“It’s really highlighted the investments we need to make in cybersecurity to have the visibility to block these attacks in the future.”
This statement, reported by the Associated Press in February 2021, by Anne Neuberger, the newly appointed deputy national security adviser for cyber and emergency technology, was a reaction to a suspected Russian hack of government and corporate records.
This new level of urgency is prompting broader discussion and action on the need for greater cybersecurity as critical infrastructures such as telecommunication networks, the electricity grid, and even financial transactions are potentially at risk.
In a timely scholarly article entitled National Cybersecurity Innovation, California Western Professor Tabrez Ebrahim explores possible solutions to improving national cybersecurity focus by asking whether the government or markets can provide national cybersecurity innovation.
“Most discussions about promoting national cybersecurity focus on governance structures, international relations, and political science,” says Professor Ebrahim. “In contrast, this article proposes a different agenda and one that promotes the use of innovation mechanisms for technological advancement. By promoting inducements for technological developments, such innovation mechanisms encourage the advancement of national cybersecurity solutions.”
In the article, published in the West Virginia Law Review, Professor Ebrahim defines “innovation mechanisms” as various economic policy options to drive the development of new products and services—these include patents, prizes, grants, and research and development tax credits.
“The U.S. can choose any of a mix of these choices to foster national cybersecurity innovation,” says Professor Ebrahim.
Technological innovation is necessary to foster the development of digital solutions to defend, maintain, and advance critical infrastructure from cyber-attacks and to present new offensive capabilities to keep pace in cyber warfare, writes Professor Ebrahim. Surprisingly little meaningful cybersecurity scholarship has addressed the crosscutting realities of technological innovation, yet technology is the underlying force that drives cybersecurity law and policy.
“Part of my paper is about the tradeoff between government intervention and market-based mechanisms,” says Professor Ebrahim. “I argue that national cybersecurity is a public good and that public funding through government-sponsored innovation mechanisms for national cybersecurity innovation is more aligned with the modern critical infrascucture.”
Professor Ebrahim argues that the patent system for national cybersecurity inventions would provide too small of a reward to inventors, or such a reward would be uncertain, or the transaction cost would be too high and instead he proposes that government intervention through prizes and Cooperative Research and Development Agreements (CRADAs) is better.
“The reason that patents might not be a good fit for national cybersecurity inventions is that their disclosure is kept secret or their interests can be taken by government,” he says.
The expanding scope of information and communications technologies, increasing number of networked devices, and the interwoven nature of data and physical facilities, have promoted co-mingled public–private elements to the critical infrastructure, concludes Professor Ebrahim.
The article introduces a novel and valuable line of inquiry, which explores the intersection of cybersecurity and patent law to suggest that technological advancement presents unique challenges if the sole focus is the patent system, and instead, has proposed that prizes and CRADAs should have significant beneficial effects on national cybersecurity innovation.
Read Professor Ebrahim’s complete article, National Cybersecurity Innovation, here.