in the previous Congress, H.R. 2096 (H.Rept. 112-264)
is similar to H.R. 4061, and the Senate combined draft is reportedly still being developed (Gautham Nagesh, “Reid
Says Senate Will Take Up Cybersecurity Bill Next Year,” Hillicon Valley, November 17, 2011, http://thehill.com/
blogs/hillicon-valley/technology/194245-senate-will-take-up-cybersecurity-bill-next-year).
6 This update does not include executive branch actions taken since December 2011.
7 The White House, “The Comprehensive National Cybersecurity Initiative,” March 5, 2010,
http://www.whitehouse.gov/cybersecurity/comprehensive-national-cybersecurity-initiative. For additional information
about this initiative and associated policy considerations, see CRS Report R40427, Comprehensive National
Cybersecurity Initiative: Legal Authorities and Policy Considerations, by John Rollins and Anna C. Henning.
8 The position has been popularly called the “cyber czar.”
9 Jeffrey Zients, Vivek Kundra, and Howard A. Schmidt, “FY 2010 Reporting Instructions for the Federal Information
Security Management Act and Agency Privacy Management,” Office of Management and Budget, Memorandum for
Heads of Executive Departments and Agencies M-10-15, April 21, 2010, http://www.whitehouse.gov/omb/assets/
memoranda_2010/m10-15.pdf.
10 See, for example, Seymour M. Hersh, “Judging the cyber war terrorist threat,” The New Yorker, November 1, 2010,
http://www.newyorker.com/reporting/2010/11/01/101101fa_fact_hersh?currentPage=all.
11 Among them are White House strategies to improve the security of Internet transactions (The White House, National
Strategy for Trusted Identities in Cyberspace, April 2011, http://www.whitehouse.gov/sites/default/files/rss_viewer/
NSTICstrategy_041511.pdf) and to coordinate international efforts (The White House, International Strategy for
(continued...)
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Under current law, all federal agencies have cybersecurity responsibilities relating to their own
systems, and many have sector-specific responsibilities for critical infrastructure, such as the
Department of Transportation for the transportation sector. Cross-agency responsibilities are
complex, and any brief description is necessarily oversimplified. In general, in addition to the
roles of White House entities, DHS is the primary civil-sector cybersecurity agency. NIST, in the
Department of Commerce, develops cybersecurity standards and guidelines that are promulgated
by OMB, and the Department of Justice is largely responsible for the enforcement of laws
relating to cybersecurity.12 The National Science Foundation (NSF), NIST, and DHS all perform
research and development (R&D) related to cybersecurity. The National Security Agency (NSA)
is the primary cybersecurity agency in the national security sector, although other agencies also
play significant roles. The recently established U.S. Cyber Command, part of the U.S. Strategic
Command in the Department of Defense (DOD), has primary responsibility for military
cyberspace operations.
Legislative Proposals
In general, legislative proposals on cybersecurity in the 111th and 112th Congresses have focused
largely on issues in ten broad areas:
• national strategy and the role of government,
• reform of FISMA,
• protection of critical infrastructure (especially the electricity grid and the
chemical industry),
• information sharing and cross-sector coordination,
• breaches resulting in theft or exposure of personal data such as financial
information,
• cybercrime offenses and penalties,
• privacy in the context of electronic commerce,
• international efforts,
• research and development (R&D), and
• the cybersecurity workforce.
For most of those topics, at least some of the bills addressing them proposed changes to current
laws.13
(...continued)
Cyberspace, May 2011, http://www.whitehouse.gov/sites/default/files/rss_viewer/
international_strategy_for_cyberspace.pdf), and an executive order on sharing and security for classified information
(Executive Order 13587, “Structural Reforms to Improve the Security of Classified Networks and the Responsible
Sharing and Safeguarding of Classified Information,” Federal Register 76, no. 198 (October 13, 2011): 63811-63815,
http://www.gpo.gov/fdsys/pkg/FR-2011-10-13/pdf/2011-26729.pdf).
12 This responsibility is shared to some extent with other agencies such as the U.S. Secret Service.
13 For specific analysis of legal issues associated with several of the bills being debated in the 112th Congress, see CRS
Report R42409, Cybersecurity: Selected Legal Issues, by Edward C. Liu et al.
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There appears to be considerable support in principle for significant legislation to address most of
those issues. The House, Senate, and White House have taken somewhat different approaches to
such legislation.
The Senate has been working since last year on a comprehensive bill synthesizing approaches
proposed by the Homeland Security and Governmental Affairs Committee (S. 3480 in the 111th
Congress and S. 413 in the 112th), the Commerce, Science, and Transportation Committee (S. 773
in the 111th Congress), and others.14 S. 2105, the Cybersecurity Act of 2012, which includes
features of both those bills and others,15 was introduced in February 2012. An alternative Senate
bill, S. 2151, the SECURE IT Act,16 was introduced in March.17 Several other Senate bills would
address specific aspects of cybersecurity, such as data breaches of personal information and
cybercrime.
In April 2011, the White House sent a comprehensive, seven-part legislative proposal (White
House Proposal) to Congress.18 Some elements of that proposal have been included in both
House and Senate bills.
In October, the 12-Member House Republican Cybersecurity Task Force, which had been formed
by Speaker Boehner in June, released a series of recommendations (Task Force Report) to be used
by House committees in developing cybersecurity legislation.19 Unlike the other proposals, it was
not presented in the form of a bill or bills. Several House bills have been introduced subsequently
that address some of the issues raised and recommendations made by the Task Force Report. Five
are scheduled for floor action the week of April 23. They are the
• Cybersecurity Enhancement Act of 2011 (H.R. 2096), which addresses federal
cybersecurity R&D and the development of technical standards;
• Cyber Intelligence Sharing and Protection Act (H.R. 3523), which focuses on
information sharing and coordination, including sharing of classified
information;
• Promoting and Enhancing Cybersecurity and Information Sharing Effectiveness
Act of 2011 or PRECISE Act of 2011 (H.R. 3674), which addresses the role of
the Department of Homeland Security in cybersecurity, including protection of
federal systems, personnel, R&D, information sharing, and public/private sector
collaboration in protecting critical infrastructure;
14 See footnote 5.
15 The title on information sharing is similar to S. 2102.
16 SECURE IT is an acronym for Strengthening and Enhancing Cybersecurity by Using Research, Education,
Information and Technology.
17 A similar but not identical bill, H.R. 4263, was introduced in the House April 9. It is not discussed separately in this
update.
18 The White House, Complete Cybersecurity Proposal, 2011, http://www.whitehouse.gov/sites/default/files/omb/
legislative/letters/law-enforcement-provisions-related-to-computer-security-full-bill.pdf. One part does not appear to be
directly related to cybersecurity. It would restrict the authority of state and local jurisdictions with respect to the
location of commercial data centers.
19 House Republican Cybersecurity Task Force, Recommendations of the House Republican Cybersecurity Task Force,
October 5, 2011, http://thornberry.house.gov/UploadedFiles/CSTF_Final_Recommendations.pdf.
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• Advancing America's Networking and Information Technology Research and
Development Act of 2012 (H.R. 3834), which addresses R&D in networking and
information technology, including but not limited to security;20 and
• Federal Information Security Amendments Act of 2012 (H.R. 4257), which
addresses FISMA reform.
Specific issues addressed by several of those bills and proposals are indicated in Table 1.
Together, they address most of the issues listed above, although in different ways. All include or
discuss proposed revisions to some existing laws covered in this report.
Those addressed in the House bills are
• “Cyber Security Research and Development Act, 2002” (H.R. 2096, S. 2105, S.
2151);
• “Federal Information Security Management Act of 2002 (FISMA)” (H.R. 4257,
the Task Force Report, S. 2105, S. 2151, the White House Proposal);
• “High Performance Computing Act of 1991” (H.R. 3834, S. 2105, S. 2151)
• “Homeland Security Act of 2002 (HSA)” (H.R. 3674, S. 2105, the White House
Proposal); and
• “National Security Act of 1947” (H.R. 3523);
Those addressed in other bills or proposals are
• “Antitrust Laws and Section 5 of the Federal Trade Commission Act” (Task
Force Report, S. 2151)
• “Clinger-Cohen Act (Information Technology Management Reform Act) of
1996” (S. 2105, White House Proposal);21
• “Counterfeit Access Device and Computer Fraud and Abuse Act of 1984” (Task
Force Report, S. 2151, White House Proposal);
• “E-Government Act of 2002” (White House Proposal);
• “Electronic Communications Privacy Act of 1986 (ECPA)” (Task Force Report);
• “Identity Theft Penalty Enhancement Act” (Task Force Report); and
• “Racketeer Influenced and Corrupt Organizations Act (RICO)” (Task Force
Report).
Also, some bills and proposals would provide exemptions under the “Freedom of Information Act
(FOIA)” for certain kinds of information provided to the federal government (H.R. 3523, Task
Force Report, S. 2105, S. 2151, White House Proposal). H.R. 3523 and S. 2151 would also
20 For discussion of this bill and H.R. 2096, see also CRS Report RL33586, The Federal Networking and Information
Technology Research and Development Program: Background, Funding, and Activities, by Patricia Moloney Figliola.
21 See also “Federal Information Security Management Act of 2002 (FISMA).”
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permit information sharing that might otherwise be subject to antitrust or other restrictions on
sharing,22 and the Task Force Report states an antitrust exemption might be necessary.
Table 1. Comparison of Topics Addressed by Selected Legislative Proposals
on Cybersecurity in the 112th Congress
se
u
e
o
e
al
H
05
51
Forc
port
ted
Bills
Re
S. 21
S. 21
te Hous
ropos
P
Topic
Task
Selec
Whi
DHS authorities for federal
H.R.
3674 X X X X
systems
New DHS office/center
H.R. 3674
X
X
Personnel authorities for
H.R. 2096
X X X X
cybersecurity
H.R. 3674
Supply-chain vulnerabilities H.R.
3674 X X X
Cybersecurity R&D
H.R. 2096
X X X X
H.R. 3674
H.R. 3834
FISMA
reform
H.R.
4257 X X X X
Protection of privately held critical
H.R.
3674 X X X
infrastructure (CI)
Government/private-sector
H.R.
3674 X X X
collaboration on CI protection
Information sharing
H.R. 3523
X X X
H.R. 3674
FOIA exemption for cybersecurity
H.R.
3523 X X X X
information
Public awareness
H.R. 2096
X
X
X
New public/private entity
X
Additional regulation of privately
X X X
held critical infrastructure
Cybercrime
law
X X X
Data breach notification
X
X
Internet security provider code of
X
conduct
National security/defense and
X
federal civil sector coordination
Source: CRS.
22 See CRS Report R42409, Cybersecurity: Selected Legal Issues for more detail.
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The bills and proposals listed in Table 1 take a range of approaches to address the topics listed.
Differences relating to revisions of current laws are discussed under the corresponding statute
below.
Discussion of Proposed Revisions of
Current Statutes
To identify laws that might be considered candidates for revision, CRS conducted a broad search,
consulting with various experts and examining various sources, including legislative proposals in
the 111th and 112th Congresses. That search yielded more than 50 potentially relevant statutes (see
Table 2), of which proposed revisions were identified for 31.23 For each of the latter group, the
report contains an entry that includes
• the popular name of the statute;24
• the public law number, along with Statutes-at-Large and relevant U.S. Code
citations;25
• a brief description of the relevance of the statute for cybersecurity;26 and
• discussion of potential revisions or updates that have been suggested.27
Entries are in chronological order.28 The statutes discussed include only those for which CRS
identified specific proposals to revise them from various observers and in public sources.29 It does
23 There are 27 entries, but the one on antitrust laws consists of four different statutes. Neither of the two lists is
intended to be definitive or exhaustive. For example, some analysts may argue that more agency authorization statutes
should be included, or, alternatively, that some of the statutes that are included are not of significant relevance.
24 This is the name by which the statute is commonly known.
25 The public law (P.L.) and United States Statutes at Large (Stat.) citations refer to the original law to which the
popular name currently applies. Laws enacted before 1957 generally do not have public law numbers but chapter
numbers (Ch.) instead. U.S. Code (U.S.C.) citations refer to the codified law, including any amendments, of those
provisions deemed most relevant for cybersecurity as discussed in the text under that law (see also footnote 26). For
more information about citation forms, see Law Library of Congress, “Federal Statutes,” April 4, 2011,
http://www.loc.gov/law/help/statutes.php. More complete cross-references of public laws to corresponding provisions
of U.S. Code can be found in classification tables (see, for example, U.S. House of Representatives, Office of the Law
Revision Counsel, “U.S. Code Classification Tables,” 2011, http://uscode.house.gov/classification/tables.shtml).
26 In some cases, such as the Cybersecurity Research And Development Act, P.L. 107-305, the entire statute is relevant
to cybersecurity. In others, such as the Omnibus Crime Control and Safe Streets Act of 1968, P.L. 90-351, the statute
has a broader focus and only the provisions relevant to the text are cited and described. However, given that
cybersecurity is not a precise concept, there may in some cases be legitimate disagreements among experts about which
provisions are relevant. Therefore, the descriptions and U.S. Code citations cannot be considered definitive.
27 The discussion is provided for purposes of information only. CRS does not propose legislation or take positions or
make recommendations on legislative proposals or issues. Contributing CRS staff include Patricia Moloney Figliola,
Kristin M. Finklea, Eric A. Fischer, Wendy R. Ginsberg, John Rollins, Kathleen Ann Ruane, Gina Stevens, Rita Tehan,
and Catherine A. Theohary. Entries for which no contributor is indicated were written by Eric A. Fischer.
28 The order is by date of enactment of the earliest relevant statute, as assessed by CRS. This organization, rather than
alternatives such as by topic or U.S. Code title, was chosen because it provides the best view of the evolution of
legislation in this area.
29 Sources are cited where they could be specifically identified.
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not include proposals for new provisions of federal law that were not identified explicitly as
revisions of current named statutes.
One example is the recommendations for statutory language on data-breach notification in the
White House Proposal and the Task Force Report. Neither those two documents, nor the bills on
the issue that have been introduced in the 112th Congress,30 specify named statutes to be revised.
One of those bills, S. 1151, would revise 18 U.S.C. Chapter 47 (Fraud and False Statements) by
adding a new section at the end, but that provision does not modify any named statute specified
either in the bill or in the U.S. Code. It is therefore not included in the discussion below.
However, the bill would also revise 18 U.S.C. §1030, which was added by the “Counterfeit
Access Device and Computer Fraud and Abuse Act of 1984,” so that provision is discussed.
Another example is bills with provisions clearly related to a named statute, but that do not
explicitly modify that statute. One example from the 111th Congress is H.R. 5590, which had
cybersecurity provisions that might be interpreted as modifications to the HSA but were not cited
as such. Such provisions are not discussed in this report because their effects on specific statutes
could not be determined with certainty.
The approach taken in this report of focusing on statutes by their popular names is useful in many
cases, but it has some significant limitations, particularly with respect to the U.S. Code. Some
laws, such as the USA Patriot Act of 2001 (see Table 2), may be classified across many titles and
sections,31 which may make analysis more challenging. Fortunately, that did not prove to be a
significant concern for this report.
However, lack of correspondence between named laws and proposed modification of provisions
in the U.S. Code, described above, may in some cases result in significant gaps in coverage of
relevant provisions of law relating to cybersecurity by an approach such as the one taken here.
Therefore, the analysis presented here should not be regarded as complete.
Posse Comitatus Act of 1879
Ch. 263, 20 Stat. 152.
18 U.S.C. §1385.32
Major Relevant Provisions
• Restricts the use of military forces in civilian law enforcement within the United
States, unless it is within a federal government facility.33
• Courts have ruled that violations of the act occur when civilian law enforcement
makes “direct active use” of military investigators, when use of the military
30 Data-breach notification is also covered by H.R. 1528, H.R. 1707, H.R. 1841, H.R. 2577, S. 1151, S. 1207, S. 1480,
and S. 1535.
31 This act was classified to 15 titles.
32 Prepared by Catherine A. Theohary, Analyst in National Security Policy and Information Operations
(ctheohary@crs.loc.gov, 7-0844).
33 For further discussion, see CRS Report RS22266, The Use of Federal Troops for Disaster Assistance: Legal Issues,
by Jennifer K. Elsea and R. Chuck Mason.
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pervades the activities of the civilian officials, or when the military is used so as
to subject citizens to military power that is regulatory, prescriptive, or
compulsory in nature.
Possible Updates
• Some observers claim that the act prevents the military from cooperating on
cybersecurity with civil agencies that may lack the resident expertise and
capabilities of the military and DOD.34 In addition, it may sometimes be difficult
to distinguish a criminal cyber attack from one involving national defense,
especially if the attack is on a component of critical infrastructure.
• Some have therefore proposed that the act be amended to clarify when U.S.
military can operate domestically regarding cyber threats to such infrastructure,
most of which is privately owned. Others maintain that no revision is needed
because the President has the authority under current law to direct the military to
support civil authorities in the event of a domestic disaster.
• A memorandum of agreement signed between DHS and DOD may increase the
likelihood that the military would play a significant role in responding to a major
cyber attack on U.S. information networks.35 However, some argue that the
defense of U.S. information systems should be solely the purview of civilian
agencies such as DHS and the FBI, because involvement of the military creates
unacceptable privacy and civil liberties concerns.
Antitrust Laws and Section 5 of the Federal Trade Commission Act
Sherman Antitrust Act
Ch. 647, 26 Stat. 209.
15 U.S.C. §§1-7.
Wilson Tariff Act
Ch. 349, §73, 28 Stat. 570.
15 U.S.C. §§8-11.
Clayton Act
P.L. 63-212, 38 Stat. 730.
15 U.S.C. §§12-27.
34 For example, see Jeffrey K. Toomer, “A Strategic View of Homeland Security: Relooking the Posse Comitatus Act
and DOD’s Role in Homeland Security” (monograph, School of Advanced Military Studies, United States Army
Command and General Staff College, Fort Leavenworth, Kansas, July 11, 2002), http://www.dtic.mil/cgi-bin/
GetTRDoc?Location=U2&doc=GetTRDoc.pdf&AD=ADA403866.
35 Department of Homeland Security and Department of Defense, “Regarding Cybersecurity.” The MOA provides
terms for sharing of personnel, equipment, and facilities by the two agencies to improve planning, capabilities, and
mission activities in national cybersecurity efforts.
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Section 5 of the Federal Trade Commission Act (FTC Act)
Ch. 311, §5, 38 Stat. 719.
15 U.S.C. §45(a).36
When referred to in statute, the term “antitrust laws” generally means the three laws listed in 15
U.S.C. §12(a), which are the first three statutes listed above. Also frequently included in the list
of antitrust laws is Section 5 of the FTC Act, which prohibits unfair and deceptive trade practices.
Section 5 is included because courts have found that unfair competition includes, at the least,
activity that would violate the Sherman or Clayton Acts.37
Major Relevant Provisions
• The antitrust laws as well as Section 5 of the FTC Act are a collection of statutes
that forbid combinations or agreements that unreasonably restrain trade.38
Whenever competitors in a given market share information, antitrust concerns
may be raised due to the risk of collusion among competitors.39
Possible Updates
Information sharing agreements between private corporations may be subject to antitrust scrutiny,
because the sharing of information among competitors could create opportunities for
collaboration with the goal of restraining trade.40 However, information sharing agreements to
combat cybersecurity may be in compliance with antitrust principles so long as their goals are to
combat cyber threats rather than restrain competition.41
Some may argue that in order to develop effective and efficient information sharing agreements to
combat cybersecurity threats, an explicit exemption from the antitrust laws for these agreements
is necessary. Congress has previously proposed such an exemption. For example, H.R. 2435
(107th Congress) would have granted an express exemption from the antitrust laws and from
Section 5 of the FTC Act to persons making and implementing agreements entered into solely for
the purpose of “facilitating the correction or avoidance of a cyber security-related problem or
communication of or disclosing information to help correct or avoid the effects of a cyber
security-related problem.” Such an exemption, if enacted by Congress, would allow market
participants to engage in information sharing for the purposes of combating cybersecurity threats
without concern for implicating the antitrust laws. In the 112th Congress, the Task Force Report
states that an antitrust exemption might be required.42 H.R. 3523 does not specifically mention
antitrust laws, but it permits sharing of cybersecurity information among private-sector entities
36 Prepared by Kathleen Ann Ruane, Legislative Attorney (kruane@crs.loc.gov, 7-9135).
37 See, e.g., United States v. American Airlines Inc., 743 F.2d 1114 (5th Cir. 1984); FTC v. Motion Picture Advertising
Serv. Co., 344 U.S. 392, 394-95 (1953); FTC v. Cement Institute, 333 U.S. 683, 694 (1948); Fashion Originators’
Guild v. FTC, 312 U.S. 457, 463-64 (1941).
38 See Standard Oil Co. v. U.S., 221 U.S. 1 (1911).
39 See Federal Trade Commission and Department of Justice, Antitrust Guidelines for Collaborations among
Competitors, April 2000, http://www.ftc.gov/os/2000/04/ftcdojguidelines.pdf.
40 Ibid.
41 Ibid. (noting that many collaborations among competitors are “not only benign, but procompetitive”).
42 House Republican Cybersecurity Task Force, Recommendations, p. 11.
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“notwithstanding any other provision of law.” S. 2151 expressly exempts from antitrust laws the
exchange among private entities of information relating to cybersecurity threats.
Others may argue that the antitrust laws are flexible in nature, particularly as they relate to
information sharing agreements, and the laws are flexibly applied by the agencies of
jurisdiction.43 This flexible nature may obviate the need for express exemptions from the
application of the laws, while keeping the antitrust agencies involved in and aware of the
information sharing agreements companies are making.44 The agencies have expressed a view
that if competitors are collaborating for reasons that do not restrain trade or hamper competition,
and safeguards are in place to prevent such restraint, the antitrust laws should not hinder such
collaboration.45 The Department of Justice (DOJ) currently allows companies wishing to create
information sharing arrangements for permissible and procompetitive purposes to submit their
plans for collaboration to the agency.46 The agency then reviews the plans and, if the plans are
approved, issues what is known as a business review letter.47 The business review letter will
generally state that DOJ does not intend to enforce the antitrust laws against the proposed
collaboration. DOJ has issued business review letters to companies who have developed plans to
share information to combat cybersecurity threats.48
National Institute of Standards and Technology Act
Ch. 872, 31 Stat. 1449.
15 U.S.C. §271 et seq.
Major Relevant Provisions
The original act gave the agency responsibilities relating to technical standards. Later
amendments added more generally relevant provisions and, more specifically,
• Identified relevant research topics, among them computer and telecommunication
systems, including information security and control systems.49
• Established a computer standards program at the National Institute of Standards
and Technology (NIST).50
43 See Amitai Aviram, “Network Responses to Network Threats,” in The Law and Economics of Cybersecurity, ed.
Mark Grady and Francesco Parisi (New York: Cambridge University Press, 2006), 157-158.
44 See Federal Trade Commission and Department of Justice, Antitrust Guidelines.
45 Ibid.
46 28 C.F.R. §50.6.
47 Federal Trade Commission and Department of Justice, Antitrust Guidelines.
48 Joel I. Klein, Assistant Attorney General, to Barbara Greenspan, Associate General Counsel, Electric Power Institute,
Inc., October 2, 2000, http://www.justice.gov/atr/public/busreview/6614.htm.
49 15 U.S.C. §272, as amended by the Technology Competitiveness Act, Subtitle B of Title V of P.L. 100-418, the
Omnibus Trade and Competitiveness Act of 1988, which also changed the name of the agency from the National
Bureau of Standards to the National Institute of Standards and Technology, and changed the name of the act to the
National Institute of Standards and Technology Act.
50 15 U.S.C. §§278g-3 and -4, as added by the Computer Security Act of 1987. See also “Federal Information Security
Management Act of 2002 (FISMA).”
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Possible Updates
Despite NIST’s current authority to conduct research on computers and information security,
some concerns have been raised about whether those activities should be enhanced in light of the
evolving threat environment for cybersecurity. In the 111th Congress, H.R. 4061, which was
passed by the House, would have required NIST to conduct intramural research on identity
management and the security of information systems, networks, and industrial control systems. A
similar bill, H.R. 2096, is being considered by the 112th Congress.
Federal Power Act
Ch. 285, 41 Stat. 1063.
16 U.S.C. §791a et seq., §824 et seq.51
Major Relevant Provisions
• Established the Federal Energy Regulatory Commission (FERC) and gave it
regulatory authority over interstate sale and transmission of electric power.
Possible Updates
Concerns about the vulnerability of the electric grid to cyber attack have increased substantially
over the last several years.52 Although the Energy Policy Act of 2005 (P.L. 109-58) gave FERC
responsibility for developing reliability standards for power systems, limitations to that authority
and to the usefulness of the standards-development process to respond effectively to rapidly
emerging cybersecurity threats have raised concerns about the need for enhancing FERC’s
authority to address those threats, especially in light of the development of smart-grid
technology.53 Several bills were introduced in the 111th Congress (H.R. 2165, H.R. 2195, H.R.
5026, S. 946, S. 1462) in response. H.R. 5026, which was passed by the House, would have
expanded FERC’s jurisdiction over electric infrastructure and authorized FERC to order actions
by relevant entities in response to threats to cybersecurity. In the 112th Congress, S. 1342 would
also provide expanded cybersecurity authorities to FERC, and H.R. 668 would give FERC
emergency authorities in response to events causing large-scale disruptions of the electric grid.
51 The law was originally enacted in 1920 as the Federal Water Power Act but was renamed the Federal Power Act in
1935 (49 Stat. 863, 16 U.S.C. §791a).
52 See, for example, H.Rept. 111-493, S.Rept. 111-331.
53 CRS Report R41886, The Smart Grid and Cybersecurity—Regulatory Policy and Issues, by Richard J. Campbell.
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Communications Act of 1934
Ch. 652, 48 Stat. 1064.
47 U.S.C. §151 et seq.54
Major Relevant Provisions
• Established the Federal Communications Commission (FCC) and gave it
regulatory authority over both domestic and international commercial wired and
wireless communications.
• Provides the President with authority in a national emergency to control “any or
all stations or devices capable of emitting electromagnetic radiations,” and in
case of war or threat of war, to close “any facility or station for wire
communication” (Sec. 706 of the act, 47 U.S.C. §606).
Possible Updates
Some observers have proposed that the act should be revised to give the FCC more of a role in
cybersecurity, especially given the growing merging of information and communications
technology (ICT) and their increasing importance in the U.S. economy. In fact, a number of other
countries have more unified governance of ICT than the United States.55
Some controversy exists about whether the Section 706 authorities described above permit the
President to shut down Internet communications during a war or national emergency, a power that
has sometimes been referred to as the “Internet kill switch.”56 However, there does not appear to
be a consensus about whether in fact such additional authority is needed, or, if it is not, whether
additional legislation is needed to clarify and delimit it.
That debate became acute during Senate consideration of S. 773 and S. 3480 in the 111th
Congress. Those bills would have authorized emergency measures by the President if the
operation of critical infrastructure were threatened by cyber attack. A similar provision has been
proposed in S. 413 in the 112th Congress.57 This bill also contains a provision that would
expressly deny the federal government of any authority to “shut down the Internet.”
54 See also “Communications Decency Act of 1996.”
55 See, for example, Elgin M. Brunner and Manuel Suter, International CIIP Handbook 2008/2009 (Center for Security
Studies, ETH Zurich, 2008), http://www.css.ethz.ch/publications/CIIP_HB_08.
56 See also CRS Report R41674, Terrorist Use of the Internet: Information Operations in Cyberspace, by Catherine A.
Theohary and John Rollins.
57 S. 413 is largely identical to S. 3480. Both would provide the authority for the emergency measures through a
revision of the Homeland Security Act, not the Communications Act. In addition, they would assign the authority to
implement Sec. 706 to the head of a White House office to be created by the bills. The provision in S. 773 was not
presented as a revision to a specified law.
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National Security Act of 1947
Ch. 343, 61 Stat. 495
50 U.S.C. 401 et seq.
Major Relevant Provisions
• Provided the basis for the modern organization of U.S. defense and national
security by reorganizing military and intelligence functions in the federal
government.
• Created the National Security Council, the Central Intelligence Agency, and the
position of Secretary of Defense.
• Established procedures for access to classified information.
Possible Updates
A broad consensus exists that a significant barrier to improving cybersecurity is limitations on
sharing of information, including classified information, about cyber-threats and attacks.58 H.R.
3523 would address that concern by amending the act to facilitate sharing of intelligence
information relating to cybersecurity, including classified information, between federal
intelligence entities and private-sector providers of cybersecurity services, and to facilitate the
identification and sharing of threat information by providers. The bill also includes provisions for
protection from liability for entities sharing information and exemption from disclosure of that
information under the “Freedom of Information Act (FOIA).”
U.S. Information and Educational Exchange Act of 1948
(Smith-Mundt Act)
Ch. 36, 62 Stat. 6.
22 U.S.C. §1431 et seq. 59
Major Relevant Provisions
• Restricts the State Department from disseminating public diplomacy information
domestically and limits its authority to communicate with the American public in
general (22 U.S.C. §1461-1a).60 The domestic dissemination provision originally
applied to the now defunct U.S. Information Agency (USIA), which was
58 For example, the Task Force Report states, “There is widespread agreement that greater sharing of information is
needed within industries, among industries, and between government and industry in order to improve cybersecurity
and to prevent and respond to rapidly changing threats. For example, through intelligence collection, the federal
government has insights and capabilities that many times are classified but would be useful to help defend private
companies from cybersecurity attacks” (House Republican Cybersecurity Task Force, Recommendations, p. 10).
59 Prepared by Catherine A. Theohary, Analyst in National Security Policy and Information Operations
(ctheohary@crs.loc.gov, 7-0844).
60 This restriction was added by the Foreign Relations Authorization Act, Fiscal Years 1986 and 1987 (P.L. 99-93, 99
Stat. 431) and was not part of the original act.
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abolished and its functions transferred to the Secretary of State by P.L. 105-277
(22 U.S.C. §6532).61
Possible Updates
Critics maintain that the law is a Cold War relic intended only to restrict the USIA, which no
longer exists, from propagandizing Americans with public diplomacy and information materials
that were intended for a foreign audience. Those critics argue that the restrictions were created
before the advent of the Internet, and the provisions create an obsolete barrier that serves only to
prevent the State Department from communicating effectively. Some have also argued that the
law has been interpreted to prohibit the military from conducting information operations in
cyberspace, as some of those activities could be considered propaganda that could reach U.S.
citizens, since the United States does not restrict Internet access according to territorial
boundaries.
Yearly appropriations bills for both the State Department and Department of Defense include
restrictions on use of funds for “propaganda” activities, although the word “propaganda” is not
defined. In the 111th Congress, H.R. 5729 would have removed the so-called “firewall” between
domestic and foreign audiences by explicitly authorizing the Department of State to disseminate
information through the Internet and information media, stating that the resolution shall “not be
construed to prohibit the Department from engaging in any medium of information on a
presumption that a U.S. domestic audience may be exposed to program material.” However, this
provision would have applied only to the State Department; it would not have included DOD or
other federal departments or agencies.
State Department Basic Authorities Act of 1956
Ch. 841, 70 Stat. 890.
22 U.S.C. §2651a.
Major Relevant Provisions
• Specifies the organization of the Department of State, including the positions of
coordinator for counterterrorism and for HIV/AIDS response.
Possible Updates
As the Internet becomes increasingly international, concerns have been raised about the
development and coordination of international efforts in cybersecurity by the United States.62 In
the 111th Congress, S. 3193 would have addressed those concerns by establishing a coordinator
61 For discussion, see CRS Report R40989, U.S. Public Diplomacy: Background and Current Issues, by Kennon H.
Nakamura and Matthew C. Weed.
62 See, for example, CSIS Commission on Cybersecurity for the 44th Presidency, Securing Cyberspace for the 44th
Presidency, December 2008, http://www.csis.org/tech/cyber/; The White House, Cyberspace Policy Review, May 29,
2009, http://www.whitehouse.gov/assets/documents/Cyberspace_Policy_Review_final.pdf; and The White House,
International Strategy for Cyberspace.
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for cyberspace and cybersecurity issues within the Department of State. S. 1426 in the 112th
Congress contains a similar provision.
Freedom of Information Act (FOIA)
P.L. 89-487, 80 Stat. 250.
5 U.S.C. §552. 63
Major Relevant Provisions
• Enables any person to access—without explanation or justification—existing,
identifiable, unpublished executive-branch agency records, unless the material
falls within any of FOIA’s nine categories of exemption from disclosure.
Possible Updates
Sharing of cybersecurity information between the federal government and nonfederal entities is
widely considered to be an essential need, especially with respect to the protection of critical
infrastructure (CI). However, attempts to encourage the private sector to share sensitive CI
information with the federal government have, at times, been met with concerns that such records
could be subject to public release under FOIA, resulting in potential economic or other harm to
the source.
Among the nine exemptions that permit agencies to withhold applicable records are three that
may particularly apply to cybersecurity information:
• Exemption 1: information properly classified for national defense or foreign
policy purposes as secret under criteria established by an executive order.
• Exemption 3: data specifically exempted from disclosure by a statute other than
FOIA if that statute meets criteria laid out in FOIA.64
• Exemption 4: trade secrets and commercial or financial information obtained
from a person that is privileged or confidential.65
An example of Exemption 3 is Sec. 214 of the HSA (see p. 30), which exempts information about
the security of critical infrastructure and protected systems that is voluntarily submitted to an
agency covered under the act, provided that the entity that supplies the information expressly
requests the exemption concurrently.
63 Prepared by Wendy R. Ginsberg, Analyst in Government Organization and Management (wginsberg@crs.loc.gov, 7-
3933).
64 The statute must require that the data be withheld from the public in such a manner as to leave no discretion on the
issue, establish particular criteria for withholding information or refer to particular types of matters to be withheld, or
specifically cite the exemption if enacted after October 28, 2009, the date of enactment of the OPEN FOIA Act of
2009, P.L. 111-83. These exemptions are also called “b(3) exemptions” because they are created pursuant to 5 U.S.C.
§552(b)(3).
65 Other exemptions may also sometimes apply to cybersecurity information. For further discussion of FOIA and its
exemptions, seeCRS Report R41933, Freedom of Information Act (FOIA): Background and Policy Options for the
112th Congress, by Wendy Ginsberg, CRS Report R41406, The Freedom of Information Act and Nondisclosure
Provisions in Other Federal Laws , by Gina Stevens.
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Despite these existing protections, some private-sector entities may still have concerns about
public release of sensitive records—that existing laws may not be specific enough to protect
particular types of records, or they may be too narrow to protect all records of concern. The White
House Proposal would address such concerns by applying Exemption 3 to any lawfully obtained
information provided to DHS for cybersecurity purposes.66 The Task Force Report also suggests
that a FOIA exemption may be needed,67 and several bills, including H.R. 3523, S. 2105, and S.
2151, would provide such a FOIA exemption, although none of those proposals would directly
modify the statute. Adding such broad exemptions to FOIA, however, could nevertheless prompt
concerns about decreases in federal transparency.
Omnibus Crime Control and Safe Streets Act of 1968
P.L. 90-351, 82 Stat. 197.
42 USC Chapter 46, §§3701 to 3797ee-1.
Major Relevant Provisions
• Title I established federal grant programs and other forms of assistance to state
and local law enforcement.
• Title III is a comprehensive wiretapping and electronic eavesdropping statute that
not only outlawed both activities in general terms but that also permitted federal
and state law enforcement officers to use them under strict limitations.68
Possible Updates
The incidence of cybercrime has increased dramatically over the last decade.69 State and local law
enforcement agencies play an important role in combating cybercrime, but concerns have been
raised about their abilities to invest sufficient resources in enforcement activities. In the 111th
Congress, H.R. 1292 would have added a program for law enforcement grants to state and local
criminal justice agencies and relevant nonprofit organizations to combat “white collar crime,”
including cybercrime.
66 See “Sec. 245. Voluntary Disclosure of Cybersecurity Information,” in The White House, “Department of Homeland
Security Cybersecurity Authority and Information Sharing,” May 12, 2011, p. 8–9, http://www.whitehouse.gov/sites/
default/files/omb/legislative/letters/dhs-cybersecurity-authority.pdf.
67 Specifically, it states, “information sharing within existing structures can be improved through limited safe harbors
when private sector entities voluntarily disclose threat, vulnerability, or incident information to the federal government
or ask for advice or assistance to help increase protections on their own systems. These protections would need to
address concerns about antitrust issues, liability, an exemption from the Freedom of Information Act (FOIA),
protection from public disclosure, protection from regulatory use by government, and whether or not a private entity is
operating as an agent of the government. However, the protection of personal privacy should be at the forefront of any
limited legal protection proposal” (House Republican Cybersecurity Task Force, Recommendations, p. 11).
68 These provisions, along with possible updates, are discussed under “Electronic Communications Privacy Act of
1986.”
69 There is no uniform definition of “cybercrime.” Furthermore, no definitive statistics on cybercrime appear to be
publically available. However, the public/private Internet Crime Complaint Center referred 25 times as many of the
complaints it received to law enforcement agencies in 2010 (121,710) as in 2001 (4,810) (Internet Crime Complaint
Center, 2010 Internet Crime Report, 2011, http://www.ic3.gov/media/annualreport/2010_IC3Report.pdf).
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Racketeer Influenced and Corrupt Organizations Act (RICO)
P.L. 91-452, 84 Stat. 941.
18 U.S.C. Chapter 96, §§1961-1968.
Major Relevant Provisions
• Enlarges the civil and criminal consequences of a list of state and federal crimes
when committed in a way characteristic of the conduct of organized crime
(racketeering).70
Possible Updates
The Task Force Report recommends that Congress change RICO “to include computer fraud
within the definition of racketeering.” 71 The White House Proposal would make felony violation
of 18 U.S.C. §1030 (see “Counterfeit Access Device and Computer Fraud and Abuse Act
of 1984”) a racketeering predicate offense.
Federal Advisory Committee Act (FACA)
P.L. 93-579, 86 Stat 770.
5 U.S.C. App., §§1-16.
Major Relevant Provisions
• Specifies the circumstances under which a federal advisory committee can be
established, and its responsibilities and limitations.
• Requires that meetings of such committees be open to the public and that records
be available for public inspection.72
Possible Updates
The act has been criticized as potentially impeding the full development of public/private
partnerships in cybersecurity, particularly with respect to impeding private-sector
communications and input on policy.73 While Sec. 871 of the HSA provides the Secretary of
Homeland Security with the power to establish advisory committees that are exempt from the
requirements of the act, it is possible that additional exemption authority would be helpful. Any
such potential benefits might, however, need to be weighed against the impact of such authority
on the public’s ability to participate in and access the records of affected advisory committees.
70 For details, CRS Report 96-950, RICO: A Brief Sketch, by Charles Doyle.
71 House Republican Cybersecurity Task Force, Recommendations, p. 14.
72 For more information, see CRS Report R40520, Federal Advisory Committees: An Overview, by Wendy Ginsberg.
73 Isabelle Abele-Wigert and Myriam Dunn, International CIIP Handbook 2006, Vol. I (Center for Security Studies,
ETH Zurich, 2006), p. 337, http://www.css.ethz.ch/publications/CIIP_HB_06_Vol.1.pdf; Brunner and Suter,
International CIIP Handbook 2008/2009, p. 456.
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The draft bill being considered by the House Committee on Homeland Security74 would exempt
the organization created by the bill from requirements of the act.
Privacy Act of 1974
P.L. 93-579, 88 Stat. 1896.
5 U.S.C. §552a.
Major Relevant Provisions
• Limits the disclosure of personally identifiable information (PII) held by federal
agencies.
• Requires agencies to provide access to persons with agency records containing
information on them.
• Established a code of fair information practices for collection, management, and
dissemination of records by agencies, including requirements for security and
confidentiality of records.
Possible Updates
Some observers argue that the act should be revised to clarify, in the context of cybersecurity,
what is considered PII and how it can be used, such as by explicitly permitting the sharing among
federal agencies—or with appropriate third parties such as owners and operators of critical
infrastructure—of certain information, such as a computer’s Internet (IP) address, in
examinations of threats, vulnerabilities, and attacks. The act contains some exemptions, such as
for law enforcement activities (5 U.S.C. §552a(b)(7)) and duties of the Comptroller General (5
U.S.C. §552a(b)(10)), but none relating specifically to cybersecurity. However, other observers
may argue that the provisions in the act are sufficient to permit necessary cybersecurity activities,
and that revising the act to provide additional authorities relating to cybersecurity could
compromise the protections provided by the act. 75 In the 112th Congress, H.R. 1732 would revise
the act to take changes in information technology into account, but does not specifically address
information relating to cybersecurity.
74 House Committee on Homeland Security, “Hearing on Draft Legislative Proposal on Cybersecurity.”
75 For information on how they have been interpreted by the courts, see Department of Justice, “Overview of the
Privacy Act of 1974, 2010 Edition,” March 2, 2010, http://www.justice.gov/opcl/1974privacyact-overview.htm.
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Counterfeit Access Device and Computer Fraud and Abuse Act
of 1984
P.L. 98-473, 98 Stat. 2190.
18 U.S.C. §1030.
Major Relevant Provisions
As amended,76
• Provides criminal penalties, including asset forfeiture, for unauthorized access
and wrongful use of computers and networks of the federal government or
financial institutions, or in interstate or foreign commerce or communication;
• Specifies wrongful use as obtaining protected information, damaging or
threatening to damage a computer, using the computer to commit fraud,
trafficking in stolen computer passwords, and espionage;
• Criminalized electronic trespassing on and exceeding authorized access to federal
government computers; and
• Created a statutory exemption for intelligence and law enforcement activities.77
Possible Update
The White House Proposal would add penalties for damaging certain critical infrastructure
computers, increase penalties for most violations of the act, clarify certain offenses, and modify
the act’s conspiracy and forfeiture provisions. In the 112th Congress, S. 2111 and S. 2151 have
similar provisions. S. 2151, S. 890, and the White House Proposal would enlarge the scope of the
password trafficking offense by removing the requirement that the computer affect interstate
commerce or be used by the United States. S. 1151 would also make several changes similar to
but not as extensive as those in the Administration proposal.78 The Task Force Report
recommends that the act be broadened to cover critical infrastructure systems, and possibly all
private-sector computers, with increased criminal penalties. Provisions should be focused
narrowly enough to avoid creating unintended liability for legitimate activities.79
76 The Computer Fraud and Abuse Act of 1986 (P.L. 99-474, 100 Stat. 1213) expanded the scope of the original act.
For government computers, it criminalized electronic trespassing, exceeding authorized access, and destroying
information. It also criminalized trafficking in stolen computer passwords and created a statutory exemption for
intelligence and law enforcement activities.
77 For more information, see CRS Report 97-1025, Cybercrime: An Overview of the Federal Computer Fraud and
Abuse Statute and Related Federal Criminal Laws, by Charles Doyle.
78 See CRS Report R41941, The Obama Administration’s Cybersecurity Proposal: Criminal Provisions, by Gina
Stevens.
79 House Republican Cybersecurity Task Force, Recommendations, p. 14.
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Electronic Communications Privacy Act of 1986 (ECPA)
P.L. 99-508, 100 Stat. 1848.
18 U.S.C. §§2510-2522, 18 U.S.C. §§2701-2712, 18 U.S.C. §§3121-3126.80
Major Relevant Provisions
• Attempts to strike a balance between the fundamental privacy rights of citizens
and the legitimate needs of law enforcement with respect to data shared or stored
in various types of electronic and telecommunications services.81 Since the act
was passed the Internet and associated technologies have expanded
exponentially.82 The act consists of three parts:
- A revised Title III of the “Omnibus Crime Control and Safe Streets Act of
1968” (also known as “Title III” or the “Wiretap Act”)83 prohibits the
interception of wire, oral, or electronic communications unless an exception
to the general rule applies. Unless otherwise provided, prohibits wiretapping
and electronic eavesdropping; possession of wiretapping or electronic
eavesdropping equipment; use or disclosure of information obtained through
illegal wiretapping or electronic eavesdropping; and disclosure of
information secured through court-ordered wiretapping or electronic
eavesdropping, in order to obstruct justice.84
- The Stored Communications Act (SCA)85 prohibits unlawful access to stored
communications.86
- The Pen Register and Trap and Trace statute governing the installation and
use of trap and trace devices and pen registers,87 proscribing unlawful use of
a pen register or a trap and trace device.88
80 Prepared by Gina Stevens, Legislative Attorney (gstevens@crs.loc.gov, 7-2581).
81 100 Stat. 1848; see also House Committee on the Judiciary, “Electronic Communications Privacy Act of 1986,”
H.Rept. 99-647, 99th Cong. 2d Sess. 2, at 19 (1986).
82 House Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, ECPA
Reform and the Revolution in Cloud Computing, 2010, http://judiciary.house.gov/hearings/hear_100923.html
(statement of Edward W. Felton, Professor Princeton University):
In 1986, when ECPA was passed, the Internet consisted of a few thousand computers. The network
was run by the U.S. government for research and education purposes, and commercial activity was
forbidden. There were no web pages, because the web had not been invented. Google would not be
founded for another decade. Twitter would not be founded for another two decades. Mark
Zuckerberg, who would grow up to start Facebook, was two years old. In talking about advances in
computing, people often focus on the equipment. Certainly the advances in computing equipment
since 1986 have been spectacular. Compared to the high-end supercomputers of 1986, today’s
mobile phones have more memory, more computing horsepower, and a better network connection
not to mention a vastly lower price.
83 18 U.S.C. §2510-2522.
84 18 U.S.C. §2511.
85 18 U.S.C. §§2701-2712.
86 18 U.S.C. §2701.
87 18 U.S.C. §§3121-3126. A trap and trace device identifies the source of incoming calls, and a pen register indicates
(continued...)
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• Establishes rules that law enforcement must follow before they can access data
stored by service providers. Depending on the type of customer information
involved and the type of service being provided, the authorization law
enforcement must obtain in order to require disclosure by a third party will range
from a simple subpoena to a search warrant based on probable cause.
Possible Updates
ECPA reform efforts focus on crafting a legal structure that is up-to-date, can be effectively
applied to modern technology, and that protects users’ reasonable expectations of privacy. ECPA
is viewed by many stakeholders as unwieldy, complex, and difficult for judges to apply.89 Cloud
computing90 poses particular challenges to the ECPA framework. For example, when law
enforcement officials seek data or files stored in the cloud, such as web-based e-mail applications
or online word processing services, the privacy standard that is applied is often lower than the
standard that applies when law enforcement officials seek the same data stored on an individual’s
personal or business hard drive.91
An ECPA reform advocacy coalition has advanced the following principles:
• A governmental entity may require an entity covered by ECPA (a provider of
wire or electronic communication service or a provider of remote computing
service) to disclose communications that are not readily accessible to the public,
but only with a search warrant issued based on a showing of probable cause,
regardless of the age of the communications, the means or status of their storage
or the provider’s access to or use of the communications in its normal business
operations.
• A governmental entity may access, or may require a covered entity to provide,
prospectively or retrospectively, location information regarding a mobile
communications device, but only with a warrant issued based on a showing of
probable cause.
• A governmental entity may access, or may require a covered entity to provide,
prospectively or in real time, dialed number information, e-mail to and from
information or other data currently covered by the authority for pen registers and
trap and trace devices, but only after judicial review and a court finding that the
(...continued)
the numbers called from a particular phone.
88 18 U.S.C. §3121.
89 J. Beckwith Burr, “The Electronic Communications Privacy Act of 1986: Principles for Reform,” March 30, 2010,
http://www.digitaldueprocess.org/files/DDP_Burr_Memo.pdf.
90 “Cloud computing is an emerging form of computing that relies on Internet-based services and resources to provide
computing services to customers, while freeing them from the burden and costs of maintaining the underlying
infrastructure. Examples of cloud computing include web-based e-mail applications and common business applications
that are accessed online through a browser, instead of through a local computer” (Government Accountability Office,
Information Security: Federal Guidance Needed to Address Control Issues with Implementing Cloud Computing,
GAO-10-513, May 2010, http://www.gao.gov/new.items/d10513.pdf).
91 House Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, ECPA
Reform and the Revolution in Cloud Computing (statement of Michael Hintze, Associate General Counsel, Microsoft
Corp.).
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governmental entity has made a showing at least as strong as the showing under
2703(d).
• Where the Stored Communications Act authorizes a subpoena to acquire
information, a governmental entity may use such subpoenas only for information
related to a specified account(s) or individual(s). All nonparticularized requests
must be subject to judicial approval.92
The Task Force Report recommends changes to laws governing the protection of electronic
communications to facilitate sharing of appropriate cybersecurity information, including the
development of an anonymous reporting mechanism.93
Department of Defense Appropriations Act, 1987
P.L. 99-591, 100 Stat. 3341-82, 3341-122.
10 U.S.C. §167.94
Major Relevant Provisions
• Provides specific authority to the U.S. Special Operations Command
(USSOCOM) for the conduct of direct action, strategic reconnaissance,
unconventional warfare, foreign internal defense, civil affairs, and psychological
operations; also counterterrorism, humanitarian assistance, theater search and
rescue, and such other activities as may be specified by the President or the
Secretary of Defense.
Possible Update
In addition to the authority provided under this act, Title 10 of the U.S. Code provides inherent
and specific authority to DOD to undertake the following activities:
• §113 provides that, subject to the direction of the President, the Secretary of
Defense has authority, direction, and control over DOD;
• §164 provides specific authority for combatant commanders for the performance
of missions assigned by the President or by the Secretary with the approval of the
President.
Specific authorities for combatant commanders are provided in Title 10 to use force in self-
defense and for mission accomplishment—including in the recently recognized information
operations environment. In preparing for contingencies or military operations, DOD undertakes
92 Digital Due Process Coalition, “Our Principles”, 2010, http://www.digitaldueprocess.org/index.cfm?objectid=
99629E40-2551-11DF-8E02000C296BA163.
93 House Republican Cybersecurity Task Force, Recommendations, p. 14. For more information on ECPA, see CRS
Report 98-326, Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, by
Gina Stevens and Charles Doyle.
94 Prepared by John Rollins, Specialist in Terrorism and National Security (jrollins@crs.loc.gov, 7-5529).
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activities to lessen risks to U.S. interests, including discrete actions to prepare for and respond to
a cyberwarfare-related incident.95
Some military activities are conducted clandestinely to conceal the nature of the operation and
passively collect intelligence. Activities focused on influencing the governing of a foreign
country are deemed covert actions96 and may not be conducted by members of the military absent
a presidential finding and notification of the congressional intelligence committees.97
Some analysts suggest that in the cyber domain distinguishing between whether an action is or
should be considered covert or clandestine is problematic, as an attacking adversary’s intent and
location are often difficult to discern. Should this act be updated, reassessing DOD’s authorities in
light of its unique intelligence capabilities may assist in responding to and conducting offensive
cyber attacks.
High Performance Computing Act of 1991
P.L. 102-194, 105 Stat. 1594.
15 U.S.C. Chapter 81.98
Major Relevant Provisions
• Establishes a federal high-performance computing program and requires that it
address security needs.
• Requires that the program provide for interagency coordination and that an
annual report on implementation be submitted to Congress.
• Requires NIST to establish security and privacy standards in high-performance
computing for federal systems.
Possible Updates
This act established the Networking and Information Technology Research and Development
(NITRD) Program, which produces the required annual report. However, concerns have been
raised that the program does not yield sufficient strategic planning and does not sufficiently stress
cybersecurity research and development (R&D). In the 111th Congress, H.R. 2020, which passed
the House, would have addressed that concern by requiring a five-year strategic plan with three-
year reviewing cycle. It would also have added a research goal of increasing understanding “of
the scientific principles of cyber-physical systems” and improving methods for designing,
95 CRS Report RL31787, Information Operations, Cyberwarfare, and Cybersecurity: Capabilities and Related Policy
Issues, by Catherine A. Theohary.
96 50 U.S.C. §413b(e) defines a covert action as “an activity or activities of the United States Government to influence
political, economic, or military conditions abroad, where it is intended that the role of the United States Government
will not be apparent or acknowledged publicly, but does not include … activities the primary purpose of which is to
acquire intelligence … [or] traditional military activities or routine support to such activities.”
97 For an explanation and analysis of issues relating to covert and clandestine activities see CRS Report RL33715,
Covert Action: Legislative Background and Possible Policy Questions, by Richard A. Best Jr.
98 Parts of the chapter have also been given other popular names: the Next Generation Internet Research Act of 1998
(P.L. 105-305), and the Department of Energy High-End Computing Revitalization Act of 2004.
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developing, and operating such systems with high reliability, safety, and security. H.R. 3834 is
similar but adds provisions on cloud computing. S. 773 would have required NIST to develop
cybersecurity standards and metrics for computer networks and user interfaces, as would S. 2105.
S. 2151 establishes cybersecurity, including security of supply chains, as one of the goals for
research under the act and contains a requirement similar to that of H.R. 3834 for cyber-physical
systems. H.R. 3834 and S. 2151 would also make a number of other amendments not directly
related to cybersecurity.
Communications Assistance for Law Enforcement Act of 1994
(CALEA)
P.L. 103-414, 108 Stat. 4279.
47 U.S.C. §1001 et seq.99
Major Relevant Provisions
• Requires telecommunications carriers to assist law enforcement in performing
electronic surveillance on their digital networks pursuant to court orders or other
lawful authorization.
• Directs the telecommunications industry to design, develop, and deploy solutions
that meet requirements for carriers to support authorized electronic surveillance,
including unobtrusive isolation of communications and call-identifying
information for a target and provision of that information to law enforcement, in
a manner that does not compromise the privacy and security of other
communications.
Possible Updates
Some government and industry observers believe that CALEA should be revised to improve its
effectiveness in addressing cybersecurity concerns. Among the concerns expressed are whether
the act is the best mechanism for collecting information transmitted via the Internet, whether
reassessment is needed of which private-sector entities the act covers and which government
entities should be involved in enforcement and oversight, and what the role of industry should be
in the development of the technologies and standards used to implement the provisions of the act.
The Task Force Report recommends changes to laws governing the protection of electronic
communications to facilitate sharing of appropriate cybersecurity information, including the
development of an anonymous reporting mechanism.100
99 Prepared by Patricia Moloney Figliola, Specialist in Internet and Telecommunications Policy (pfigliola@crs.loc.gov,
7-2508).
100 House Republican Cybersecurity Task Force, Recommendations, p. 14.
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Communications Decency Act of 1996
P.L. 104-104 (Title V), 110 Stat. 133.
47 U.S.C. §§223, 230.101
Major Relevant Provisions
• Intended to regulate indecency and obscenity on telecommunications systems,
including the Internet. Although much of the law is targeted at lewd or
pornographic material, particularly when shown to children under the age of 18,
the obscenity and harassment provisions could also be interpreted as applying to
graphic, violent terrorist propaganda or incendiary language.
• Section 230(c)(1) asserts that “no provider or user of an interactive computer
service shall be treated as the publisher or speaker of any information.” This has
been interpreted to absolve Internet service providers and certain web-based
services of responsibility for third-party content residing on those networks or
websites.102
Possible Updates
Some argue that certain Internet content, such as terrorist chat rooms or propaganda websites,
presents a national security or operational threat that is not represented within the
Communications Decency Act. Further, should such material be deemed as “indecent,” the law
does not give federal agencies the authority to require that the Internet service providers hosting
the content to take it offline.
These critics maintain that the law should be revised to compel ISPs and web administrators to
dismantle sites containing information that could be used to incite harm against the United States.
A possible revision could be similar to the “take down and put back” provision in the Digital
Millennium Copyright Act, 112 Stat. 2860, P.L. 105-304 which amended title 17 of the U.S. Code
to hold a service liable for publishing material that is defamatory or infringes upon a third party
copyright.
Others maintain that such a revision is counter to the spirit of free, open exchange of information
that is characterized by the Internet and may be a First Amendment violation. Some have also
expressed concerns that the intelligence value gained by preserving and monitoring the sites
outweighs the potential threat risk.
101 Prepared by Catherine A. Theohary, Analyst in National Security Policy and Information Operations
(ctheohary@crs.loc.gov, 7-0844). These provisions are codified to Chapter 5 of Title 47, the “Communications Act of
1934.” Codification of the various provisions of this act is complex. See 47 U.S.C. §609 nt. for details.
102 See CRS Report R41499, The Communications Decency Act: Section 230(c)(1) and Online Intermediary Liability,
by Kathleen Ann Ruane and Julia Tamulis.
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Clinger-Cohen Act (Information Technology Management Reform
Act) of 1996
P.L. 104-106 (Divisions D and E), 110 Stat. 642.
40 U.S.C. §11101 et seq.103
Major Relevant Provisions
• Gave agency heads authority to acquire IT and required them to ensure the
adequacy of agency information security policies.
• Established the position of agency Chief Information Officer (CIO), responsible
for assisting agency heads in IT acquisition and management.
• Requires the Office of Management and Budget (OMB) to oversee major
information technology (IT) acquisitions.
• Requires OMB to promulgate, in consultation with the Secretary of Homeland
Security, compulsory federal computer standards based on those developed by
the National Institute of Standards and Technology (NIST).104
• Exempts national security systems from most provisions.
Possible Update
With the increasing globalization of the IT hardware and software industries, concerns have been
growing among cybersecurity experts about potential vulnerabilities at various points along the
supply chain for IT products. H.R. 1136, introduced in the 112th Congress, would address such
concerns with respect to federal acquisition of IT products and services by requiring vendors to
meet security requirements to be developed by OMB, and also requiring vulnerability
assessments by agencies.
S. 413 (similar to S. 3480 in the 111th Congress), S. 2105, S. 2151, and the White House Proposal
would return the authority for promulgating standards for federal systems to the Secretary of
Commerce.105 H.R. 4257, in contrast, would not amend that provision.
Congress and the executive branch have debated the limits of the authority and jurisdiction of
CIOs since their establishment. In the private sector, CIOs may often serve as the senior IT
decision maker. In federal agencies, in contrast, CIOs do not have budgetary control or authority
over IT resources.106 As part of a plan to reform federal IT management,107 the Obama
103 Prepared by Wendy R. Ginsberg, Analyst in Government Organization and Management (wginsberg@crs.loc.gov,
7-3933), and Eric A. Fischer. The two divisions, originally known as the Federal Acquisition Reform Act and the
Information Technology Management Reform Act, were renamed as the Clinger-Cohen Act by P.L. 104-208 and
reclassified into 40 U.S.C. Subtitle III by P.L. 107-217 (see 40 U.S.C. §101 nt.).
104 The Clinger-Cohen Act originally gave this promulgation authority to the Secretary of Commerce, while providing
the President authority to disapprove or modify such standards, and gave the Secretary authority to waive the standards
in specific cases to avoid adverse financial or mission-related impacts. The “Federal Information Security Management
Act of 2002 (FISMA)”, enacted as part of the Homeland Security Act, transferred that authority to OMB.
105 See the discussion of FISMA, p. 32.
106 They do have authority under FISMA to ensure compliance with that law’s information security requirements (44
(continued...)
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Administration has indicated its intention to change the role of CIOs “away from just
policymaking and infrastructure maintenance, to encompass true portfolio management for all
IT,” including information security.108 The White House Proposal does not include any provisions
related to that proposed change, but additional legislative authority may be required for such a
change to be fully implemented.
The Obama Administration also appointed a federal chief information officer and a federal chief
technology officer (CTO), positions first created in the George W. Bush Administration, where
the OMB deputy director of management also served as federal CIO. In the 111th Congress, H.R.
1910 and H.R. 5136, and H.R. 1136 in the 112th Congress, contain provisions to establish a
statutory basis for the CTO position, not, however, explicitly as amendments to the Clinger-
Cohen Act.109 Some proposals in previous Congresses would also have established the federal
CIO position in law.110
Identity Theft and Assumption Deterrence Act of 1998
P.L. 105-318, 112 Stat. 3007.
18 U.S.C. §1028.111
Major Relevant Provisions
• Made identity theft a federal crime.
• Provided penalties for individuals who either committed or attempted to commit
identity theft.
• Provided for forfeiture of property used or intended to be used in the fraud.
• Directed the Federal Trade Commission (FTC) to record complaints of identity
theft, provide victims with informational materials, and refer complaints to the
appropriate consumer reporting and law enforcement agencies.112
(...continued)
U.S.C. §3544). Some agency CIOs also have statutory authority in addition to that provided by Clinger-Cohen and
FISMA. For example, the CIO of the intelligence community has procurement approval authority for IT (50 U.S.C.
§403-3g), and CIOs within DOD have budgetary review authority (10 U.S.C. §2223).
107 Vivek Kundra, 25-Point Implementation Plan to Reform Federal Information Technology Management (The White
House, December 9, 2010), http://www.cio.gov/documents/25-Point-Implementation-Plan-to-Reform-
Federal%20IT.pdf.
108 Jacob J. Lew, “Chief Information Officer Authorities,” Memorandum for the Heads of Executive Departments and
Agencies, M-11-29, August 8, 2011, pp. 1–2, http://www.whitehouse.gov/sites/default/files/omb/memoranda/2011/
m11-29.pdf.
109 See CRS Report R40150, A Federal Chief Technology Officer in the Obama Administration: Options and Issues for
Consideration, by John F. Sargent Jr.
110 See, for example, CRS Report RL30914, Federal Chief Information Officer (CIO): Opportunities and Challenges,
by Jeffrey W. Seifert.
111 Prepared by Kristin M. Finklea, Coordinator, Analyst in Domestic Security (kfinklea@crs.loc.gov, 7-6259). See 18
U.S.C. §1001 nt. for classification details.
112 The FTC now records consumer complaint data and reports it in the Identity Theft Data Clearinghouse (Federal
Trade Commission, “Reference Desk,” Fighting Back Against Identity Theft, December 22, 2010, http://www.ftc.gov/
bcp/edu/microsites/idtheft/reference-desk/index.html); identity theft complaint data are available for 2000 and forward.
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Possible Updates
See “Identity Theft Penalty Enhancement Act” below.
Homeland Security Act of 2002 (HSA)
P.L. 107-296 (Titles II and III), 116 Stat. 2135.
6 U.S.C. §§121-195c, 441-444, and 481-486.113
Major Relevant Provisions
• Transferred some functions relating to the protection of information
infrastructure from other agencies to the Department of Homeland Security
(DHS).114
• Requires DHS to provide state and local governments and private entities with
threat and vulnerability information, crisis-management support, and technical
assistance relating to recovery plans for critical information systems.
• Permits the Secretary of Homeland Security to designate qualified technologies
as subject to certain protections from liability in claims relating to their use in
response to an act of terrorism.115
• Established mechanisms to facilitate information sharing among federal agencies
and appropriate nonfederal government and critical-infrastructure personnel.116
• Authorized DHS to establish a system of volunteer experts (“Net Guard”) to
assist local communities in responding to attacks on information and
communications systems.
• Strengthened some criminal penalties relating to cybercrime.
• Created the Directorate of Science and Technology within DHS and assigned it
broad R&D responsibilities, although responsibilities relating to cybersecurity
R&D were not specifically described.
Possible Updates
Various concerns have been raised about the ways in which the act addressed cybersecurity, and a
number of proposals have been made since its enactment to enhance the cybersecurity provisions.
In the 111th Congress, the most comprehensive legislative proposal was in S. 3480, which was
reported out of the Senate Committee on Homeland Security and Governmental Affairs in the
113 For classification details, see 6 U.S.C. §101 nt.
114 In 2006, P.L. 109-295, The Department of Homeland Security Appropriations Act, 2007, established the position of
Assistant Secretary for Cybersecurity and Communications (6 U.S.C. §321) within DHS but did not specify duties or
responsibilities.
115 This set of provisions (Subtitle G of Title VIII, 6 U.S.C. §441-444) is called the SAFETY Act.
116 This set of provisions (Subtitle I of Title VIII, 6 U.S.C. §481-486) is called the Homeland Security Information
Sharing Act. Sec. 486 was added by P.L. 109-90 and provides some liability protections relating to actions involving
information sharing and analysis centers.
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111th Congress, and reintroduced in the 112th Congress as S. 413 with minor modifications. It
would add provisions on cybersecurity that would
• establish a center for cybersecurity and communications within DHS;
• require coordination with the DHS Office of Infrastructure Protection and sector-
specific agencies;
• establish the United States Computer Emergency Readiness Team (US-CERT)
within the center;
• stipulate information-sharing procedures for federal agencies and other entities;
• establish a program within the center to provide assistance to the private sector;
• require the center to identify cyber vulnerabilities to critical infrastructure and
establish requirements to address them;
• establish procedures for response to imminent cyber threats to critical
infrastructure,117 enforcement of requirements, and protection of information; and
• require a risk-management strategy for security of the supply chain.
It would establish a cybersecurity R&D program in DHS and require coordination of those
activities with other agencies and private entities. It would also establish a public/private-sector
cybersecurity advisory council.
The White House Proposal would also substantially enhance DHS authority relating to
cybersecurity. The proposal would differ in several ways from the approach taken by S. 413.
Among other differences, it would provide enhanced authority to the DHS Secretary that S. 413
provides directly to a new center within the department. However, the White House Proposal
would require the Secretary to establish a center with cybersecurity responsibilities for federal
and critical infrastructure systems.118 It also does not codify the establishment of US-CERT,
unlike S. 413, and does not provide the President with the authority to implement emergency
actions in response to an imminent risk to critical infrastructure. It does, however, provide the
DHS Secretary with authority to direct responses of federal agencies to cybersecurity threats or
incidents.
S. 2105 contains elements of both the White House Proposal and S. 413. It would establish a new
center, with new authorities, but omits the provision establishing US-CERT by law, as well as the
provision on presidential emergency powers. S. 2105 would require the Science and Technology
Directorate of DHS to establish a cybersecurity R&D program. S. 1546 would also require
departmental cybersecurity research.
H.R. 3674, as reported to the House, would provide additional responsibilities and authorities to
DHS for the protection of federal information systems. It would provide for information sharing
with federal and nonfederal entities, cybersecurity research and development (R&D), and
recruitment and retention of cybersecurity personnel. To facilitate information sharing and
117 See also “Communications Act of 1934” above.
118 This center would presumably replace the federal incident center currently required under 44 U.S.C. 3546. The
revision of the Federal Information Security Management Act of 2002 (FISMA) in the White House Proposal does not
include the latter center.
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technical assistance, it would create a center within DHS that would include a private-sector
board of advisors. Unlike the bill as introduced, it does not include a nongovernmental
clearinghouse for sharing cybersecurity information between the private sector and the federal
government that was recommended by the Task Force Report. H.R. 3674 would also require DHS
to perform cybersecurity R&D, to include testing, evaluation, and technology transfer.
Some other bills in the 111th Congress would also have revised the act. H.R. 6423, reintroduced as
H.R. 174 in the 112th Congress, would establish a new office to develop, oversee, and enforce
cybersecurity compliance for critical infrastructure sectors. H.R. 266, reintroduced as H.R. 76,
would add a cybersecurity fellowship program for nonfederal officials to familiarize them with
DHS cybersecurity activities. H.R. 4507 and H.R. 4842 would have added a cybersecurity
training initiative for first responders and others. H.R. 2868 and S. 3599 would have added
chemical-facility security measures, including cybersecurity, to the act.
Federal Information Security Management Act of 2002 (FISMA)
P.L. 107-296 (Title X), 116 Stat. 2259.
P.L. 107-347 (Title III), 116 Stat. 2946.
44 U.S.C. Chapter 35, Subchapters II and III, [40 U.S.C. 11331, 15 U.S.C. 278g-3 & 4].119
Major Relevant Provisions
FISMA created a security framework for federal information systems, with an emphasis on risk
management, and gave specific responsibilities to the Office of Management and Budget (OMB),
the National Institute of Standards and Technology (NIST), and the heads, chief information
officers (CIOs), chief information security officers (CISOs), and inspector generals (IGs) of
federal agencies.120
• Required executive agencies to inventory major computer systems, identify and
provide appropriate security protections, and develop, document, and implement
agency-wide information security programs.
• Gave OMB responsibility for overseeing federal information-security policy and
evaluating agency information-security programs, but exempted national security
systems, except with respect to enforcement of accountability for meeting
requirements and reporting to Congress.
• Revised the responsibilities of the Secretary of Commerce and NIST for
information-system standards and transferred responsibility for promulgation of
those standards from the Secretary of Commerce to OMB.121
119 FISMA was originally enacted as part of the Homeland Security Act. It was then reenacted by the E-government
Act. Subchapter II is not in effect. The title 40 provision was originally enacted as part of the Clinger-Cohen Act (see p.
28), and the title 15 provisions are part of the NIST Act (see p. 12). See footnote 121 for more detail.
120 For a more detailed description, see, for example, Government Accountability Office, Information Security:
Weaknesses Continue Amid New Federal Efforts to Implement Requirements, GAO-12-137, October 2011,
http://www.gao.gov/new.items/d12137.pdf.
121 The standards-promulgation authority had been granted to the Secretary of Commerce under the Clinger-Cohen Act
of 1996 (P.L. 104-106) but was transferred to the Director of OMB by the FISMA title in the HSA in 2002 (P.L. 107-
296, Sec. 1002, 40 U.S.C. 11331). The version of the main Chapter 35 currently in effect (Subchapter III) was enacted
(continued...)
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Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions
• Required that NIST cybersecurity standards be complementary with those
developed for national security systems, to the extent feasible.
• Required heads of federal agencies to provide security protections commensurate
with risk and to comply with applicable security standards. Specifically required
agencies using national security systems to provide security protections
commensurate with risk and in compliance with standards for such systems.
• Required senior agency officials to perform risk assessments, to determine and
implement necessary security controls in a cost-effective manner, and to evaluate
those controls periodically.
• Designated specific information-security responsibilities for agencies’ chief
information security officers, including agency-wide information-security
programs, policies, and procedures, and training of security and other personnel.
• Required designation of an information-security officer in each agency, security
awareness training, processes for remedial action to address deficiencies, and
procedures for handling security incidents and ensuring continuity of operations.
• Required annual agency reports to Congress, performance plans, and independent
evaluations of information security.
• Established a central federal incident center, overseen by OMB, to analyze
incidents and provide technical assistance relating to them, to inform agency
operators about current and potential threats and vulnerabilities, and to consult
with NIST, NSA, and other appropriate agencies about incidents.
• Gave responsibility for protection of mission-crucial systems in DOD and the
CIA to the Secretary of Defense and the DCI, respectively, and required the
Secretary of Defense to include compliance with the provisions above in
developing program strategies for the Defense Information Assurance Program
(10 U.S.C. §2224).
Possible Updates
A commonly expressed concern about FISMA is that it is awkward and inefficient in providing
adequate cybersecurity to government IT systems. The causes cited have varied but common
themes have included inadequate resources, a focus on procedure and reporting rather than
operational security, lack of widely accepted cybersecurity metrics, variations in agency
interpretation of the mandates in the act, and insufficient means to enforce compliance both
(...continued)
by the FISMA title in the E-Government Act of 2002 (P.L. 107-347, Title III), which suspended Subchapter II, which
had been revised by the HSA. That is not the case for 40 U.S.C. 11331, for which the P.L. 107-347 version would have
retained the authority of the Secretary of Commerce to promulgate those standards as established in the Clinger-Cohen
Act of 1996 (see p. 28), even though the E-Government Act was enacted after the HSA. Similarly, the revision to the
NIST Act at 15 U.S.C. 278g-3 & 4 is that made by the HSA. The reason for this potentially confusing difference
appears to be that (1) the effective date of HSA was later than that of the E-Government Act, and (2) HSA amended the
existing subchapter II of 44 U.S.C. Chapter 35; the E-Government Act explicitly suspended that subchapter. In
contrast, the revisions both laws made to the Paperwork Reduction Act, adding a subsection (c) to 44 U.S.C. §3505
(requiring inventories of federal information systems) were codified.
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Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions
within and across agencies.122 Several legislative proposals in the 111th and 112th Congresses have
included major revisions to the act. The proposals varied in detail, with several notable provisions
in some:
• Creation of a White House office with responsibility for cybersecurity;
• Transfer of responsibilities from OMB to the Secretary of Homeland Security or
the Secretary of Commerce;
• Revisions to agency responsibilities under the act, including continuous
monitoring, use of metrics, and emphasis on risk-based rather than minimum
security measures;
• Changes in reporting requirements;
• Specification of cybersecurity requirements for acquisitions and the IT supply
chain; and
• Establishment of mechanisms for interagency collaboration on cybersecurity.
In the 111th Congress, H.R. 5136 passed in the House,123 and S. 3480 was reported out of the
Senate Homeland Security and Governmental Affairs Committee. In the 112th Congress, S. 413
would make changes similar to those in S. 3480, transferring responsibility for federal
information security policy from the Director of OMB to the Director of a new DHS center that
the bill would establish. H.R. 1136 would make many changes similar to those in H.R. 5136,
transferring responsibility to a new White House Office for Cyberspace created by the bill. H.R.
4257, in contrast, retains the current role of the OMB Director.
The White House Proposal is broadly similar to the congressional proposals in many details.
However, it would not create a White House cybersecurity office and would transfer
responsibilities to the DHS Secretary rather than to a new cybersecurity center within DHS. S.
2105 includes a similar approach. S. 2151, in contrast, transfers responsibilities from OMB to the
Secretary of Commerce.
The Task Force Report recommends an increased focus on monitoring, support for DHS
authority, and taking new and emerging technologies, such as cloud computing, into account.124 S.
1535 would require that agency information security programs assess the practices of contractors
and third parties with respect to sensitive personally identifiable information as defined in the bill
and ensure that any deficiencies are remediated.
122 See, for example, S.Rept. 111-368, and House Subcommittee on Government Management, Organization, and
Procurement, The State of Federal Information Security, Committee on Oversight and Government Reform
(Washington, DC: U.S. Government Printing Office, 2009), http://www.gpo.gov/fdsys/pkg/CHRG-111hhrg57125/pdf/
CHRG-111hhrg57125.pdf. OMB has recently attempted to address some of the operational issues administratively by
delegating some responsibilities to DHS (Orszag and Schmidt, “Clarifying Cybersecurity Responsibilities and
Activities of the Executive Office of the President and the Department of Homeland Security (DHS)”). Weaknesses in
FISMA implementation have been cited repeatedly by GAO in reports required by the act (see, for example,
Government Accountability Office, Information Security: Weaknesses Continue Amid New Federal Efforts to
Implement Requirements).
123 The bill included provisions from H.R. 4900, which was ordered reported by the House Oversight and Government
Reform Committee.
124 House Republican Cybersecurity Task Force, Recommendations, p. 13.
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Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions
Terrorism Risk Insurance Act of 2002
P.L. 107-297, 116 Stat. 2322.
15 U.S.C. §6701 nt.125
Major Relevant Provisions
• Provides federal cost-sharing subsidies for insured losses resulting from acts of
terrorism.
Possible Updates
The act is intended to provide incentives for the development of insurance coverage for losses
from acts of terrorism. Losses from cyber attacks are not specifically included, and some
observers have raised concerns about whether some modification of the act would be
appropriate.126
Cyber Security Research and Development Act, 2002
P.L. 107-305, 116 Stat. 2367,
15 U.S.C. [§§278g,h], §7401 et seq.127
Major Relevant Provisions
• Requires the National Science Foundation (NSF) to award grants for basic
research to enhance computer security and for improving undergraduate and
master’s degree programs, doctoral research, and faculty development programs
in computer and network security; and to establish multidisciplinary centers for
research on computer and network security.
• Requires NIST to establish programs to award postdoctoral and senior research
fellowships in cybersecurity and to assist institutions of higher learning that
partner with for-profit entities to perform cybersecurity research; to perform
intramural specified cybersecurity research; and to develop a checklist of security
settings for federal computer hardware and software for voluntary use by federal
agencies.
Possible Updates
A commonly expressed concern about federal research and development (R&D) relating to
cybersecurity has been that it is insufficiently coordinated and prioritized, and focuses too little
on understanding of fundamental principles and using them to develop transformational
125 The original act was amended by P.L. 109-144, the Terrorism Risk Extension Act of 1995, and P.L. 110-160, the
Terrorism Risk Insurance Program Reauthorization Act of 2007. For classification details, see 15 U.S.C. 6701 nt.
126 See, for example, Karen C. Yotis, “TRIA and the Perils of Terrorism Insurance,” Viewpoint, Summer 2007,
http://www.aaisonline.com/viewpoint/07sum6.html.
127 15 U.S.C. §§278g,h are part of the NIST Act (see p. 12).
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Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions
technologies. The George W. Bush Administration attempted to address the latter gap through the
“leap-ahead” technology component of the Comprehensive Cybersecurity Initiative.128 The
Obama Administration’s policy review129 also called for expanded, transformational research.
Concerns have also been raised about the need to improve the process by which NIST creates
checklists and other guidance and technical standards for federal IT systems.130
H.R. 4061 in the 111th Congress would have addressed those concerns by revising the act. A
similar bill in the 112th Congress, H.R. 2096, would, as amended, expand NSF R&D programs in
cybersecurity, and require NIST to develop automated security specifications for its cybersecurity
standards, checklists, and associated data. S. 2105 and S. 2151 would also expand cybersecurity
topics addressed by NSF.
E-Government Act of 2002
P.L. 107-347, 116 Stat. 2899.
5 U.S.C. Chapter 37, 44 U.S.C. 3501 nt., 44 U.S.C. Chapter 35, Subchapter 2, and Chapter 36.
Major Relevant Provisions
Serves as the primary legislative vehicle to guide federal IT management and initiatives to make
information and services available online. Significant provisions include the following:
• Established the Office of Electronic Government within OMB, to be headed by
an administrator with a range of IT management responsibilities, including
cybersecurity.
• Established the interagency CIO (Chief Information Officer) Council and
specified working with the National Institute of Standards and Technology
(NIST) on security standards as one of its functions.
• Assigned agency CIOs responsibility for monitoring implementation of federal
cybersecurity standards in their agencies.
• Contains various other requirements for security and protection of confidential
information, including electronic authentication and privacy guidelines.
• Established a five-year personnel exchange program between federal agencies
and private sector organizations to help agencies fill IT management training
needs.
• Also included the “Federal Information Security Management Act of 2002
(FISMA).”
128 See, for example, NITRD, “About the NITRD Program: National Cyber Leap Year”, July 22, 2009,
http://www.nitrd.gov/leapyear/index.aspx.
129 The White House, Cyberspace Policy Review.
130 See, for example, H.Rept. 111-405, CSIS Commission on Cybersecurity for the 44th Presidency, A Human Capital
Crisis in Cybersecurity, July 2010, http://csis.org/files/publication/
100720_Lewis_HumanCapital_WEB_BlkWhteVersion.pdf.
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Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions
Possible Update
The White House Proposal would renew the personnel exchange program, which terminated at
the end of 2007, and remove the current restriction in eligibility to management personnel. While
this program would be applicable to any subdiscipline of IT, a widely held belief at present is that
gaps in cybersecurity expertise are of particular concern. S. 1732 would revise the privacy
provisions to account for the increased commercial availability of personally identifiable
information, which the bill defines broadly.131 It would also require agencies to designate chief
privacy officers and create a council of them, and broaden OMB’s privacy responsibilities.
Identity Theft Penalty Enhancement Act
P.L. 108-275, 118 Stat. 831.
18 U.S.C. §§1028, 1028A.132
Major Relevant Provisions
• Established penalties for aggravated identity theft, in which a convicted
perpetrator could receive additional penalties (two to five years’ imprisonment)
for identity theft committed in relation to other federal crimes.133
Possible Updates
While the number of reported incidents of identity theft fell in 2010, identity theft has generally
been the fastest growing type of fraud in the United States over the past decade.134 FTC complaint
data indicate that the most common fraud complaint received (19% of all consumer fraud
complaints in 2010) has remained that of identity theft.135 In 2010, for instance, about 8.1 million
Americans were reportedly victims of identity theft. This is a decrease of about 28% from the
approximately 11.1 million who were victimized in 2009.136 Javelin Strategy and Research
estimates that identity theft cost consumers about $37 billion in 2010.
The most recent congressional action taken to enhance the identity theft laws was through the
Identity Theft Enforcement and Restitution Act of 2008 (Title II of P.L. 110-326). Among other
elements, several of which were recommended by a presidential task force in 2007,137 the act
131 It would include “any information about an individual maintained by an agency.”
132 Prepared by Kristin M. Finklea, Analyst in Domestic Security (kfinklea@crs.loc.gov, 7-6259). For classification
details, see 18 U.S.C. §1028 nt.
133 Examples of such federal crimes include theft of public property, theft by a bank officer or employee, theft from
employee benefit plans, false statements regarding Social Security and Medicare benefits, several fraud and
immigration offenses, and specified felony violations pertaining to terrorist acts.
134 For more information on identity theft, see CRS Report R40599, Identity Theft: Trends and Issues, by Kristin M.
Finklea.
135 Federal Trade Commission, Consumer Sentinel Network Data Book for January–December, 2010, March 2010,
http://www.ftc.gov/sentinel/reports/sentinel-annual-reports/sentinel-cy2010.pdf.
136 Javelin Strategy & Research, 2011 Identity Fraud Survey Report: Consumer Version, February 2011, p. 5 (available
at https://www.javelinstrategy.com/brochure/207).
137 The President’s Identity Theft Task Force, Combating Identity Theft: A Strategic Plan, April 2007,
http://www.identitytheft.gov/reports/StrategicPlan.pdf.
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Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions
authorized restitution to identity theft victims for their time spent recovering from the harm
caused by the actual or intended identity theft. Legislation has not yet, however, adopted
recommendations of the task force to
• amend the identity theft and aggravated identity theft statutes so that thieves who
misappropriate the identities of corporations and organizations—and not just the
identities of individuals—can be prosecuted,138 and
• amend the aggravated identity theft statute by adding new crimes as predicate
offenses139 for aggravated identity theft violations.140
The task force recommended that Congress clarify the identity theft and aggravated identity theft
statutes to cover both individuals and organizations targeted by identity thieves because the range
of potential victims includes not only individuals but organizations as well. The task force cites
“phishing” as a means by which identity thieves assume the identity of a corporation or
organization in order to solicit personally identifiable information from individuals.141
In part because identity theft is a facilitating crime, and the criminal act of stealing someone’s
identity often does not end there, investigating and prosecuting identity theft often involves
investigating and prosecuting a number of related crimes. In light of this interconnectivity, the
task force recommended expanding the list of predicate offenses for aggravated identity theft. The
task force specifically suggested adding identity theft-related crimes such as mail theft,142
counterfeit securities,143 and tax fraud.144
The Task Force Report also recommends requiring restitution for victims of identity theft and
computer fraud.145 At present, the statute authorizes restitution but does not require it.
Intelligence Reform and Terrorism Prevention Act of 2004 (IRPTA)
P.L. 108-458, 118 Stat. 3638.
42 U.S.C. §2000ee, 50 U.S.C. §403-1 et seq., §403-3 et seq., §404o et. seq.146
Major Relevant Provisions
• Established the position of the Director of National Intelligence.
138 This would involve revision of 18 U.S.C. §§1028 and 1028A.
139 A predicate offense can be described as a crime that is a component of a more serious offense. For example, in the
case of money laundering, the crime that produces the funds that are to be laundered is the predicate offense.
140 This would involve revision of 18 U.S.C. §1028A.
141 The President’s Identity Theft Task Force, Combating Identity Theft: A Strategic Plan, pp. 91 – 92.
142 18 U.S.C. §1708.
143 18 U.S.C. §513.
144 26 U.S.C. §7201, 7206-7207.
145 House Republican Cybersecurity Task Force, Recommendations, p. 14.
146 Prepared by John Rollins, Specialist in Terrorism and National Security (jrollins@crs.loc.gov, 7-5529).
Classification of this act is complex. For details, see 50 U.S.C. §401 nt.
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Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions
• Establishes mission responsibilities for some entities in the intelligence,
homeland security, and national security communities.
• Discusses issues related to the collection, analysis, and sharing of security-related
information.
• Establishes a Privacy and Civil Liberties Board within the Executive Office of
the President.
Possible Updates
The act does not contain a single reference to cyber, cybersecurity, or related activities. Its stated
purpose is to “reform the intelligence community and the intelligence and intelligence-related
activities of the United States Government, and for other purposes.” The act contains findings and
recommendations offered in the 9/11 Commission Report147 and other assessments that address
national and homeland security shortcomings associated with the terrorist attacks of September
11, 2001.
Numerous organizations, programs, and activities in the act currently address cybersecurity-
related issues. IRPTA addresses many types of risks to the nation and threats emanating from
man-made and naturally occurring events. The broad themes of the act could be categorized as
how the federal government identifies, assesses, defeats, responds to, and recovers from current
and emerging threats. The act might be updated to incorporate cybersecurity-related issues.
However, any such update could affect numerous organizations and activities. 148
147 National Commission on Terrorist Attacks Upon the United States , The 9/11 Commission Report, July 22, 2004,
http://www.9-11commission.gov/report/911Report.pdf.
148 For more information on threats, responses, and issues associated with cyberterrorism, see CRS Report R41674,
Terrorist Use of the Internet: Information Operations in Cyberspace, by Catherine A. Theohary and John Rollins.
Congressional Research Service
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Table 2. Laws Identified as Having Relevant Cybersecurity Provisions
Year
Popular Name
Law
Stat.
U.S.C.
Applicability and Notes
CRS Reports
6/18/1878
Posse Comitatus Act
Ch. 263
20 Stat. 152
18 U.S.C. §1385
Restricts the use of military forces in civilian law
RS20590
(p. 9)
enforcement within the United States. May prevent
assistance to civil agencies that lack DOD expertise
and capabilities.
7/2/1890
Antitrust Laws:
and later
(p. 10)
Sherman Antitrust Act,
Ch. 647
26 Stat. 209
15 U.S.C. §§1-7
“Antitrust laws” generally means the three laws listed
Wilson Tariff Act
Ch. 349, §73
28 Stat. 570
15 U.S.C. §§8-11
in 15 U.S.C. §12(a) and Sec. 5 of the FTC Act, which
P.L. 63-212
forbid combinations or agreements that unreasonably
Clayton Act
Ch, 311, §5
38 Stat. 730
15 U.S.C. §§12-27
restrain trade. May create barriers to sharing of
Sec. 5 of the Federal
38 Stat. 719
15 U.S.C. §45(a)
information or collaboration to enhance
Trade Commission (FTC)
cybersecurity among private sector entities.
Act
3/3/1901
National Institute of
Ch. 872
31 Stat. 1449
15 U.S.C. §271 et
The original act gave the agency responsibilities
Standards and Technology
seq.
relating to technical standards. Later amendments
(NIST) Act (p. 12)
established a computer standards program and
specified research topics, among them computer and
telecommunication systems, including information
security and control systems.
8/13/1912
Radio Act of 1912
Ch. 287
37 Stat. 302
Established a radio licensing regime and regulated
private radio communications, creating a precedent
for wireless regulation.
Repealed by the Radio Act of 1927.
6/10/1920
Federal Power Act
Ch. 285
41 Stat. 1063
16 U.S.C. §791a et
Established the Federal Energy Regulatory
R41886
(p. 13)
seq., §824 et seq.
Commission (FERC) and gave it regulatory authority
over interstate sale and transmission of electric
power. The move toward a national smart grid is
raising concerns about vulnerability to cyber attack.
2/23/1927
Radio Act of 1927
Ch. 169
44 Stat. 1162
Created the Federal Radio Commission as an
independent agency (predecessor of the FCC) and
outlawed interception and divulging private radio
messages.
Repealed by the Communications Act of 1934 (see p.
14).
CRS-40
Year
Popular Name
Law
Stat.
U.S.C.
Applicability and Notes
CRS Reports
6/19/1934
Communications Act of
Ch. 652
48 Stat. 1064
47 U.S.C. §151 et
Established the Federal Communications Commission
RL32589
1934 (p.14 )
seq.
(FCC) and gave it regulatory authority over both
RL34693
domestic and international commercial wired and
wireless communications. Provides the President with
emergency powers over communications stations and
devices. Governs protection by cable operators of
information about subscribers.
7/26/1947
National Security Act of
Ch. 343
61 Stat. 495
50 U.S.C. §401 et
Provided the basis for the modern organization of
1947 (p. 15)
seq.
U.S. defense and national security by reorganizing
military and intelligence functions in the federal
government. Created the National Security Council,
the Central Intelligence Agency, and the position of
Secretary of Defense. Established procedures for
access to classified information.
1/27/1948
US Information and
Ch. 36
62 Stat. 6
22 U.S.C. §1431 et
Restricts the State Department from disseminating
R41674
Educational Exchange Act
seq.
public diplomacy information domestically and limits
of 1948
its authority to communicate with the American
(Smith-Mundt Act)
public in general. Has been interpreted by some to
(p. 15)
prohibit the military from conducting cyberspace
information operations, some of which could be
considered propaganda that could reach U.S. citizens,
since the government does not restrict Internet
access according to territorial boundaries.
9/8/1950
Defense Production Act
Ch. 932
64 Stat. 798
50 U.S.C. App. §2061
Codifies a robust legal authority given the President
RS20587
of 1950
et seq.
to force industry to give priority to national security
RL31133
production and ensure the survival of security-critical
domestic production capacities. It is also the statutory
underpinning of governmental review of foreign
investment in U.S. companies.
8/1/1956
State Department Basic
P.L. 84-885
70 Stat. 890
22 U.S.C. §2651a
Specifies the organization of the Department of State,
R40989
Authorities Act of 1956
including the positions of coordinator for
(p. 16)
counterterrorism. As the Internet becomes
increasingly international, concerns have been raised
about the development and coordination of
international efforts in cybersecurity by the United
States.
CRS-41
Year
Popular Name
Law
Stat.
U.S.C.
Applicability and Notes
CRS Reports
10/30/1965
Brooks Automatic Data
P.L. 89-306
79 Stat. 1127
Gave GSA authority over acquisition of automatic
Processing Act
data processing equipment by federal agencies, and
gave NIST responsibilities for developing standards
and guidelines relating to automatic data processing
and federal computer systems.
Repealed by the Clinger-Cohen Act of 1996 (see p.
28).
7/4/1966
Freedom of Information
P.L. 89-487
80 Stat. 250
5 U.S.C. §552
Enables anyone to access agency records except
R41406
Act (FOIA) (p. 17)
those falling into nine categories of exemption, among R41933
them classified documents, those exempted by
specific statutes, and trade secrets or other
confidential commercial or financial information.
6/19/1968
Omnibus Crime Control
P.L. 90-351
82 Stat. 197
42 U.S.C. Chapter
Title I established federal grant programs and other
and Safe Streets Act of
46, §§3701 to
forms of assistance to state and local law
1968 (p. 18)
3797ee-1
enforcement.
Title III is a comprehensive wiretapping and electronic
eavesdropping statute that not only outlawed both
activities in general terms but that also permitted
federal and state law enforcement officers to use
them under strict limitations.
10/15/1970
Racketeer Influenced and
P.L. 91-452
84 Stat. 941
18 U.S.C. Chapter
Enlarges the civil and criminal consequences of a list
96-950
Corrupt Organizations Act
96, §§1961-1968
of state and federal crimes when committed in a way
(RICO) (p. 19)
characteristic of the conduct of organized crime
(racketeering).
10/6/1972
Federal Advisory
P.L. 92-463
86 Stat 770
5 U.S.C. App., §§1-16
Specifies conditions for establishing a federal advisory
R40520
Committee Act (p. 19)
committee and its responsibilities and limitations.
Requires open, public meetings and that records be
available for public inspection. Has been criticized as
potential y impeding the development of
public/private partnerships in cybersecurity,
particularly private-sector communications and input
on policy.
11/7/1973
War Powers Resolution
P.L. 93-148
87 Stat. 555
50 U.S.C. Chapter
Establishes procedures to circumscribe presidential
R41199
33, §§1541-1548.
authority to use armed forces in potential or actual
R41989
hostilities without congressional authorization.
CRS-42
Year
Popular Name
Law
Stat.
U.S.C.
Applicability and Notes
CRS Reports
12/31/1974
Privacy Act of 1974
P.L. 93-579
88 Stat. 1896
5 U.S.C. §552a
Limits the disclosure of personal y identifiable
(p. 20)
information (PII) held by federal agencies. Established
a code of fair information practices for collection,
management, and dissemination of records by
agencies, including requirements for security and
confidentiality of records.
10/25/1978 Foreign
Intelligence
P.L. 95-511
92 Stat. 1783
18 U.S.C. §§2511,
In foreign intelligence investigations, provides a
98-326
Surveillance Act of 1978
2518-9,
statutory framework for federal agencies to obtain
R40138
(FISA)
50 U.S.C. Chapter
authorization to conduct electronic surveillance,
36, §§1801-1885c
utilize pen registers and trap and trace devices, or
access specified records.
10/13/1980
Privacy Protection Act
P.L. 96-440
94 Stat. 1879
42 U.S.C. Chapter
Protects journalists from being required to turn over
of 1980
21A, §§2000aa-5 to
to law enforcement any work product and
2000aa-12
documentary materials, including sources, before
dissemination to the public.
10/12/1984
Counterfeit Access Device
P.L. 98-473
98 Stat. 2190
18 U.S.C. §1030
Provided criminal penalties for unauthorized access
97-1025
and Computer Fraud and
and use of computers and networks. Part of the
Abuse Act of 1984 (p. 21)
Comprehensive Crime Control Act of 1984.
10/16/1986
Computer Fraud and
P.L. 99-474
100 Stat. 1213 18 U.S.C. §1030
Expanded the scope of the Counterfeit Access Device
Abuse Act of 1986
and Computer Fraud and Abuse Act of 1984. For
government computers, criminalized electronic
trespassing, exceeding authorized access, and
destroying information; also criminalized trafficking in
stolen computer passwords. Created a statutory
exemption for intelligence and law enforcement
activities.
10/21/1986
Electronic Communications P.L. 99-508
100 Stat. 1848 18 U.S.C. §§2510-
Attempts to strike a balance between privacy rights
R41733
Privacy Act of 1986
2522, 2701-2712,
and the needs of law enforcement with respect to
R41756
(ECPA) (p. 22)
3121-3126
data shared or stored by electronic and
RL34693
telecommunications services. Unless otherwise
provided, prohibits the interception of or access to
stored oral or electronic communications, use or
disclosure of information so obtained, or possession
of electronic eavesdropping equipment.
10/30/1986
Department of Defense
P.L. 99-591
100 Stat.
10 U.S.C. §167
Established unified combatant command for special
Appropriations Act, 1987
3341-82,
operations forces, including the U.S. Strategic
(p. 24)
3341-122
Command, under which the U.S. Cyber Command
was organized.
CRS-43
Year
Popular Name
Law
Stat.
U.S.C.
Applicability and Notes
CRS Reports
1/8/1988
Computer Security Act
P.L. 100-235 101 Stat. 1724 15 U.S.C. §§272,
Required NIST to develop and the Secretary of
of 1987
278g-3, 278g-4, 278h
Commerce to promulgate security standards and
guidelines for federal computer systems except
national security systems. Also required agency
planning and training in computer security (this
provision was superseded by FISMA—see p. 32).
10/18/1988 Computer
Matching
and
P.L. 100-503 102 Stat. 2507 5 U.S.C. §552a
Amended the Privacy Act (see p. 20), establishing
Privacy Protection Act
procedural safeguards for use of computer matching
of 1988
on records covered by the act.
12/9/1991
High Performance
P.L. 102-194 105 Stat. 1594 15 U.S.C. Chapter 81
Established a federal high-performance computing
RL33586
Computing Act of 1991
program and requires that it address security needs
(p. 24)
and provide for interagency coordination.
10/25/1994
Communications
P.L. 103-414 108 Stat. 4279 47 U.S.C. §1001 et
Requires telecommunications carriers to assist law
RL30677
Assistance for Law
seq.
enforcement in performing electronic surveillance and
Enforcement Act (CALEA)
directs the telecommunications industry to design,
of 1994 (p. 26)
develop, and deploy solutions that meet requirements
for carriers to support authorized electronic
surveillance.
5/25/1995 Paperwork
Reduction P.L. 104-13
109 Stat. 163
44 U.S.C. Chapter
Gave the Office of Management and Budget (OMB)
Act of 1995
35, §§3501-3549
authority to develop information-resource
management polices and standards, required
consultation with NIST and GSA on information
technology (IT), and required agencies to implement
processes relating to information security and privacy.
2/8/1996 Telecommunications
Act
P.L. 104-104 110 Stat. 56
See 47 U.S.C. §609
Overhauled telecommunications law, including
of 1996
nt. for affected
significant deregulation of U.S. telecommunications
provisions.
markets, eliminating regulatory barriers to
competition.
2/8/1996
Communications Decency
P.L. 104-104 110 Stat. 133
See 47 U.S.C. §§223,
Intended to regulate indecency and obscenity on
R41499
Act of 1996 (p. 27)
(Title V)
230
telecommunications systems, including the Internet.
Has been interpreted to absolve Internet service
providers and certain web-based services of
responsibility for third-party content residing on
those networks or websites.
CRS-44
Year
Popular Name
Law
Stat.
U.S.C.
Applicability and Notes
CRS Reports
2/10/1996
Clinger-Cohen Act
P.L. 104-
110 Stat. 642
40 U.S.C. §11001 et
Required agencies to ensure adequacy of information-
(Information Technology
106, (Div. D
seq.
security policies, OMB to oversee major IT
Management Reform Act)
and E)
acquisitions, and the Secretary of Commerce to
of 1996) (p. 28)
promulgate compulsory federal computer standards
based on those developed by NIST. Exempted
national security systems from most provisions.
8/21/1996 Health
Insurance
P.L. 104-191 110 Stat. 1936 42 U.S.C. §1320d et
Required the Secretary of Health and Human Services RL34120
Portability and
seq.
to establish security standards and regulations for
Accountability Act of
protecting the privacy of individually identifiable
1996 (HIPAA)
health information, and required covered health-care
entities to protect the security of such information.
10/11/1996
Economic Espionage Act
P.L. 104-294 110 Stat. 3488 18 U.S.C. §1030,
Outlaws theft of trade secret information, including
of 1996
Chapter 90, §§1831-
electronically stored information, if “reasonable
1839
measures" have been taken to keep it secret. Also
contains the National Information Infrastructure
Protection Act of 1996, amending 18 U.S.C. §1030
(see the Counterfeit Access Device and Computer
Fraud and Abuse Act of 1984, p. 21), broadening
prohibited activities relating to unauthorized access
to computers.
10/30/1998
Identity Theft and
P.L. 105-318 112 Stat. 3007 18 U.S.C. §1028
Made identity theft a federal crime, provides penalties, R40599
Assumption Deterrence
and directed the FTC to record and refer complaints.
Act of 1998 (p. 29)
10/5/1999 National
Defense
P.L. 106-65
113 Stat. 512
10 U.S.C. §2224
Established the Defense Information Assurance
Authorization Act for
Program and required development of a testbed and
Fiscal Year 2000
coordination with other federal agencies.
11/12/1999 Gramm-Leach-Bliley
Act
P.L. 106-102 113 Stat. 1338 15 U.S.C. Chapter
Requires financial institutions to protect the security
RL34120
of 1999
(Title V)
94, §§6801-6827
and confidentiality of customers’ personal
RS20185
information; authorized regulations for that purpose.
10/26/2001
USA PATRIOT Act of
P.L. 107-56
115 Stat. 272
see 18 U.S.C. §1 nt.
Authorized various law-enforcement activities relating R40980
2001
and classification
to computer fraud and abuse.
tables.a
7/30/2002
Sarbanes-Oxley Act of
P.L. 107-204 116 Stat. 745
15 U.S.C. §7262
Requires annual reporting on internal financial
2002
controls of covered firms to the Securities and
Exchange Commission (SEC). Such controls typical y
include information security.
CRS-45
Year
Popular Name
Law
Stat.
U.S.C.
Applicability and Notes
CRS Reports
11/25/2002
Homeland Security Act of
P.L. 107-296 116 Stat. 2135 6 U.S.C. §§121-195c,
Created the Department of Homeland Security
2002 (HSA) (p. 30)
(Titles II and
441-444, and 481-486 (DHS) and gave it functions relating to the protection
III)
of information infrastructure, including providing state
and local governments and private entities with threat
and vulnerability information, crisis-management
support, and technical assistance. Strengthened some
criminal penalties relating to cybercrime.
11/25/2002
Federal Information
P.L. 107-296 116 Stat. 2259
44 U.S.C. Chapter
Created a cybersecurity framework for federal
Security Management Act
(Title X)
35, Subchapters II
information systems, with an emphasis on risk
of 2002 (FISMA) (p. 32)
P.L. 107-347 116 Stat. 2946 and III,
management, and required implementation of agency-
(Title III)
40 U.S.C. 11331,
wide information security programs. Gave oversight
15 U.S.C. 278g-3 & 4
responsibility to OMB, revised the responsibilities of
the Secretary of Commerce and NIST for
information-system standards, and transferred
responsibility for promulgation of those standards
from the Secretary of Commerce to OMB.
11/26/2002
Terrorism Risk Insurance
P.L. 107-297 116 Stat. 2322 15 U.S.C. §6701 nt.
Provides federal cost-sharing subsidies for insured
Act of 2002 (p. 35)
losses resulting from acts of terrorism.
11/27/2002
Cyber Security Research
P.L. 107-305 116 Stat. 2367 15 U.S.C. §§278g, h,
Requires the National Science Foundation (NSF) to
and Development Act,
7401 et seq.
award grants for basic research and education to
2002 (p. 35)
enhance computer security. Required NIST to
establish cybersecurity research programs.
12/17/2002
E-Government Act of 2002 P.L. 107-347 116 Stat. 2899 5 U.S.C. Chapter 37,
Serves as the primary legislative vehicle to guide
(p. 36)
44 U.S.C. §3501 nt.,
federal IT management and initiatives to make
Chapter 35,
information and services available online. Established
Subchapter 2, and
the Office of Electronic Government within OMB, the
Chapter 36
Chief Information Officers (CIO) Council, and a
government/private-sector personnel exchange
program; includes FISMA; established and contains
various other requirements for security and
protection of confidential information.
12/4/2003
Fair and Accurate Credit P.L. 108-159 117 Stat. 1952 See 15 U.S.C. §1601
Required the FTC and other agencies to develop
RS20185
Transactions Act of
nt. for affected
guidelines for identity theft prevention programs in
2003
provisions.
financial institutions, including “red flags" indicating
possible identity theft.
CRS-46
Year
Popular Name
Law
Stat.
U.S.C.
Applicability and Notes
CRS Reports
12/16/2003
Controlling the Assault
P.L. 108-187 117 Stat. 2699 15 U.S.C. Chapter
Imposed regulations on the transmission of
of Non-Solicited
103, §§7701-7713, 18
unsolicited commercial email, including prohibitions
Pornography and
U.S.C. 1037
against predatory and abusive email, and false or
Marketing (CAN-SPAM)
misleading transmission of information.
Act of 2003
7/15/2004
Identity Theft Penalty
P.L. 108-275 118 Stat. 831
18 U.S.C. §§1028,
Established penalties for aggravated identity theft.
R40599
Enhancement Act 2004
1028A
(p. 37)
12/17/2004
Intelligence Reform and
P.L. 108-458 118 Stat. 3638 42 U.S. C. §2000ee,
Created the position of Director of National
Terrorism Prevention Act
50 U.S.C. §403-1 et
Intelligence (DNI). Established mission responsibilities
of 2004 (IRPTA) (p. 38)
seq., §403-3 et seq.,
for some entities in the intelligence, homeland
§404o et. seq.
security, and national security communities, and
established a Privacy and Civil Liberties Board within
the Executive Office of the President.
8/8/2005
Energy Policy Act of
P.L. 109-58
119 Stat. 594
16 U.S.C. 824o
Requires FERC to certify an Electric Reliability
R41886
2005 (EPACT)
Organization (ERO) to establish and enforce reliability
standards for bulk electric-power system facilities.
10/4/2006 Department
of
P.L. 109-295 120 Stat. 1355 6 U.S.C. §121 nt.
Sec. 550 required the Secretary of Homeland Security
Homeland Security
to issue regulations (6 C.F.R. Part 27) establishing
Appropriations Act,
risk-based performance standards for security of
2007
chemical facilities; regulations include cybersecurity
standards requirement (6 C.F.R. §27.230(a)(8)).
8/5/2007
Protect America Act of
P.L. 110-55
121 Stat. 552
50 U.S.C. §1801 nt.
Provided authority for the Attorney General and the
2007
DNI to gather foreign intelligence information on
persons believed to be overseas.
The act expired in 2008.
12/19/2007 Energy
Independence P.L. 110-140 121 Stat. 1492 42 U.S.C. §§17381-
Gave NIST primary responsibility for developing
R41886
and Security Act of 2007
17385
interoperability standards for the electric-power
(EISA)
“smart grid."
7/10/2008 Foreign
Intelligence P.L. 110-261 122 Stat. 2436 See 50 U.S.C. §1801
Added additional procedures to FISA (see p. 43) for
98-326
Surveillance Act of 1978
nt. for affected
acquisition of communications of persons outside the
[FISA] Amendments Act
provisions.
United States.
of 2008
9/26/2008 Identity
Theft
P.L. 110-326 122 Stat. 356
18 U.S.C. §1030
Authorized restitution to identity theft victims and
R40599
Enforcement and
modified some of the activities and penalties covered
97-1025
Restitution Act of 2008
by 18 U.S.C. 1030.
CRS-47
Year
Popular Name
Law
Stat.
U.S.C.
Applicability and Notes
CRS Reports
2/17/2009 Health
Information P.L. 111-5
123 Stat. 226
42 U.S.C. §17901 et
Expanded privacy and security requirements for
R40546
Technology for
(Title XIII of
seq.
protected health information by broadening HIPAA
Economic and Clinical
Div. A and
breach disclosure notification and privacy
Health Act
Title IV of
requirements to include business associates of
Div. B)
covered entities.
Source: Various sources (see text), including National Research Council, Toward a Safer and More Secure Cyberspace (Washington, DC: National Academy Press, 2007);
The White House, Cyberspace Policy Review, May 29, 2009, http://www.whitehouse.gov/assets/documents/Cyberspace_Policy_Review_final.pdf; and CRS.
Note: Prepared by Rita Tehan, Information Research Specialist (rtehan@crs.loc.gov, 7-6739) and Eric A. Fischer. Laws in italics are discussed in the text.
a. Office of the Law Revision Counsel, “United States Code Table of Classifications for Public Laws, 107th Congress, 1st Session (Covering Public Laws 107-1 through
107-136),” http://uscode.house.gov/classification/tbl107pl_1st.htm.
CRS-48
Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions
Author Contact Information
Eric A. Fischer
Senior Specialist in Science and Technology
efischer@crs.loc.gov, 7-7071
Acknowledgments
Contributing CRS staff include
• Patricia Moloney Figliola (“Communications Assistance for Law Enforcement Act of 1994”),
• Kristin M. Finklea (“Identity Theft and Assumption Deterrence Act of 1998,” “Identity Theft
Penalty Enhancement Act”),
• Wendy R. Ginsberg (“Freedom of Information Act (FOIA),” “Clinger-Cohen Act (Information
Technology Management Reform Act) of 1996”),
• John Rollins (“Department of Defense Appropriations Act, 1987,” “Intelligence Reform and
Terrorism Prevention Act of 2004 (IRPTA)”),
• Kathleen Ann Ruane (“Antitrust Laws and Section 5 of the Federal Trade Commission Act”),
• Gina Stevens (“Electronic Communications Privacy Act of 1986”),
• Rita Tehan (Table 2), and
• Catherine A. Theohary (“Posse Comitatus Act of 1879,” “U.S. Information and Educational
Exchange Act of 1948 (Smith-Mundt Act),” and “Communications Decency Act of 1996”).
Congressional Research Service
49