States Still Not Clear, Comfortable With DHS “Critical Infrastructure” Plans for Elections

[Image via govtech]

Yesterday, I wrote about the new functional approach to voting system standards that has everyone excited. Today, as I promised, I want to follow up on another hot topic that also has people excited – albeit in a very different way.

During this week’s Technical Guidelines Development Committee (TGDC) meeting, the group heard a presentation from a representative of the Department of Homeland Security (DHS) on the recent designation of elections as critical infrastructure. As FCW reports, the presentation left many states uncertain about what happens next:

State election officials had more questions than answers after a [DHS] presentation explaining why election systems should be deemed critical U.S. infrastructure.

Geoff Hale, DHS’ cybersecurity strategy and integration program manager, outlined the changes and benefits that the recent designation provides during a Feb. 14 Election Assistance Commission meeting.

The primary benefits, Hale said, are added protections against nation-states, guaranteed priority in DHS assistance requests and greater access to information on vulnerabilities. “Without institutionalizing this through a designation of critical infrastructure, there’s no guarantee the services would be available,” he said.

“Being critical infrastructure, there are a set of international norms that” prevent countries from attacking these networks, said Hale. “And potentially waiting nine months for a risk and vulnerability assessment may not work on a procurement timeline” for election officials.

Hale also stressed that the “full threat information” available to states that opt in for DHS assistance is not subject to state sunshine laws or Freedom of Information Act requests.

In advance of the 2016 general election, several states including Georgia objected to the idea of a critical infrastructure designation, but most worked with DHS to make sure their voting systems were secure.

States still aren’t sold, however – and seem particularly concerned about the lack of clarity on what exactly the designation means for them:

Some state officials at the Feb. 14 event continued to question the need for the designation, and pressed Hale about DHS’s specific plans to reach out to election officials.

Hale suggested the next step for DHS likely would be to set up a group of cybersecurity experts to engage willing local officials. However, he said he did not have a timeline as to when outreach might begin and was not yet sure what the engagement with election officials would look like in practice.

EAC commissioner Matthew Masterson asked how the designation will specifically affect how local election officials conduct their operations.

Hale said the designation impacts “very little” in terms of electoral operations, and was done to “institutionalize a vital aspect of our democracy.” He emphasized that DHS’s assistance was voluntary.

“We don’t have any new authorities,” he said. “We are here to help, but cannot compel anything.”

Masterson told FCW he learned “DHS is beginning to figure this out now, too.” He added that DHS needs to coordinate with election officials to get everyone on the same page, but noted, “they seem open to that.”

Commissioner Christy McCormick continued her opposition to the designation and said that the EAC and election officials could do this work more effectively without a formal DHS role:

McCormick dismissed the international protections as a “handshake agreement” that she did not think “changes anything,” and added that DHS “claimed that elections would [now] get priority, but I would think they would get priority anyway, so I don’t know that that’s a viable benefit.”

She also said the classified information sharing proposed by DHS is moving in the wrong direction in terms of electoral transparency, and that she remained dubious of DHS’s categorization of the voluntary nature of states’ participation.

“It’s not really voluntary, right, because if you don’t volunteer, you don’t get the information that they have,” she said. “Of course states are going to have to volunteer if they want the information DHS has… Nobody’s going to not participate in security measures.”

She also raised the concern that DHS, under the purview of the executive branch, politicizes elections in a way the EAC’s authority as an independent agency does not.

Instead, McCormick said she would like to see “EAC actually be the interface with the federal government and the election officials, as we are now.”

“We’re the experts” on election matters, she said. “There’s no reason we couldn’t streamline this in a way that we get information out to the election administrators in an efficient and secure way, and then DHS can provide the resources that they provided in this election.”

It’s hard to assess what exactly all of this means going forward, since we have so few details on what’s new and what (if anything) will change. Still, I find it hard to believe that skeptics and opponents will suddenly embrace DHS once the details emerge; moreover, I’m not seeing a whole lot of outright support for the plan either – meaning that the critical infrastructure designation is likely to have a bumpy ride for the foreseeable future.

Fasten your seat belts – and stay tuned.

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