Last Wednesday the House Homeland Security Committee held a
markup
hearing that dealt with a large number of bills. As I mentioned in an
earlier post some of those bills will be of specific interest to readers of
this blog. Those include:
HR
3350, the Know the CBRN Terrorism Threats to Transportation Act;
HR
3490, the Strengthening State and Local Cyber Crime Fighting Act;
HR
3503, the Department of Homeland Security Support to Fusion Centers Act of
2015;
HR
3510, the Department of Homeland Security Cybersecurity Strategy Act of
2015;
HR
3573, the DHS Science and Technology Reform and Improvement Act of 2015;
HR
3583, the Promoting Resilience and Efficiency in Preparing for Attacks and
Responding to Emergencies (PREPARE) Act;
HR
3586, the Border and Maritime Coordination Improvement Act; and
HR
3584, the Transportation Security Administration Reform and Improvement Act
of 2015.
HR 3350 was adopted without amendments on a voice vote.
HR 3490
HR 3490 was amended and adopted by a voice vote. Rep.
Ratcliffe (R,TX) proposed
substitute
language reflecting the changes made to the bill in a
Subcommittee
markup which was adopted by a voice vote. Two amendments were offered by
Rep. Jackson-Lee (D,TX).
The
first dealt with chain-of-custody training.
The
second dealt reaffirmed the supremacy of the fourth and fifth amendments
with respect to the provisions of this bill. Both amendments were adopted by
voice vote.
HR 3503
HR 3503 was amended and adopted by a voice vote. Two
amendments were introduced by Rep. Loudermilk (R,GA).
The
first dealt with a requirement for DHS to conduct an assessment for accessibility
and interoperability of the information systems used to share homeland security
information between the Department and fusion centers.
The
second required DHS to enter into a memorandum of understanding about what
types of information fusion centers would share with DHS. Both amendments were
adopted by voice vote.
HR 3510
HR 3510 was amended and adopted by a voice vote. Rep.
Clawson (R,FL) introduced one amendment which dealt with privacy concerns. That
amendment was adopted by a voice vote.
HR 3578
HR 3578 was amended and adopted by a voice vote. Eight
amendments, including alternative language offered by Rep. Ratcliffe, were
offered and all were adopted on voice votes. The alternative language made no
substantive changes of particular interest to readers of this blog. Of the
remaining seven amendments only one of specific.
That
amendment by Rep. Langevin (D,RI) that modifies the new §322 the bill adds to the
Homeland Security Act of 2002. That section addressed cybersecurity R&D and
this amendment adds a new activity to be addressed by DHS S&T; “support, in
coordination with the private sector, the review of source code that underpins
critical infrastructure information systems” {new §322(b)(4)}.
HR 3583
This bill was amended and adopted by a voice vote. Of the
seven amendments offered and adopted only one would be of specific interest to readers
of this blog. It was offered by Rep. Payne (D,NJ), the Ranking Member of the
Committee.
The amendment modifies
6
USC 321e(c)(1); adding a new duty to job of Department Chief Medical
Officer. That new requirement is specifically requiring the provision of advice
on “how to prepare for, protect against, respond to, recover from, and mitigate
against the medical effects of terrorist attacks or other high consequent
events utilizing chemical, biological, radiological, or nuclear agents or
explosives”. This wording still limits that advice to ‘chemical agents’ so it
would not include advice on response to industrial chemical incidents unless
they were used as part of a terrorist attack.
HR 3586
The bill was amended and adopted by a voice vote. Rep.
Miller (R,MI) offered
an
amendment in the form of a substitute. That substitute language softened
much of the language in the bill but did not make any substantive changes of
particular interest to readers of this blog. None of the other ten amendments
that were adopted on this bill were of specific interest to readers of this
blog.
HR 3584
This bill was amended and adopted by a voice vote. None of
the eight amendments adopted on this bill substantially affected areas of
specific interest to readers of this blog.
Moving Forward
All of these bills are apparently on Chairman McCaul’s
(R,TX) agenda for moving to the floor of the House. I expect that there is a
good chance that they will all make it to the floor prior to the end of the
year and there is a chance that they will all arrive on the same day. With the
broad bipartisan support seen in Committee I expect that they will all be
considered under suspension of the rules with limited debate and not floor
amendments. All of these bills should pass with substantial bipartisan support.
I do not see any of these bills as being a high priority for
getting consideration in the Senate. Any of these bills could easily pass and
none would have significant opposition; it is just a matter of legislative
priorities about which of these might make it to the floor of the Senate.
Commentary
Not surprisingly, none of the suggestions that I have made
here in this blog for improving any of these bills were included in the
amendments that were adopted. Oh well, that is always the problem with being a
voice crying in the wilderness; the few people that do hear you are not
necessarily ones that can do anything about it.
There was that one odd amendment by Langevin on HR 3578 that
kind of interests me. It does not cover control systems since this new section
uses the definition of ‘information systems’ from
44
USC 3502 which interestingly only applies to Federal IT systems.
I’m not sure what Langevin was trying to accomplish with
this ‘review of source code’. Okay I suppose that I could guess that he wants
someone to check these IT programs for bugs, but reviewing the source code is
not probably the most effective method of doing that. And the terminology ‘that
underpins critical infrastructure information systems’ was obviously not
written by a programmer. Now the vendor should already be conducting a source
code review prior to publishing the software, so I am not sure what Langevin is
expecting this to accomplish.
The real interesting thing about this amendment is not
actually what it does or tries to do, but the fact that it is part of a new
trend in legislation over the last month or so where there are bits of
cybersecurity language being added to bills that are not overtly cybersecurity
bills. In many ways this is probably a more practical way to cybersecurity
provisions passed. Large, all-encompassing bills are going to always draw
somebodies ire and we will see few of them actually become law. Small targeted
provisions (even if poorly written like this one) in a bill that is not going
to draw substantial opposition are much more likely to get passed.
The problem is, of course, how to you keep the ineffective
or even offensive small cybersecurity provisions out of otherwise good
legislation? Amendments like Langevin’s are not posted in advance for public
review and I doubt anyone on the Committee (members or staff) are tech savvy
enough to understand how ineffective this provision actually is. And once an
amendment is adopted in full committee it is unlikely to get removed in the
remaining portions of the legislative process.
Small cybersecurity provisions that are written into original
legislation are likely to be seen by reviewers like me, but will generally be
overlooked by most people. This means that only the most objectionable are
likely to draw the kind of opposition that will have them removed from the bill
or modified to make them more workable.
This new approach of adding small, limited cybersecurity
provisions to other types of legislation is going to start to make things
interesting in the legislative process.
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