The NIS2 Directive requires member states to adopt laws that will improve the cyber resilience of organizations within the EU. It impacts organizations that are “operators of essential services”. Under NIS 1, EU member states could choose what this meant. In an effort to ensure more consistent application, NIS2 has set out its own definition. It eliminates the distinction between operators of essential services and digital service providers from NIS1, instead defining a new list of sectors:
- Energy (electricity, district heating and cooling, gas, oil, hydrogen)
- Transport (air, rail, water, road)
- Banking (credit institutions)
- Financial market infrastructures
- Health (healthcare providers and pharma companies)
- Drinking water (suppliers and distributors)
- Digital infrastructure (DNS, TLD registries, telcos, data center providers, etc.)
- ICT service providers (B2B): MSSPs and managed service providers
- Public administration (central and regional government institutions, as defined per member state)
- Space
- Postal and courier services
- Waste management
- Chemicals
- Food
- Manufacturing of medical devices
- Computers and electronics
- Machinery and equipment
- Motor vehicles, trailers and semi-trailers and other transport equipment
- Digital providers (online market places, online search engines, and social networking service platforms) and research organizations.
With these updates, it becomes harder to try and find industry segments not included within the scope. NIS2 represents legally binding cyber security requirements for a significant region and economy. Standout features that have garnered the most attention include the tight timelines associated with notification requirements. Under NIS 2, in-scope entities must submit an initial report or “early warning” to the competent national authority or computer security incident response team (CSIRT) within 24 hours from when the entity became aware of a significant incident. This is a new development from the first iteration of the Directive, which used more vague language of the need to notify authorities “without undue delay”.
Another aspect gaining attention is oversight and regulation – regulators are going to be empowered with significant investigation and supervision powers including on-site inspections.
The stakes are now higher, with the prospect of fines that are capped at €10 million or 2% of an offending organization’s annual worldwide turnover – whichever is greater. Added to that, the NIS2 Directive includes an explicit obligation to hold members of management bodies personally responsible for breaches of their duties to ensure compliance with NIS2 obligations – and members can be held personally liable.
The risk management measures introduced in the Directive are not altogether surprising – they reflect common best practices. Many organizations (especially those that are newly in scope for NIS2) may have to expand their cyber security capabilities, but there’s nothing controversial or alarming in the required measures. For organizations in this situation, there are various tools, best practices, and frameworks they can leverage. Darktrace in particular provides capabilities in the areas of visibility, incident handling, and reporting that can help.
NIS2 and Cyber AI
The use of AI is not an outright requirement within NIS2 – which may be down to lack of knowledge and expertise in the area, and/or the immaturity of the sector. The clue to this might be in the timing: the provisional agreement on the NIS2 text was reached in May 2022 – six months before ChatGPT and other open-source Generative AI tools propelled broader AI technology into the forefront of public consciousness. If the language were drafted today, it's not far-fetched to imagine AI being mentioned much more prominently and perhaps even becoming a requirement.
NIS2 does, however, very clearly recommend that “member states should encourage the use of any innovative technology, including artificial intelligence”[1]. Another section speaks directly to essential and important entities, saying that they should “evaluate their own cyber security capabilities, and where appropriate, pursue the integration of cyber security enhancing technologies, such as artificial intelligence or machine learning systems…”[2]
One of the recitals states that “member states should adopt policies on the promotion of active cyber protection”. Where active cyber protection is defined as “the prevention, detection, monitoring, analysis and mitigation of network security breaches in an active manner.”[3]
From a Darktrace perspective, our self-learning Cyber AI technology is precisely what enables our technology to deliver active cyber protection – protecting organizations and uplifting security teams at every stage of an incident lifecycle – from proactively hardening defenses before an attack is launched, to real-time threat detection and response, through to recovering quickly back to a state of good health.
The visibility provided by Darktrace is vital to understanding the effectiveness of policies and ensuring policy compliance. NIS2 also covers incident handling and business continuity, which Darktrace HEAL addresses through AI-enabled incident response, readiness reports, simulations, and secure collaborations.
Reporting is integral to NIS2 and organizations can leverage Darktrace’s incident reporting features to present the necessary technical details of an incident and provide a jump start to compiling a full report with business context and impact.
What’s next for NIS2
We don’t yet know the details for how EU member states will transpose NIS2 into national law – they have until 17th October 2024 to work this out. The Commission also commits to reviewing the functioning of the Directive every three years. Given how much our overall understanding and appreciation for not only the dangers of AI but also its power (perhaps even necessity in the realm of cyber security) is changing, we may see many member states will leverage the recitals’ references to AI in order to make a strong push if not a requirement that essential and important organizations within their jurisdiction leverage AI.
Organizations are starting to prepare now to meet the forthcoming legislation related to NIS2. Download our CISO’s Guide to NIS2 Preparedness, which includes everything you need to know to get ahead of the directive.
[1] (51) on page 11
[2] (89) on page 17
[3] (57) on page 12
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