Love v Commonwealth; Thoms v Commonwealth  HCA 3
In these cases, the High Court considered the intersection between being Aboriginal Australian and that of ‘alien’ within the meaning of section 51(xix) of the Constitution.
The EU directive on security of network and information systems (NIS Directive) is in part aimed at improving cybersecurity in a number of key sectors and this includes aviation. EU member states were required to implement the NIS Directive into national legislation by May 9, 2018. Some have done so, whereas others are still going through the implementation process. What is clear is that there is a significant divergence in approach as to how it is being implemented.
With the spate of recent incidents heightening the industry’s focus on the resilience of network and information systems, it is important that aviation entities take time to understand their obligations and the penalties for non-compliance.
Below, we review how the NIS Directive has been implemented in the UK, France and Germany. To provide wider context, we conclude with a short comparative analysis of the current state of US aviation cybersecurity regulation.
In drafting the NIS Directive, European legislators targeted industry sectors in which the disruption could be severe if network security was compromised – including those sectors in which disruption could threaten economic stability and societal well-being.
Aviation is one such sector and the NIS Directive requires key organisations known as “operators of essential services” (OES), to maintain a certain level of network security that takes into account the changing risk and threat landscape.
Specifically, OESs are under an obligation to implement appropriate and proportionate measures to prevent and minimise the impact of incidents affecting the security of networks, with a view to ensuring the continuity of services. What this means will vary by sector and the NIS Directive leaves the responsibility for scoping this to individual member states.
One of the overarching aims of the NIS Directive was to create harmonised and efficient network security across EU member states in the targeted sectors. This has been achieved to some extent, but the following highlights important points of divergence which aviation entities operating across more than one EU member state may need to be aware of. One of many points of divergence is on the issue of penalties imposed in each member state for non-compliance – these are significant, for example, when comparing the UK to France and Germany.
This depends on the criteria set out in the implementing legislation in each member state.
Under the NIS Directive, a public or private aviation entity of a certain type, i.e. air carriers, airport managing bodies or traffic management control operators, should be an OES if
The UK implemented the Network and Information Systems Regulations (UK NIS) on May 10, 2018.
Under the UK NIS, the following public-facing UK aviation entities will be OESs
Relevant authorities may judge a UK aviation entity to be an OES, even if it does not meet the above criteria, if an incident involving the entity could cause a significant disruptive effect. The test for a “significant disruptive effect” under the UK NIS is whether the incident impacts economic stability and societal well-being, the factors highlighted by European legislators when drafting the Directive.
The NIS Directive has been partially transposed into French national law by virtue of The French NIS Directive Implementation Act of February 27, 2018 and Decree No. 2018-384 of May 25, 2018 (French NIS).
As with the UK NIS, the French NIS identifies specific categories of services including air carriers, airport managers, air navigation services, aircraft maintenance companies and operators of passenger flow management systems.
However, compared to the UK NIS, the French NIS does not specify thresholds to determine whether an entity is an OES. Rather it relies on a looser test which deems that a French aviation entity is an OES if it
The NIS Directive was implemented into German national law by virtue of the Implementation Act of June 29, 2017 (German NIS), which was an amendment to the Act on the Federal Office for Information Security of August 14, 2009.
Under the German NIS, the test whether a German aviation entity will be an OES is simply whether an organisation in the transport industry provides services to more than 500,000 citizens per annum.
Under the NIS Directive, each member state is required to designate
The designated national authorities are required to ensure that: each member state is enforcing the NIS Directive in accordance with its objectives; incident reporting is consistent; and general issues are raised, resolved and harmonised across jurisdictions.
The NIS Directive requires that in the event of certain significant incidents involving an OES, the OES will need to notify the national authority or CSIRT “without undue delay”. This has been interpreted in varying ways across different member states.
The authority or CSIRT is required to notify other member states if the incident impacts them and to inform the public if and when appropriate.
Some member states have taken a sector-specific approach, meaning that an OES in the aviation sector will report incidents to a body familiar with the risks and challenges of the sector. Conversely, some jurisdictions have opted for a sector-agnostic approach, with one authority having responsibility for all incidents regardless of sector.
Under the UK NIS, the designated authorities responsible for ensuring NIS Directive compliance are the Civil Aviation Authority (CAA) and Department for Transport (DfT), acting jointly. The National Cyber Security Centre is the single point of contact and is also the CSIRT.
In the event of an incident, an OES must first notify the CAA and DfT who in turn are required to notify the National Cyber Security Centre acting as the CSIRT.
Notification to the CAA and DfT of any incident which has a significant impact on the continuity of the essential service which that OES provides must be made without undue delay and in any event no later than 72 hours after the operator is aware that a NIS incident has occurred.
Under the French NIS, one authority is both the single point of contact and the CSIRT and that is the National Agency for the Security of Information Systems (ANSSI). Sector-specific authorities have not been appointed.
The reporting timeframe is somewhat vaguer under the French NIS than under the UK NIS. The reporting of a security incident to the ANSSI is to be done “as soon as the OES becomes aware [of an incident]”.
Under the German NIS, the Federal Office for Information Security (FOIS) acts as the central authority for all roles relating to the NIS Directive.
Incident reporting requirements are more specific and risk averse than French and UK NIS Directives, requiring immediate reporting to the FOIS of an incident affecting the functionality of a critical service.
The NIS Directive states that national authorities have the ability to impose penalties in order to deter OESs from falling below the technical and organisational standards required. The NIS Directive requires penalties to be effective, proportionate and dissuasive. While this has been achieved in some member states, it is questionable whether this is the case in all.
Under UK NIS, a range of penalty thresholds exist and, depending on the severity of the incident and its implications, a penalty can be imposed of up to £17 million.
Compared to the UK, the French NIS takes a more lenient approach in terms of the quantum of penalty that can be imposed, ranging from EUR100,000 to EUR125,000 and commentators have questioned whether the upper limit is sufficient to meet the requirement for penalties to be effective, proportionate and dissuasive. The French legislation does however introduce the potential for criminal liability to be imposed on directors.
Under the German NIS, fines can range from EUR50,000 to EUR100,000. Whether this achieves the stated aim of an effective, proportionate and dissuasive penalties regime is again questionable.
We have a harmonised regime in one sense and that is that most member states have cybersecurity laws aimed at key industry sectors including aviation. There is however considerable divergence in what that means between member states.
This situation presents a governance and compliance issue for any OES that operates across more than one member state. It is important that organisations in the aviation sector understand whether they are or may be OESs and what the varying implications of this will be. This analysis should be done bearing in mind the various thresholds and designations across member states, particularly as organisations grow or expand their operations.
At present there is no US equivalent to the NIS Directive that imposes specific cybersecurity standards on companies in the aviation sector.
The National Institute of Standards and Technology (NIST) Cybersecurity Framework, a voluntary framework to assist organizations responsible for critical infrastructure services to manage cybersecurity risk, is influential in the aviation sector but is not mandatory.
In addition, the FAA Reauthorization Act of 2018, which was passed in October 2018, requires the Federal Aviation Administration (FAA) to: (1) where appropriate, revise FAA regulations to address cybersecurity issues affecting aircraft avionics systems; and (2) initiate a review of the FAA’s strategic cybersecurity plan.
However, no comprehensive cybersecurity regulations of a similar type to the NIS Directive appear to be on the horizon.
The months of December 2019 and January 2020 have proven to be a busy time for our Government and regulators, with significant changes and proposals for the funds and financial service sector. In particular, Treasury have released 17 bills in response to 22 recommendations made by Commissioner Hayne in the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (Royal Commission), as well as ASIC releasing draft guidance for industry consultation on the new product design and distribution obligations.