United States: FTC And DOJ Issue Antitrust Policy Statement On Sharing Cybersecurity Information

Last Updated: April 22 2014
Article by Lisa Jose Fales, Robert P. Davis and Jason R. Wool

On April 10, 2014, the Federal Trade Commission (FTC) and Department of Justice (DOJ) issued a policy statement clarifying that the Agencies "do not believe that antitrust is – or should be – a roadblock to legitimate cybersecurity information sharing." But while the policy statement may help to alleviate some concerns that private sector organizations have voiced regarding obstacles to information sharing, it may not go far enough to encourage substantially more. In addition, it does not provide liability protection or a "safe harbor," which has been a primary driver of corporate support for some information sharing legislation to date. Nonetheless, the policy statement could be an important step towards achieving a truly robust cyber-threat sharing ecosystem. In combination with the criteria set out in a 2000 Business Review Letter by DOJ, the policy statement can help entities form the outline of a compliant information sharing program.

Acknowledging that the sharing of information about cybersecurity threats (such as incident or threat reports, indicators, threat signatures, and alerts) can bolster the collective security of networks, the Agencies begin by noting that some private organizations may not be sharing information that could be useful to others out of concern over antitrust enforcement. However, they emphasize that cyber-threat information sharing generally would not raise concerns under the Agencies' "rule of reason" analysis. In applying that analysis, the Agencies focus on "whether the relevant agreement likely harms competition by increasing the ability or incentive profitably to raise price above or reduce output, quality, service, or innovation below what likely would prevail in the absence of the relevant agreement."

The policy statement provides three reasons why cyber-threat information sharing generally would not give the Agencies concern under the rule of reason analysis:

  1. Threat sharing can improve efficiency and help secure the nation's computer networks. Thus, so long as the purpose for the information sharing is not to participate in a conspiracy to harm competition, the rule of reason analysis would recognize the "valuable" purpose of the information sharing.
  2. The information being shared is highly technical in nature and is therefore "very different from the sharing of competitively sensitive information such as current or future prices and output or business plans which can raise antitrust concerns."
  3. In general, cyber-threat information is a "limited category of information" and sharing it is unlikely to harm competition.

Each of these factors is intensely fact-driven, however, which could make it difficult for private sector organizations to rely on the policy statement to share information where the question of whether there may be an adverse impact on competition is a close one. This can be particularly important because an organization's ability to determine whether specific information relates directly, and only, to cybersecurity – especially in real-time – could prove to be challenging.

As a result, private organizations may be hesitant to rely on the policy statement, given that it does not provide a "safe harbor" or liability limitation for instances in which an entity shares information in good faith but unintentionally shares competitively sensitive information. Moreover, antitrust is only one of several areas of concern that many policy makers and businesses hope to see addressed by the federal government. Of particular concern is the role of privacy in information sharing, with the policy debate focusing on the proper balance between privacy safeguards and liability protection for sharing personally identifiable information. The White House is on record in support of "targeted" liability protection for organizations that share information, but some in Congress have voiced support for broader protections to incentivize cyber-threat sharing.

Nonetheless, the policy statement will likely be viewed as a step forward for the information sharing cause, if not the major one that some have been waiting for. As an information sharing bill is rumored to be close to circulation in the Senate Intelligence Committee and the House has already passed the Cyber Intelligence Sharing and Protection Act, the policy statement may be a necessary push forward in the effort to pass information sharing legislation.

The one instance in the past where DOJ reviewed a cybersecurity information sharing program, the proposal was submitted by the Electric Power Research Institute (EPRI), a non-profit organization focused on the energy industry. Their proposed program would share best practices as well as information related "directly to physical and cybersecurity." DOJ determined that as long as the information exchanged was limited as indicated, it "should be sufficient to avoid any threats to competition." Absent legislation, the EPRI letter can serve as guidance to others on how to implement an information sharing program that does not raise antitrust concerns. In the letter, the following program features were explicitly referenced:

  • Information sharing of two types: best practices and information related to cyber-vulnerabilities.
    • Best practices include "topics such as methodologies for conducting vulnerability assessments; development of plans to identify, alert, rebuff, and prevent cybersecurity breaches; plans for reconstitution of essential capabilities should an attack succeed; methods for 'stress-testing' the cybersecurity of the energy infrastructure; and activities designed to raise the level of awareness of directors, officers, employees, independent consultants, and others in the energy industry with respect to managing cybersecurity risks."
    • Cyber-vulnerability information could include (1) the status of security technology in existing operating equipment and systems; (2) the results of security testing on specific operating equipment or electronic information or communications systems; (3) solutions to security problems with existing equipment or systems that have been identified or proposed; and (4) concerns that have been identified with such purported solutions.
  • The EPRI program, as described, could eventually "include the collaborative reporting, discussion, and analysis of actual real-time cyber-threat and attack information from a variety of sources, including participants, federal and state governments, other infrastructure industries, cybersecurity experts and others, in order to more quickly identify and address in real time any actual cybersecurity threats and attacks on the reliability of the nation's energy supply."
  • The program had several features designed to lessen the possibility that its proposed information exchange would have anticompetitive effects:
    • The exchanged information would be "strictly limited in nature" and relate "directly to physical and cyber-security."
    • There would be no "discussion of specific prices for equipment, electronic information or communications systems" or "company-specific competitively sensitive information, i.e., prices, capacity or future plans."
    • The program would not serve as a "conduit for discussions or negotiations between or amongst vendors, manufacturers or security service providers with respect to any participant or group of participants."
    • There would be no recommendations "in favor of or against any product or systems of particular manufacturers or vendors."

These criteria could be used to form the outline of another information sharing program. In addition to these factors, Venable recommends that entities wishing to establish information sharing programs have antitrust compliance programs in place to prevent the sharing of competitively sensitive information, and to the extent possible, have a process for implementing firewalls between those employees with access to "direct" physical and/or cybersecurity information from competitors and those employees involved in pricing, capacity, or output decisions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions