Presidential Directives and Cybersecurity

Concerning the use of Presidential Directives in Cybersecurity Policy

Latest News

  • Senator Leahy Opposes FOIA Exemptions in Cyber Security Bill: Senator Patrick Leahy (D-VT) urged fellow Senators to remove a proposed open government exemption in a pending cybersecurity bill. The Cybersecurity Information Sharing Act (CISA), said Sen. Leahy, "contains an overly broad new FOIA exemption that is both unnecessary and harmful." Sen. Leahy called the FOIA "our nation's premier transparency law," and said that any modifications must go through the Senate Judiciary Committee. "The Senate must have an open and honest debate about the Senate Intelligence Committee's bill and its implications for Americans' privacy and government transparency," remarked the Senator. Last year, EPIC won a five-year court battle against the NSA for NSPD 54, the foundational legal document for U.S. cybersecurity policies. EPIC has also set out recommendations for FOIA reform. (Oct. 27, 2015)
  • Obama Drops Plan to Regulate Crypto: According to the New York Times, President Obama has concluded that "it is not possible to give American law enforcement and intelligence agencies access to that information without also creating an opening that China, Russia, cybercriminals and terrorists could exploit." Earlier this year Apple CEO Tim Cook said at the EPIC Champions of Freedom dinner, "Criminals are using every technology tool at their disposal to hack into people's accounts. If they know there's a key hidden somewhere, they won't stop until they find it." EPIC launched the public campaign for the freedom to use encryption in 1994 and several of the world's leading cryptographers are members of the EPIC Advisory Board. Tim Cook received the 2015 EPIC Champion of Freedom Award. Past recipients include Max Schrems and Edward Snowden. (Oct. 11, 2015)
  • California Rejects Warrantless Surveillance, Enacts "CalECPA": California Governor Jerry Brown has signed the California Electronic Communications Privacy Act (CalECPA). CalECPA requires law enforcement to obtain a warrant before accessing digital data including metadata, location data, emails, and text messages. The warrant requirement applies to searches of electronic devices themselves and to content stored by an online service provider. In response to requests from the US Congress, EPIC has made several recommendations regarding updates to the federal ECPA. EPIC has also obtained documents from the FBI concerning Stingray surveillance technology, which is now prohibited under the California bill. (Oct. 9, 2015)
  • Federal Appeals Court Recognizes "Substantial Risk of Future Harm": In a landmark opinion, the Seventh Circuit Court of Appeals has ruled that a class action lawsuit against Neiman Marcus may continue because of the ongoing risk to customers whose personal information was compromised in a data breach. The case stems from a breach of the Neiman Marcus customer database that led to the release of 350,000 credit cards and exposed more than 9,200 customers to fraud. A lower court ruled that since the identified fraud victims had been reimbursed, Neiman Marcus was off the hook for future claims. However, the Seventh Circuit ruled that the plaintiffs, customers who were not yet aware of fraud, faced a "substantial risk of future harm," and that risk was enough to allow the class action to continue. According to the Federal Trade Commission, identity theft remains the top concern of American consumers. (Jul. 29, 2015)
  • Leading Security Experts Oppose Government Encryption Plan: Several members of the EPIC Advisory Board, leading experts in security technology, have warned that a government plan to weaken encryption threatens the nation's critical infrastructure and puts at risk confidential personal information. Recalling a similar report from 1997, the researchers concluded that "the damage that could be caused by law enforcement exceptional access requirements would be even greater today than it would have been 20 years ago. Recent reports from the US courts, available from EPIC, show that encryption has not been an obstacle to law enforcement investigations. A 1994 Internet petition led to the demise of "Clipper," the original government plan for escrowed encryption. (Jul. 7, 2015)
  • Massive Government Data Breach Even Worse than Reported: A Congressional hearing on the Office of Personnel Management data breach has now revealed one of the worst data breaches in US history. The agency initially reported that the personal information of 4 million government employees was obtained, but news reports suggest the breach was much larger--exposing the social security numbers of more than 18 million people. EPIC has urged the White House and Congress to promote Privacy Enhancing Techniques that minimize or eliminate the collection of personally identifiable information. EPIC has also testified in Congress and the Senate in support of stronger security measures to protect personal data. (Jun. 25, 2015)
  • Senate Rejects User Surveillance Proposal: The Senate has rejected an amendment to the National Defense Authorization Act for 2016 that would transfer user data from private companies to government agencies without judicial oversight. Senator Patrick Leahy (D-Vt) urged Senators to oppose the amendment, stating "we need a cyber-security bill, not a cyber-surveillance bill." Last year, EPIC won a five-year court battle against the NSA for NSPD 54-the foundational legal document for U.S. cybersecurity policies. The Directive reveals the NSA's interest in enlisting companies to monitor user activity in the United States. (Jun. 17, 2015)
  • Massive Breach Impacts Millions of Government Employees: The Office of Personnel Management has announced a massive data breach in the federal government's employee database. According to the agency, the breach exposed the sensitive personal information - including home addresses, SSNs, and financial information - of 4 million government employees. Although 432 million online accounts were hacked in 2014, Congress has failed to update US privacy laws or pass cybersecurity legislation. EPIC has urged the White House and Congress to promote Privacy Enhancing Techniques that minimize or eliminate the collection of personally identifiable information. (Jun. 10, 2015)


Cybersecurity encompasses an array of challenges to protect cyberspace. Cyberspace as defined by the Cyberspace Policy Review is the "interdependent network of information technology infrastructures, and includes the Internet, telecommunications networks, computer systems, and embedded processors and controllers in critical industries." The policy review goes on to define Cybersecurity policy to include "strategy, policy, and standards regarding the security of and operations in cyberspace, and encompasses the full range of threat reduction, vulnerability reduction, deterrence, international engagement, incident response, resiliency, and recovery policies and activities." Cyberspace has become a common feature of modern society and touches almost every citizen in a number of different areas including online commerce, healthcare, financial services, and social media.

The ubiquity of cyberspace and its importance in our lives puts cybersecurity front and center as one of the more important policy issues going forward. The public deserves a debate about appropriate cybersecurity measures that includes clear and accessible explanations of the Whitehouse's cybersecurity policy. Too often cybersecurity policy is set by presidential directives that are not available to the public.

Presidential directives are similar to Executive Orders--they have the same substantive legal effect. Just like executive orders, presidential directives do not lose their legal effectiveness upon a change of administration. Presidential directives are used as an instrument of national security to affect policy in this area and generally derive from the policy papers produced by the National Security Council (NSC) that advises the president on national security issues. They are not required to be published in the Federal Register and are often highly classified. This has been the case for presidential directives pertaining to cybersecurity. The secrecy surrounding cybersecurity policy has hindered the ongoing public debate in this area.

Presidential Directives

National Security Decision Directive 145 (NSDD 145)

NSDD 145 was issued by President Reagan in 1984. The directive gave the NSA control over all government computer systems containing "sensitive but unclassified" information. NSDD 145 was followed by a second directive issued by National Security Advisor John Poindexter that extended NSA authority over non-government computer systems. In response to these directives, Congress passed the Computer Security Act of 1987 (CSA). The Act reaffirmed that the National Institute for Standards and Technology (NIST) was responsible for the security of unclassified, non-military government computer systems. CSA limited the National Security Agency to providing technical assistance in the civilian security realm.

National Security Presidential Directive 38 (NSPD 38)

NSPD 38 was issued on July 7, 2004, as the National Strategy to Secure Cyberspace. The contents of this classified directive have never been released, but prior to the issuance of NSPD 38, the Whitehouse released a different document also entitled "National Strategy to Secure Cyberspace" that detailed five priorities to secure cyberspace:

  1. A National Cyberspace Security Response System.
  2. A National Cyberspace Security Threat and Vulnerability Reduction Program.
  3. A National Cyberspace Security Awareness and Training Program.
  4. Securing Governments' Cyberspace
  5. National Security and International Cyberspace Security Cooperation
National Security Presidential Directive 54 (NSPD 54)

NSPD 54 was implemented by President George W. Bush in January 2008. NSPD 54 was issued concurrently as Homeland Security Presidential Directive 23. The NSPD 54/HSPD 23 authorized the DHS (together with OMB) to set minimum operational standards for Federal Executive Branch civilian networks, and it empowers DHS to lead and coordinate the national cybersecurity effort to protect cyberspace and the computers connected to it. The directive also contains the Comprehensive National Cybersecurity Initiative (CNCI). The broad scheme of CNCI was described in a publicly-released 20009 document which included 12 initiatives:

  • Initiative #1. Manage the Federal Enterprise Network as a single network enterprise with Trusted Internet Connections.
  • Initiative #2. Deploy an intrusion detection system of sensors across the Federal enterprise.
  • Initiative #3. Pursue deployment of intrusion prevention systems across the Federal enterprise.
  • Initiative #4. Coordinate and redirect research (R&D) and development efforts.
  • Initiative #5. Connect current cyber ops centers to enhance situational awareness.
  • Initiative #6. Develop and implement a government-wide cyber counterintelligence (CI) plan.
  • Initiative #7. Increase the security of our classified networks.
  • Initiative #8. Expand cyber education.
  • Initiative #9. Define and develop enduring "leap-ahead" technology, strategies, and programs.
  • Initiative #10. Define and develop enduring deterrence strategies and programs.
  • Initiative #11. Develop a multi-pronged approach for global supply chain risk management.
  • Initiative #12. Define the Federal role of extending cybersecurity into critical infrastructure domains.

On June 5, 2014, the NSA released National Security Presidential Directive 54 ("NSPD 54") to EPIC after nearly five years of FOIA litigation. NSPD 54 is the foundational legal document outlining the Comprehensive National Cybersecurity Initiative (CNCI), the federal government’s effort to coordinate cybersecurity policy across federal law enforcement, intelligence and executive agencies, as well as with other law enforcement agencies and the private sector. The previously-classified document reveals the underlying legal authority for sweeping changes to federal cybersecurity that have taken place over the last five years. Additionally, NSPD 54 contains significant differences from the previously-released description of the CNCI. For the first time, the public now has access to the document empowering federal agencies to share cybersecurity information, develop offensive cyber programs and improve automated and predictive cyber technologies. NSPD 54 provides the public with an explanation of the government's legal and policy choices regarding cybersecurity and reveals new information about the government's coordinated cybersecurity efforts.

Presidential Policy Directive 20 (PPD 20)

PPD 20 was implemented by President Obama in October 2012, but was not released to the public. However, on June 7, 2013, PPD 20 was released by The Guardian, which had received the document from NSA leaker Edward Snowden. The directive details government policy regarding offensive cyber action and instructions to compile a list of potential targets for such action. According to the classified document, the "Government shall identify potential targets of national importance where [cyberattacks] can offer a favorable balance of effectiveness and risk ..." According to news reports, the directive gives broader power to the military to block cyberattacks and discusses what constitutes an "offensive" verses a "defensive" action with respect to cyberwar and cyberterrorism. Additionally, the directive discusses the use of cyber-operations--actions taken outside U.S. networks.

EPIC's Efforts

Freedom of Information Request for NSPD 54

EPIC submitted a FOIA request in June 2009 directed at the NSA requesting copies of the directive along with copies of any initiatives or privacy policies associated with the directive. The NSA initially made no substantive determination regarding EPIC's FOIA request. EPIC subsequently filed an administrative appeal and then the NSA released two documents that had previously been made public. Eventually, NSA also identified three relevant documents that it refused to disclose. EPIC appealed the NSA's determination and after receiving no response filed a lawsuit against the NSA.

The NSA eventually released heavily redacted versions of two of the three documents identified by the NSA as responsive to EPIC's request. EPIC appealed this decision in Federal Court, but the District Court ruled that NSPD 54 was not an agency record discoverable under FOIA. However, after EPIC appealed this decision to the D.C. Circuit Court, the NSA released the document to EPIC with minor redactions. EPIC has released NSPD 54, allowing the public to review the government’s foundational cybersecurity policy for the first time.

Freedom of Information Request for PPD 20

Immediately after the news broke that President Obama had signed a new cybersecurity directive, EPIC submitted a FOIA request directed at the NSA requesting the release of the directive. The NSA denied EPIC's request. PPD 20 became public after it was leaked to the Guardian by NSA whistleblower Edward Snowden. The directive orders the creation of potential targets for Offensive Cyber Effects Operations by the National Security Agency. According to the classified document, the "Government shall identify potential targets of national importance where [cyberattacks] can offer a favorable balance of effectiveness and risk . . ."


EPIC Reports, FOIA and Testimony

Organizations Working on Cybesecurity

Papers and Articles

Cybersecurity Infrastructure Surveillance Laws

Cybersecurity Legislation in the 111th Congress

News Articles


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