Cyber Shield Act of 2021
Bill: S.965 | Sponsor: Sen. Markey, Edward J. (D-MA)
Policy area: Science, Technology, Communications

Summary:
Cyber Shield Act of 2021
This bill requires the Department of Commerce to establish the Cyber Shield Program, a voluntary program to identify and certify covered products. These products are consumer-facing physical objects that meet industry-leading cybersecurity and data security benchmarks and that can (1) connect to the internet; and (2) collect, send, or receive data or control the actions of a physical object or system.
Commerce must also establish a Cyber Shield Advisory Committee to recommend (1) the format and content of Cyber Shield labels for covered products; and (2) the process to identify, establish, report on, adopt, maintain, and promote compliance with industry-leading cybersecurity and data security benchmarks to enhance cybersecurity and protect data.
On its website, Commerce must make publicly available (1) program information, (2) a database of covered products certified under the program, and (3) contact information for each manufacturer of a covered product certified under the program.

To establish a voluntary program to identify and promote internet-
 connected products that meet industry-leading cybersecurity and data 
    security standards, guidelines, best practices, methodologies, 
           procedures, and processes, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Cyber Shield Act of 2021''.

SEC. 2. DEFINITIONS.

    In this Act--
            (1) the term ``Advisory Committee'' means the Cyber Shield 
        Advisory Committee established by the Secretary under section 
        3(a);
            (2) the term ``benchmarks'' means standards, guidelines, 
        best practices, methodologies, procedures, and processes;
            (3) the term ``covered product'' means a consumer-facing 
        physical object that can--
                    (A) connect to the internet or other network; and
                    (B)(i) collect, send, or receive data; or
                    (ii) control the actions of a physical object or 
                system;
            (4) the term ``Cyber Shield program'' means the voluntary 
        program established by the Secretary under section 4(a)(1); and
            (5) the term ``Secretary'' means the Secretary of Commerce.

SEC. 3. CYBER SHIELD ADVISORY COMMITTEE.

    (a) Establishment.--Not later than 90 days after the date of 
enactment of this Act, the Secretary shall establish the Cyber Shield 
Advisory Committee.
    (b) Duties.--
            (1) In general.--Not later than 1 year after the date of 
        enactment of this Act, the Advisory Committee shall provide 
        recommendations to the Secretary regarding--
                    (A) the format and content of the Cyber Shield 
                labels required to be established under section 4; and
                    (B) the process for identifying, establishing, 
                reporting on, adopting, maintaining, and promoting 
                compliance with the voluntary cybersecurity and data 
                security benchmarks required to be established under 
                section 4.
            (2) Public availability of recommendations.--The Advisory 
        Committee shall publish, and provide the public with an 
        opportunity to comment on, the recommendations provided to the 
        Secretary under paragraph (1).
    (c) Members, Chair, and Duties.--
            (1) Appointment.--
                    (A) In general.--The Advisory Committee shall be 
                composed of members appointed by the Secretary from 
                among individuals who are specially qualified to serve 
                on the Advisory Committee based on the education, 
                training, or experience of those individuals.
                    (B) Representation.--Members appointed under 
                subparagraph (A) shall include--
                            (i) representatives of the covered products 
                        industry, including small, medium, and large 
                        businesses;
                            (ii) cybersecurity experts, including 
                        independent cybersecurity researchers that 
                        specialize in areas such as cryptanalysis, 
                        hardware and software security, wireless and 
                        network security, cloud security, and data 
                        privacy;
                            (iii) public interest advocates;
                            (iv) a liaison from the Information 
                        Security and Privacy Advisory Board established 
                        under section 21(a) of the National Institute 
                        of Standards and Technology Act (15 U.S.C. 
                        278g-4(a)) who is a member of that Board as 
                        described in paragraph (3) of such section 
                        21(a);
                            (v) Federal employees with expertise in 
                        certification, covered devices, or 
                        cybersecurity, including employees of--
                                    (I) the Department of Commerce;
                                    (II) the National Institute of 
                                Standards and Technology;
                                    (III) the Federal Trade Commission;
                                    (IV) the Federal Communications 
                                Commission; and
                                    (V) the Consumer Product Safety 
                                Commission; and
                            (vi) an expert who shall ensure that, 
                        subject to subsection (e), the Advisory 
                        Committee conforms to and complies with the 
                        requirements under the Federal Advisory 
                        Committee Act (5 U.S.C. App.).
                    (C) Limitation.--In appointing members under 
                subparagraph (A), the Secretary shall ensure that--
                            (i) each interest group described in 
                        clauses (i), (ii), (iii), and (v) of 
                        subparagraph (B) is proportionally represented 
                        on the Advisory Committee, including--
                                    (I) businesses of each size 
                                described in clause (i) of that 
                                subparagraph;
                                    (II) Federal employees with 
                                expertise in each subject described in 
                                clause (v) of that subparagraph; and
                                    (III) Federal employees from each 
                                agency described in subclauses (I) 
                                through (V) of clause (v) of that 
                                subparagraph; and
                            (ii) no single interest group described in 
                        clause (i), (ii), (iii), or (v) of subparagraph 
                        (B) is represented by a majority of the members 
                        of the Advisory Committee.
            (2) Chair.--The Secretary shall designate a member of the 
        Advisory Committee to serve as Chair.
            (3) Pay.--Members of the Advisory Committee shall serve 
        without pay, except that the Secretary may allow a member, 
        while attending meetings of the Advisory Committee or a 
        subcommittee of the Advisory Committee, per diem, travel, and 
        transportation expenses authorized under section 5703 of title 
        5, United States Code.
    (d) Support Staff; Administrative Services.--
            (1) Support staff.--The Secretary shall provide support 
        staff for the Advisory Committee.
            (2) Administrative services.--Upon the request of the 
        Advisory Committee, the Secretary shall provide any 
        information, administrative services, and supplies that the 
        Secretary considers necessary for the Advisory Committee to 
        carry out the duties and powers of the Advisory Committee.
    (e) No Termination.--Section 14 of the Federal Advisory Committee 
Act (5 U.S.C. App.) shall not apply to the Advisory Committee.
    (f) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as may be necessary to carry out this section.

SEC. 4. CYBER SHIELD PROGRAM.

    (a) Establishment of Program.--
            (1) In general.--The Secretary shall establish a voluntary 
        program to identify and certify covered products through 
        voluntary certification and labeling of, and other forms of 
        communication about, covered products and subsets of covered 
        products that meet industry-leading cybersecurity and data 
        security benchmarks to enhance cybersecurity and protect data.
            (2) Labels.--Labels applied to covered products under the 
        Cyber Shield program--
                    (A) shall be digital and, if feasible, physical and 
                affixed to the covered product or packaging; and
                    (B) may be in the form of different grades that 
                display the extent to which a covered product meets the 
                industry-leading cybersecurity and data security 
                benchmarks.
    (b) Consultation.--Not later than 90 days after the date of 
enactment of this Act, the Secretary shall establish a process for 
consulting interested parties, the Secretary of Health and Human 
Services, the Commissioner of Food and Drugs, the Secretary of Homeland 
Security, and the heads of other Federal agencies in carrying out the 
Cyber Shield program.
    (c) Duties.--In carrying out the Cyber Shield program, the 
Secretary--
            (1) shall--
                    (A) by convening and consulting interested parties 
                and the heads of other Federal agencies, establish and 
                maintain cybersecurity and data security benchmarks for 
                covered products with the Cyber Shield label to ensure 
                that those covered products perform better than 
                counterparts of those covered products that do not have 
                the Cyber Shield label; and
                    (B) in carrying out subparagraph (A)--
                            (i) engage in an open public review and 
                        comment process;
                            (ii) in consultation with the Advisory 
                        Committee, identify and apply cybersecurity and 
                        data security benchmarks to different subsets 
                        of covered products based on, with respect to 
                        each such subset--
                                    (I) any cybersecurity and data 
                                security risk relating to covered 
                                products in the subset;
                                    (II) the sensitivity of the 
                                information collected, transmitted, or 
                                stored by covered products in the 
                                subset;
                                    (III) the functionality of covered 
                                products in the subset;
                                    (IV) the security practices and 
                                testing procedures used in developing 
                                and manufacturing covered products in 
                                the subset;
                                    (V) the level of expertise, 
                                qualifications, and professional 
                                accreditation of the staff employed by 
                                the manufacturers of covered products 
                                in the subset who are responsible for 
                                cybersecurity of the covered products; 
                                and
                                    (VI) any other criteria the 
                                Advisory Committee and Secretary 
                                determine is necessary and appropriate; 
                                and
                            (iii) to the extent possible, incorporate 
                        existing cybersecurity and data security 
                        benchmarks, such as the baseline of 
                        cybersecurity features defined in the document 
                        entitled ``Core Cybersecurity Feature Baseline 
                        for Securable IoT Devices: A Starting Point for 
                        IoT Device Manufacturers'', published by the 
                        National Institute of Standards and Technology 
                        in July 2019, or any successor thereto;
            (2) may not establish any cybersecurity and data security 
        benchmark under paragraph (1) that is arbitrary, capricious, an 
        abuse of discretion, or otherwise not in accordance with law;
            (3) shall permit a manufacturer or distributor of a covered 
        product to display a Cyber Shield label reflecting the extent 
        to which the covered product meets the cybersecurity and data 
        security benchmarks established under paragraph (1);
            (4) shall promote technologies, practices, and policies 
        that--
                    (A) are compliant with the cybersecurity and data 
                security benchmarks established under paragraph (1); 
                and
                    (B) the Secretary determines are the preferred 
                technologies, practices, and policies in the 
                marketplace for--
                            (i) enhancing cybersecurity;
                            (ii) ensuring that cybersecurity is 
                        incorporated in all aspects of the life cycle 
                        of a covered product; and
                            (iii) protecting data;
            (5) shall work to enhance public awareness of the Cyber 
        Shield label, including through public outreach, education, 
        research and development, and other means;
            (6) shall preserve the integrity of the Cyber Shield label;
            (7) if helpful in fulfilling the obligation under paragraph 
        (6), may elect to not treat a covered product as a covered 
        product certified under the Cyber Shield program until the 
        covered product meets appropriate conformity standards, which 
        may include--
                    (A) standards relating to testing by an accredited 
                third-party certifying laboratory or other entity in 
                accordance with the Cyber Shield program; and
                    (B) certification by the laboratory or entity 
                described in subparagraph (A) that the covered product 
                meets the applicable cybersecurity and data security 
                benchmarks established under paragraph (1);
            (8) not less frequently than annually after the date on 
        which the Secretary establishes cybersecurity and data security 
        benchmarks for a covered product category under paragraph (1), 
        shall review, and, if appropriate, update the cybersecurity and 
        data security benchmarks for, that covered product category;
            (9) shall solicit comments from interested parties and the 
        Advisory Committee before establishing or revising a Cyber 
        Shield covered product category or cybersecurity and data 
        security benchmark (or before the effective date of the 
        establishment or revision of a covered product category or 
        cybersecurity and data security benchmark);
            (10) upon adoption of a new or revised covered product 
        category or cybersecurity and data security benchmark, shall 
        provide reasonable notice to interested parties of any changes 
        (including effective dates) to covered product categories or 
        cybersecurity and data security benchmarks, along with--
                    (A) an explanation of the changes; and
                    (B) as appropriate, responses to comments submitted 
                by interested parties;
            (11) shall provide appropriate lead time before the 
        applicable effective date for a new or a significant revision 
        to a covered product category or cybersecurity and data 
        security benchmark, taking into account the timing requirements 
        of the manufacturing, marketing, and distribution process for 
        any covered product addressed; and
            (12) may remove the certification of a covered product as a 
        covered product certified under the Cyber Shield program if the 
        manufacturer of the certified covered product falls out of 
        conformity with the benchmarks established under paragraph (1) 
        for the covered product, as determined by the Secretary.
    (d) Deadlines.--Not later than 2 years after the date of enactment 
of this Act, the Secretary shall establish cybersecurity and data 
security benchmarks for covered products under subsection (c)(1), which 
shall take effect not later than 60 days after the date on which the 
Secretary establishes the cybersecurity and data security benchmarks.
    (e) Administration.--The Secretary, in consultation with the 
Advisory Committee, may enter into a contract with a third party to 
administer the Cyber Shield program if--
            (1) the third party is an impartial administrator; and
            (2) entering into the contract improves the cybersecurity 
        and data security of covered products.
    (f) Program Evaluation.--
            (1) In general.--Not later than 3 years after the date on 
        which the Secretary establishes cybersecurity and data security 
        benchmarks for covered products under subsection (c)(1), and 
        not less frequently than every 3 years thereafter, the 
        Inspector General of the Department of Commerce shall--
                    (A) evaluate the Cyber Shield program; and
                    (B) submit a report on the results of the 
                evaluation carried out under subparagraph (A) to--
                            (i) the Committee on Commerce, Science, and 
                        Transportation of the Senate; and
                            (ii) the Committee on Energy and Commerce 
                        of the House of Representatives.
            (2) Requirements.--In conducting an evaluation under 
        paragraph (1)(A), the Inspector General of the Department of 
        Commerce shall--
                    (A) with respect to the cybersecurity and data 
                security benchmarks established under subsection 
                (c)(1)--
                            (i) evaluate the extent to which the 
                        cybersecurity and data security benchmarks 
                        address cybersecurity and data security 
                        threats; and
                            (ii) assess how the cybersecurity and data 
                        security benchmarks have evolved to meet 
                        emerging cybersecurity and data security 
                        threats;
                    (B) conduct covert testing of covered products to 
                evaluate the integrity of certification testing under 
                the Cyber Shield program;
                    (C) assess the costs to businesses that manufacture 
                covered products participating in the Cyber Shield 
                program;
                    (D) evaluate the level of participation in the 
                Cyber Shield program by businesses that manufacture 
                covered products;
                    (E) assess the level of public awareness and 
                consumer awareness of the Cyber Shield label;
                    (F) determine whether any private sector or 
                international cybersecurity certification programs 
                comparable to the Cyber Shield program exist; and
                    (G) if any private sector or international 
                cybersecurity certification programs described in 
                subparagraph (F) exist, evaluate how each such private 
                sector or international cybersecurity certification 
                program interacts with and compares to the Cyber Shield 
                program.
    (g) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as may be necessary to carry out this section.

SEC. 5. CYBER SHIELD DIGITAL COVERED PRODUCT PORTAL.

    (a) In General.--The Secretary shall make publicly available on the 
website of the Department of Commerce in a searchable format--
            (1) a web page providing information about the Cyber Shield 
        program;
            (2) a database of covered products certified under the 
        Cyber Shield program; and
            (3) contact information for each manufacturer of a covered 
        product certified under the Cyber Shield program that may be 
        used by consumers to contact the manufacturer regarding 
        questions or complaints.
    (b) Requirements.--The database established under subsection (a)(2) 
shall include--
            (1) the cybersecurity and data security benchmarks 
        established under section 4(c)(1) for each covered product 
        category; and
            (2) for each covered product certified under the Cyber 
        Shield program--
                    (A) the certification for the covered product;
                    (B) the name and manufacturer of the covered 
                product;
                    (C) the contact information for the manufacturer of 
                the covered product;
                    (D) the functionality of the covered product;
                    (E) the location of any applicable privacy policy; 
                and
                    (F) any other information that the Secretary 
                determines to be necessary and appropriate.

SEC. 6. RULE OF CONSTRUCTION.

    The decision of a manufacturer of a covered product to not 
participate in the Cyber Shield program shall not affect the liability 
of the manufacturer for a cybersecurity or data security breach of that 
covered product.
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