What might government regulation of infosec look like?

“Terrible” is the most likely answer. But let’s assume we’re talking about regulation that is effective and sound (from both a technical and civil liberties perspective).

On Sunday’s episode of This Week in Tech, the panel discussed the possibility of government regulation of internet security. I’m not fully convinced that any regulation is necessary, but the case for some form of consumer protection grows with every breach. And I don’t think it likely that companies will self-regulate.

So as neither a policy nor technical security expert, what sort of plan would I draw up?

Good infosec regulation

Any workable laws or regulations would have to be defense-oriented. It may sound like victim-blaming, but I don’t see any other path. Companies must meet some minimum standard of protection or face non-trivial fines in the event of a breach. But if a breach occurs and the company met the standard, I would not punish them. Even the best organization is going get compromised in some way at some point.

In an ideal scenario, the punishment would instead be on the bad actor. The international nature of the Internet makes that a near impossibility. And given that a company is acting with some degree of public trust, I don’t find it unjust to demand a certain level of security compliance.

In order to avoid a heavy administrative burden, I wouldn’t require external audits (at least not for companies below a certain size). It could be something as simple as “document the security plan and show that you’ve kept to it”. The plan would have some number of required elements (e.g. customer passwords aren’t stored in plaintext) and a further list of suggested elements maintained by an expert body. So long as your plan isn’t garishly incompetent and you stick to it, you’re in the clear from a government punishment perspective.

Of course, certain systems would still be subject to heavier burden. I wouldn’t do away with HIPAA or PCI in favor of this new model. But you can see how less-sensitive services would be nudged toward better consumer protection.

Bad infosec regulation

So what wouldn’t I include? I certainly would not require any encryption backdoor (I might even prohibit it) or prohibit users’ use of encryption. That’s an obvious choice in light of the civil liberty requirement.

I also would not include any specific technology or process in the law/regulation itself. The technology landscape is too dynamic and diverse for that to be effective. The best we can hope for is to set broader principles that need updated on the order of years.

The reality of regulation

I don’t see any meaningful regulation happening in the near future. For one, it’s a very difficult problem to solve from both a technical and a policy perspective. More importantly, it could be politically hot, and we all know how pleasant the current environment in Washington is.

At most, we may see a few laws, probably bad, that nibble around the edges. But as the digital age continues to change society as we’ve known it, the law must catch up somehow.

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