A Legal Framework for Enhancing Cybersecurity through Public-Private Partnership
By The Honorable Joe R. Reeder | Professor Robert E. Barnsby
| November 18, 2020
The Cyberspace Solarium Commission (CSC) published its report in March 2020 offering emphatic, far-reaching recommendations in the cybersecurity domain. This report highlights the rapidly growing importance of public-private partnership (P3) in this domain as a national security cornerstone, and significantly informs the debate over the public-private balance in the cybersecurity system of governance in the United States. While important questions remain as to the best ways to safeguard public law values, the report strongly supports arguments for informed P3 collaboration, and further discourages the notion that cybersecurity should exclusively be an inherently governmental function. A legal analysis of partnering in the cyber domain suggests the risks of violating existing inherently governmental function rules are low, and navigable. Indeed, the CSC’s strong, bipartisan report accepts this as a given point of departure from the ad hoc P3 system we have today, and recommends concrete steps to advance national security and other public law values such as accountability, transparency, fairness, and privacy. Like legislation that set the stage for the NASA-SpaceX partnership, the CSC’s unequivocal embrace of P3 in the cybersecurity realm has great potential to guide legislation and other steps to reshape and adapt “defense-of-nation” Cyber domain efforts.
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