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The Network and Information Security Directive - false dawn or resplendent sunrise?
On 7 February 2013 the European Commission published “Cybersecurity Strategy of the EU: An Open, Safe and Secure Cyberspace” (the “EU Strategy”), alongside a Commission-proposed directive on network information security (the “Cybersecurity Directive”). The EU Strategy represented the EU’s vision of how best to prevent and respond to cyber disruptions and attacks, in particular by implementing the Cybersecurity Directive to address national capabilities, preparedness, and EU-level cooperation in countering cybersecurity threats.
Despite good progress in 2014, the proposed timeline to adopt the Cybersecurity Directive by December 2014 passed without agreement by the three main EU parties – the Commission, Parliament, and Council. Yet, Eurobarometer research results published by the Commission in February 2015 demonstrated that an overwhelming majority of Internet users are concerned with cybersecurity threats, in particular in online banking and online purchasing.
With the Latvian presidency of the EU Council having reached an understanding with the EU Parliament on 29 June 2015 regarding the main principles to be included in the draft Cybersecurity Directive, it appeared likely that the Cybersecurity Directive would be finalised before the New Year. However, these agreed principles still needed to be converted into legal provisions, with the details of some needing to be discussed at a technical level. As November arrived without any further news, there continued to be a lack of clarity around both the terms of the Directive and the timeframe for adoption.
Then, on 9 November 2015, EU Digital Commissioner Günther Oettinger announced that the EU Commission, Parliament, and Council were close to signing a compromise deal. With the long-awaited Cybersecurity Directive mere “days or weeks” away, Nicola Fulford, Data Protection and Privacy Partner, and Alex Cravero, Commercial Technology Associate, look at the EU Strategy and the Cybersecurity Directive in more detail.
The EU Strategy was proposed with the intention of articulating the EU’s vision of cybersecurity in terms of the following 5 priorities:
- achieving cyber resilience;
- drastically reducing cybercrime;
- developing a cyber-defence policy and capabilities relating to the Common Security and Defence Policy (CSDP);
- developing the industrial and technological resources for cybersecurity; and
- establishing a coherent international cyberspace policy for the EU and promoting core EU values.
A key component of each of these points, and of the EU Strategy in general, is the implementation of the Cybersecurity Directive across all “market operators” in all Member States; namely those designated operators that provide “essential services”. This includes key Internet enablers and critical infrastructure operators, such as eCommerce platforms, social networks, and operators in energy, transport, banking, and healthcare services.
In particular, the Cybersecurity Directive requires Member States to establish:
- a Competent Authority (NCA) to monitor the application of the Cybersecurity Directive in their Member State and, if there is more than one authority, appoint a single point of contact (SPOC);
- a national Network Information Security strategy (NIS), as well as regulatory measures to provide network security; and
- authorities responsible for the management of cybersecurity and risk, and emergency response teams to address incidents – namely a Computer Emergency Response Team (CERT) and Computer Security Incident Response Team (CSIRT).
- the Competent Authorities (including SPOCs), European Network Infrastructure Security Agency (“ENISA”), and the EU Commission shall together form a cooperation network to coordinate responses to incidents and share information securely amongst members; and
- any “market operator” that operates critical infrastructure, the “disruption or destruction of which would have a significant impact on a Member State”, must comply with mandatory security incident notification requirements.
It is intended that wide rights are provided to Competent Authorities under the Cybersecurity Directive, similar to the General Data Protection Regulation (“GDPR”) due to come into effect in 2016. These include the ability to compel production, audits, and remedial action, as well as sanctions for non-compliance “consistent with the GDPR”.
The EU Parliament adopted its report on the proposed Cybersecurity Directive on 13 March 2014, making a number of amendments to the Commission’s original text. Whilst the Council was largely supportive of the Parliament’s amendments, they disagreed over the fixed prescriptive requirements (preferring flexible principles that protect against future change) and establishment of a new cooperation mechanism (given existing bodies and mechanisms are available).
A trilogue between the Commission, Parliament, and Council in late 2014 resulted in the agreement of a joint text, with the exception of the three following issues:
- determining the scope of the Cybersecurity Directive and defining a “market operator”:
- agreed: it applies to certain public and private sector operators as set out in Annex II that provide services within the EU (i.e. without an establishment test); but
- whether the Annex II list of market operators is exhaustive;
- whether a market operator must be in Annex II and designated by Member State;
- the list of market operators, including (amongst others) whether health, food supply, water supply, and IT infrastructure such as eCommerce platforms, social networks, and app stores should fall within Annex II; and
- whether digital service platforms would be treated as an “essential service”.
- determining which security breaches the private sector must notify, and when such notification must be made:
- agreed: it only applies to significant impact, and may be notified to the public by the Competent Authority; but
- how quickly a party must notify the Competent Authority
- how many Competent Authorities (whether one or all) must be notified by the market operator; and
- who is able to create criteria to define a “significant impact” – presently proposed to be the European Network Infrastructure Security Agency (ENISA), the EU Commission, and SPOCs; and
- agreeing the mandatory extent of national cooperation.
A fourth trilogue that took place on 29 June 2015 resulted in the Latvian presidency of the Council agreeing the main principles to be included in the draft Cybersecurity Directive with the Commission and Parliament; namely that “digital service platforms will be treated in a different manner from essential services”, and that “the details of such will be discussed at a technical level”.
Whilst the Latvian presidency hailed this a “breakthrough”, this was an understanding on the main principles and not an agreement of the final text. In particular, it did not fully resolve the divisive issue of the extent to which online platforms should be subject to new requirements on breach reporting, as technical-level discussion was still to take place.
With the EU Member States calling for “rapid adoption” of the Cybersecurity Directive in a Council meeting of 25 and 26 June 2015, there was increased pressure on the incoming Luxembourg presidency of the Council to finalise the Cybersecurity Directive before 31 December 2015. The announcement of 9 November 2015 by current EU Digital Commissioner Günther Oettinger suggests that this pressure may have worked, with the new Cybersecurity Legislation reportedly just “days or weeks” away from being finalised.
Whilst we expect to soon see the final text of the Cybersecurity Directive, precisely how it will work in practice will not be known until Member States enact the necessary implementing legislation – a process for which they have 18 months following adoption.
The true test for the Cybersecurity Directive will be whether it provides any real value, or simply adds another layer of bureaucracy. Companies affected by serious cyberincidents risk breaching this Directive by failing to notify within strict timeframes, but fixed reporting periods may mean companies are not able to appropriately triage the issue and, consequently, may spread undue panic by having to notify the public of incidents without being able to provide much in the way of useful information or reassurance.
Given the points that remain outstanding following the fourth trilogue, the further discussion and legal drafting that will have taken place to reach the compromise deal between the EU Commission, Parliament, and Council will inevitably have a significant impact on the overall effectiveness of the Cybersecurity Directive; with the potential to fragment rather than harmonise Member-State-wide implementation and application.