Obama's Power To Set Cybersecurity Standards Is Limited

As President Obama readies to strike the Syrian regime, it's worth thinking about that other defense problem--cybersecurity--and what it says about Washington in the Obama era.

On Wednesday, the capital will be consumed by the March on Washington, as well it ought, and the looming battle with Syria--although not at the same time, for surely the missiles won't fly at the very moment Obama salutes nonviolence.

But the country's efforts to beef up cybersecurity are stymied, even after thefts at the National Security Agency and the Army have made Edward Snowden and Chelsea (nee Bradley) Manning emblems of computer vulnerability. This week shows why.

On Wednesday, while the marchers march and the Pentagon plans, a federal agency in Maryland called theNational Institute for Standards and Technology will be issuing a draft report for cybersecurity standards--basically a list of best practices for businesses and other institutions to follow as they try to protect their networks.

NIST, as it's called, is the much-admired scientific agency that runs the atomic clock and comes up with standards for everything from weights and measures to medical devices. It doesn't regulate, but it's been around in some form since the early days of the Republic and its word is listened to closely by industry and government.

For the last three years, Congress has been unable to come up with a cybersecurity bill that the president could sign. And to be fair, it's been over honest disagreements rather than raw obstructionism, such as filibuster abuse. The House has passed a bill with overwhelming GOP support and a considerable number of Democrats that would enable information sharing between companies and the government in an effort to shut down hackers. Opponents on the left and right have offered up civil-liberties arguments, saying that's a license to abuse private data. Throw in some classic questions about corporate liability and you have a stalemate--but at least the old-fashioned kind built around ideas (and lobbying of course), rather than gun-to-the-head threats like the debt ceiling.

The cyber stalement is why the president issued an executive order earlier this year asking NIST to come up with a voluntary framework for reducing cyber risks to critical infrastructure. (His order also opened up more information sharing in the government.) And so the agency's worked diligently on it and will issue best practices tomorrow. But while they would certainly improve security if acted on, none of them are likely to provide the degree of protection that can only be afforded by legislative action, nor does anyone expect them to. One insider calls them "no brainers," likening them to use-a-secure-password bromides. (You can read more about where NIST is planning here and about the legislative stalemate here.) Whether you believe in the House bill's information-sharing approach or a heavier regulatory regime, everyone's pretty much agreed that NIST isn't enough.

And this is where it comes back to Obama. For those who think a president has extraordinary executive powers to lead, here's a case where he's pretty much tapped out. The problem is grave enough that Congress may eventually give the president something that he's willing to sign. Until then this is about the best he can do--a conspicuous limitation of presidential power in a week where he's likely to flex his strongest muscles by making speeches and making war.