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STRIKING THE RIGHT BALANCE: PROTECTING 

OUR NATION’S CRITICAL INFRASTRUCTURE 

FROM CYBER ATTACK AND ENSURING PRIVACY 

AND CIVIL LIBERTIES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CYBERSECURITY, 

INFRASTRUCTURE PROTECTION, 

AND SECURITY TECHNOLOGIES 

OF THE

COMMITTEE ON HOMELAND SECURITY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

APRIL 25, 2013 

Serial No. 113–13 

Printed for the use of the Committee on Homeland Security 

Available via the World Wide Web: http://www.gpo.gov/fdsys/ 
(II) 

COMMITTEE ON HOMELAND SECURITY 

MICHAEL T. MCCAUL, Texas, Chairman 

LAMAR SMITH, Texas 

PETER T. KING, New York 

MIKE ROGERS, Alabama 

PAUL C. BROUN, Georgia 

CANDICE S. MILLER, Michigan, Vice Chair 

PATRICK MEEHAN, Pennsylvania 

JEFF DUNCAN, South Carolina 

TOM MARINO, Pennsylvania 

JASON CHAFFETZ, Utah 

STEVEN M. PALAZZO, Mississippi 

LOU BARLETTA, Pennsylvania 

CHRIS STEWART, Utah 

RICHARD HUDSON, North Carolina 

STEVE DAINES, Montana 

SUSAN W. BROOKS, Indiana 

SCOTT PERRY, Pennsylvania 

VACANCY

BENNIE G. THOMPSON, Mississippi 

LORETTA SANCHEZ, California 

SHEILA JACKSON LEE, Texas 

YVETTE D. CLARKE, New York 

BRIAN HIGGINS, New York 

CEDRIC L. RICHMOND, Louisiana 

WILLIAM R. KEATING, Massachusetts 

RON BARBER, Arizona 

DONDALD M. PAYNE, JR., New Jersey 

BETO O’ROURKE, Texas 

TULSI GABBARD, Hawaii 

FILEMON VELA, Texas 

STEVEN A. HORSFORD, Nevada 

ERIC SWALWELL, California 

GREG HILL, Chief of Staff 

MICHAEL GEFFROY, Deputy Chief of Staff/Chief Counsel 

MICHAEL S. TWINCHEK, Chief Clerk 

I. LANIER AVANT, Minority Staff Director 

SUBCOMMITTEE ON CYBERSECURITY, INFRASTRUCTURE PROTECTION, 

AND SECURITY TECHNOLOGIES 

PATRICK MEEHAN, Pennsylvania, Chairman 

MIKE ROGERS, Alabama 

JASON CHAFFETZ, Utah 

STEVE DAINES, Montana 

SCOTT PERRY, Pennsylvania 

VACANCY

MICHAEL T. MCCAUL, Texas (ex officio) 

YVETTE D. CLARKE, New York 

WILLIAM R. KEATING, Massachusetts 

FILEMON VELA, Texas 

STEVEN A. HORSFORD, Nevada 

BENNIE G. THOMPSON, Mississippi (ex officio) 

ALEX MANNING, Subcommittee Staff Director 

DENNIS TERRY, Subcommittee Clerk 
(III) 

C O N T E N T S 

Page 

STATEMENTS

The Honorable Patrick Meehan, a Representative in Congress From the State 

of Pennsylvania, and Chairman, Subcommittee on Emergency Preparedness, Response, and Communications ................................................................ 1 

The Honorable Yvette D. Clarke, a Representative in Congress From the 

State of New York, and Ranking Member, Subcommittee on Emergency 

Preparedness, Response, and Communications: 

Oral Statement ..................................................................................................... 3 

Prepared Statement ............................................................................................. 4 

The Honorable Bennie G. Thompson, a Representative in Congress From 

the State of Mississippi, and Ranking Member, Committee on Homeland 

Security: 

Prepared Statement ............................................................................................. 5 

WITNESSES

Ms. Mary Ellen Callahan, Partner, Jenner & Block, and Former Chief Privacy 

Officer, U.S. Department of Homeland Security: 

Oral Statement ..................................................................................................... 6 

Prepared Statement ............................................................................................. 8 

Ms. Cheri F. McGuire, Vice President, Global Government Affairs & Cybersecurity Policy, Symantec: 

Oral Statement ..................................................................................................... 14 

Prepared Statement ............................................................................................. 15 

Ms. Harriet P. Pearson, Partner, Hogan Lovells: 

Oral Statement ..................................................................................................... 19 

Prepared Statement ............................................................................................. 21 

(1) 

STRIKING THE RIGHT BALANCE: PROTECTING OUR NATION’S CRITICAL INFRASTRUCTURE FROM CYBER ATTACK AND ENSURING PRIVACY AND CIVIL LIBERTIES 

Thursday, April 25, 2013 

U.S. HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON CYBERSECURITY, INFRASTRUCTURE

PROTECTION, AND SECURITY TECHNOLOGIES, 

COMMITTEE ON HOMELAND SECURITY, 

Washington, DC. 

The subcommittee met, pursuant to call, at 2:19 p.m., in Room 

311, Cannon House Office Building, Hon. Patrick Meehan [Chairman of the subcommittee] presiding. 

Present: Representatives Meehan, Rogers, Daines, Perry, Clarke, 

Keating, Vela, and Horsford. 

Mr. MEEHAN. The Committee on Homeland Security Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies will come to order. 

The subcommittee is meeting today to examine the balance between preventing a cyber attack on our Nation’s critical infrastructure and ensuring privacy and civil liberties are protected. I will 

recognize myself for an opening statement. 

I would like to welcome everyone to today’s hearing, which is titled, ‘‘Striking the Right Balance: Protecting Our Nation’s Critical 

Infrastructure From Cyber Attack and Ensuring Privacy and Civil 

Liberties.’’ During this Congress, our subcommittee has been examining the cybersecurity threat to individuals and to our critical infrastructure. Our Nation has made great strides, but the threat is 

multi-faceted and we are only as strong as our weakest link. 

Earlier this week, we saw the ramifications of a hacked Twitter 

account that nearly sent our financial markets into a tailspin. 

While the Dow Jones Industrial Average has to recoup their losses, 

the lesson is clear: We are in an interconnected world. A successful 

attack on one network will certainly impact others. 

The Department of Homeland Security plays a crucial role in 

preventing cyber attacks on our Governmental and critical infrastructure key resources. As Chairman McCaul and I and the Ranking leadership work together, we have continued to use our efforts 

to craft legislation to bolster existing structures and improve the 

capabilities of the Department of Homeland Security. One of the 

key challenges will be to strike the balance of securing our networks and ensuring our protections for our citizens. 
2 

Upon assuming the gavel of this subcommittee this year, I made 

sure I immediately reached out to leading privacy advocates. 

Groups like the American Civil Liberties Union and Center for Democracy & Technology have been instrumental in shaping the 

thinking as we have moved forward with the committee’s work. Indeed, we must make clear that the purpose of sharing information 

is to prevent a cyber attack and nothing else. Any intelligence 

shared with the Government or with public or private entities must 

include protections for consumers and individuals. 

In order to accomplish this, we must ensure that we have a full 

understanding, first, what the threat is; next, what type of intelligence is necessary to share to prevent an attack; then what type 

of information is inadvertently caught in the net; and furthermore, 

what may be done once it is identified? The answer to these questions, coupled with robust civilian oversight, a clear set of rules of 

conduct and liability protections for those acting in good faith will 

help shape the key policy initiatives for our subcommittee. 

I need to be clear and I think all of us share that right out front 

that the committee is not concerned with internet habits of ordinary Americans. It is our duty as Members of this committee to 

make sure that the Department does not monitor, collect, or store 

the on-line activity of law-abiding American citizens. Therefore, information that permits the identity of an individual to be directly 

or indirectly inferred, which is also referred to as personally identifiable information, must be protected. 

The Department of Homeland Security has significant inherent 

advantages that enable the Department to facilitate communication 

among 16 critical infrastructure sectors. The Department of Homeland Security Privacy Office is the first statutorily required privacy 

office in any Federal agency. The office is responsible for evaluating 

Department operations for potential privacy impacts and providing 

mitigation strategies to reduce the privacy impact. 

By employing Fair Information Practice Principles, or FIPPs, as 

it is known, the DHS Privacy Office is charged with ensuring that 

the Department’s data collection methods are transparent, have 

specified purposes, and include data minimization, use limitation, 

data quality and integrity, security, accountability, and auditing. 

Those are FIPPs principles. 

It is for these reasons that many intelligence and cybersecurity 

experts point to DHS as manning a significant role in combating 

the threat. In fact, the Director of the National Security Agency, 

General Keith Alexander, said that due to the Department’s transparency, he sees DHS as an entry point for working with industry. 

Building our Nation’s capacity to prevent cyber attacks is complex as it is essential. As a former United States attorney, I can 

tell you that the Department of Justice has a very important role 

to play in enforcing our cyber crime laws. We also must permit our 

military and foreign intelligence capabilities and those resources to 

protect our Nation’s defense. Equally as important, the Department 

of Homeland Security has the mission of defending our Nation’s 

key resources and the liberties guaranteed by our Constitution. 

We have an excellent panel of witnesses today who will help us 

answer these questions and hopefully help us find the balance. 

Moving forward, today’s hearing aims to examine how DHS cur-
3 

rently protects privacy and personally identifiable information. It 

addresses the legitimate privacy concerns that are inherent in 

sharing cybersecurity threat information and finds ways to strike 

that proper balance between privacy and security. No one should 

mistake the common cause of securing our homeland for authority 

to violate the civil liberties of Americans. 

The Chairman now recognizes the Ranking Minority Member, 

the gentlelady from New York, Ms. Clarke, for any statement she 

may have. 

Ms. CLARKE. Mr. Chairman, I thank you for holding today’s hearing. I am pleased to be joined today by this very distinguished 

panel of witnesses, and I would like to welcome Mary Ellen Callahan back to the committee for her first time since leaving the Department. 

Here on the Homeland Security committee, we have understood 

the need to balance security and privacy for quite some time. Protecting our Nation from 21st Century threats requires vigorous coordinated action from our Government and State, local, private sector, and international partners. But if we go overboard to identify 

and eliminate every conceivable threat at any cost, we risk trampling the very rights of citizens we aim to protect. The need to find 

that proper balance has been a cornerstone of our committee’s work 

on counterterrorism, on transportation security and certainly on today’s topic, cybersecurity. 

Most of the Government’s efforts in cybersecurity do not directly 

touch upon privacy issues, and that is an important distinction 

that is not made often enough. Many programs, such as the Department of Homeland Security’s EINSTEIN program, do not involve the collection or sharing of any kind of personally identifiable 

information at all. The vast majority of all of the information needed to thwart cyber attacks consists of technical data, such as IP addresses and malicious code, which has little or nothing to do with 

someone’s social security number or passwords. 

But where the private sector needs to share information with the 

Government to stop cyber attacks, every precaution must be taken 

to ensure the privacy of our citizens is ensured. 

Last month, we heard from the American Civil Liberties Union 

on the importance of protecting privacy in cyberspace. I am pleased 

that we are joined today by three witnesses, who can really speak 

to the nuts and bolts of challenges, protecting private data from 

both the Government and business perspectives. As we look toward 

crafting our own legislation to help protect critical infrastructure 

and improve our Nation’s cybersecurity efforts, it is important to 

really nail down the specifics of protecting privacy. 

In order to get our approach to cybersecurity and privacy right, 

we must examine it from all the angles. We must assess the current legal environment and identify challenges that companies 

must cope with in ensuring the privacy and security of their employees’ and customers’ data. We must determine the types of information needed by the Government to prevent the attacks and the 

intended uses of that information. We must examine how commercial cybersecurity providers interact with their customers and the 

Government to share threat information. 
4 

Thankfully, our witnesses today cover the breadth of these issues 

with their testimony. 

I am particularly pleased we are joined by Harriet Pearson, who 

is one of the Fortune 1,000 first chief privacy officers and has been 

a trailblazer for developing information policies and practices for 

protecting the private data of employees—excuse me, consumers. 

Every American values their privacy and civil liberties as well as 

their security in cyberspace. I am confident that in building a lasting solution to our cybersecurity, we can adopt measures that will 

satisfy privacy advocates, the business community, and our citizens. 

That ends my statement, Mr. Chairman, and I yield back the 

balance of my time. 

[The statement of Ranking Member Clarke follows:] 

STATEMENT OF RANKING MEMBER YVETTE D. CLARKE

APRIL 25, 2013 

Here on the Homeland Security Committee, we have understood the need to balance security and privacy for a long time. Protecting our Nation from 21st Century 

threats requires vigorous, coordinated action from our Government and State, local, 

private-sector, and international partners. 

But if we go overboard to identify and eliminate every conceivable threat at any 

cost, we risk trampling the very rights of the citizens we aim to protect. The need 

to find that proper balance has been a cornerstone of our committee’s work, on 

counterterrorism, on transportation security, and certainly on today’s topic, cybersecurity. 

Most of the Government’s efforts in cybersecurity do not directly touch upon privacy issues, and that is an important distinction that is not made often enough. 

Many programs, such as the Department of Homeland Security’s EINSTEIN program, do not involve the collection or sharing of any kind of personally identifiable 

information at all. 

And the vast majority of the information needed to thwart cyber attacks consists 

of technical data such as IP addresses and malicious code, which has little or nothing to do with someone’s social security number or passwords. But where the private 

sector needs to share information with the Government to stop cyber attacks, every 

precaution must be taken to ensure that the privacy of our citizens is ensured. 

Last month we heard from the American Civil Liberties Union on the importance 

of protecting privacy in cyberspace, and I am pleased that we are joined today by 

three witnesses who can really speak to the nuts-and-bolts challenges of protecting 

private data, both from the Governmental and business perspectives. 

As we look towards crafting our own legislation to help protect critical infrastructure and improve our Nation’s cybersecurity efforts, it is important to really nail 

down the specifics on protecting privacy. 

In order to get our approach to cybersecurity and privacy right, we must examine 

it from all the angles: 

• We must assess the current legal environment and identify challenges that companies must cope with in ensuring the privacy and security of their employees 

and customers’ data; • We must determine the types of information needed by the Government to prevent attacks, and the intended uses for that information; 

• And we must examine how commercial cybersecurity providers interact with 

their customers and the Government to share threat information. 

Thankfully, our witnesses today cover the breadth of these issues with their testimony. I am particularly pleased that we are joined by Harriet Pearson, who was 

one of the Fortune 1000’s first chief privacy officers, and has been a trailblazer for 

developing information policies and practices for protecting the private data of employees and consumers. 

Every American values their privacy and civil liberties as well as their security 

in cyberspace, and I am confident that in building a lasting solution to our cyber 

insecurity, we can adopt measures that will satisfy privacy advocates, the business 

community, and our citizens. 

Mr. MEEHAN. I thank you, Ranking Member. 
5 

The other Members of the committee are reminded that opening 

statements may be submitted for the record. 

[The statement of Ranking Member Thompson follows:] 

STATEMENT OF RANKING MEMBER BENNIE G. THOMPSON

APRIL 24, 2013 

We are here to discuss ways to secure cyberspace and critical infrastructure from 

hackers while assuring that Constitutionally-guaranteed privacy and civil liberties 

are safeguarded. 

In the last 10 years, our society has become increasingly connected by computer 

networks. Networking technologies have changed our traditional notions of time and 

space. Our ability to reach the farthest corner of the earth has grown while the distance between us has shrunk. The world and all it has to offer is a click away and 

can be viewed on a screen in front of us. 

But this unprecedented connectivity and convenience has not come without a 

price. We face new kinds of dangers that may come for us at any time from any 

corner of the globe. Destruction can be delivered with a keystroke. 

Unfortunately, cyber attacks are increasing. This Nation cannot unnecessarily 

delay implementation of cybersecurity programs to combat these threats. Those efforts must include responsible collaboration between private industry and the Government to ensure the greatest care is given to our citizens’ private data. The protections we put in place and the information we share to combat the threats must 

not undermine the privacy that each American rightfully regards as a fundamental 

freedom. 

Working together, we can create a legal framework which encourages businesses 

to share enough information to reduce the likelihood of intrusions and prevent future harm without compromising privacy. 

But, Mr. Chairman, perhaps the most important weapon in our arsenal to protect 

privacy is ensuring that the Government’s efforts are led by a civilian agency. Information sharing with Federal civilian agencies will provide the public with a sense 

of increased transparency and accountability because Congressional oversight and 

public information requests will enable Members of this body and members of the 

public to peek behind the curtain, ask questions, and find out what is happening. 

That is why I was proud to sponsor, with Chairman McCaul, an amendment to 

the Cyber Intelligence Sharing and Protection Act, which firmly established a center 

at the Department of Homeland Security to serve as the hub for cyber threat information sharing. As you know, this amendment was approved. 

Mr. Chairman, I thank you for holding today’s hearing to bring the privacy question into sharp focus. In the coming months, I look forward to introducing legislation 

to further improve our Nation’s cybersecurity posture, with a special emphasis on 

privacy implications. I would like to thank our witnesses for joining us today. I look 

forward to hearing the testimony. 

Mr. MEEHAN. We really are pleased to have a very distinguished 

panel of witnesses before us today on this important topic. I don’t 

think that there could have been a better group assigned, but this 

is a remarkably important issue, and I think you have the ability 

to help the American citizens understand where this area is in 

which important work is done to allow us to protect our homeland, 

but simultaneously significant and important work is being done 

and can be done to help us ensure that we protect the privacy interests of Americans. So I am hoping that we can educate those 

who don’t really understand in this complex area what the parameters are. 

We have in this panel Ms. Mary Ellen Callahan, who we have 

had the privilege of having before this committee before, a Nationally recognized privacy attorney with an extensive background in 

consumer protection law. As the longest-serving former chief privacy officer of the United States Department of Homeland Security, 

the first statutorily-mandated privacy officer in any Federal agency, Ms. Callahan has a unique and broad knowledge of experience 
6 

with the interface of protection of privacy, civil rights, and civil liberties with cybersecurity and National security issues. 

During her tenure at the Department of Homeland Security, Ms. 

Callahan also served as the chief Freedom of Information Officer, 

responsible for centralizing both FOIA and Privacy Act operations 

to provide policy and programmatic oversight and support implementation across the Department. 

Ms. Callahan is a founder and chair of Jenner & Block’s privacy 

information governance practice. 

We have Ms. Cheri McGuire, who serves as vice president for 

global government affairs and cybersecurity policy at Symantec, 

where she is responsible for managing a global team focused on cybersecurity, data integrity, and privacy issues. Prior to joining 

Symantec, Ms. McGuire served as the director of critical infrastructure in cybersecurity in Microsoft’s Trustworthy Computing Group 

and also as Microsoft’s representative to the Industry Executive 

Subcommittee on the President’s National Security Telecommunications Advisory Committee. Prior to joining Microsoft Ms. 

McGuire served in numerous capacities at DHS including as acting 

director and deputy director of the National Cybersecurity Division 

and US–CERT. 

We are very pleased to be joined as well by Ms. Harriet Pearson, 

a partner at Hogan Lovells, where she focuses on counseling clients 

on privacy and information security policy in compliance matters, 

data security incident response and remediation and information in 

cybersecurity risk management and governance. Ms. Pearson 

joined Hogan from IBM Corporation where she served as vice president, security counsel, and chief privacy officer. At IBM, she was 

responsible for information policy and practices affecting over 

400,000 employees and thousands of clients. She also lead IBM’s 

global engagement public policy and industry initiatives relative to 

cybersecurity and data privacy. I think that outlines the tremendous qualifications and experience of this very, very distinguished 

panel. 

So the witnesses’ full statements will appear in the record. 

The Chairman now recognizes Ms. Callahan for her testimony. 

STATEMENT OF MARY ELLEN CALLAHAN, PARTNER, JENNER 

& BLOCK, AND FORMER CHIEF PRIVACY OFFICER, U.S. DEPARTMENT OF HOMELAND SECURITY 

Ms. CALLAHAN. Thank you very much, sir. 

Chairman Meehan, Ranking Member Clarke, distinguished 

Members of the subcommittee, thank you for the opportunity to appear before you again today. 

My name is Mary Ellen Callahan, and I am a partner at the law 

firm of Jenner & Block, where I chair the privacy and information 

governance practice and counsel private-sector clients on integrating privacy and cybersecurity. 

As the Chairman noted, from March 2009 to August 2012, I 

served as the chief privacy officer at the U.S. Department of Homeland Security. I have worked as a privacy professional for 15 years 

and have National and international experience in integrating privacy into business and Government operations. I am appearing before this subcommittee in my personal capacity. 
7 

As the subcommittee knows and as Ms. McGuire will detail more 

thoroughly, the United States critical infrastructure faces significant cybersecurity threats. However, cybersecurity and privacy 

must be integrated in order to effectively—most effectively protect 

those valuable assets. 

The Department of Homeland Security has taken multiple steps, 

including several during my 31⁄2-year tenure to integrate privacy 

into the DHS cybersecurity programs. First, as the Chairman noticed, DHS has thoroughly integrated the Fair Information Practice 

Principles into all of its programs, including cybersecurity. The 

FIPPs are eight interdependent principles that create a framework 

for how information may be used and shared in a manner that protects privacy: Transparency; individual participation; purpose specification; data minimalization; use limitation; data quality and integrity; security; and accountability and auditing. 

DHS has furthermore been very transparent about its cybersecurity capabilities. For example, DHS published several privacy impact assessments, or PIAs, detailing pilot programs and information sharing among and between different entities, including a pilot 

program with the National Security Agency and an informationsharing program with the defense industrial base. 

The Department engaged privacy advocates and private-sector 

representatives on its cybersecurity activities through a Federal advisory committee subcommittee, multiple meetings with advocates, 

and with Congressional testimony such as before this committee. 

The Department has already hired multiple cybersecurity privacy 

professionals in order to embed them into the infrastructure at 

DHS. These privacy professionals review and provide comments 

and insight into cybersecurity standard operating procedures, 

statements of work, contracts, and international cyber informationsharing agreements. These privacy professionals also provide cyberspecific privacy training to the cybersecurity analysts to supplement the privacy training required for DHS employees and contractors. 

Furthermore, an important tenet of the FIPPs is the concept of 

accountability. Given the importance of the DHS mission in cybersecurity, the DHS Privacy Office conducted a privacy compliance 

review in late 2011. My office found that the cybersecurity program 

was generally compliant with the requirements outlined with cybersecurity privacy impact assessments. This compliance review is 

available in the DHS Privacy Office website, as are all the privacy 

documents referenced in my written testimony. 

Since I left DHS, I know through public knowledge that the Department continues to work to embed privacy protections into its 

cybersecurity activities. For example, its advisory committee, the 

Data Privacy and Integrity Advisory Committee, issued a robust 

paper for DHS to consider when implementing information-sharing 

pilots and programs with other entities, including the private sector. Furthermore, in January 2013, DHS published a thoughtful 

and comprehensive privacy impact assessment covering the enhanced cybersecurity surfaces, also known as ECS—we have a lot 

of acronyms, and I am sorry about that—ECS is voluntary program 

based on the sharing of indicators of malicious cyber activity between DHS and participating commercial service providers. 
8 

1 EINSTEIN 1, developed in 2003, provides an automated process for collecting computer network security information from voluntary participating Federal executive agencies. It works by 

analyzing network flow records. Even though DHS was not required to do a PIA given no personally identifiable information (PII) was being collected, DHS conducted a PIA (DHS/NPPD/ 

PIA/001) on EINSTEIN 1 in September 2004 for transparency, available at: http:// 

www.dhs.gov/xlibrary/assets/privacy/privacylpialeinstein.pdf. 2 As with EINSTEIN 1, EINSTEIN 2 passively observes network traffic to and from participating Federal Executive Branch departments and agencies’ networks. In addition, EINSTEIN 

2 adds an intrusion detection system capability that alerts when a pre-defined specific cyber 

The information-sharing implementation standards described in 

the ECS PIA are concrete examples of privacy by design and 

should well position DHS to effectively implement the increased information sharing mandated in the 2013 Executive Order. In addition, just this week, the Department announced that it will deploy 

EINSTEIN 3 accelerated, known as E3A, network intrusion prevention capabilities on Federal Government networks as a managed security service provided by ISPs, rather than placing the entire response on the Federal Government. 

DHS will share threat information it receives through E3A consistent with its existing policies and procedures. The way E3A is 

structured should enhance privacy, protect the Federal civilian Executive branch departments and agencies, and provide a nimble response to the evolving cyber threat. 

The continued integration of privacy and cybersecurity is crucial 

for effective cybersecurity protections. In my 15 years, it is clear 

that privacy integration into the operational aspects of any activity 

makes the program both more effective and more likely to protect 

privacy. I believe DHS has appropriately and effectively integrated 

privacy and cybersecurity, both in its Federal Executive responsibilities and as an information-sharing responsibility. 

Thank you for the opportunity to appear before you this afternoon. I am happy to take any questions. 

[The prepared statement of Ms. Callahan follows:] 

PREPARED STATEMENT OF MARY ELLEN CALLAHAN

APRIL 25, 2013 

Chairman Meehan, Ranking Member Clarke, distinguished Members of the subcommittee, thank you for the opportunity to appear before you today. My name is 

Mary Ellen Callahan. I am a partner at the law firm of Jenner & Block, where I 

chair the Privacy and Information Governance practice and counsel private-sector 

clients on integrating privacy and cybersecurity. From March 2009 to August 2012, 

I served as the chief privacy officer at the U.S. Department of Homeland Security 

(DHS or Department). I have worked as a privacy professional for 15 years, and 

have National and international experience in integrating privacy into business and 

Government operations. I am appearing before this subcommittee in my personal capacity, and not on behalf of any other entity. 

As this subcommittee knows, the United States’ critical infrastructure, including 

Government assets, face significant cybersecurity threats. Cybersecurity and privacy 

must be integrated in order to most effectively protecting valuable assets. Furthermore, if done right, increased cybersecurity (with appropriate standards and procedures) also means increased privacy. 

The Department of Homeland Security has taken multiple steps to integrate cybersecurity and privacy as part of the Department’s cybersecurity mission. In fact, 

DHS has integrated privacy into its cybersecurity program since the EINSTEIN program was launched in late 2003. Shortly thereafter, the Department published one 

of the its first Privacy Impact Assessments (PIA) on EINSTEIN 1 (a network flow 

system), detailing the privacy protections that DHS embedded into its cybersecurity 

program from the beginning, and being transparent about those protections.1 In 

2008, DHS conducted a PIA on the second iteration of the DHS cybersecurity program, EINSTEIN 2 (adding an intrusion detection capability).2 These PIAs exem-
9 

threat is detected and provides the US–CERT with increased insight into the nature of that activity. The May 2008 PIA (DHS/NPPD/PIA–008) is available at: http://www.dhs.gov/xlibrary/ 

assets/privacy/privacylpialeinstein2.pdf. 3 National Strategy for Trusted Identities in Cyberspace, April 2011, available at: http:// 

www.whitehouse.gov/sites/default/files/rsslviewer/NSTICstrategyl041511.pdf. 4DHS adopted the eight FIPPs as a framework for Privacy Policy on December 29, 2008; see 

DHS Privacy Policy Guidance Memorandum 2008–01, available at: http://www.dhs.gov/ 

xlibrary/assets/privacy/privacylpolicyguidel2008-01.pdf. 5Privacy Impact Assessment Update for the EINSTEIN 1: Michigan Proof of Concept, February 19, 2010, (DHS/NPPD/PIA–013) available at: http://www.dhs.gov/xlibrary/assets/ 

privacy/privacylpialnppdleinstein1michigan.pdf. 6 US–CERT: Initiative Three Exercise Privacy Impact Assessment (unclassified), March 18, 

2010, (DHS/NPPD/PIA–014) available at: http://www.dhs.gov/xlibrary/assets/privacy/ 

privacylpialnppdlinitiative3.pdf. 7See http://www.whitehouse.gov/cybersecurity/comprehensive-national-cybersecurity-initiative 

for a description of all 12 cybersecurity initiatives. 8Privacy Impact Assessment for the National Cyber Security Division Joint Cybersecurity Services Pilot (JCSP), January 16, 2012, (DHS/NPPD/PIA–021) available at: http://www.dhs.gov/ 

xlibrary/assets/privacy/privacylnppdljcsplpia.pdf. (N.B., this PIA has been retired with the 

release of the ECS PIA in January 2013, referenced below). 9Privacy Impact Assessment Update for the Joint Cybersecurity Services Program (JCSP), Defense Industrial Base (DIB)—Enhanced Cybersecurity Services (DECS), July 18, 2012, (DHS/ 

NPPD/PIA–021(a)) available at: http://www.dhs.gov/xlibrary/assets/privacy/privacy-pia-update-nppd-jcps.pdf. (N.B., this PIA update has been retired with the release of the ECS PIA in 

January 2013, referenced below). 

plify the concept of ‘‘privacy by design’’ and are important foundational considerations for a large operational department like DHS. 

I. DHS INTEGRATION OF PRIVACY PROTECTIONS INTO ITS CYBERSECURITY PROGRAMS

During my 31⁄2-year tenure at DHS, we further integrated privacy into the DHS 

cybersecurity programs in several ways. 

1. Integration of the Fair Information Practice Principles into DHS Cybersecurity 

Programs.—As noted below, DHS has thoroughly integrated the Fair Information Practice Principles (FIPPs) into its cybersecurity programs. The FIPPS are 

the ‘‘widely-accepted framework of defining principles to be used in the evaluation and consideration of systems, processes, or programs that affect individual 

privacy.’’3

The FIPPs are eight interdependent principles that create a framework for how 

information may be used and shared in a manner that protects privacy: Transparency; individual participation; purpose specification; data minimization; use 

limitation; data quality and integrity; security; and accountability and auditing.4 During my tenure, my office worked tirelessly to integrate the FIPPs into 

all DHS programs, including cybersecurity. 

2. Transparency.—DHS has been very transparent about its cybersecurity capabilities. During my tenure, DHS published several PIAs detailing pilot programs 

and information sharing among and between different Government entities. 

First, DHS discussed via PIA a 12-month proof of concept to determine the benefits and issues presented by deploying the EINSTEIN 1 capability to Michigan 

State government networks managed by the Michigan Department of Information Technology.5 Shortly thereafter, DHS completed both a classified and unclassified PIA for the ‘‘Initiative Three Exercise’’6 of the Comprehensive National Cybersecurity Initiative.’’7 In the Initiative Three Exercise, DHS engaged 

in an exercise to demonstrate a suite of technologies that could be included in 

the next generation of the Department’s EINSTEIN network security program, 

such as an intrusion prevention capability. This demonstration used a modified 

complement of system components then being provided by the EINSTEIN 1 and 

EINSTEIN 2 capabilities, as well as a DHS test deployment of technology developed by the National Security Agency (NSA) that included an intrusion prevention capability. The DHS Privacy Office worked with DHS and the NSA to be 

as transparent as possible with the Exercise, including naming NSA (and its 

role in the Exercise) expressly in the PIA. 

In early 2012, DHS published a PIA on its information-sharing pilot with the 

Defense Industrial Base;8 after 180 days and a series of evaluations of its effectiveness, the PIA was updated to reflect the establishment of a permanent program to enhance cybersecurity of participating Defense Industrial Base entities 

through information-sharing partnerships. The permanent program was announced via PIA shortly before my departure.9

Furthermore, one of my last acts as Chief Privacy Officer was to approve a comprehensive PIA that described the entire National Cybersecurity Protection Sys-
10 

10 National Cybersecurity Protection Program Privacy Impact Assessment, July 30, 2012, (DHS/ 

NPPD/PIA–026) available at: http://www.dhs.gov/sites/default/files/publications/privacy/ 

privacy-pia-nppd-ncps.pdf. 11 Cyberspace Policy Review: Assuring a Trusted and Resilient Information and Communications Infrastructure, 2009, available at: http://www.whitehouse.gov/assets/documents/ 

CyberspacelPolicylReviewlfinal.pdf. 12The DHS Data Privacy and Integrity Advisory Committee provides advice at the request 

of the Secretary of Homeland Security and the DHS Chief Privacy Officer on programmatic, policy, operational, administrative, and technological issues within the DHS that relate to PII, as 

well as data integrity and other privacy-related matters. The committee was established by the 

Secretary of Homeland Security under the authority of 6 U.S.C. § 451 and operates in accordance with the provisions of the Federal Advisory Committee Act (FACA) (5 U.S.C. App). 13See, e.g., The Cybersecurity Partnership Between the Private Sector and Our Government: 

Protecting Our National and Economic Security, Joint Committee Hearing before Senate Committee on Homeland Security and Governmental Affairs and Senate Committee on Commerce, 

Science, and Transportation, March 7, 2013 (testimony of Secretary Janet Napolitano); DHS Cybersecurity: Roles and Responsibilities to Protect the Nation’s Critical Infrastructure, Hearing before House Committee on Homeland Security, March 13, 2013 (testimony of Deputy Secretary 

Jane Holl Lute); Examining the Cyber Threat to Critical Infrastructure and the American Economy, Hearing before House Committee on Homeland Security, March 16, 2011 (testimony of 

NPPD Deputy Under Secretary Philip Reitinger). 14See, e.g., Securing Cyberspace While Protecting Privacy and Civil Liberties, Homeland Security Blog (by Secretary Janet Napolitano), April 2, 2013, available at: http://www.dhs.gov/blog/ 

2013/04/02/securing-cyberspace-while-protecting-privacy-and-civil-liberties; Op-Ed: A Civil Perspective on Cybersecurity, (Jane Holl Lute and Bruce McConnell), WIRED, February 14, 2011, 

available at: http://www.wired.com/threatlevel/2011/02/dhs-oped/all/. 15See, e.g., on March 18, 2010, Deputy Assistant Secretary for Cybersecurity and Communications Michael A. Brown presented to DPIAC on computer network security and related privacy 

protections in DHS, including the Department’s role in the CNCI (focusing on the DHS Privacy 

Office’s work on PIAs for EINSTEIN 1, EINSTEIN 2, and the proof-of-concept pilot project of 

the EINSTEIN 1 capabilities with the U.S. Computer Readiness Team and the State of Michigan), the National Cyber Incident Response Plan (NCIRP), and the National Cybersecurity and 

Communications Integration Center, US–CERT, DHS I&A, and the National Cybersecurity Center; on July 11, 2011, the Senior Privacy Officer for NPPD Emily Andrew described how her 

office was integrated into the NPPD structure. 16See DHS Privacy Office Annual Report, July 2009 to June 2010 at 66 for a discussion of 

the Privacy Information for Advocates quarterly meetings, available at: http://www.dhs.gov/ 

xlibrary/assets/privacy/privacylrptlannuall2010.pdf. 

tem (NCPS), a programmatic PIA that explains and integrates all the NPPD/ 

Cybersecurity and Communication (CS&C) cyber programs in a holistic document, rather than the previous patchwork PIAs that were snapshots in time of 

CS&C capabilities.10 This NCPS PIA helps provide a comprehensive understanding of the CS&C cybersecurity program, further increasing transparency. 

3. Outreach and engagement with advocates and private-sector representatives.— The Department engaged privacy and civil liberties advocates and private-sector 

representatives about its cybersecurity activities in several ways. First, as part 

of the Cyberspace Policy Review conducted by the administration in 2009,11 the 

Department met with privacy and civil liberties advocates and academicians (at 

a Top Secret/SCI level) to discuss the Advanced Persistent Threat landscape, 

and Government response. That ad hoc meeting led to the creation of a subcommittee of DHS’ Federal Advisory Committee Act-authorized committee, the 

Data Privacy and Integrity Advisory Committee (DPIAC).12 The members and 

the experts on the DPIAC subcommittee (including privacy and civil liberties 

advocates, academicians, and private-sector representatives) were briefed frequently at the Top Secret/SCI level. After my departure, the DPIAC subcommittee produced an excellent report on integrating privacy into the DHS information-sharing pilots and programs, discussed below. 

In addition to the systematic engagement of advocates, academicians, and private-sector representatives through the DPIAC subcommittee, DHS also discussed its embedded privacy and cybersecurity protections in several public 

fora, including Congressional testimony,13 public articles,14 and multiple public 

presentations before the DPIAC on DHS cyber activities.15

The DHS Privacy Office (and NPPD) also frequently met with privacy advocates 

to discuss cybersecurity considerations, either when a new program or initiative 

was announced, or during the quarterly Privacy Information for Advocates 

meetings instituted in 2009.16

4. Dedicated Cyber Privacy Personnel.—To be engaged and be able to effectively 

integrate privacy protections, the Department has hired multiple cyber privacy 

professionals. These cyber privacy professionals focus on integrating the FIPPs 

of purpose specification, data minimization, use limitation, data quality and integrity, and security systematically into NCSD activities. For example, the Sen-
11 

17Memorandum of Agreement Between The Department of Homeland Security and The Department of Defense Regarding Cybersecurity, September 2010, available at: http://www.dhs.gov/ 

xlibrary/assets/20101013-dod-dhscyber-moa.pdf. 18See DHS Privacy Office Annual Report, July 2011–June 2012 at 27 for a discussion of the 

four-part Speakers Series, available at: http://www.dhs.gov/sites/default/files/publications/ 

privacy/Reports/dhslprivacyofficel2012annualreportlSeptember 2012.pdf. 19See id., DHS Privacy Office Annual Report, July 2011–June 2012 at 39–40 for a detailed 

discussion of Privacy Compliance Reviews. 20Privacy Compliance Review of the EINSTEIN Program, January 3, 2012, available at: 

http://www.dhs.gov/xlibrary/assets/privacy/privacylprivcomrevlnppdlein.pdf. 

ior Privacy Officer for the National Protection and Program Directorate (reporting to the Directorate leadership) was hired in August 2010; she has a dedicated privacy analyst on-site with CS&C and both are integrated into planning 

and implementation processes. In the DHS Privacy Office, there has been a liaison with NPPD cybersecurity organizations since the first EINSTEIN PIA was 

written; currently that position is Director, Privacy and Technology. This Director of Privacy and Technology was, for a period of time, embedded at the NSA 

as part of the development of the enhanced relationship between the NSA and 

DHS.17

When I was Chief Privacy Officer, I actively participated in numerous cybersecurity policy planning organizations within the Department. 

5. Involvement and Coordination on Standard Operating Procedures, and Operational Aspects of DHS Cybersecurity Activities.—As part of its mission to implement the FIPPs and to integrate privacy protections into DHS cybersecurity activities, DHS privacy professionals review and provide comments and insight 

into cybersecurity Standard Operating Procedures (SOPs) (including protocols 

for human analysis and retention of cyber alerts, signatures, and indicators for 

minimization of information that could be PII), statements of work, contracts, 

and international cyber-information sharing agreements. 

6. Cyber-specific Privacy Training for Cybersecurity Analysts and Federal Privacy Professionals.—These cyber privacy professionals provide cyber-specific privacy training to cybersecurity analysts to supplement the privacy training required for DHS employees and contractors. In my opinion as a privacy professional, the more relevant and concrete you can make privacy training, the more 

likely the audience will understand and incorporate privacy protections into 

their daily activities, thus increasing personal accountability. 

During my tenure, the Department also engaged in a year-long Speakers Series 

for members of the Federal Government community to discuss privacy and cybersecurity issues, and their impact on Federal operations.18 The Federal Government-wide access to the Speakers Series helped enhance awareness of the 

cybersecurity and privacy issues, along with providing an interagency communications channel on privacy and cybersecurity questions. 

7. Accountability of the Cybersecurity Program Through Privacy Compliance Review.—An important tenet of the FIPPs is the concept of accountability—periodically reviewing and confirming that the privacy protections initially embedded into any program remain relevant, and that those protections are implemented. 

While I was DHS Chief Privacy Officer, I instituted ‘‘Privacy Compliance Reviews’’ (PCRs) to confirm the accountability of several of DHS’s programs.19 We 

designed the PCR to improve a program’s ability to comply with assurances 

made in PIAs, System of Records Notices, and formal information-sharing 

agreements. The Office conducts PCRs of on-going DHS programs with program 

staff to ascertain how required privacy protections are being implemented, and 

to identify areas for improvement. 

Given the importance of the DHS mission in cybersecurity, the DHS Privacy Office conducted a Privacy Compliance Review in late 2011, publishing it in early 

2012.20 The DHS Privacy Office found NPPD/CS&C generally compliant with 

the requirements outlined in the EINSTEIN 2 PIA and Initiative 3 Exercise 

PIA. Specifically, NPPD/CS&C was fully compliant on collection of information, 

use of information, internal sharing and external sharing with Federal agencies, 

and accountability requirements. 

My office made five recommendations to strengthen program oversight, external 

sharing, and bring NPPD/CS&C into full compliance with data retention and 

training requirements. NPPD agreed with our findings and, as I understand it, 

has taken multiple steps to address our recommendations. For example, in response to one of the recommendations, the NPPD Office of Privacy now conducts 

quarterly reviews of signatures and handling of personally identifiable information. These reviews have provided increased awareness to US–CERT Staff and 
12 

21 6 U.S.C. § 142(b). See ibid., DHS Privacy Office Annual Report, July 2011–June 2012 at 40 

for a discussion of the DHS Chief Privacy Officer investigatory authorities. 22 Report from the Cyber Subcommittee to the Data Privacy and Integrity Advisory Committee 

(DPIAC) on Privacy and Cybersecurity Pilots, Submitted by the DPIAC Cybersecurity Subcommittee, November 2012, available at: http://www.dhs.gov/sites/default/files/publications/ 

privacy/DPIAC/dpiaclcyberpilotsl10l29l2012.pdf. 23Privacy Impact Assessment for the Enhanced Cybersecurity Services (ECS), January 16, 

2013, DHS/NPPD/PIA028, available at: http://www.dhs.gov/sites/default/files/publications/ 

privacy/privacylpialnppdlecsljan2013.pdf. 24This PIA consolidates and serves as a replacement to the two PIAs I mentioned earlier: 

DHS/NPPD/PIA–021 National Cyber Security Division Joint Cybersecurity Services Pilot PIA, 

published on January 13, 2012, and the DHS/NPPD/PIA–021(a) National Cyber Security Division Joint Cybersecurity Services Program (JCSP), Defense Industrial Base (DIB)—Enhanced Cybersecurity Services (DECS) PIA Update, published on July 18, 2012. 

has helped to build positive working relationships with cyber analysts and leadership. This is important in continuing to integrate cybersecurity and privacy, 

by understanding the impact of each. 

In addition, as this subcommittee knows, the DHS Chief Privacy Officer has 

unique investigatory authorities, therefore in the unlikely event that something 

went awry in the future, the Chief Privacy Officer can investigate those activities.21

II. DHS CONTINUES TO INTEGRATE PRIVACY PROTECTIONS INTO ITS CYBERSECURITY

PROGRAMS

Since I left DHS, I know through public information that the Department continues to work to embed privacy protections in its cybersecurity activities. 

A. DPIAC Cybersecurity Report 

The DPIAC issued a robust advisory paper for DHS to consider when implementing information-sharing pilots and programs with other entities, including the 

private sector.22 The report addresses two important questions in privacy and cybersecurity—‘‘what specific privacy protections should DHS consider when sharing information from a cybersecurity pilot project with other agencies?’’ and ‘‘what privacy 

considerations should DHS include in evaluating the effectiveness of cybersecurity 

pilots?’’ 

The DPIAC report supported in large part what DHS had been doing with regard 

to privacy protections incorporated in its cybersecurity pilots and programs. DPIAC 

recommended the following best practices when sharing information from a cybersecurity pilot project with other agencies: Incorporate the FIPPs into cybersecurity activities; develop and implement clear data minimization rules and policies; provide 

employees and public users of Federal systems notice and transparency of the collection, use, and sharing of information for cybersecurity purposes; when engaging in 

information sharing that includes PII or content of private communications, information sharing should be limited to what is necessary to serve the pilot’s purposes 

(with defined limits on law enforcement, National security, and civilian agency sharing); have more robust safeguards for information from private networks; define 

data retention policies to keep records no longer than needed to fulfill the purpose 

of the pilot; and integrate privacy by design and privacy-enhancing technologies 

whenever possible. 

This type of insight from privacy advocates, academicians, and private-sector representatives will enhance DHS’ considerations of privacy-protective options when 

sharing cybersecurity information. 

B. Enhanced Cybersecurity Services PIA 

Furthermore, in January 2013, DHS published a thoughtful and comprehensive 

PIA covering the Enhanced Cybersecurity Services (ECS), a voluntary program 

based on the sharing of indicators of malicious cyber activity between DHS and participating Commercial Service Providers.23 The purpose of the program is to assist 

the owners and operators of critical infrastructure to enhance the protection of their 

systems from unauthorized access, exploitation, or data exfiltration through a voluntary information-sharing program. ECS is intended to support U.S. critical infrastructure, however, pending deployment of EINSTEIN intrusion prevention capabilities, ECS may also be used to provide equivalent protection to participating Federal 

civilian Executive branch agencies.24

The ECS PIA is exemplary of how to integrate privacy protections into cybersecurity programs, particularly when engaging in information sharing with the private 

sector. This ECS PIA is the culmination of all of the hard work that I summarized 

above, including the DPIAC cybersecurity report. 
13 

25 Executive Order on Improving Critical Infrastructure Cybersecurity, available at: http:// 

www.whitehouse.gov/the-press-office/2013/02/12/executive-order-improving-critical-infrastructure-cybersecurity. 26Privacy Impact Assessment for EINSTEIN 3—Accelerated (E3A), April 19, 2013 (DHS/PIA/ 

NPPD–027), available at: http://www.dhs.gov/sites/default/files/publications/privacy/PIAs/ 

PIA%20NPPD%20E3A%2020130419%20FINAL %20signed.pdf. 

It is clear DHS continues to embed privacy protections into cybersecurity activities. The information sharing and implementation standards described in the ECS 

PIA are concrete examples of privacy by design, and should well position DHS to 

effectively implement the increased information sharing mandated by the February 

12, 2013 Executive Order on Improving Critical Infrastructure Cybersecurity.25

C. EINSTEIN 3 Accelerated (E3A) PIA 

In addition, just this week, the Department announced that it will deploy EINSTEIN 3 Accelerated (E3A) network intrusion prevention capabilities on Federal 

Government networks as a Managed Security Service provided by Internet Service 

Providers (ISPs), rather than placing the entire response on the Federal Government.26

The use of ISPs as a Managed Security Service is noteworthy from a privacy perspective for several reasons. First, the coordination and collaboration of the ‘‘best 

of breed’’ Federal classified and unclassified capabilities combined with the 

nimbleness (and proprietary capabilities) of the private-sector ISPs will allow a 

more robust response to evolving cybersecurity threats. It is an important recognition by DHS that Federal cybersecurity programs did not need to re-invent cybersecurity protections when defending Federal Government networks, but could supplement existing commercial intrusion prevention security systems to provide a more 

robust prevention and detection regime for the Federal civilian Executive branch. 

Second, integrating cybersecurity threat detection and intrusion prevention will 

allow DHS to better detect, respond to, or appropriately counter, known or suspected cyber threats within the Federal network traffic it monitors, which helps protect the target systems from unauthorized intrusions (and therefore implements the 

security FIPP). It is important to emphasize—E3A monitors only select internet traffic either destined to, or originating from, Federal civilian Executive branch departments and agencies (commonly known as .gov traffic). This data minimization and 

segregation is also privacy-protective; the ISP Managed Security Service can be compartmentalized to affect only .gov traffic. The participating agencies will identify a 

list of IP addresses for their networks and both CS&C cybersecurity analysts and 

the ISPs verify the accuracy of the list of IP addresses provided by the agency. 

CS&C SOPs are followed in the event of any out-of-range network traffic is identified and the ISP removes any collected data to prevent any further collection of this 

network traffic. This too is a privacy-protective approach, further confirming that 

the only impacted traffic is Federal civilian Executive branch departments and 

agencies. 

DHS will share cyber threat information it receives through E3A consistent with 

its existing policies and procedures (which have been thoroughly reviewed by the 

Department’s cyber privacy professionals). In accordance with the SOPs and information-handling guidelines, all information that could be considered PII is reviewed 

prior to inclusion in any analytical product or other form of dissemination, and replaced with a generic label when possible, again protecting privacy. The way E3A 

is structured should enhance privacy, protect the Federal civilian Executive branch 

departments and agencies, and provide a nimble response to the evolving cybersecurity threat. 

III. INTEGRATION OF PRIVACY PRINCIPLES INTO CYBERSECURITY IS CRUCIAL FOR

EFFECTIVE CYBERSECURITY PROGRAMS

The continued integration of privacy and cybersecurity is crucial for effective cybersecurity protections. In my experience based on 15 years as a privacy professional as both outside counsel and chief privacy officer at DHS, it is clear that integrating privacy into the operational aspects of any activity makes the program both 

more effective and more likely to protect privacy. For example, providing tailored 

training, and engaging the analysts or employees in the field facilitates the integration of privacy into daily operations. Ex ante review of programs and anticipating 

issues such as unintended uses, data minimization, and defined standards for information sharing are also important to confirm privacy protections are working 

throughout the life cycle of information collection. Embedding privacy protections 

into SOPs and information-handling guidelines help to further the goal of the 

project while assuring that privacy protections are systematically integrated into a 
14 

program or service. Finally, transparency is the cornerstone for any privacy program 

to succeed. 

These privacy-by-design factors are important any time an organization incorporates privacy into a new program, but they are particularly important with an 

operational cybersecurity program such the DHS National Cybersecurity Protection 

System which continuously counters emerging cybersecurity threats and applies effective risk mitigation strategies to detect and deter these threats. Integrating privacy from the beginning—and periodically testing to confirm that the integration 

continues—is the only way to effectively protect cybersecurity and privacy. In fact, 

if done right, increased cybersecurity also means increased privacy. 

To address threats and minimize the impact on Federal facilities and critical infrastructure, key agencies and critical infrastructure companies must share information about cybersecurity threats. That said, such information sharing must occur in 

a thoughtful, clearly-designed process that also minimizes the impact on individual 

privacy. I believe that DHS has appropriately and effectively integrated privacy and 

cybersecurity both in its Federal Executive branch responsibilities and in its information-sharing responsibilities as articulated in the ECS and related cybersecurity 

PIAs. Currently, I advise private-sector clients that this privacy-by-design approach 

should be taken to most effectively combat cybersecurity threats by both increasing 

cybersecurity protections and protecting privacy. 

Thank you for the opportunity to appear before you this afternoon. I would be 

happy to take any questions you may have. 

Mr. MEEHAN. Thank you, Ms. Callahan. 

The Chairman now recognizes Ms. McGuire for your testimony. 

STATEMENT OF CHERI F. MCGUIRE, VICE PRESIDENT, GLOBAL GOVERNMENT AFFAIRS & CYBERSECURITY POLICY, 

SYMANTEC 

Ms. MCGUIRE. Chairman Meehan, Ranking Member Clarke, and 

distinguished Members of the subcommittee, thank you for the opportunity also to testify today on behalf of Symantec corporation. 

We are the largest security software company in the world, with 

over 31 years of experience in providing security, storage, and systems management solutions. With more than 21,000 employees and 

operations in more than 50 countries, protecting critical infrastructure, Government, and citizens’ data is core to our mission and our 

business. 

My name is Cheri McGuire. I am the vice president for global 

government affairs in cybersecurity policy, where I lead a team 

that addresses the global public policy agenda for the company, including data integrity, critical infrastructure protection, cybersecurity, and privacy issues. 

At Symantec, we are committed to assuring the privacy, security, 

availability, and integrity of our customers’ information. Too often, 

security is portrayed as being in conflict with or somehow undermining privacy. However, in the digital world, nothing could be further from the truth, because your privacy is only as secure as your 

data. Criminals and hackers, many of whom are well-funded and 

highly skilled, have built a business model based on their ability 

to steal and monetize personal information. 

Recent efforts to improve the Nation’s cybersecurity posture have 

recognized that privacy and security must be addressed in tandem. 

Symantec supports an approach that allows to us share threat indicators and related non-PII within industry and within Government. 

Now, I would like to talk briefly about today’s threat landscape. 

As we briefed the committee last week, our latest internet security 

threat report noted that, in 2012, approximately 93 million identities were exposed through hacking, theft, and simple user error. 
15 

We also found that there was a 42 percent rise in targeted attacks, 

an increasing number which are directed at small businesses. 

Finally, we saw a 58 percent rise in attacks designed to go after 

mobile devices. Simply put, every year, threats are increasing and 

becoming more sophisticated. Sharing actionable threat and vulnerability information is an essential element to combating threats 

like these. As a general rule, we believe that voluntary information-sharing programs are the best way to develop trusted partnerships to achieve the best results. That trust is weakened when 

Government information-sharing mandates are imposed on industry. 

In order for information sharing to be effective it must be shared 

in a timely manner with the right people or organization and with 

the understanding that, as long as an entity shares information in 

good faith, it will not face legal liability. 

In addition, the Government must have the proper tools and authorities to disseminate information effectively. We were pleased 

that the Executive Order the President signed in February and legislation passed in the House last week sent a clear message to the 

Government that sharing actionable information for cybersecurity 

purposes with the private sector is both a priority and a necessity. 

Information sharing on cyber threats happens in a number of 

ways designed to protect our customers and their data. We get information from a myriad of sources, from our customers, our partners, the Government and our network—and through our network, 

called the global intelligence network of 69 millions attack sensors. 

The information itself can be high-level threat data, details about 

a particular incident or attack, data signatures or other types of 

metadata. All of this data is then aggregated and analyzed, and 

during that process, we remove PII. Using this data, we develop 

machine-level signatures and other identifying information about 

specific pieces of malware and other threats. We also regularly 

publish analyses of attacks as well as white papers on current and 

future threat factors. 

In closing, Symantec is deeply committed to securing the privacy 

and security of our customers’ information. I hope that my testimony today has provided some insight into how we protect our customers’ privacy and share threat information with our various partners while also balancing that with the need for robust cybersecurity. Thank you, again, for the opportunity to testify today, and I 

am happy to answer any questions you may have. 

[The prepared statement of Ms. McGuire follows:] 

PREPARED STATEMENT OF CHERI F. MCGUIRE

Chairman Meehan, Ranking Member Clarke, and distinguished Members of the 

subcommittee, thank you for the opportunity to testify today on behalf of Symantec 

Corporation. 

My name is Cheri McGuire and I am the vice president for global government affairs and cybersecurity policy at Symantec. I am responsible for Symantec’s global 

public policy agenda, including cybersecurity, data integrity, critical infrastructure 

protection (CIP), and privacy. In this capacity, I work extensively with industry and 

Government organizations, including serving from 2010 to 2012 as chair of the Information Technology Sector Coordinating Council (IT SCC)—one of 16 critical sectors identified by the President and the U.S. Department of Homeland Security 

(DHS) to partner with the Government on CIP and cybersecurity. I also serve as 

a board member of the Information Technology Industry Council, the TechAmerica 

Commercial Policy Board, and the U.S. Information Technology Office (USITO) in 
16 

1Symantec Internet Security Threat Report XVIII, April 2013. http://www.symantec.com/ 

securitylresponse/publications/threatreport.jsp. 

China, and am a past board member of the IT Information Sharing and Analysis 

Center (IT–ISAC). Prior to joining Symantec in August 2010, I was director for critical infrastructure and cybersecurity in Microsoft’s Trustworthy Computing Group. 

Before joining Microsoft in 2008, I served in numerous positions at DHS, including 

as acting director and deputy director of the National Cyber Security Division and 

U.S. Computer Emergency Readiness Team (US–CERT). 

Symantec is the largest security software company in the world, with over 31 

years of experience in developing internet security technology. We are the global 

leader in providing security, storage, and systems management solutions to help 

consumers and organizations secure and manage their information and identities. 

We protect more people and businesses from more on-line threats than anyone in 

the world. Symantec has developed some of the most comprehensive sources of 

internet threat data through our Global Intelligence Network (GIN). Comprised of 

approximately 69 million attack sensors, the GIN records thousands of events per 

second and covers over 200 countries and territories 24 hours a day, 7 days a week. 

It allows us to capture world-wide security intelligence data that gives our analysts 

an unparalleled view of the entire internet threat landscape, including emerging 

cyber attack trends, malicious code activity, phishing, and spam. 

Symantec also maintains one of the world’s most comprehensive vulnerability 

databases, currently consisting of more than 51,000 recorded vulnerabilities (spanning more than 2 decades) from over 16,000 vendors representing over 43,000 products. Every day we process more than 3 billion e-mail messages and more than 1.4 

billion web requests across our 14 global data centers. In short, if there is a class 

of threat on the internet, Symantec knows about it. 

At Symantec, we are committed to assuring the privacy, security, availability, and 

integrity of our customers’ information. Too often security is portrayed as being in 

conflict with or somehow undermining privacy. In the digital world, nothing could 

be further from the truth, because your privacy is only as secure as your data. 

We welcome the opportunity to provide comments as the committee continues its 

important efforts to bolster the state of cybersecurity while protecting privacy in the 

United States and abroad. In my testimony today, I will provide the subcommittee 

with: 

• our latest analysis of the threat landscape as detailed in the just-released 

Symantec Internet Security Threat Report (ISTR), Volume 18; 

• our core privacy principles; 

• an overview of the current information-sharing environment; and 

• a summary of how we ensure privacy when we share threat information. 

TODAY’S THREAT LANDSCAPE

We rely on technology for virtually every aspect of our lives, from driving to and 

from work, to mobile banking, to securing our most critical systems. As the use of 

technology increases so do the volume and sophistication of the threats. At 

Symantec, it is our goal to ensure that we are thinking ahead of the attackers. 

Looking at the current threat landscape is not enough—we must also keep our eyes 

on the horizon for evolving trends. 

In the latest Symantec Internet Security Threat Report (ISTR), we detail that in 

2012, approximately 93 million identities were exposed through hacking, theft, and 

simple error. That is 93 million individuals whose personal information is now potentially for sale in the black market—93 million people who are at risk for credit 

card fraud, identity theft, and other illegal schemes. 

We also found that there was a 42 percent rise in targeted attacks last year.1 It 

is almost certain that this trend will continue in the coming years. Conducting successful targeted attacks requires attackers to do research about the organizations 

they are seeking to penetrate, and often about specific people who work there. 

Attackers will mine the internet for information about how a company does business 

and use what they learn to craft personalized attacks designed to gain access to its 

systems. Once they gain access, they will move within a system, collecting information and staging data for exfiltration—the unauthorized transfer or release of data 

from a computer or server—to their own computers. Attackers can spend weeks and 

months covertly moving around a victim’s system, collecting e-mail, personal data, 

documents, intellectual property, and even trade secrets. 

We also saw a sharp rise in the exploitation of mobile malware. Last year, mobile 

malware increased by 58 percent, and 32 percent of all mobile threats attempted 

to steal personal information, such as e-mail addresses and phone numbers. Attacks 
17 

2 National Infrastructure Protection Plan (2009), http://www.dhs.gov/xlibrary/assets/ 

NIPPlPlan.pdf. 

on mobile devices will almost certainly continue to rise as we become ever more reliant on these devices to perform our daily activities, such as working, banking, shopping, and social networking. 

Another alarming finding was the rise of attacks on small and medium-size businesses. In 2012, 50 percent of all targeted attacks were aimed at businesses with 

fewer than 2,500 employees, and the largest growth area for targeted attacks was 

aimed at businesses with fewer than 250 employees. Thirty-one percent of all attacks targeted them, up from 18 percent the year before. This likely stems from the 

fact that unlike large enterprises, smaller businesses often do not have the resources to install adequate security protocols, making them an easier target for 

attackers. Yet many of these small companies subcontract or work for larger companies—and thus hold intellectual property and trade secrets coveted by attackers. As 

one of our security engineers likes to say, while every subcontractor may sign a 

strict non-disclosure agreement, the attacker who is sitting on that small company’s 

system is not bound by it. 

In sum, whether they are attacking our computers, mobile phones, or social networks, cyber-criminals are looking to profit by spying on us or stealing our information. Our best defense is strong security, education, and good computer hygiene. 

PRIVACY AND SECURITY GO HAND-IN-HAND

At Symantec, we are guided by the following privacy principles: First, customers 

should be empowered to decide how their personal information is used, and informed what—if anything—will be done with it. Second, privacy protections must 

be integrated into the development of products or services and not added as an 

afterthought. Finally, we all need to be proactive in protecting privacy—absent 

strong security, information is vulnerable. 

Criminals and hackers—many of whom are well-funded and highly skilled—have 

built a business model based on their ability to steal and monetize personal information. There is an entire criminal eco-system that trades in stolen personal information, as well as the tools and technology that allow them to steal more. Some 

of these criminal enterprises are so sophisticated that they provide 24/7 customer 

support, and offer guarantees that the stolen information they provide is valid. 

In the face of this criminal threat, it should go without saying that strong security 

is essential to securing our personal data and private information. Simply put, if 

your data is not secure, then neither is your privacy. And, if you do not take steps 

to secure your own personal information, or the companies to which you entrust it 

do not do so, you are gambling with your privacy. When it comes to personal data, 

security measures and data protection are not an infringement on privacy but instead are the foundations of protecting it. 

Recent efforts to improve the Nation’s cybersecurity posture—whether legislative 

initiatives or Executive branch actions—have recognized that privacy and security 

must be addressed in tandem. The various bills in the House and the Senate have 

taken different approaches, but in the information-sharing area there is broad 

agreement that both the Government and the private sector need to be able to share 

cybersecurity information for cybersecurity purposes. This view also is shared by 

many prominent civil society organizations. Reaching consensus on the precise parameters of those terms is where complications have arisen. Symantec supports an 

approach that allows us to share threat indicators and related non-Personally Identifiable Information (PII) within industry and with the Government. In our view, 

companies should receive legal protection for sharing appropriate information with 

other companies or civilian agencies, and we believe that data minimization standards are a reasonable approach. 

THE CURRENT INFORMATION-SHARING ENVIRONMENT

Globally, there are many different information-sharing models, ranging from voluntary programs to regulatory mandates to ad hoc arrangements to contractual 

agreements. Sharing can be Government-to-Government, business-to-business, and 

between Government and business. As a general rule, we believe that voluntary programs—which of course leave space for contractual and ad hoc arrangements—are 

the best way to develop trusted partnerships to achieve the best results. In the 

United States, we have a voluntary framework based on the National Infrastructure 

Protection Plan (NIPP).2 The NIPP, as refined by the recent Presidential Decision 
18 

3The 2009 National Infrastructure Protection Plan (http://www.dhs.gov/xlibrary/assets/ 

NIPPlPlan.pdf) identified 18 critical infrastructure sectors. Presidential Decision Directive 21 

(Critical Infrastructure Security and Resilience, signed February 12, 2013) revised that to 16. 

See http://www.whitehouse.gov/the-press-office/2013/02/12/presidential-policy-directive-critical-infrastructure-security-and-resil. 4See Executive Order 13636, ‘‘Improving Critical Infrastructure Cybersecurity,’’ 78 Fed. Reg. 

11739 (February 19, 2013). 

Directive 21, establishes 16 critical infrastructure sectors and identifies a sector-specific Federal agency for each.3

Within each sector, there are Government Coordinating Councils (GCC) and Sector Coordinating Councils (SCC). Nearly all sectors also have chartered Information 

Sharing and Analysis Centers (ISAC), operational entities that are tied to industry 

and serve as a focal point for voluntary information sharing. The level of trusted 

partnership and engagement among the GCCs, SCCs, and ISACs varies from sector 

to sector. Symantec has a long and successful history of participation and leadership 

in various multi-industry organizations as well as public-private partnerships in the 

United States and globally, including the National Cyber-Forensics & Training Alliance (NCFTA), the IT–ISAC, the Industry Botnet Group Mitigation Initiative, and 

many others. 

Effective sharing of actionable information among the public and private sectors 

on cyber threats, vulnerabilities, and incidents is an essential component of improving cybersecurity. It is important to recognize that information sharing is not an end 

goal, but rather is one of a number of tools to enhance the security of IT systems. 

Good information sharing provides situational awareness so that appropriate protective and risk mitigation actions can be put into place. In order for information sharing to be effective, information must be shared in a timely manner, must be shared 

with the right people or civilian organizations, and must be shared with the understanding that so long as an entity shares information in good faith, it will not face 

legal liability. 

The NCFTA provides a good example of how private industry and law enforcement partnerships can yield real-world success. NCTFA is a Pittsburgh-based organization that includes more than 80 industry partners—from financial services and 

telecommunications to manufacturing and others—working with Federal and international partners to provide real-time cyber threat intelligence. 

The IT–ISAC is another example of a successful public-private partnership. The 

group’s primary purpose is to allow organizations to exchange information about security threats and vulnerabilities. Member companies report information concerning 

security problems that they have or solutions to such problems that they have 

found. Members also participate in National and homeland security efforts to 

strengthen IT infrastructure through cyber threat information sharing and analysis. 

The IT–ISAC also has an industry-funded representative that works at the National 

Cybersecurity & Communications Integration Center (NCCIC) to facilitate real-time 

information sharing and response. 

One of the most successful U.S. public-private partnerships has been cybersecurity exercises. The level of engagement and resources brought to bear from the Government and industry to jointly plan and develop scenarios, define information-sharing processes, and execute the exercises has been unprecedented. When done right, 

the lessons learned from these exercises have been invaluable to both industry and 

Government to help improve response plans and improve preparedness for future 

incidents. 

In addition, the Government must have the proper tools and authorities to disseminate information effectively. I have seen too many instances of the Government 

releasing information on cyber threats days and sometimes weeks after a threat has 

been identified. In many of these cases, by the time the Government releases the 

information it often has little use because the private sector has already identified 

and taken actions to mitigate the threat. There is no single solution that will eliminate these delays, but various legislative proposals move us one step closer to eliminating some of the legal barriers that currently impede sharing. Moreover, the Executive Order (EO) the President signed in February 2013 sent a clear message to the 

Government that sharing information with the private sector is both a priority and 

a necessity.4

Further, we also support an incentive-based approach to information sharing. 

There is no doubt that businesses can gain a competitive advantage by not disclosing information to their competitors. However, a well-incentivized program of 

collaboration can help offset those disadvantages and keep the information flowing 

freely. We also need to address policies that discourage businesses who would be 

willing to share information but choose not to because of fear of prosecution. There-
19 

fore, liability protections are necessary to improve bi-directional information sharing. 

As with any partnership, information sharing is founded upon and enabled by 

trust. That trust is weakened when Government information-sharing mandates are 

imposed on industry. Enhanced self-interest and a flexible approach are more likely 

to improve information sharing than Government mandates. 

PROTECTING PRIVACY AS WE SHARE THREAT INFORMATION

At Symantec, we understand the vital importance of sharing information for cybersecurity awareness and response. We recognize that information stored on our 

servers is sensitive, confidential, and often personal in nature. Therefore, we take 

very seriously our role in safeguarding our customer’s personal information and go 

to great lengths to ensure that personal information remains private. 

Information pertaining to customers such as credit card information, addresses, 

or other PII is not shared under any circumstances unless we are compelled by law, 

following appropriate due process. In addition, we comply with the Payment Card 

Industry Data Security Standard and follow specific rules under our privacy program to ensure that we collect only data that is proportionate for the purposes for 

which it is collected, and that is relevant and necessary for the services provided. 

Information sharing on cyber threats happens in a number of ways and for various reasons. We get information from myriad sources—from our customers, our 

partners, the Government, and our network of sensors. The information itself can 

be high-level threat data, details about a particular incident or attack, data signatures, or other information. All of this data is then aggregated and analyzed, and 

during that process we remove PII. The resulting work product can range from machine-level signatures or identifying information for a specific piece of malware to 

a quick analysis of a particular attack to a published white paper on current and 

future threat vectors. This work product can then be provided to our customers and 

partners in both the private sector and the Government, depending on the particular parameters of the sharing agreement. 

In some cases, the communication is purely bilateral—a customer provides us information about activity on its system (either manually or through an automated 

sensor), and we report back on what we see happening. Other times we share it 

broadly, including sometimes publicly, but only after removing any PII to ensure 

that the report cannot be linked to a particular individual or customer. When we 

share reports on attack trends or publish white papers on particular threats, PII 

is removed as part of long-standing policy and we only share information directly 

related to the cyber threat. We have legal and organizational safeguards to ensure 

that information is only disclosed to the intended partners and only used for the 

expressed purpose. 

In closing, Symantec is deeply committed to securing the privacy and security of 

our customer’s information. Thank you again for the opportunity to testify, and I 

will be happy to answer any questions you may have. 

Mr. MEEHAN. Thank you, Ms. McGuire. 

The Chairman now recognizes Ms. Pearson to testify. 

STATEMENT OF HARRIET P. PEARSON, PARTNER, HOGAN 

LOVELLS 

Ms. PEARSON. Thank you very much, Chairman Meehan, Ranking Member Clarke, and Members of the subcommittee. 

My name is Harriet Pearson. I am a partner in the Hogan 

Lovells law firm, where I focus on cybersecurity and privacy law. 

From November 2000 until July 2012, I served as the IBM corporation’s chief privacy officer and security counsel, and I have been engaged in this area of privacy and security since the mid-1990s. 

Thank you for the opportunity to participate in today’s hearing 

on how we in the United States in the business community and in 

Government can protect our critical infrastructure from cyberbased threats while safeguarding individual privacy. 

Let me start with the observation that the relationship between 

cybersecurity and privacy is complex, as we have heard. On the one 

hand, cybersecurity that protects data from intrusion, theft, and 
20 

misuse obviously is a significant privacy safeguard that cannot be 

understated. On the other hand, some cybersecurity measures that 

monitor access and use of systems and digital networks can implicate the collection of personal information, or PII, where data can 

be linked to individuals and thus raises some privacy concerns. 

Understanding that relationship and integrating privacy into cybersecurity has never been more important. As we have heard and 

as the committee well knows, the threat is out there. There are 

risks, and the risks come in multiple forms, particularly for those 

businesses that are part of the critical infrastructure and that have 

to take these measures. The private sector’s role in this respect is 

vital. You know that the critical information, much of it and much 

of the most valuable intellectual property of our society are owned 

and managed largely by the private sector. Therefore, the steps 

that companies take to safeguard their most precious possessions 

and assets and figuratively to lock up and secure their premises 

are very significant. Increasingly companies are stepping up to that 

challenge and taking those measures. 

Let me articulate a couple of, or give you a couple of examples 

of the kinds of measures that might implicate some level of collection or access to potentially personal information. There are some 

measures, such as systems and network monitoring; you have to 

know what is going on in your systems. You might have to access 

and collect some personal information. Background checks, more of 

us are bringing our own devices and hooking them up to sensitive 

or important networks, and you have to make and take safeguards. 

Supply chain and vendor networks need to be secured, and sometimes you need information. Information sharing, as has been discussed with Government and other entities in the private sector, 

might also at times implicate some kind of personal information 

and thus steps need to be taken. 

My recommendations for how these concerns can be addressed 

start with the premise that it can be addressed. There are responsible ways and many organizations are already taking those steps 

in the business community. Some suggestions for how and observations on how organizations are taking those steps include, first, we 

have talked already on the panel, and Chairman and Ranking 

Member talked about the Fair Information Practice Principles, or 

the FIPPs. That is an important acronym to keep in mind in my 

view. Applying the FIPPs is what privacy professionals do in the 

United States all day long, every day, in many situations. Applying 

FIPPs to information sharing and other cybersecurity measures 

and steps is absolutely critical. 

Second, one of the most foundational elements of the FIPPs is 

this notion of transparency, articulating what you are doing, educating and being open about the steps taken, not of course to the 

degree that it compromises the important security measures that 

need to be taken but articulating it so that there is some understanding of the measures and that there is some ability to say, 

hmm, what is going on, let’s have a conversation about it in the 

democratic tradition of the United States. 

Third, we have in this country a tradition of creating codes of 

conduct, voluntary measures that once organizations buy into them 

and engage in them, actually become quite important as a measure 
21 

1My professional service includes membership on the advisory boards of the Future of Privacy 

Forum and the Electronic Privacy Information Center. I was a founding and long-time member 

of the board of the International Association of Privacy Professionals. I also serve on the American Bar Association president’s Cybersecurity Legal Task Force, co-chair the Cybersecurity Law 

Institute of the Georgetown University Law Center, and was a member of the CSIS Commission 

on Cybersecurity for the 44th Presidency. The views I express are mine only, and are not offered 

on behalf of Hogan Lovells or its clients, or other organizations. 

of establishing base lines of behavior in business. I endorse the development of voluntary codes of conduct for the privacy-sensitive 

deployment of certain cybersecurity measures and programs that 

are common enough to warrant such effort. Examples of this might 

include information-sharing codes of conduct in which organizations that engage in information-sharing partnerships with each 

other and with Governmental agencies developed and commit to 

adopt privacy-sensitive practices such as the one that Ms. McGuire 

mentioned. 

Another example is the new work that is being undertaken by 

NIST, as mandated by the recently-issued Executive Order on critical infrastructure cybersecurity, to develop a privacy—to develop 

a cybersecurity framework. As you know, NIST is consulting with 

multiple stakeholders on the development of this kind of framework, and the committee can play an important role in asking 

about and looking at the kind of privacy for consideration built into 

that framework. 

Finally, through law, the expectations, responsibilities, and legal 

protections for privacy when data is shared or requested by Government in particular need to be clear, and there have been certain 

legislation enacted through this house that have clarified the role 

and some important progress and language has been included in 

that and further efforts by Government and industry leaders outside of this kind of legislation will also be useful to educate and enable stakeholders involved in these activities to design privacy in 

information sharing and related activities. 

Thank you for the opportunity to appear before you today, and 

I will be happy to take questions. 

[The prepared statement of Ms. Pearson follows:] 

PREPARED STATEMENT OF HARRIET P. PEARSON

APRIL 25, 2013 

Chairman Meehan, Ranking Member Clarke, and Members of the subcommittee, 

my name is Harriet Pearson and I am a partner in the Hogan Lovells law firm, 

where I focus on cybersecurity and privacy law.1 From November 2000 until July 

2012 I served as the IBM Corporation’s chief privacy officer and security counsel. 

Thank you for the opportunity to participate in this hearing on how we in the 

United States can protect our critical infrastructure from cyber-based threats while 

safeguarding individual privacy. 

The relationship between cybersecurity and privacy is complex. On the one hand, 

cybersecurity that protects data from intrusion, theft, and misuse obviously is a significant privacy safeguard. On the other hand, cybersecurity measures that monitor 

access and use can implicate the collection of personal information (or data that can 

be linked to individuals), and thus raises privacy concerns. 

Organizations of all types increasingly are taking steps to protect themselves and 

the people that rely on them from cyber-based threats. Cyber threats come from 

many different sources. The risk to information systems and the data that resides 

or travels on them can come from activists, criminals, or spies. Most of the time, 

these bad actors attack from outside the company; sometimes, they strike from within. Frequently they are enabled by the carelessness or inattention of otherwise wellmeaning individuals who leave the digital analog of the front door open for easy 
22 

2The U.S. privacy framework is based on underlying principles of fairness known as ‘‘Fair Information Practice Principles’’ or ‘‘FIPPs,’’ which were first developed in the United States in 

the 1970s and have since influenced every privacy law, regulation, or code of conduct adopted 

in this and many other nations. The Fair Information Practice Principles focus on empowering 

individuals to exercise control over personal information that pertains to them, and on ensuring 

that measures are taken to achieve adequate data security. 

entry. And sometimes there is no affirmative attack at all, as in case where a system malfunction occurs or sensitive data is lost or misdirected by accident—presenting risks that are still quite significant if such information gets into the wrong 

hands. 

Since the critical infrastructure and the most valuable IP of our society are owned 

and managed largely by the private sector, the steps companies take to safeguard 

their most precious possessions and figuratively to lock their doors, close their windows, and make sure only authorized people and things cross the threshold are exactly the steps needed to improve cybersecurity for society at large. Sharing information about observed threat patterns and vulnerabilities with other companies and 

with appropriate authorities is also part of the mix. This is akin to participating 

in a neighborhood watch that involves proactive and collaborative engagement with 

law enforcement. 

While adoption of cybersecurity defenses will, as I noted, serve to protect personal 

data (indeed, there can be no data privacy without sufficient security, including cybersecurity), some of the defense techniques may require the monitoring or collection of personal information, and thus implicate privacy concerns. • First, there is network and system monitoring.—Experts agree that in order to 

detect and defend against cyber attacks, organizations should be aware of how 

their information networks and IT systems are behaving. Such monitoring typically is focused on non-personal information such as malware indicators, bad IP 

addresses, and network flow data. Of course, the more specifically one monitors, 

and potentially records, activity, the more potential there is that personal data 

will be part of the information reviewed and/or collected. • The next issue is that of background checks.—Not all cyber-defense measures involve cyber tactics. Organizations frequently find it prudent to conduct background checks—at times quite extensive—on individuals with access to certain 

sensitive systems and data. By definition, background checks require the collection and use of personal information. 

• A new aspect of data security arises from the ‘‘Bring Your Own Device’’ phenomenon.—An increasing number of organizations are allowing their workforce 

to use personally-owned smartphones, PCs, and other devices. The steps organizations take to secure such devices and the data that might be stored on them 

often involve access to personal data. 

• Steps taken to strengthen supply chain and vendor security may also raise privacy issues.—Security-conscious enterprises understand that the weakest link in 

their organization may lie outside their formal control. Measures imposed on 

their vendors and suppliers may require those third parties to conduct background checks and share other information that has privacy implications. 

• Information sharing with third parties and Government agencies means that 

personal information may be shared.—Finally, but importantly, experts agree 

that rapid and preferably automated cross-organizational sharing of cyber 

threat information is essential to help detect and defend against cyber attacks. 

And as Members well know, given the recent passage of H.R. 624, the Cyber 

Intelligence Sharing and Protection Act, there can be significant privacy issues 

raised by such sharing. 

While each of these areas of cybersecurity techniques raises privacy concerns, 

those concerns can be addressed responsibly. 

First, consistent with the well-known Fair Information Practice Principles,2 data 

collection should be thoughtfully limited; used only for the purpose of security or 

other carefully considered and approved purposes; retained only for as long as needed for security and other legitimate purposes; and shared only with those that need 

the data for security or other carefully considered and approved purposes, with accompanying limitations on their sharing, use, and retention. These are concepts that 

privacy professionals in American business apply every day, and close collaboration 

between privacy professionals and security personnel at companies is essential to 

ensure that the security/privacy balance is correct and that Fair Information Practice Principles are applied to design privacy into cybersecurity programs. 

Second, there should be transparency as to the cybersecurity measures that organizations, especially operators of critical infrastructure, increasingly are using. 

Transparency is fundamental to the Fair Information Practice Principles. When im-
23 

plemented, it reassures individuals that the processing of information that relates 

to them is not being done in secret, thus enabling them to pursue any recourse 

available if necessary. 

As it relates to cybersecurity measures, transparency would include encouraging 

companies that are deploying network and systems monitoring to disclose their use 

of such measures (not in sufficient detail as to defeat their operations, of course, 

but in enough detail that individuals know about the systems monitoring the use 

of workplace technologies and the like). The more we inform and educate each other 

about how cybersecurity systems work, and how privacy considerations are addressed in their design and implementation, the more these measures are 

demystified. 

Third, I endorse the development of voluntary codes of conduct for the privacysensitive deployment of cybersecurity measures and programs that are common 

enough to warrant such effort. Examples might include information-sharing codes 

of conduct, in which organizations that engage in information-sharing partnerships 

with each other and with Governmental agencies develop and commit to adopting 

privacy-sensitive practices. Another example is new work by the National Institute 

for Standards and Technology as mandated by the recently-issued Executive Order 

on Improving Critical Infrastructure Cybersecurity, to develop a voluntary Cybersecurity Framework that includes consideration of privacy. As you know, NIST will 

be consulting with stakeholders in both Government and industry as it develops the 

Framework. This subcommittee can keep the focus on privacy issues by showing interest in, and requesting to see, how privacy is integrated into NIST’s and others’ 

cybersecurity efforts. 

Finally, the expectations, responsibilities, and legal protections for privacy when 

data is shared with or requested by Government need to be clear. Legislation that 

clarifies the rules surrounding information sharing is a valuable first step, and it 

is encouraging to see that the privacy issues associated with information sharing 

have been discussed and that language addressing these issues has been included 

in the legislation proposed in this Congress. Further efforts by Government and industry leaders, outside of new legislation, will also be useful to educate and enable 

stakeholders involved in these activities to design privacy into information sharing 

and related activities. 

Thank you for the opportunity to appear before you today and to present my 

thoughts on how we can achieve a meaningful balance between privacy and protecting the United States’ critical infrastructure. 

Mr. MEEHAN. Thank you, Ms. Pearson. 

Thanks, each of you on the panel, for helping us to set the table 

on this issue. Let me begin, because I think that may be one of the 

places for us to begin to draw the parameters around this issue to 

get to the places where we think the real crux of the privacy issues 

find themselves. 

I was struck your testimony, Ms. Callahan, where you said, if 

done right, increased cybersecurity with appropriate standards and 

procedures also means increased privacy. 

Ms. McGuire, you testified that security is portrayed as being in 

conflict with or somehow undermining privacy; in the digital world, 

nothing could be further from the truth. 

Ms. Pearson, you discussed a little bit where there may be some 

sort of conflicts, but at the same time, there are some steps being 

taken. You talked about FIPPs. 

Maybe that is a good place to start. I would like your general observations, each in order, about what you believe are the important 

steps that are being taken to create the privacy protections while 

we enable information to be shared and maybe specifically what 

FIPPs is and how that enhances this ability. Ms. Pearson or others, 

if you have an area in which you find you say ‘‘but,’’ don’t tell hesitate to tell us what the ‘‘but’’ is. 

Ms. Callahan, I will recognize you. 

Ms. McGuire, Ms. Pearson, in order. 

Ms. CALLAHAN. Thank you very much, sir. 
24 

My testimony with regard to increased cybersecurity can enhance 

increased privacy goes to the FIPP of security because the information has to be kept secure; it has to be kept contained. Ms. 

McGuire testified about 93 million exposed identities, and those 

people did not have the FIPPs to protect them in that circumstance. But what is important is the parenthetical that you 

read of mine, which is, you have to have the appropriate standards, 

procedures, and safeguards within that in order to protect that information. 

Mr. MEEHAN. Can you take one moment and tell me 93,000 people—— 

Ms. CALLAHAN. Ninety-three million identities. 

Mr. MEEHAN [continuing]. Did not have the FIPPs. Would you 

explain what you mean by that? 

Ms. CALLAHAN. It is Ms. McGuire’s number, but I think it involves data breaches, ma’am. 

Ms. MCGUIRE. The number was 93 million identities that were 

lost or stolen in 2012, and that could be through any number. It 

could be cyber attacks, laptops stolen, et cetera. 

Mr. MEEHAN. Okay. 

Ms. CALLAHAN. So the concept of unauthorized access, whether 

we are talking about it as a laptop or a device, as Ms. Pearson 

talked about, or an actual cyber attack, where an organized cyber 

criminal is taking the information. In that circumstance, not all 

FIPPs prevent. That is my point about security as an important 

element to the protection of privacy, because if you can’t keep the 

information secure, then you can’t have privacy, but you can enhance it if indeed you have the proper safeguarding. 

Mr. MEEHAN. So, in other words, even though the Government 

may not be getting that information for 94 million people, it is already out there in not only the private sector but out there in the 

world of criminality and otherwise. 

Ms. CALLAHAN. That is correct. It could be as much as that. That 

we need to mitigate that and address that going forward. 

Mr. MEEHAN. Ms. McGuire. 

Ms. MCGUIRE. So I think it might be useful for me to take a little 

bit about Symantec’s sort-of, our privacy principles, and we have 

three of those: First, that we believe that customers should be empowered to decide how their personal information is used and informed what, if anything, will be done with it; and second, that privacy protections must be integrated into the development of products and services and not added as an after-thought; and finally, 

that we all need to be proactive in protecting our own privacy, and 

absent strong security, as I said before, information is vulnerable. 

We take a number of steps as a company to secure the privacy, the 

PII information of our customers and our partners and those are 

tied directly to the FIPPs, as Ms. Callahan discussed, as well as 

a number of internal policies, privacy policies, and privacy impact 

tools that we use across our company. So I think it has to be a 

multi-pronged approach, both with informing customers as well as 

developing your own internal policies and practices to safeguard 

that personally identifiable information. 
25 

Mr. MEEHAN. Where do you come down on the industries developing personal policies, but where does the Government come in on 

creating policies that the industry needs to adhere to? 

Ms. MCGUIRE. Well, I think that, as Ms. Pearson talked about, 

this notion of voluntary or codes of conduct that have been developed over time, the adoption of those can be quite useful, as well 

as internationally developed standards that many times those 

codes of conduct form the basis for as it moves through the standard development process. 

Mr. MEEHAN. I am worried about the changing nature of the 

threat and whether or not we will be able to create consistent, sortof, this is today’s standard, it may be less relevant tomorrow if 

there are new technologies or new ways to get around it. 

Ms. MCGUIRE. Well, I think you raise a very, very important 

point, and that is standards need to be flexible enough so that, as 

time evolves, the nature of the threat evolves, that they can 

evolve—the standard can evolve as well. Sometimes if they are 

written too tightly, they will constrict the ability to respond and 

deal with the next level of threat as it evolves. 

Mr. MEEHAN. Thank you. 

Ms. Pearson, my time is up, but your time is still ticking to answer and be responsive to any of the issues that were raised. 

Ms. PEARSON. What I will say is that the Fair Information Practice Principles were developed in the United States over 30 years 

ago, and they are still as good today as they were back then. So 

that shows the power of having principles that can guide our behaviors. When it comes to identifying what kind of information you 

collect, if you are a business trying to protect your assets and your 

people and then share, there are some really foundational questions, which is: What am I doing, what am I collecting, do I really 

need to collect it? The answer may be, no, or the answer may be 

I do collect a lot of information so that I can identify patterns, so 

I can see abhorrent uses, so I can secure my networks. Once you 

decide on kind of a principle level, what are you collecting, the 

question then becomes: What do you need to share it, what exactly 

do you need to share? From my own experience and personal experience with my clients, I know that the vast majority of the information involved in addressing cyber threats has nothing to do with 

individuals. It is IP addresses. It is the signatures. It is very technical information. So when it comes time to share that information, 

that really is not a privacy-related concern. Where there might be 

information that relates to individuals, then the question becomes: 

Do you need to share it? How important is it to the mission involved or to the goal? Are there abilities to strip or share or amass 

or protect that information? That is really the question. 

Operationally speaking, I see companies more and more being 

able to do that. I see innovation in the marketplace, American innovation on the part of the companies, like Ms. McGuire’s and others, coming up the curve to help deal with that particular privacy 

issue and help address technical or operational or market measures. That is what I see. 

Then, finally, as you deal with industry-to-Government, the question I think that you are all in an excellent place to address is: 

What will Government do with it? What will happen to it, and 
26 

what kind of assurances back and forth are in place to make predictable to the American people and to business what happens to 

that information, including protecting its confidentiality for privacy 

purposes as well as business confidentiality purposes? 

Mr. MEEHAN. Thank you. 

My time has expired, and now, at the suggestion of the Ranking 

Member, we are going to go out of order and recognize the gentlemen from Nevada, Mr. Horsford, for questioning. 

Mr. HORSFORD. Thank you very much, Mr. Chairman. 

Thank you to the Ranking Member, I appreciate the courtesy to 

our witnesses, and thank you for being here. 

Just briefly, obviously, this is an important National security 

issue, and the need for qualified cybersecurity experts has grown 

at the same time. Everyone from our President to the GAO has 

said that we have to address this as a serious economic challenge, 

both in the public and private sectors. 

Now it appears that our ability to meet the cybersecurity workforce needs of the Nation are not fully understood or fully quantified. Would you recommend that the Federal Government work 

with the private sector as well as training and educational institutions to address the problem of kind of the workforce areas of cybersecurity? If so, how? 

Ms. MCGUIRE. So, really important this issue of workforce development and education and training for the future cybersecurity experts and workers of the future. Today, we have a number of public-private partnerships between industry and Government that 

have been quite effective. Unfortunately, they are not effective 

enough because the demand is so high for these types of highskilled employees in the future, but things like the National Cybersecurity Alliance, the National Initiative for Cyber Education, that 

DHS and NIST and the Department of Defense and Commerce are 

leading, those are the kinds of efforts, as well as National Science 

Foundation’s, Cyber Corps to train up that next generation. 

We need more of those kinds of programs, frankly, in order to 

meet the challenge of this deficit. It really is a deficit that we have. 

I can tell you today, as a company, we have more than a thousand 

openings, a thousand job openings, for high-skilled engineers, and 

we could go across any number of high-tech companies as well as 

manufacturing and other industries, who cannot meet the challenge today. That really is impacting our country’s economics moving forward. 

Ms. CALLAHAN. I would note briefly the Secretary and Deputy 

Secretary have testified before this committee asking for such flexibility, and these initiatives that Ms. McGuire spoke about are helpful, but I think that we need to do more to really help buttress the 

cybersecurity options. 

Ms. PEARSON. One thought on privacy aspects here, as I have 

worked with cybersecurity professionals, the best ones have taken 

training and have an enormous degree of sensitivity to the importance of privacy as they work on defending against attacks and also 

safeguarding information. So an element of cybersecurity curricula 

ought to be, and I believe it is in most of these programs, an element of data protection or privacy training as well. 
27 

Mr. HORSFORD. So gathering all of these, like you said, initiatives 

and public-private partnerships to know what is out there and 

what is working and where the gaps might be, steps this committee 

could take to move some ideas forward. 

Let me also ask, as I said, cyber threats are both in the private 

and public sector. I am from Nevada, and we have a large number 

of facilities critical to National security. The Nevada National Test 

Site is in my district, for example, and is a critical component to 

National security efforts. Obviously, do you agree that we need to 

do everything we can to protect these facilities? 

Ms. CALLAHAN. Yes, absolutely. 

Ms. MCGUIRE. Yes. 

Mr. HORSFORD. So my follow-up question is: In this budgetary 

environment, does the protection from cyber threats against our 

National security facilities need to be a budget priority? 

Ms. MCGUIRE. We have stated during this uncomfortable period 

of sequestration and some of the cuts that are going on, that cybersecurity issues should be at the forefront and a priority to not be 

taking the scalpel to at this point in time. I think you can look at 

any number of reports, whether they are our report or others, as 

well as reports coming out of various agencies, that this is not the 

time to be putting our critical infrastructure, our National security 

apparatus at risk. 

Mr. HORSFORD. Thank you very much, Mr. Chairman. 

Thank you to the Ranking Member, again, for the courtesy. 

Mr. MEEHAN. I thank the gentlemen for taking the time to join 

us today. I know he had conflicts in his schedule. It is deeply appreciated. 

Also, for the record, I think we all share the genuine appreciation 

to assure the adequate funding for this very, very important area, 

although this is one of the areas, actually the budget was plussed 

up in this area, which was, in this day, a victory, where staying 

even is the new staying ahead; that was a good result. 

At this moment, the Chairman now recognizes the gentleman 

from Montana, Mr. Daines. 

Mr. DAINES. Thank you, Mr. Chairman. 

I was—my last 12 years in the private sector before I came to 

Congress here in January was actually the cloud computing company that we took public in global operations. So we were very 

much in the midst of denial-of-service attacks and I guess living in 

the world you all live in every day. 

We had a case one time where the Federal Government came 

asking for customer data regarding a threat to our National security; in fact, it was the Secret Service that approached us, and we 

refused to give the information up, saying this was customers’ data; 

it was not our data, ultimately. The Secret Service moves quickly, 

and a subpoena came about 2 hours later, and then we had a process where we could hand the data over to investigate the situation. 

What do you think is the minimum amount of data, talking 

about the balance of privacy and protecting our country and industry from cyber attacks, what is the minimum amount of data that 

you think we need to adequately trace back a cyber attack? I would 

love to get opinions on that. 
28 

Ms. MCGUIRE. So I think there is often a lot of questions around 

IP addresses and whether or not that is considered PII or not. In 

our view, IP addresses are really a pointer back to a specific threat, 

and they need to be aggregated with other information in order to 

actually resolve back to an individual. So, at the face value, because we get this question a lot, are IP addresses PII, and there 

is a little bit of a gray area there; sometimes they can be, but generally they are not. So I think this goes to the crux of the broader 

issue around attribution and the difficulty we have with attribution 

today because IP addresses are not generally static; there are constantly changing. So to your question around what is or isn’t, it is 

not always clear, but I think if you have the proper standards and 

practices and policies in place to make sure that privacy or PII information and privacy is protected, that you are on the right side 

of the issue. 

Ms. CALLAHAN. I would add, for the Department of Homeland Security, when I was there, the way they would address it is that 

there were these signatures or indicators that may or may not contain what could be personally identifiable information. Ms. 

McGuire mentioned IP address. There also may be other indications that could be personally identifiable information. So what the 

Department has done, due to its standard operating procedures, is 

to look at that and see whether or not that personally identifiable 

information needs to be shared or information that could be personally identifiable needs to be shared as part of the signature or indicator. If it does, then it has to be approved by a supervisor to make 

sure that it indeed is consistent with the SOP. So if it is necessary, 

that information will be shared, but you have to analyze it to make 

sure that it is not just being shared because it is easier. 

Mr. DAINES. Ms. Pearson. 

Ms. PEARSON. I agree with my colleagues. Most of the time, piecing together what happened or what is the source does not really 

require access to personally identifiable information, but sometimes 

it does. It is a little bit like detective work. I think you can avoid 

that kind of data to some degree, but sometimes, it is just embedded in systems. It is embedded in the kind of thinking you have 

to do. It is not just the digital detective work; sometimes you have 

to think about, for example, was somebody trying to—and this is 

an amalgam of client experiences I have had—is somebody trying 

to get at a system using a mix of physical as well as digital measures? So then the question becomes: Well, who had access, physically who had access? That is the kind of information that might 

be collected and might conceivably be shared with law enforcement 

because fundamentally most of this kind of activity we are talking 

about is against the law. 

Mr. DAINES. Right. Let me ask you this, Wayne Gretzky made 

the famous comment, ‘‘skate to where the puck is going.’’ In this 

very dynamic and world of innovation and break fix, and things 

change within minutes and hours; you talked a bit about technology that could be used to minimize data as it is coming in as 

it is relates to privacy. Where do you see that headed as—of course, 

we have had a lot of concerns from our constituents about the 

whole privacy issue, but where do you think this is all headed here 

when you make advancements in technology that can cost-effec-
29 

tively minimize data, still allows us to investigate but yet protects 

the privacy of our constituents? 

Ms. PEARSON. My own view is that the market speaks, and as 

the market looks for solutions like this, that protected security by 

either requesting or rewarding the ability to manage in mass data, 

then these solutions are technically feasible and have already been 

invented, frankly, and it is a matter of commercializing them, 

doing what you did, taking it to the market. 

One thing to note, in my view also, is that we are here talking 

about homeland security issues, cybersecurity issues as it relates 

to that aspect, but there are so many other reasons that companies 

need to keep information secure and confidential. There are other 

sources of legal obligation. There are other sources of reputational 

issues. 

Mr. DAINES. The forces of competition. 

Ms. PEARSON. The forces of competition are absolutely there, and 

the innovations available to embed, whether it is cloud computing 

or in new ways of segmenting information on devices that we all 

carry and use these days, are available or are coming. It is a matter, I think, of pooling them. 

Mr. DAINES. I know my time is up. I would love to have Ms. 

McGuire answer that if I could, Mr. Chairman. 

Mr. MEEHAN. The Chairman would allow Ms. McGuire to share 

her instincts on this. 

Ms. MCGUIRE. Thank you. I think there are—there is a lot of 

work being done in this area as far as innovation with moving to 

machine, really machine-to-machine readable data, so that people 

don’t even get into the middle of this. It is about really identifying 

at the front end when the data is coming in what would be considered PII so that maybe a human never actually even looks at it. 

So I think that is certainly a direction that we need to go in when 

we are talking about this kind of information sharing for cybersecurity protection. That is, I think, is a major innovation the industry is moving towards today. 

Mr. DAINES. Thank you. 

Mr. MEEHAN. Thank you, Mr. Daines. 

The Chairman now recognizes the Ranking Member, the 

gentlelady, Ms. Clarke. 

Ms. CLARKE. Thank you very much, Mr. Chairman. 

I thank the panelists once again for bringing their expertise to 

bear on this very timely issue. There are two central privacy concerns when we talk about private-sector collaboration with the Government to stop cyber attacks, are over what information gets sent 

and who in the Government it is sent to. Various legislative approaches to these two questions have been quite controversial and 

is something we in Congress are still struggling to get right. 

So I want to ask the panel three questions: How much minimization of the information should be required from the private sector 

side when sharing information? Does too much minimization place 

an undue burden on companies, and where is the right place in the 

Government for this sharing to occur? 

Ms. CALLAHAN. Thank you very much, Ranking Member Clarke. 

The concept of minimization is an important tenant of the FIPPs 

and one that the DHS applied very consistently through its stand-
30 

ard operating procedures when I was there, and I believe continues 

to do so. With that said, how much minimization is appropriate, 

necessary from the private sector? I don’t think the question how 

much is—I think it is more to think about how to effectively and 

efficiently implement it, rather than putting the burden on the private sector to go through all these laborious steps, but if they address it, either through machine-to-machine readable that Ms. 

McGuire spoke about, or through other standard policies and procedures, like the Department has been implementing, which is kind 

of now like muscle memory in terms of how to implement it, I 

think it can be an effective tool in order to share timely information on threats without unduly burdening privacy. 

Ms. MCGUIRE. From our perspective, we think that reasonable 

minimization standards or practices as are outlined in the FIPPs 

is appropriate and is not an undue burden for industry. At least 

from our perspective, we do that today. 

As far as your question about where should the information-sharing relationship reside within the Government today, our view is 

that it should reside with the civilian agency and for a couple of 

reasons. One is, we believe that it sends the right message to our 

citizens and to other governments. We have a long tradition of— 

in this country of being a civilian-led government, and we also believe that the civilian agencies today have a framework in place to 

work with the private industry. 

If you look at the level of investment over the last 10 years, that 

industry as well as Government has put into the public/private 

partnerships, for example, that DHS today is the focal point and 

lead for with the participation of the rest of the associated agencies 

as well as the Department of Defense, we believe that we should 

build on that foundation and not, you know, spend another 10 

years trying to create something that, while we need improvements, we can utilize and build on today. 

Ms. PEARSON. Let me add my perspective on this. In terms of 

data minimization, one thing to note would be that, by far, the majority, if not every single organization, the private sector that I 

have seen, no one is eager to open the door and hand over information to Government unless there is process of some sort, some rules 

around it. The gentleman spoke about a subpoena or some kind of 

legal structure, and I think the minimization of information to be 

handed over or to be shared or to be allowed to access to, a lot of 

that motivation is there already. So in terms of standards, I think 

educating and putting that thought process into, for example, the 

new NIST cybersecurity framework so that it is put in there as 

other elements are put in as a voluntary framework that we all 

know will be quite influential. I think is very important to send a 

signal and the expectation there. 

Certain businesses and organizations in the private sector have 

more sophistication than others, and so I think as well for smaller 

and medium-sized businesses, particularly that thought process 

and the technology of how to do that, I think, will be perhaps more 

challenging than other large organizations, so that is an open issue 

that I don’t have a solution for at this moment, but again, you 

know, I would point to it. 
31 

Then, finally, in terms of the right place or the central location, 

I guess my observation would be that in the last number of years 

that I have been working in this area, that there has been a collaboration among agencies as everyone has sorted through who has 

expertise, how do you go about doing this, how do you work with 

the private sector, and that collaboration today, while imperfect, no 

doubt, has been effective and has shown a regard for the mission 

and the objective over a regard for individual organizational dynamics, and that, I think, is the most important element to continue. 

I share Ms. McGuire’s general view of the importance of civilianled engagement, but I also am cognizant of the fact that there have 

been collaborations that have been very effective and worthwhile 

that have been handled primarily through the military more or 

military agencies. 

Ms. CLARKE. Very well. Thank you very much. 

I yield back, Mr. Chairman. 

Mr. MEEHAN. I thank the gentlelady. 

The Chairman now recognizes the gentleman, the former prosecutor for Massachusetts, Mr. Keating. 

Mr. KEATING. Thank you, Mr. Chairman, Ranking Member. 

I just had a question. There has been a lot of discussion about 

the private-sector involvement, the Governmental involvement. To 

what extent are universities and colleges involved in dealing with 

this issue, trying to seek resolution, trying to do research, looking 

at programs? What is your experience about their involvement in 

this and how has that been utilized by either government or the 

private sector? Anyone? 

Ms. CALLAHAN. I guess I will start. So, there is a great deal of 

research going on with cybersecurity and cybersecurity protections. 

There is also a lot of integration among the different colleges to 

help protect it. In addition, as you note, sir, the colleges themselves 

have potentially critical infrastructure information or research information that they will need to protect themselves. So, from the 

Department’s perspective, they have been—they were—when I was 

there, and I think they have continued since I have left, continued 

to do outreach to try to help bolster both the cybersecurity training 

that Ms. McGuire spoke about but also to help bolster the research 

involved therein. 

Ms. PEARSON. The additional observation I will make is that universities and colleges in our country are among the most privacysensitive organizations, particularly because they are Federally 

statutorily mandated to protect educational records, and so I think 

from a privacy side of the cybersecurity equation, they would be 

among the institutions I would say would be most sensitive to the 

aspects of what to do to monitor systems to, you know, protect information that way. 

They also, as a group, happen to have access to some of the leading-edge innovation in intellectual property in this country, and so 

incenting them and helping universities identify their crown jewels 

and to encourage them to protect is, I think, an important attribute 

of what we are doing as a strategy and National strategy, and you 

know, I think that is important. 
32 

Mr. KEATING. I believe there is a middle ground myself that they 

could really occupy, where they don’t have a commercial interest as 

much as some cyber, you know, some private-sector sides. The additional benefit of investing in universities will address one of the 

other issues that were brought up. As we are using and utilizing 

universities, we are going to have more trained people available in 

the workforce, so that is a major side benefit of doing that, so I 

just—— 

Ms. MCGUIRE. I would also just add that the academic institutions and universities have been involved in this information sharing for quite awhile now with their research and education networking, information sharing and analysis center, the REN–ISAC 

as it is called. It is actually a consortium of universities that share 

threat and other types of data amongst themselves so that they can 

help to bolster their own protections, and that has been in existence for over 10 years now. So I think it is important that we also 

make sure that they are a part of this information-sharing partnership as well moving forward. 

Mr. KEATING. You know, I do believe there is a greater place for 

them in adopting some policies and using some of that innovation 

and some of the models that might be there. 

Quick question. Let’s assume there is a major cyber attack, attack on systems, something that would have a dramatic effect on 

our economy. Now, there will be a reaction to that. What would be 

the one thing you would not want to see Government react to perhaps that would be overreacting to such a major, major event, because there will be reaction when that happens, and there will be 

a suddenness if we don’t move on our own ahead of time? What 

would be your greatest fear that Government would overreact in 

that kind of situation? 

Ms. MCGUIRE. I think there is two. One is on the operational 

real-world side, which is that—and this goes back to that attribution question that we talked about earlier, that perhaps there 

might be some kind of defensive posture taken that is more detrimental as an outcome than the attack itself and perhaps targets 

the wrong systems or networks as part of that defense. 

The second piece is really around policy, and that is that when 

we—when we see big events of other types in the past, we can 

often get a knee-jerk reaction in the development of policy or rules 

and regulations that may not, may not always be as conducive in 

the long run while they are trying to address the short-term issue 

to our ability to protect ourselves for the long term. So those are 

the two areas. 

Mr. KEATING. Thank you, Mr. Chairman. I yield back. 

Mr. MEEHAN. Thank you, Mr. Keating. 

The Chairman now recognizes the gentleman from Texas, Mr. 

Vela. No questions at this point in time. Thank you. I am very 

grateful for your taking the time to join us, Mr. Vela, and notwithstanding. 

If the—no objection, I have a few follow-up questions on some 

issues that I would like to have you further clarify. 

The panel has talked a number of times today about personally 

identifiable information sort of in the context of other questions, 

but I think there is a fundamental question: Just what do you be-
33 

lieve personally identifiable information might be? Then, what is 

threat information, and how are they distinguished? Are there similarities? Help me to help others understand what you think those 

terms mean. 

Ms. CALLAHAN. I guess I will go first. So, there is a kind of traditional definition of personally identifiable information which is associated with an individual, name, email address, social security 

number, telephone number, and that has traditionally been the definition of personally identifiable information. There has been an 

approach to broaden that for information that is identified or could 

be identified with an individual, and that is the current Federal 

definition of personally identifiable information, so you could have 

some liaison information with it. 

In fact, the Federal Trade Commission, on a slight different note 

actually has now included IP address, MAC address associated 

with mobile devices and other information that is personally identifiable information in their rule on children’s privacy. So it is kind 

of a little bit of a moving target. 

With regard to Department of Homeland Security and how they 

think about personally identifiable information in the cyber context, they look at information, including IP address, and they presume that it is personal information, so this data mineralization 

process I spoke about earlier with the gentleman from Montana 

talks about let’s presume that an email address or an IP address 

is personal information, is it necessary to be included in the signature or the threat information? 

Mr. MEEHAN. Right. 

Ms. CALLAHAN. It is a broad definition, and then the analysis is 

whether or not it should be included in the threat. But as my colleagues noted earlier, the vast majority of time, even that broad 

definition of personally identifiable information isn’t necessary to 

include in the threat. 

Mr. MEEHAN. Now, how about because we are watching—and I 

think there was some testimony. I know it was in the written testimony. We have seen a tremendous expansion in the amount of mobile devices that are now being used as back doors to that, so is 

that expanding on the amount of information that may be getting 

caught up in the net if we are starting to do more to look after protecting against violations that happen on personal devices? 

Ms. MCGUIRE. Yeah. I think there is no question that the proliferation of different devices and ways for us to connect to the 

internet and to move our data around creates a larger attack surface, if you will, and more opportunities for the bad guys to access 

our personal information. So, you know, things like FIPPs and 

other kinds of policies to protect your private data, coupled with all 

of the necessary security that you need to have on all of those devices, they have to be done, done together to ensure, at least provide a level of assurance that your information and your privacy 

is secured. 

Ms. PEARSON. So let’s take a really concrete example. Let’s say 

you are a business with a few thousand employees and you allow 

employees to use their smartphones or iPads, or you know, device 

and connect and do work, and let’s say that somebody who operates 

your systems sees some weird behavior, and they say: Well, what 
34 

is going on? They look to see, and it is some of the source of that 

information, of that aberration is coming from a few of the devices 

that are hooked up to the network. What is collected is system information and device information to find out what is going on, what 

is the source of it. That is threat information. That is the kind of 

information, when you are in a business, you are collecting. 

The next question is: Well, do you share it with anybody? Do you 

go to one of these information-sharing collaboratives with industry 

and then say: I have seen something; have you seen something? 

You compare notes. It is kind of like a Neighborhood Watch. You 

say, well, you know, this is kind of happening in my neck of the 

woods, my neighborhood. 

Most of the information—all the information in that context is 

not identifiable information because you are just saying, well, I 

have got devices, and this is what I have seen. The question that 

turns it from threat information that is non-PII to personal information is if you have reason to say: Oh, and that device belonged 

to X. 

Mr. MEEHAN. Why would you say that, though? Is there a circumstance where you would? 

Ms. PEARSON. In a situation I just painted where you are trying 

to figure out what is going on, probably not. If there is reason to 

think that some—that whoever had that device needs to be contacted to be asked questions or maybe there was something going 

on, perhaps then there might be, which is why I think all of us in 

our remarks have talked about how the majority of information in 

the cyber context is not PII, but sometimes it might be, and then 

it becomes a matter of safeguarding and treating that information 

well. 

That is, I think the danger of trying to overcircumscribe how this 

stuff works because it is very—it is complex, it is changing, the 

technology is changing, and the way to address these issues today 

is very different from what it was even a couple of years ago and 

it will change going forward. 

Mr. MEEHAN. Go ahead and recognize my Ranking Member for 

some follow-up questions as well. 

Ms. Clarke. 

Ms. CLARKE. Thank you, Mr. Chairman. 

You know, this is such a fascinating area that we are engaged 

with right now, and we are really just at the beginning of what can 

ultimately be a way of life for us because the technologies is everevolving, but I have a question about data breach information, obligations, rather. 

When a company is hacked, what is its obligation to its customers? What is its obligations to its employees and its shareholders? Do you think that current law is sufficient to compel corporations to give their stakeholders the information they need? 

That is one question. 

Then I want to ask another very important question because this 

is over time. So, over the past decade, we have witnessed an explosion in the usage of the internet for all aspects of everyday life. 

Networking technologies have now fully penetrated our civil society. Many are worried about the intended and unintended consequences of this. Some have talked about changing expectation of 
35 

privacy as a result of the internet. Many people have mused that 

no one will be able to run for President in the future due to the 

amount of information about us through social media, whether it 

is Facebook, LinkedIn, all of these things that reveal so much 

about us. Do you think that these technologies are changing how 

we think of our privacy? How do you see the internet affecting our 

conception of privacy in the future? 

Ms. PEARSON. Really simple questions. Can I start? 

Ms. CALLAHAN. Sure. Go ahead. 

Ms. PEARSON. I will start with the second one first. That is the 

broad question, I think, of our time for those of us who work in this 

area daily. There is something—every realm, every type of new 

technology that has some implication for the collection management of information over time, starting with, you know, even before 

the camera, but the camera is kind of a modern era start of the 

technology cycle that has led us to camera to telegraph to telephone to video, et cetera, et cetera, prompts this question, and we 

as a society search for the answer, and we as an American society 

have come up with a unique blend of mechanisms, law enforcement, policies, norms to answer it for ourselves as a people. 

This current era in which we live is a very rapid technology 

cycle, and the rapidity of it has challenged our whole concept. So 

while I resisted tweeting that I was coming in here, I will tweet 

on my way out, and it is, I think, the generation to come, the digital native generation will reflexively, I think, engage in this information sharing, to speak of another kind of information-sharing activity, much more normally and as regularly than we might. But 

I believe firmly, and I think there are studies that show it academically that the human psyche needs a zone of privacy, and it just 

needs to express itself in different ways, given the parameters of 

what we are living in. 

So I firmly believe that despite some of the rhetoric around here, 

humans have, American—you know, in our American society, but 

globally, some sort of psychological need for a zone in which to express oneself, and you know, in our country, I think the challenge 

will be to reinvent that for the coming era and figure out what the 

laws and norms are around it. 

Ms. MCGUIRE. I will take the first question on data breach first. 

Clearly, companies have a series of obligations to inform their customers, their employees, and their shareholders. 

Today, however, we do have a patchwork of regulation around 

that. I think we have 48 different State laws, and that can be difficult for companies to scale to when they have experienced an unfortunate data breach issue. So having some commonality around 

what that reporting should be, I think, at least from our perspective, would be desirable. 

On the second question around internet—the increasing use of 

internet and how it is changing and evolving our perceptions on 

privacy, there is no question that I think, as Ms. Pearson stated, 

that there is a big difference between, you know, the over-30 generation and the under-30 generation on how we perceive our privacy and our own information. 

I was part of a panel a couple of weeks ago on privacy and security where we were discussing the changing nature of anonymity 
36 

on the internet and the role that that will play in regard to future 

views on privacy. So I think we are starting to see a huge evolution, if you will, just in how we are going to be thinking about 

these issues in the future. 

Ms. CALLAHAN. If I could have two small points on both questions. You asked about data breach obligations, and I think it is 

worthwhile to note that the patchwork of State laws that Ms. 

McGuire mentioned involved a very narrow definition of personally 

identifiable information. So it would be first and last name, coupled 

with a sensitive identifier, such as social security number, but 

there can be many cyber breaches that may not reach the level of 

a data breach for notification. 

Now, there is—so it is almost two different types of breaches, a 

cybersecurity incident and a data breach incident. With that said, 

there is guidance from the SEC that public companies should notify 

about if there has been an incident, but they also should notify 

whether or not there is a possibility or some sort of problems, and 

I think that is worth noting in terms of your shareholder question. 

With regard to the internet, I think that the FIPPs of user control and transparency are going to be important tenets as we get 

into this kind of ubiquitous always on-line information. You should 

know what is being happening with information and how you as an 

individual can control it. I think that will help define privacy in the 

future. 

Mr. MEEHAN. Well, I thank you. Let me ask one sort of closing 

question to the extent you feel comfortable answering it, because 

obviously as we work through, this is one example, although one 

of the critically important issues that we are dealing with as we 

try to find a framework for legislation that helps us find the very 

balance that we are exploring today. So, if you were in our shoes 

and you were writing the legislation, how would you look to write 

something that accommodates the concerns that we are sharing 

today? What would be in that legislation to help, you know, limit 

the sharing of PII but still encourage the ability for us to get the 

necessary threat information that we need to protect? 

Then what kind of rules do you think we should be putting in 

place to encourage and give guidance to companies to allow them 

to feel comfortable doing information sharing, in fact, to encourage 

it, because part of the fear is if you have outliers that don’t participate, as you have stated, the weakest link may be the avenue in, 

how do we make sure that we do the most to protect our system? 

So, you are the legislators and we have got to go to draft, what 

would be included to address those issues? I will ask you to move 

across. 

Ms. CALLAHAN. Well, thank you very much, and I am happy to 

be a legislator. I enjoyed my time in the Executive branch, but I 

look forward to being on your side. No, just kidding. 

If I were writing the legislation, I would want to make sure that 

this—that the FIPPs were thoroughly integrated into the legislation, and we have spoken a lot about how effective that is and how 

it is a framework, and it is very flexible, and I think those are important tenets to put in there. We don’t want to be too prescriptive, 

we don’t want to be too specific, but we want to have the frame-
37 

work and the concepts, and I think data minimalization from the 

information sharing is a very important tenet. 

With regard to the types of rules to be put in place, FIPPs, obviously, but I will also say that the NIST cybersecurity framework 

that is currently going on with the Executive Order can be a very 

useful tool to help all the small- and medium-sized enterprises who 

are going to be sharing information as well as the large multinational ones have the same kind of baseline and not try to reinvent the wheel. 

Ms. MCGUIRE. I largely agree with everything that Ms. Callahan 

has said, but I will just add that I think there is one or two additional pieces. In addition to the FIPPs components and building on 

the existing frameworks that we have in place today, those two key 

pieces are that civilian agency, as a lead, I think, are very important to ensuring that our citizens feel comfortable that their personal information is not somehow being used for purposes other 

than securing networks and systems, and also the legal liability 

issue for companies especially to feel comfortable to share information with the Government. 

Today we are—we have a very laborious process. If we want to 

share something that is not part of a contractual arrangement that 

exists today, a business arrangement with Government agencies, 

that can take a lot of time, and oftentimes the information becomes 

stale. 

Mr. MEEHAN. They say in a moment where we are talking microseconds sometimes about information being relevant to preventing 

a threat. 

Ms. MCGUIRE. Yes. Information becomes stale very quickly, and 

so today we have to go through a series of internal privacy checks 

as well as legal checks and antitrust checks if we want to share 

with other companies even. As you can imagine, that takes a lot 

of time and resources when time is often of the essence. 

Mr. MEEHAN. Thank you. 

Ms. Pearson. 

Ms. PEARSON. I also largely agree with my colleagues. The additional couple of points I would make is that as legislators, the oversight function that you have the ability to play should not be underestimated at all and should continue to be exercised, particularly in this area, to make sure that the agencies involved and the 

stakeholders involved are discharging for obligations here. I think 

that is very important. 

Another point to make is that certainty is important. Certainty 

is important to business, of course, and I know from my service on, 

for example, the American Bar Association Cybersecurity Legal 

Task Force, which cuts across the entire bar association and other 

fora that, as a whole, the members of the bar who are counseling 

companies across the board, different industries, are coming off the 

curb, so to speak, on their understanding how the different laws 

here intersect with one another and work with another, whether it 

is antitrust or privacy or other things, and encouraging that kind 

of maturation, I think, for example, by holding briefings, by—— 

Mr. MEEHAN. Are you saying that they are beginning to understand the parameters and more effectively counsel their clients as 

to what they may or may not do? 
38 

Ms. PEARSON. It is a complex—as you noted before, it is a complex area of law, and the challenge with security and securing is 

that it implicates so many areas of law, current law and then a lot 

of the law that is coming. So what I see happening is more and 

more, you know, the defense industrial-based pilot, for example, 

was it a fantastically successful pilot? As involvement of industry 

broadens in the framework at NIST and the voluntary efforts, so 

is an additional expansion of individuals, particularly in the legal 

community who are starting to understand how to put all those 

pieces together, and so that should be encouraged, in my view. 

Mr. MEEHAN. Well, I think we have time constraints, so I want 

to express my deep appreciation. I think we could go on with this 

hearing well into the evening hours, but I need to respect 

everybody’s time, and I particularly appreciate the work that each 

and every one of you has done, not just in the preparation for this 

hearing, but your long period of service in what is a vital and important area now for our Nation as we move forward trying to find 

the right balance on this and the other questions that are relevant 

to the challenge that we face. 

I don’t think anybody denies or is running from the true nature 

of the very real threat that exists out there in the cyber world that 

is affecting people in so many different capacities, but I also am 

confident in our capacity to meet the challenge if we do it with 

enough forethought. 

So I thank you for having very, very valuable testimony to this 

consideration as we work together as a committee to try to reach 

the right challenge in the bills that we will propose. There may be 

Members from the committee who have a question, and if they do 

and they submit it to you, I would ask that you do your best to try 

to respond in writing, if that should happen. But I thank you for 

your continuing work and I look forward to continuing dialogue as 

we move through on this very important issue. 

I thank the Members of the committee. The committee now 

stands—subcommittee now stands adjourned. 

[Whereupon, at 3:44 p.m., the subcommittee was adjourned.] 

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