Publication - 03/11/2014

White House’s Cybersecurity Framework Highlights Need for Preparedness

Client Alert

By Ronald A. Sarachan and Zoë K. Wilhelm

The White House recently announced the official launch of the Cybersecurity Framework, which provides voluntary guidelines for both public and private organizations operating as part of the “critical infrastructure” to create or improve upon their defenses and response protocols for cyber-attacks. The framework was drafted as a result of the President’s February 12, 2013 Executive Order 13636 called for the development of a “prioritized, flexible, repeatable, performance-based, and cost-effective approach” for assisting organizations responsible for “critical infrastructure services” to manage cybersecurity risk. In October, the U.S. Department of Commerce’s National Institute of Standards and Technology released a Preliminary Framework. The release of the Preliminary Framework was followed by a 45-day public comment period.

The official Cybersecurity Framework is largely unchanged from the preliminary draft, which Drinker Biddle partner Kenneth K. Dort thoroughly detailed in a previous client alert. The Cybersecurity Framework is organized around three components: the Framework Core, the Framework Implementation Tiers, and the Framework Profiles.

  • The Framework Core suggests that organizations categorize and assess all activities related to cybersecurity into five basic functions: identification, protection, detection, response, and recovery.
  • The section on Framework Implementation Tiers describes four levels of rigor in an organization’s cybersecurity practices: Partial, Risk Informed, Repeatable and Adaptive. The Tiers provide criteria for an organization to both assess its current preparedness to deal with cyber risks and determine its goal level of preparedness. Organizations determine their current and goal Tiers by examining criteria such as regulatory requirements, business objectives, feasibility, actual threat, and considerations of privacy and civil liberties.
  • An organization’s Framework Profile is essentially a description of the organization’s cybersecurity activities that addresses the five functions of the Framework Core in light of the organization’s unique circumstances. The Framework Profile suggests that an organization determines both a current and target Profile to identify gaps.

For organizations seeking to use the Framework’s principles to establish or improve a cybersecurity program, the Framework recommends seven steps, described as: Prioritize and Scope, Orient, Create a Current Profile, Conduct a Risk Assessment, Create a Target Profile, Determine Analyze and Prioritize Gaps, and Implement Action Plan.

While the framework is entirely voluntary, we strongly recommend that all of our clients—whether a part of critical infrastructure or not—perform cyber risk assessments and analysis to implement appropriate cybersecurity programs for their organizations and prepare for data-privacy incidents and cyber-attacks. Given the ever-increasing number of these incidents and attacks, and given that the Cybersecurity Framework provides a convenient benchmark for both litigants and regulators to use in challenging the sufficiency of an organization’s preparedness and response, it is more important than ever for organizations to re-evaluate their existing programs. We encourage organizations to use the official release of the framework as an occasion to do just that. Drinker Biddle can provide guidance and advice on the framework and all aspects of data privacy and cybersecurity.

A public-private partnership created by the Department of Homeland Security, the Critical Infrastructure Cyber Community (C3) Program, is available to support organizations in implementing the cybersecurity framework. The C3 Program has a useful list of resources for businesses to use in the process.

While the Cybersecurity Framework is now official, the framework openly contemplates revisions. The framework describes itself as a “living document” and is prominently labeled “Version 1.0.” Drinker Biddle will continue to monitor the progression of the Framework and follow up when revisions occur.

If you have questions about the Cybersecurity Framework and would like to speak to one of our lawyers, please contact Ronald A. Sarachan at (215) 988-1122 or Ronald.Sarachan@dbr.com, or Kenneth K. Dort at (312) 569-1458 or Kenneth.Dort@dbr.com.

IRS Ruling Poses Dilemmas for Dual-Purpose ACO

Accountable Care News
Matthew Amodeo

Health care partner Matt Amodeo discusses potential legal dilemmas arising from a recent IRS decision that denied tax exempt status to an accountable care organization that is affiliated with a not-for-profit health system.

New Antidumping Duty Petitions on Emulsion Styrene Butadiene Rubber from Brazil, Korea, Mexico and Poland

Client Alert
Richard P. Ferrin, Douglas J. Heffner

On July 21, 2016, Lion Elastomers LLC and East West Copolymers filed antidumping (AD) petitions with the U.S. Department of Commerce (DOC) and U.S. International Trade Commission (ITC), regarding Emulsion Styrene Butadiene Rubber (ESBR) from Brazil, Korea, Mexico and Poland.

Recent New York Decision Provides a Reminder that the Common Interest Exception May Be Applied Narrowly in the Transactional Context

Client Alert
Richard E. Coe

In this alert, we examine the court’s reasoning in Ambac, compare New York law to Delaware law, and offer advice for transactional lawyers on how to reduce the risk that privilege will be waived during a transaction.

401(k) Class-Action Litigation Update: 1st Circuit Holds “Float” is Not a Plan Asset

Client Alert
Richard J. Pearl

The Court’s conclusion that float isn’t a plan asset relied on the plan documents’ express language and the fact that participants received the exact value of their fund allocation when the participants cashed out.

SEC Proposes Rules on Adviser Business Continuity and Transition Plans


Kay A. Gordon

The proposed new rule, Rule 206(4)-4, would require SEC-registered investment advisers to adopt and implement written business continuity and transition plans (BCP) reasonably designed to address operational and other risks related to a significant disruption in the investment adviser’s operations.