On March 3, 2023, the United States Environmental Protection Agency (“EPA”) published a memorandum requiring states to evaluate the cybersecurity of operational technology used by public water systems (“PWSs”) “when conducting PWS sanitary surveys or through other state programs.” EPA’s memorandum “interprets the regulatory requirements relating to the conduct of sanitary surveys to require that when a PWS uses operational technology (“OT”), such as an industrial control system (“ICS”), as part of the equipment or operation of any required component of a sanitary survey, then the sanitary survey of that PWS must include an evaluation of the adequacy of the cybersecurity of that operational technology for producing and distributing safe drinking water.” Specifically, “EPA’s interpretation clarifies that the regulatory requirement to review the ‘equipment’ and ‘operation’ of a PWS necessarily encompasses a review of the cybersecurity practices and controls needed to maintain the integrity and continued functioning of operational technology of the PWS that could impact the supply or safety of the water provided to customers.”
Caleb Skeath advises clients on a broad range of cybersecurity and privacy issues, including cybersecurity incident response, cybersecurity and privacy compliance obligations, internal investigations, regulatory inquiries, and defending against class-action litigation. Caleb holds a Certified Information Systems Security Professional (CISSP) certification.
Caleb specializes in assisting clients in responding to a wide variety of cybersecurity incidents, ranging from advanced persistent threats to theft or misuse of personal information or attacks utilizing destructive malware. Such assistance may include protecting the response to, and investigation of an incident under the attorney-client privilege, supervising response or investigation activities and interfacing with IT or information security personnel, and advising on engagement with internal stakeholders, vendors, and other third parties to maximize privilege protections, including the negotiation of appropriate contractual terms. Caleb has also advised numerous clients on assessing post-incident notification obligations under applicable state and federal law, developing communications strategies for internal and external stakeholders, and assessing and protecting against potential litigation or regulatory risk following an incident. In addition, he has advised several clients on responding to post-incident regulatory inquiries, including inquiries from the Federal Trade Commission and state Attorneys General.
In addition to advising clients following cybersecurity incidents, Caleb also assists clients with pre-incident cybersecurity compliance and preparation activities. He reviews and drafts cybersecurity policies and procedures on behalf of clients, including drafting incident response plans and advising on training and tabletop exercises for such plans. Caleb also routinely advises clients on compliance with cybersecurity guidance and best practices, including “reasonable” security practices.
Caleb also maintains an active privacy practice, focusing on advising technology, education, financial, and other clients on compliance with generally applicable and sector-specific federal and state privacy laws, including FERPA, FCRA, GLBA, TCPA, and COPPA. He has assisted clients in drafting and reviewing privacy policies and terms of service, designing products and services to comply with applicable privacy laws while maximizing utility and user experience, and drafting and reviewing contracts or other agreements for potential privacy issues.
The Federal Energy Regulatory Commission (“FERC”) issued a final rule (Order No. 887) directing the North American Electric Reliability Corporation (“NERC”) to develop new or modified Reliability Standards that require internal network security monitoring (“INSM”) within Critical Infrastructure Protection (“CIP”) networked environments. This Order may be of interest to entities that develop, implement, or maintain hardware or software for operational technologies associated with bulk electric systems (“BES”).
The forthcoming standards will only apply to certain high- and medium-impact BES Cyber Systems. The final rule also requires NERC to conduct a feasibility study for implementing similar standards across all other types of BES Cyber Systems. NERC must propose the new or modified standards within 15 months of the effective date of the final rule, which is 60 days after the date of publication in the Federal Register. …