The annual State of the Union address fulfills an obligation of the Presidency set forth in Article II, Section 3 of the United States Constitution, requiring the President to literally give Congress information on the "state of the union" periodically.  Nearly 2 years to the date that our nation will once again embrace the peaceful transfer of power, President Barack Obama delivered the State of the Union address to a joint session of Congress on Tuesday evening for the sixth time since taking office.  He did so in the shadow of recent high profile cyber events.

Photo Credit: whitehouse.gov (official Presidential portrait)

He opened his remarks invoking the images of the 9/11 terrorist attacks, and quickly transitioned to a discussion of how "the shadow of crisis has passed, and the state of the union is strong."  Yet, once the speech transitioned back to the challenges that our nation still faces, calling for bi-partisan cooperation, cyber issues took a predicted, albeit brief place in the spotlight in a manner that drew upon the President's early invocation of America's darkest day.

The President pivoted to cyber issues when he stated:

No foreign nation, no hacker, should be able to shut down our networks, steal our trade secrets, or invade the privacy of American families, especially our kids. We are making sure our government integrates intelligence to combat cyber threats, just as we have done to combat terrorism. And tonight, I urge this Congress to finally pass the legislation we need to better meet the evolving threat of cyber-attacks, combat identity theft, and protect our children's information. If we don't act, we'll leave our nation and our economy vulnerable. If we do, we can continue to protect the technologies that have unleashed untold opportunities for people around the globe.

The President's remarks were short on substance and strong on rhetoric, invoking the war imagery that has been customary of a sweeping legislative reform motivated by compelling headlines in recent history (i.e. the "war on drugs"  and the "war on terror").  There were certainly no 5 point plans part of this portion of the address.  However, the reaction to the President's remarks on strengthening the nation's cyber defense could provide some insight into the legislative will of Congress to turn the President's proposals into law.  Both sides of the isle appeared on board with the concept that it is time to treat cyber security like the threat that we know it to be.  Given the theatrics that accompany who applauds what during the State of the Union, we may very well be on our way to new law in this area.

In my prior piece for The E-Discovery Stage entitled "President Obama Announces Sweeping Cyber Legislation Primarily Aimed at Policing a Virtual Environment Built on Privately Owned Infrastructure,"  I outlined the basic framework for the President's cyber proposal announced by the White House Press Secretary.  As the President takes his show on the road, it just might be his proposed cyber reforms that garner the most bi-partisan momentum of anything mentioned in the President's aggressive lame duck agenda.

Some critical details about the cyber proposal remain unanswered, to date:

  • What are the precise steps that businesses must take to report a cyber event prior to taking advantage of the liability limitations that are the seminal component of the legislative package?
  • What will the costs of compliance be to businesses, and will they outweigh the risks of non-compliance?
  • What administrative and enforcement costs will accompany the proposal, if enacted, and will a Republican-controlled Congress kill the bill on budgetary grounds before it ever gets off the ground?

Like anything, the devil remains in the details.  The nation is watching.

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